1 Under what circumstances may a parent lawfully remove the child to another state without the other parent’s consent?
Parental responsibility is inherently exercised jointly by both parents. This follows from Article 97(2) of the Polish Family and Guardianship Code (kodeks rodzinny i opiekuńczy), pursuant to which the parents decide jointly in essential matters concerning a child and, if they fail to come to an agreement, these matters are decided upon by a guardianship court (sąd opiekuńczy). Only in less important matters concerning a child can each parent decide independently without having to consult the other parent and obtain their consent. According to the case-law of Polish courts, taking a child abroad, both permanently and temporarily, even on holiday, is considered an essential matter.
In the light of Article 97(2) of the Family and Guardianship Code, a parent may take a child abroad without the other parent’s consent only if:
a) the other parent has been deprived of parental responsibility over the child by decision of a Polish court (Article 111 of the Family and Guardianship Code);
b) the parental responsibility of the other parent has been suspended by decision of a Polish court (Article 110 of the Family and Guardianship Code);
c) the other parent has limited parental responsibility over the child (Article 109 of the Family and Guardianship Code). The court decides how parental responsibility is to be limited by applying the measure that will best serve the child’s interest. In particular, the parent whose parental responsibility has been limited may be deprived of the right to co-decide in essential matters concerning the child or in some of these matters. If a parent has been deprived of the right to co-decide, for example, about the child’s habitual residence by such a judgment, then that parent will not be able to oppose a change of the child’s habitual residence in Poland to habitual residence abroad.
d) the parents’ rights and obligations towards the child have been changed following a judgment handed down in proceedings for divorce (Article 58(1) and (1a) of the Family and Guardianship Code), marriage annulment (Article 51(1) and (1a), read in conjunction with Article 21 of the Family and Guardianship Code) or separation (Article 58(1) and (1a), read in conjunction with Article 613(1) of the Family and Guardianship Code). This also applies to decisions delivered in paternity proceedings (Article 93(2) of the Family and Guardianship Code), in proceedings for amendment of a judgment on parental responsibility and the manner of exercising this responsibility given in proceedings for divorce, separation, marriage annulment or establishment of parentage (Article 106 of the Family and Guardianship Code) and in proceedings for entrusting the exercise of parental authority to one of the parents in cases where they do not live together (Article 107(1) and (2) of the Family and Guardianship Code). In particular, in such cases the court may entrust the exercise of parental responsibility to one of the parents and limit the other parent’s rights to specific obligations and rights towards the child. If a divorce court entrusts the exercise of parental responsibility to one of the parents and limits the parental responsibility of the other parent, then, although such a judgment does not deprive the other parent of parental responsibility over the child, that parent may exercise their rights and obligations only in so far as the court permits them to do so. If the court does not confer the right to co-decide about the child’s residence on the other parent, then, in principle, the parent to whom the exercise of parental responsibility has been entrusted decides about the child’s residence on their own (see, however, point 2).
e) the other parent has been deprived of the right to co-decide about changes in the child’s residence by a judgment of a foreign court recognised in Poland.
2 Under what circumstances is the other parent’s consent necessary for the child’s removal to another state?
The other parent’s consent is necessary in all cases not listed in the previous point. This includes situations where a parent has full parental responsibility, or their parental responsibility has been limited but they have not been deprived of the right to co-decide about the child’s residence. Polish case-law goes even further in this respect. As the Supreme Court (Sąd Najwyższy) explained in its decision of 10 November 1971 in case III CZP 69/71 in order for a child to be taken abroad permanently by the parent to whom the exercise of parental authority has been entrusted in divorce proceedings, it is necessary to obtain the permission of the court dealing with guardianship matters as long as the other parent who was granted the right to supervise the upbringing of the child has not provided a statement of consent for the child to go abroad. Thus, if the court has not conferred on the other parent the right to co-decide about the child’s habitual residence, for example in divorce proceedings, in the light of the quoted decision the other parent may still demand the return of the child if they would be unable to exercise their right to contact the child. In its decision of 3 March 1985 in Case III CRN 19/85, the Supreme Court held that taking a child abroad on holiday, being an essential matter, requires the consent of both parents who exercise parental responsibility or, failing such consent, a decision of the court dealing with guardianship matters.
3 If the other parent does not consent to the child’s removal to another state, though it is necessary, how can the child be removed lawfully to another state?
In such cases, an application must be lodged with the guardianship court in Poland for substitute consent for a child to go abroad.
Applications for such consent may be lodged by parents who have not been deprived of parental responsibility or whose parental responsibility has not been suspended. Applications may be lodged by the applicants themselves: in such cases Polish law does not require parties to be represented by a lawyer before the court. The court with subject-matter jurisdiction to consider these applications is the district court (sąd rejonowy) (family and juvenile division) as the court of first instance, while the court with territorial jurisdiction is the court of the place where the child resides or is staying.
4 Do the same rules apply to temporary removal (e.g. holiday, healthcare etc.) and permanent removal? If applicable, please provide relevant consent forms.
As mentioned above, taking a child abroad for a short period of time requires the consent of the other parent.
Consent forms for taking a child abroad (permanently or temporarily) are not used in Poland. Consent can therefore be given in any form. However, it seems advisable to obtain written consent, which could serve as evidence in any proceedings for the return of a child based on the 1980 Hague Convention. The assistance of a Polish advocate, attorney at law or civil law notary may be useful in preparing such consent.
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