New provisions of the Polish Code of Civil Procedure and return of the child under the Hague Convention
Current legislation
The Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980, known as the Hague Convention of 1980, is an international agreement of which Poland is a party. It was concluded in order to ensure the immediate return of children wrongfully abducted or detained in one of the States, which are parties to that agreement and to ensure the respect for custody and visitation rights specified by the legislation of those States. Pursuant to Article 5691 of the Code of Civil Procedure, the local jurisdiction for applications under the Hague Convention of 1980 is the regional court in the locality of the court of appeal with jurisdiction over the place of residence or stay of the child. The time limit for the court to give its decision is 6 weeks from the date of the application. Abduction of a child according to the Convention must be unlawful in order for an application to be brought successfully to the central authority of the State in which the child is present. This authority, according to the Convention, is competent to hear the application.
The application may be submitted to the central authority of the State where the child has permanent residence or directly to the authority of the State where the child is present. In Poland the central authority competent to examine the application is the Polish Minister of Justice. The court which adjudicates the case issues a decision on return or refusal to return the child. In such litigation, the parties to the proceedings must be represented by an advocate or a legal advisor. The decision of the regional court may be appealed to the Court of Appeal in Warsaw, which is the only second instance court for cases under the Hague Convention of 1980. A cassation appeal to the Supreme Court is available against the decision of this court, which may be filed only by the General Prosecutor, the Ombudsman for Children and the Ombudsman for Civil Rights. Pursuant to Article 577 of the Code of Civil Procedure, the court may change even a final decision if the good of the person concerned by the proceedings so requires (vide Resolution of the Supreme Court of 22 November 2017, case files number III CZP 78/17, OSNC 2018/5/51). According to the current law, under Article 578 of the Code of Civil Procedure, the decisions of the Guardianship Court are effective and enforceable upon their announcement or, if there was no announcement, upon their issuance. This means that the moment a judgment is valid, it also becomes enforceable, even if a cassation appeal has been filed to the Supreme Court (the cassation appeal does not stop the enforceability of the judgment).
Proposed amendments to the current Polish legislation
According to the draft amendments to the Code of Civil Procedure adopted by the Polish Council of Ministers, if a cassation appeal against a decision of a court of second instance is announced or if such an appeal is filed, the forced take-back of a child will be prevented by suspending the immediate enforceability of the court decision. The enforceability of the final decision will be ex officio obligatorily suspended by the court until the cassation appeal is examined. The General Prosecutor, Children’s Rights Ombudsman or Civil Rights Ombudsman, after filing a request for suspending the enforceability of a decision within 2 weeks from its becoming final and binding, will be able to file a cassation appeal to the Supreme Court within 2 months from the date of its becoming final and binding. The enforceability of the order will therefore be suspended until the cassation appeal is examined. If such a cassation appeal is not filed, then the suspension of the enforceability of the decision will cease. The situation is similar in the event of filing an extraordinary complaint. According to the authors of the draft, in the current legal status there are situations in which a final decision ordering the surrender of a child is executed while the Supreme Court is considering a cassation appeal or when it has not yet been filed. Such a complaint then becomes pointless, because the court decision has already been enforced. According to the drafters, such changes are to contribute, above all, to securing the good of the child and ensuring its safety.
Sources:
- The Act of 17 November 1964 – Code of Civil Procedure,
- Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980,
- https://www.prawo.pl/prawnicy-sady/przekazanie-dziecka-nowe-prawo-pozwoli-ignorowac-wyrok-sadu,513355.html
