Changes in procedures of family matters conducted on the basis of the Hague Convention on the Civil Aspects of International Child Abduction and the EU Regulation No. 2201/2003
On August 27, 2018, the act on the performance of certain acts of the central body in family matters in the field of legal transactions based on European Union law and international agreements (Journal of Laws of 2018, item 416) came into force. The Ministry of Justice justifies changes due to the need to protect the rights of Polish children (https://www.ms.gov.pl/pl/informacje/news,11592,chronymy-prawa-polskich-dzieci—ruszaja-nowe.html). Of course, the Act applies to proceedings conducted in Poland (it is difficult to imagine that this law would be ‘applicable law’ while not having the jurisdiction of the Polish court), and therefore it does not necessarily have to cover matters exclusively with children with Polish citizenship. In addition, the law will not „protect” the rights of Polish children abroad. The effect of changes is difficult to predict, especially in the context of the assumed goal. The regulations provide for jurisdiction in the cases of ordering return the children under the Hague Convention on the Civil Aspects of Abduction of Children from 1980 of „specialized” courts, ie 11 District Courts in the first instance and the Court of Appeal in Warsaw as a court II instance. The provisions issued in these matters shall be effective and enforceable upon becoming final and there is cassation appeal to the Supreme Court (but only the Minister of Justice, the Ombudsman for Children and the Ombudsman will be entitled to fill it). The Act also provides short time limits for hearing the application under the Hague Convention (six weeks for the court of first instance and six weeks for the court of second instance). In practice, the crucial issue will be the determination of the courts to resolve the application in just over a month and the effectiveness of the allegations of conducting proceedings with exceeding these deadlines. If the term is only a further ‘instruction’ for the courts, which in practice will not speed up the recognition of such cases, then the most effective defense of the party that committed unlawful abduction or detention of children outside their country of residence will be still the time of unlawful behavior. As a consequence, the delay in the enforceability of the order and the possibility of challenging the order by a cassation appeal (within 4 months of the decision of the second instance court) may cause even greater intensification of difficulties in obtaining effective legal protection under the Convention. It should also be remembered that the idea of the Convention lies in the quickest possible return of children to the jurisdiction of the competent family court in order to hear cases regarding parental authority and contacts. Obstructing the use of this legal remedy in Poland may result in the fact that Polish citizens seeking legal protection in such cases before foreign courts will also be powerless in the face of elapse of time and procedural actions prolonging the recognition of cases. Time will tell if the introduced changes will bring us closer to the idea of a „fair trial” (a fair trial doctrine).
In cross-border cases, there is undoubtedly a need for specialists in the field of international law who are fluent in foreign languages. Such legal assistance is provided by the Plichta-Legal Law Firm. The success of our Clients in this type of complex lawsuits is a source of considerable professional satisfaction; the specificity of cases under the Hague Convention and other family matters with a cross-border component also arouses curiosity among the media and the public. In such cases ethos of the attorney-at-law that lies in the principle of ‘courageous and honorable’ defense of clients’ interests is highly required.