U.S. Department of State
2004 REPORT ON COMPLIANCE WITH THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

Countries of Concern: Poland

During this reporting period, Poland continued to demonstrate problems in its implementation and application of the Hague Convention. These problems stem primarily from three factors: (a) Polish court caseload constraints that result in prolonged delays in reaching decisions on Convention return applications; (b) the lack of an adequate domestic statutory framework with enforcement mechanisms (e.g., a parent who becomes a fugitive to avoid complying with a final return judgment does not commit a "crime" -- and therefore cannot be the subject of a fugitive warrant -- unless the parent has been stripped of parental rights); and (c) a faulty translation into Polish of Article 13 of the Convention (the Polish translation radically lowers the standard for refusing returns by saying that return can be denied if it would put the child in an "unfavorable" rather than an "intolerable" situation) that some courts still use four years after the Ministry of Justice agreed in 1999 to distribute an accurate translation.

Improvements in the Polish Central Authority's responsiveness that were noted in the 2002 Report have continued and our contacts with central government officials indicate a recognition of the importance of handling Convention cases effectively. But adjudication of return applications under the Convention is still characterized by lengthy delays, courts still deny return applications based on a faulty interpretation of the Convention, and enforcement problems have not been resolved.

Officials from the Department of State in Washington and the U.S. Embassy in Poland have raised compliance issues and individual abduction cases with high-ranking officials from the Polish government repeatedly over the past year. By diplomatic note and formal demarche, the Department and the U.S. Embassy have underlined the need for the Polish government to ensure that judges adjudicating return applications use only the correct translation of the Conventions text and that the Justice Ministry remind the courts of the corrected translation.


CHILD ABDUCTION PREVENTION

The following is an extract from Poland's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

A1/
The Polish Family Law does not provide for any persuasive measures against persons who abducted or retained a child abroad. Yet the Family and Guardianship Code considers abduction or retention of a child by one of the parents against the existing agreement or court judgement an abuse of parental authority. Such a fact shall serve for the parent, who did not accept the abduction or retention, as grounds for claiming the other parent to be deprived of parental authority or to have it limited by virtue of a court judgement. In the case of abduction or retention of a child who stays in the custody of a foster family or of a guardianship centre, it is a prosecutor who shall make the aforementioned claim. In both cases the proceedings in relation with depriving a parent (or parents) of parental authority may be instituted ex officio by the guardianship court as well (Article 111 of the Family and Guardianship Code).
     Abduction of a child by a person who is not his/her parent (e.g. by a relative or by a stranger) shall not involve the above-described result, yet such a person shall fall under criminal liability. Moreover, the person may bear the civil liability for damage in case a child suffered a substantial harm, e.g. a detriment to health, as a result of abduction or retention.
     The regulations concerning the issuance of a passport to a child are crucial for the prevention of child abductions abroad. This issue is being discussed in detail under point B1.

A2/
Article 211 of the Criminal Code has a preventive effect and at the same time acts as deterrent to potential abductors. A person who, contrary to the will of the person appointed to take care of or supervise, abducts from the territory of Poland a minor person under 15 years of age shall be subject to the penalty of deprivation of liberty for up to 3 years. A person who attempts, as well as a person who acts as a complice or who incites the act of abduction shall be subject to the same penalty. Also a Polish national who retains a child abroad shall be subject to penalty, if the act is punishable in the place where it has been committed. Abduction of a child to Poland or a childs retention in Poland shall be punished on the same grounds. It needs to be noticed, however, that according to the Supreme Courts interpretation of Article 211 of the Criminal Code, the factor that conditions the offence committed by a parent to fall under this provision is the suspension or deprivation him/her of parental authority over the child prior to the abduction or retention. Obviously, this condition shall not refer to the abduction or retention effected by a person who is not a parent.

A3/
A guardianship court, in view of a threat of abduction or retention of a child abroad, may prohibit, by means of a provisional order (in a custodianship case), the child to leave the territory of Poland. Moreover, a guardianship court may also provisionally apply other preventive measures, which seem to be most effective in a given situation, in order to prevent abduction or retention (e.g. deposit). Such a decision is enforceable from the very moment of its issuance. A decision on prohibiting a child to leave Poland until the guardianship proceedings is concluded shall be transferred by a court to the Border Guards Headquarters, which is a unit responsible for the notification of the border check points.
The provisional prohibition of removal of a child from Poland may be also adjudicated in divorce proceedings. A judgement in this kind of proceedings may be issued:
-     upon a request by a parent who shall prove the existing risk of a child abduction,
-     by a court acting ex officio.
In this case, a judgement shall be also immediately enforceable, despite the possibility of being appealed against.

A4/
The Polish law admits the possibility of issuing by a guardianship court an emergency decision prohibiting a child to leave the territory of Poland or otherwise making it impossible to abduct or retain a child. The possibility of issuing by a guardianship court the aforementioned judgement can be also obtained out-of-hours, since there are additional duty hours held by judges in family courts. There is no need to appoint a hearing for this purpose.

A5/
We express the opinion that the decision concerning a childs residence lies within the scope of parental authority. Parents should take this decision together, yet if they fail to come to an agreement the decision should be taken by a guardianship court. A child should have a right to express his/her opinion on this issue guaranteed and this opinion should be taken into account, provided that a child has reached a sufficient level of development.

A6/
There is a general feeling that the system of the existing legal regulations in Poland is comprehensive as far as this issue is concerned and it seems to be quite successful in preventing child abductions abroad. These provisions are generally applied in practice. Obviously whether they prove effective or not in a given situation depends on a number of factual conditions.