In matters commonly referred to as "Hague Convention cases," the material legal basis for court decisions is the Convention on the Civil Aspects of International Child Abduction, drafted in The Hague on October 25, 1980. The purpose of this legal act is to counteract the negative consequences of international abductions or wrongful retentions of children. Proceedings initiated under the provisions of the Convention aim to restore the factual and legal state that existed prior to the wrongful abduction or retention of the child.
Pursuant to Article 3 of the Convention, the abduction or retention of a child is considered wrongful if it violates custody rights granted to a particular person, institution, or other organization, exercised jointly or individually under the law of the state where the child was habitually resident immediately before the abduction or retention, and if those rights were being effectively exercised at the time or would have been exercised but for the abduction or retention. Such custody rights may arise by operation of law, judicial or administrative decisions, or agreements recognized as legally binding under the law of that state.
According to Article 4 of the Convention, the provisions apply to any child habitually resident in a Contracting State immediately before the breach of custody rights and cease to apply once the child reaches the age of 16. Article 5(a) of the Convention defines custody rights as including the right to care for the person of the child, particularly the right to determine the child’s place of residence.
Under Article 12 of the Convention, if a child has been wrongfully abducted or retained as defined in Article 3, and a request is filed with the judicial or administrative authority of a Contracting State within one year of the abduction or retention, the authority is obligated to order the immediate return of the child. The authority must also order the return of the child even after the expiration of one year unless it is established that the child is now well-settled in its new environment.
The court adjudicating such matters must assess whether all positive conditions enumerated in the Hague Convention obligate it to order the return of the minor child to the state where the child was habitually resident immediately before the wrongful retention. The court also evaluates whether the state where the child was habitually resident and the state where the child was wrongfully retained are parties to the Hague Convention. A list of countries with which Poland is bound by the Hague Convention can be found on the government website:
https://www.gov.pl/web/stopuprowadzeniomdzieci/wykaz-panstw-z-ktorymi-polska-zwiazana-jest-konwencja-haska-i-innymi-regulacjami
The court first examines the state in which the minor child had its center of life and permanent residence prior to the abduction. It also considers whether the parent requesting the return of the child had custody rights, including the right to decide the child’s place of residence, maintained regular contact with the child, and actively participated in the child’s care and parental authority.
Circumstances demonstrating the exercise of parental authority, even when the child’s parents did not cohabit, include taking and picking up the child from daycare, kindergarten, or school, participating in events organized by educational institutions, playing with the child, and spending time together.
If the court confirms that these rights were effectively exercised by both parents of the minor, it may be determined that retaining the child in another state by one parent, against the will of the other, violated the custody rights of the parent requesting the return, thus constituting wrongful retention under the Hague Convention.
If the application for the return of the minor is filed with the appropriate court within one year of the wrongful retention, the court is obliged to immediately order the child’s return, essentially without examining whether the child is well-adjusted to its current environment or has adapted to the new surroundings.
The court is also required to assess in each case whether returning the minor aligns with the best interests of the child, a principle underlying all regulations concerning children, both in domestic and international law. The preamble to the Hague Convention emphasizes that the child’s interests are paramount in all matters concerning custody, including those governed by the Convention. These interests include ensuring the child’s opportunity to remain in a stable family and social environment by preventing its wrongful removal to another environment against the will of the other parent, who shares custody rights.
Often, however, a parent’s decision to remain with the child in another state disrupts this stability and isolates the child from the other parent, who cohabited with the child or exercised custody through personal care. This unilateral decision deprives the child of regular contact with the other parent, which cannot be replaced by online communication or occasional visits. Prolonged lack of contact risks severing the bond between the child and the parent. Maintaining family bonds is a recognized right and benefit of the child under international and domestic legislation.
The Hague Convention acknowledges exceptional situations where the child’s best interests require remaining in the new environment rather than returning to the state of habitual residence. Articles 12, 13, and 20 of the Convention address these scenarios.
Under Article 13, the judicial or administrative authority of the requested state is not obligated to order the child’s return if it is demonstrated that:
The parent or institution exercising custody rights did not effectively exercise those rights at the time of the abduction or retention or later consented to the situation; or
There is a grave risk that the child’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
The court may also refuse to order the return if the child objects to returning and has reached an age and maturity level warranting consideration of their views.
Attention should be drawn to the position of the Supreme Court expressed in its decision dated April 28, 2021, in case no. I CSKP 109/21. According to this ruling, a refusal to order the return of a child is justified only in cases of physical or psychological harm that place the child in an intolerable situation, and the risk of such harm, as well as the risk of other situations deemed intolerable for the child, must be serious. Other inconveniences or hardships are insufficient grounds for such a refusal.
It is also evident that the inconveniences a child may face due to another change in their living situation do not exceed the ordinary consequences associated with relocation to another country.
A similar standard emerges from the prevailing jurisprudence of the European Court of Human Rights, which consistently emphasizes that Article 13(1)(b) of the Hague Convention, read in conjunction with Article 8 of the European Convention on Human Rights, applies only to situations that go beyond what a child can reasonably be expected to endure. It does not cover all hardships inevitably associated with returning to the country of habitual residence (as reflected in the Supreme Court’s decision dated December 17, 2010, case no. I CSK 183/20).
Ordering the return of a minor does not necessarily entail the separation of the child from the other parent. It should be noted that, in accordance with established jurisprudence in Poland, other countries, and the European Court of Human Rights, separating a child from their mother or father generally cannot serve as an independent basis for refusing to order the return of a wrongfully abducted child to the state of habitual residence. This is particularly true when no significant objective obstacles prevent the parent from returning with the child to the country from which they were wrongfully removed or retained. While the court cannot compel a parent to return, a parent's refusal to return cannot serve as grounds for denying the application for the child’s return, as the parent has the option to accompany the child. Otherwise, the abducting parent could, in many situations, prevent the child’s return by unilaterally refusing to return with the child, effectively creating a fait accompli, which would undermine the objectives of the Convention (see Supreme Court decision of December 1, 1999, case no. I CKN 992/99, and the European Court of Human Rights judgment of November 26, 2013, X v. Latvia, which held that the harm referenced in Article 13(b) of the Hague Convention cannot arise solely from separation from the parent responsible for the wrongful abduction or retention).
It is therefore the responsibility of the parent who engaged in the wrongful retention to ensure that the child adapts to any subsequent changes in their living situation. This parent bears the responsibility for minimizing the consequences of the additional relocation caused by their earlier decision to unilaterally relocate the child without the consent of the other parent.
When ordering the obligated parent to ensure the return of a minor child to the territory of a specific state, the court may also require that parent to either transport the child to the designated state or hand over the child to the other parent within two weeks from the date the decision becomes final.
This approach clarifies how the obligation to ensure the child’s return to the state of habitual residence prior to the abduction or retention is to be carried out. Pursuant to Article 5985 § 2 of the Code of Civil Procedure, this differs from the institution of the child's handover (delivery) under purely domestic law provisions (Article 5985 § 1 of the Code of Civil Procedure). In cases of international abduction regulated by the provisions of the Hague Convention, the obligated party may choose either to personally transport or return the child to the state where the child resided before the wrongful abduction or retention or to deliver the child to the entitled person within the territory of the state to which the relocation occurred.
Specifying the method of enforcing the court’s order for the return of the child is also important because the issued decision does not determine the manner of exercising parental authority or the identity of the primary custodial parent. For the effective execution of the order, the parent obligated to deliver the child does not necessarily have to transfer custody of the child to the applicant, whether in Poland or another state. Instead, the obligated parent may return with the child and exercise personal custody in the original jurisdiction, potentially cohabiting with the child there.