1 Concentration of jurisdiction
1.1 Which authority is competent to hear requests for return under the 1980 Hague Convention/Article 22 of the Brussels IIb Regulation ("requests for return")?
First-instance
Białystok Regional Court (Sąd Okręgowy w Białymstoku)
Gdańsk Regional Court (Sąd Okręgowy w Gdańsku)
Katowice Regional Court (Sąd Okręgowy w Katowicach)
Kraków Regional Court (Sąd Okręgowy w Krakowie)
Lublin Regional Court (Sąd Okręgowy w Lublinie)
Łódź Regional Court (Sąd Okręgowy w Łodzi)
Poznań Regional Court (Sąd Okręgowy w Poznaniu)
Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie)
Szczecin Regional Court (Sąd Okręgowy w Szczecinie)
Warsaw Regional Court (Sąd Okręgowy w Warszawie)
Wrocław Regional Court (Sąd Okręgowy we Wrocławiu)
Second-instance
the Court of Appeal in Warsaw (Sąd Apelacyjny w Warszawie)
1.2 Is the jurisdiction to hear requests for return confined to specialist courts? - If yes, to what courts is it restricted? How many judges within the specialist court exercise the jurisdiction? - If no, are the judges hearing return requests specialised?
Yes, see 1.1.
How many judges within the specialist court exercise the jurisdiction? – If no, are the judges hearing return requests specialised?
Białystok Regional Court - an entire division
Gdańsk Regional Court - 2 persons
Katowice Regional Court - 4 persons
Kraków Regional Court - 3 persons
Lublin Regional Court - 1 person
Łódź Regional Court - 1 person
Poznań Regional Court - an entire division
Rzeszów Regional Court - 2 persons (or 1 person)
Szczecin Regional Court - 1 person
Warsaw Regional Court - an entire division
Wrocław Regional Court - an entire division
There is no training specifically aimed at this category of judges.
1.3 By which method are the requests for return allocated to a judge?
Cases are randomly assigned using an allocation system.
1.4 What specialist training is provided for the specialist judges? In particular do they have the opportunity to attend multi-national conferences specialising on International Family Law? Is there a regular conference within your jurisdiction to which all judges dealing with requests for return are invited?
There are no conferences held exclusively for judges hearing return cases. Training is provided as part of the training sessions held by the National School of Judiciary and Public Prosecution (Krajowa Szkoła Sądownictwa i Prokuratury).
2 Practice and procedure for requests for return in first instance court
2.1 Are there special rules of practice and procedure for requests for return? If yes, please provide a brief summary of the procedure and if relevant, provide a link
In cases of child abduction or wrongful retention of a child a request for return should be filed immediately.
It is of the utmost importance that the time-limit defined in the Hague Convention (one year from the abduction or wrongful detention) is complied with.
Under the Polish procedure, the request may be signed: by the applicant personally or by an appointed representative (where a power of attorney is annexed).
A request for return may be submitted:
- via the Polish central authority. The completed document is to be signed and sent by post to the following address:
Ministry of Justice
Department for Affairs concerning Families and Minors (Departament Spraw Rodzinnych i Nieletnich)
Department of International Family Proceedings (Wydział Międzynarodowych Postępowań Rodzinnych)
Aleje Ujazdowskie 11
00-950 Warsaw
- or via the foreign central authority;
- or directly to the court with jurisdiction for where the child was abducted. In Poland, abduction cases are examined by selected regional courts. A list of the courts competent to examine the case can be found at: https://www.gov.pl/web/stopuprowadzeniomdzieci/mapa-sadow-specjalistycznych
Information on how to prepare a request can be found at:
Legal representation is compulsory in such cases. It is mandatory to appoint a representative; failing that, a court will appoint a representative ex officio.
2.2 What steps are taken to meet the 6 weeks target described in Article 24(2) of the Brussels IIb Regulation?
- immediate scheduling of a hearing;
- activities taking place via videoconference (parties may be questioned online);
- consolidation of activities;
- constant cooperation with the foreign central authority and the court.
2.3 If mediation is used, what steps are taken to ensure that the referral to mediation does not risk a breach of the 6 weeks target? How does the court examine whether contact should be ensured, in accordance with Article 27(2) of the Brussels IIb Regulation? Does the court examine whether contact should be ensured only on the basis of a request from one of the parties or can do so on its own motion?
- The central authority informs the parties about the option of mediation.
- A court may also propose mediation.
- In principle, mediation in cases under the Hague Convention should take place within an expeditious deadline,
- as provided for in Article 18310(1) of the Code of Civil Procedure (Kodeks Postępowania Cywilnego):
‘When referring the parties for mediation, the court shall specify a mediation period of up to three months. At the unanimous request of the parties or when otherwise warranted, the time-limit for mediation may be extended if that facilitates amicable settlement. The mediation period does not count towards the duration of court proceedings.’
How does the court examine whether contact should be ensured, in accordance with Article 27(2) of the Brussels IIb Regulation? Does the court examine whether contact should be ensured only on the basis of a request from one of the parties or can do so on its own motion?
- A request for contact must be submitted by a party directly to the court or via the central authority. It may be submitted together with a request for return or at a later stage during the proceedings.
2.4 How is the child given an opportunity to express his or her views in return proceedings? Please describe who hears the child's views and at which stage of the proceedings are their views heard
Under the provisions of the Code of Civil Procedure, in cases relating to the person or the property of a child, the child is to be heard by the court if the child’s intellectual development, health and maturity so permits, taking account of the child’s reasonable wishes as far as possible. The child must be heard outside of the courtroom, in premises prepared for that role, and only once during the proceedings, unless otherwise required in the best interest of the child or unless the child wishes to be heard again. Where the court has not heard the child, the reasons for refraining from doing so must be indicated in the minutes from the session or hearing at the latest before the conclusion of the proceedings. The conditions and the procedure applicable to the hearing of a child are further clarified in a Regulation of the Minister for Justice.
In principle, the representative of a child (Article 99 et seq. of the Family and Guardianship Code) (Kodeks rodzinny i opiekuńczy) does not apply in return proceedings.
2.5 Is the number of court hearings for requests for return subject to judicial discretion, or does your legal system establish a minimum/maximum number? If so, please indicate
Yes, the number of hearings depends on the court’s decision and the complexity of the case. There is no limit on the number of hearings.
2.6 Is oral evidence admitted at the hearing? If it is, are oral submissions admitted to supplement written argument?
The court conducts proceedings in accordance with the Code of Civil Procedure, meaning that evidentiary motions, including motions to examine witnesses, may be accepted (the court must always hear the parties); oral comments are also admissible in the form of statements by parties (which are not witnesses any more) made for the minutes.
2.7 Is the applicant required to attend the hearing? Are there any procedural consequences if the applicant does not attend the hearing?
The court may require the applicant to attend the hearing. However, the questioning may also take place online, in which case the applicant is not required to appear at the court’s premises.
2.8 Are the courts equipped with videoconferencing facilities to allow for remote participation through videoconferencing? What is the legal framework for using videoconferencing at the hearing? Is there a specific legal framework for hearings in return proceedings?
Yes, courts are equipped with such facilities and the courtrooms are well prepared.
What is the legal framework for using videoconferencing at the hearing? Is there a specific legal framework for hearings in return proceedings?
The legal basis governing all recorded proceedings is Article 151(2) of the Code of Civil Procedure, stating that:
The presiding judge may order that a public hearing be held using technical facilities enabling it to be held remotely (remote hearing), provided that this is not precluded by the nature of the activities to be carried out at the hearing and that holding a remote hearing ensures full protection of the procedural rights of the parties and the proper conduct of the proceedings. In this case, the judges and the recording clerk are present in the courtroom, and the other persons attending the hearing do not have to be present on the court’s premises. The recording of the image and sound of procedural activities taking place in the courtroom is sent where those participants in the hearing who have declared their intention to participate remotely are situated, and from where those participants are situated to the building of the court conducting the proceedings.
2.9 What type of measures, including provisional or protective measures (safeguards), can be taken to ensure the safe return of the child?
In order to ensure the safe return of a child, a court may take appropriate measures provided for in the Family and Guardianship Code.
3 Appeals
3.1 Is there an appeal from the first instance court?
Yes, an appeal may be submitted to the Court of Appeal in Warsaw acting as the second-instance court.
3.2 If there is a right of appeal, is it absolute or is permission to appeal required? Or is it on points of law alone?
The parties may file an appeal within 14 days of the receipt of a reasoned decision. An appeal need not be limited to legal aspects only (factual findings may also be challenged).
3.3 In the event of an appeal is the return order automatically suspended or may it nevertheless be enforced?
When an appeal has been filed a return order cannot be enforced, as it is not final. Only final orders may be enforced. However, pursuant to Brussels IIb Regulation an order may be made immediately enforceable by a court, which requires the court to make a separate decision (for instance, as part of the return order).
3.4 Is there a second appeal? If yes, is permission required?
In cases conducted on the basis of the 1980 Hague Convention for the removal of a person subject to parental responsibility or a person subject to guardianship an appeal in cassation may be lodged by the Prosecutor-General, the Ombudsman for Children’s Rights or by the Ombudsman for Citizen’s Rights within four months of the decision becoming final.
Furthermore, if it is necessary in order to ensure compliance with the principle of a democratic state ruled by law and implementing the principles of social justice, an extraordinary appeal may be lodged against a final ordinary court or military court ruling closing proceedings in any case, provided that:
(1) the ruling violates the principles or the rights and freedoms of persons and citizens enshrined in the Constitution; or
(2) the ruling is a flagrant breach of the law on the grounds of misinterpretation or misapplication; or
(3) there is an obvious contradiction between the court’s significant findings and the evidence collected
- and the ruling cannot be repealed or amended by way of other extraordinary remedies.
An extraordinary appeal may be filed by the Prosecutor-General (Prokurator Generalny), the Ombudsman for Citizens’ Rights (Rzecznik Praw Obywatelskich) and the Ombudsman for Children’s Rights (Rzecznik Praw Dziecka). It must be lodged within five years from the date on which the contested decision became final; where an appeal in cassation has been lodged against the decision, within a period of one year from the date on which that appeal is heard.
No additional permission is required for these extraordinary remedies.
3.5 What specialist experience and expertise is there in the appellate courts?
These are judges with many years’ seniority and professional experience. However, not all of them have received training on how to apply the Hague Convention. They rely on their own practice and education as sources of information.
3.6 What is the time scale for the determination of an appeal and, if applicable, a second appeal? If expedited, is priority given by statute, rules of court or practice?
The indicative time-frame provided for in the Code of Civil Procedure as regards examining appeals and examining cases in the first-instance is six weeks.
However, no time-frame is specified as regards the transmission of the appeal by the first-instance court to the second-instance court (inter-instance proceedings).
3.7 In accordance with Article 24(3) of the Brussels IIb Regulation, what are the procedural steps that need to have been taken for the 6-week target to start running for the higher instance court to be able to examine the appeal?
The file and the appeal are to be transferred from the regional court (first-instance) to the appeal court (second-instance). This triggers the six-week period, during which the case must be heard. However, as it is necessary for the case to be assigned to the competent judge who will set a date for the hearing, this time-frame is difficult to comply with.
4 Enforcement of the return order delivered by the court
4.1 Which authority is competent for the enforcement of return orders?
The central authority takes the view that the court competent to enforce return orders is the regional court that handed down the ruling in the first instance (irrespective of whether the ruling ordered the return of a child, or refused it but was amended by the second-instance court). In this aspect, however, there is no unified national position, as the approach taken differs with every regional court.
4.2 Are return orders provisionally enforceable? If so, is it decided automatically by the court or does the applicant have to request it? When a return order is challenged, how is the provisional enforceability affected?
A return order may be provisionally enforceable if a court so decides. However, where a child is not voluntarily returned, the applicant has to submit a request for forcible removal to the competent court.
Where a provisionally enforceable order has been enforced before a remedy is examined, there might be no sense in examining this order which would result in a discontinuation of appeal proceedings owing to the appeal serving no purpose.
4.3 What is the procedure of the enforcement of return orders? Are there any legal measures (for example, some penalties) that may help to ensure the enforcement of the return order?
In order for return orders to be enforced it is necessary to submit a request for the forcible removal of a child where the enforcement does not happen voluntarily. Subsequently, the court will order a guardian to forcibly remove the child. The guardian will remove the child in an appropriate manner at the request of an authorised person.
The Ministry has prepared appropriate guidelines for guardians in order to ensure that children are removed in an appropriate and effective manner:
4.4 Please describe the procedure for requesting suspension and refusal of enforcement of return orders?
Requests to suspend or refuse enforcement may be submitted by the obliged (the abducting) party to the court in charge of the proceedings concerning forcible removal of the child. It is for the court to examine such requests and make a decision.
5 Enforcement of the privileged decision delivered by a foreign court
5.1 Which authority would be responsible for the enforcement of a foreign so-called overriding decision i.e. return order mentioned in Article 11(8) of the Brussels IIa Regulation or a foreign privileged decision pursuant to Article 29(6) of the Brussels IIb Regulation entailing the return of a child following a refusal in the requested state under Article 13(1)(b) or 13(2) of the 1980 Hague Convention
The foreign decisions referred to above are enforced by the district court with jurisdiction in the child’s place of habitual residence (guardianship court).
6 Judicial Liaison
6.1 Has your jurisdiction officially/unofficially nominated a specialist judge to the European Judicial Network in civil and commercial matters (EJN-civil) / International Hague Network of Judges (IHNJ)?
Poland has nominated one liaison judge (IHNJ).
6.2 If yes, is the judge nominated a sitting judge? Was the nomination official or unofficial?
The judge is an active family judge. The judge has been officially appointed by the Ministry of Justice.