Stop child abductions

The Act on the performance of certain activities of the central authority in family matters in the field of legal transactions under European Union law and international agreements (Journal of Laws 2018, item 416), in force since 27.08.2018, refers directly to the matters covered by the Convention on the Civil Aspects of International Child Abduction drawn up in The Hague on 25 October 1980 (Journal of Laws of 1995, No. 108, items 528 and 529 and of 1999, No. 93, item 1085).

Real legal action has been taken to ensure the efficiency of court proceedings under the Hague Convention and to eliminate the irregularities arising from misinterpretation of the provisions, including with respect to the shortcomings identified by the ECHR, which have been noted in the judgments, as well as with respect to previous complaints by Polish citizens against the application of the Hague Convention and Council Regulation (EC) No 2201/2003 by Polish courts.

The tool used to achieve the objectives set out and to eliminate the noticeable irregularities is an act passed, which meets the requirements of the aforementioned Convention regarding:

1. the efficiency of the judicial process, including, in particular, faster commencement of proceedings. Applications in the Hague cases go to the courts without formal defects, as the central authority already calls for any missing materials to be provided.
2. making proceedings and enforcement of judgments more efficient
3. centralisation of courts and specialisation of judges dealing with Hague Convention proceedings

 

With regard to the efficiency of court proceedings, the Act provides for the creation of specialised courts to hear cases under the Hague Convention. Their contact details can be found in the MAP OF SPECIALISED COURTS section.

1. Eleven regional courts became courts of the first instance, instead of the previous 315 district courts dealing with cases for the removal of a person subject to parental responsibility or custody according to the 1980 Hague Convention.
2. One Court of Appeal in Warsaw, instead of 45 regional courts, is the court of the second instance which deals with appeals in these cases.

 

This change has led to a significant reduction in the number of courts dealing with cases involving the removal of a person who is subject to parental responsibility or custody under the 1980 Hague Convention, which will help to bring about uniformity of case law.

A consequence of the creation of “specialised” courts is also the requirement for professional training of judges dealing with this type of cases, both in terms of formal and interpretation matters, and rulings, and case law. These cases are therefore decided by judges with in-depth knowledge and experience in international family law, who speak foreign languages.

The professional development obligation also applies to other participants in proceedings, i.e. prosecutors, advocates, and attorneys-at-law.

The requirement for professional development of advocates and attorneys-at-law is indirectly reflected in Article 24(3) by adding, below Article 578¹ of the Code of Civil Procedure, Article 578²(1), which states that “when a motion is submitted for the removal of a person subject to parental responsibility or custody under the 1980 Hague Convention and for recognition or enforcement of a foreign judgment, the participants shall be represented by advocates and attorneys-at-law”.

The introduction of obligatory legal aid is another tool to ensure the efficiency of proceedings in the categories of cases described above.

4. More efficient functioning of the central authority

To date, Poland has been one of the few countries where no law has been passed to completely regulate the principles and procedures of the central authority. This Act, therefore, regulates matters that are addressed in neither the Hague Convention nor the regulation, and it clearly states that the Minister of Justice remains the Polish central authority for the purposes of the legislation in question. Rules have been defined for the receipt and processing by the Ministry of Justice of applications submitted under the Hague Convention and the Brussels II bis Regulation.

The Act additionally makes possible cooperation between the Ministry of Justice and the Police in cases in which a child’s whereabouts have to be ascertained.

Where a child’s current whereabouts have to be ascertained, up to now the Polish central authority only had available to it the tools specified in the Act of 24 September 2010 on Population Records (Journal of Laws of 2017, item 657). If these tools were ineffective, it forwarded the application received from abroad to the District Court for the City of Warsaw for further search measures to be undertaken. Practice has shown that such activities were often ineffective.

In order to fulfil the Polish central authority’s obligation to search for a child under the Hague Convention, the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children and the Regulation, Article 19 was enacted in the Act, under which the Minister of Justice may turn to the Police to determine a child’s whereabouts. This mechanism is particularly important when information is received from abroad that the welfare of a child residing in Poland is at risk.

The Act in question has improved cooperation with the Ministry of Foreign Affairs, in particular due to a provision stating that the Minister of Justice cooperates with the competent consul of the Republic of Poland in order to implement the Convention and Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ EU 2003 L 338/1, as amended). This ensures, in particular, more efficient flow of information and that consular services are provided more effectively.

An extremely important development is specification of the duration of proceedings by introducing a 6-week time limit, not only for the court of the first instance but also for the court of the second instance. The inter-instance proceedings are shortened to a minimum – the court of the first instance prepares a statement of reasons for the decision automatically within two weeks from its issuance. At the same time, the time limit is intended to ensure that the evidence is gathered in order for the case to be dealt with immediately and within no more than twelve weeks in total.

Given the importance of judgments in such cases, the possibility has been introduced for the Prosecutor General, the Ombudsman for Children and the Commissioner for Human Rights to lodge a cassation complaint.

Pursuant to the Act, in such cases Article 577 of the Code of Civil Procedure does not apply, in order to prevent the court from interfering with the content of the judgment again, according to a change in circumstances. This modification is supported by the essence of the proceedings conducted under the Hague Convention, being the aim of restoring the state of affairs existing before the wrongful retention or abduction occurred, as well as the de facto exclusion of jurisdiction of Polish courts once the decision has become final and binding.

Under the Act, the principle of effectiveness and enforceability of guardianship decisions at the moment of their announcement, under Article 578(1) of the Code of Civil Procedure, does not apply. Instead, they become effective and enforceable only when they become final and binding. This is to prevent circumstances arising in which a decision ordering the return of a child is changed and is then executed before it becomes final and binding, thus preventing the child’s return to Poland.

The most important principles also include the obligatory participation of public prosecutors in Hague Convention cases, as well as a requirement for specialist teams (preparing opinions commissioned by the court in such cases) to prepare these opinions immediately and thus before other cases.

Both judges and children’s guardians proposed regulations eliminating obstacles hampering enforcement of judgments due to a person who is to be forcibly removed by a children’s guardian being hidden. These proposals were acknowledged, and Article 598^11a of the Code of Civil Procedure was inserted into the Act. This states that in order to determine the whereabouts of a person to be forcibly taken away, a court, at the request of a children’s guardian, can order a search of the premises and other places, if there are reasonable grounds for suspecting that the person is at that location. The court order may be appealed by means of a complaint.

The grounds for a search for the purpose of discovering and removing a person are exhaustively listed in Article 598^11a of the Code of Civil Procedure and include non-execution of a decision to remove a person subject to parental responsibility or custody, hiding that person, and reasonable suspicion that the person may be present on particular premises.

Paragraph 6 of the said provision states that a search should be conducted in accordance with its purpose, with restraint and respect for the dignity of the persons concerned and without causing unnecessary damage and inconvenience.

Information activities are also important, including the creation of this website, which gives interested parties access to information twenty-four hours a day, regardless of the office hours of the Ministry of Foreign Affairs, Ombudsman for Children, or other institutions.

 

We encourage you to read the press release below concerning this law (click on the link below)