The Hague Convention, from the 25th of October 1980, which relates to the civil aspects of international child abduction, are a part of Poland’s national legal regime and are applied directly in transborder cases when children are abducted and taken abroad.
Our legal lirm has many years of experience conducting cases related to the Hague Convention. We assist the parties in preparing any relevant documents, including: requests for warrants directing the return of children, responses to requests and motions for evidence. Being familiar with the details of such procedures, we are able to support our clients during hearings.
Children have a particular place in the Polish, international and European Union legal systems. This is discernible not only in the large quantity of prescriptive norms existing in regard to children, but primarily in the content of many legally binding regulations. A comprehensive overview of these regulations suggests that children constitute a privileged category of legal entities in family law. Just in the preamble of the Hague Convention from the 25th of October 1980 alone, it is stated that “the interests of children are of paramount importance in matters relating to their custody”.
The fundamental aim of the Hague Convention is to counteract the lawlessness of parents wanting to take over their child’s custody. This comes from the fact that, unless a court determines otherwise, both parents have equal rights regarding their children, which includes custody. In cases of conflict between parents, the law stipulates that the state is to resolve the matter, rather than one of the parents acting on the principle of fait acompli.
The Hague Convention works to counteract the negative effects of international abduction by reinstating, in a timely manner, the situation as it was prior to the illegal act, both in fact and in terms of the law. It is worth noting that, according to article 19 of the Hague Convention, a judgement made according to it does not determine who has parental responsibility, nor the child’s place of residence. The role of a court hearing a request to return a child, is that of checking whether a number of conditions specified by the convention have been satisfied and, if so, to order the child’s immediate return.
The court can also reject an application under certain circumstances foreseen by the convention (articles 12, 13 and 20). For this reason, it must undertake a detailed analysis of the facts and weigh up its decision based on the well being of the child.
According to Article 3 of the Hague Convention, abduction is deemed to have been illegal if two conditions are satisfied: (1) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (2) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
An illegal abduction occurs when a child is relocated, from one state party to the Convention to another, against the will of the person who has the legal right to look after them. Unlawful detention does not occur when a child finds itself in a state, party to the Convention, where it does not normally abide, without having violated anyone’s right to care for it (as determined by a court ruling which allows for the child to visit a parent living abroad, or as a result of an agreement between the parents, etc.). However, illegal abduction can be said to have taken place if the child is forced to stay in the country it is visiting and is not allowed to return to the country it had been living in earlier, against the will of its legal guardian, after the period of time established by court order or agreement has elapsed.
The right to look after a child can result from the law itself, as well as from a court or administrative ruling, or an agreement. With this in mind, according to Article 5 (a), “the right to care” specifically takes into consideration the child’s place of residence.
According to the opinion of the Supreme Court, expressed in a ruling from the 26th of September, 2000 (Case No. I CKN 776/00 (OSNC 2001/3/38, Biul.SN 2001/2/7, Case List from 2001/4/8), a child’s permanent place of residence, in terms of Article 3 of the Hague Convention, is determined by facts which manifest themselves in terms of the child’s long term and stable presence in a place where all their needs are satisfied, irrespective of whether those taking care of the child intend to stay there permanently or not.
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Agnieszka Moszczyńska – attorney at law – is at your disposal seven days a week, 24 hours a day.