Guidance

Poland: Parental Child Abduction

Updated 26 January 2021

Information for parents whose child has been abducted to Poland by the other parent, legal guardian or someone acting on their behalf.

Details

This guide sets out some options you may wish to consider, with contact information for organisations that may be able to help.

Disclaimer

Any information contained in these pages relating to the legal system in Poland is provided for general information only. If your child is wrongfully abducted or retained in Poland, we strongly advise that you seek independent legal advice in Poland for specific information relating to individual cases. You can check our list of English-speaking lawyers on gov.uk to seek legal advice.

Parental Child Abduction

The abduction of a child by a parent with parental responsibility is not in itself a criminal offence in Poland. The British government cannot, under any circumstance, force the abducting parent or the Polish courts to return a child to the other parent, or a legal guardian, to the country where they have previously lived, even if there is a court order requiring the child’s return.

The 1980 Hague Convention

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘The Hague Convention’) is a multilateral treaty which seeks to protect children from the harmful effects of wrongful abduction and retention across international boundaries by providing a procedure to bring about their prompt return to their normal place of residence. The Hague Convention is in operation between the UK and Poland. This means that there is a process for requesting that your child is returned to the UK.

Under the Hague Convention, the abduction or retention of a child is wrongful if it violates rights to custody under the law of the State in which the child was habitually resident (normally lived) immediately prior to the abduction or retention and, at the time of the abduction or retention, those rights were actually exercised.

However, whilst the Hague Convention primarily aims to return abducted children to their habitual place of residence, there is provision in the Convention for a request to return a child to be refused by the authorities of the country to which the child has been taken. For example, a return may be refused if:

• There is a grave risk that the child’s return would expose them to physical or psychological harm;
• The left-behind parent had consented to or subsequently acquiesced to the removal or retention, or was not exercising their custody rights when the child was removed or retained;
• The child objects to being returned and the court considers the child has attained an age and degree of maturity at which it is appropriate to consider their views;
• Proceedings have been initiated more than one year after the removal or retention and it is demonstrated that the child is now settled in their new environment.

The Hague Convention ceases to apply once a child turns 16 years old.

Within each country that is a signatory to the Convention, there is an administrative body known as the Central Authority. They are responsible for administering the operation of the Convention in that country. If you wish to apply for your child’s return under the Hague Convention, you should submit an application to the Central Authority in the country where the child is habitually resident. In the UK, the designated Central Authority for England and Wales is the International Child Abduction and Contact Unit (ICACU); in Scotland, it is the Scottish Government; in Northern Ireland it is the Northern Ireland Courts Services. Their contact details are at the end of this document.

The UK Central Authority will forward your application to the Central Authority in Poland. The jurisdiction appropriate for Hague Convention proceedings is the state to which the child has been abducted, not the state of habitual residence. Legal proceedings will therefore be heard by the Polish courts to determine if your child should be returned.

There is no requirement for a parent to seek legal advice prior to submitting an application and left-behind parents can complete and submit the application form themselves. However, legal representation in Hague Convention cases in Poland is mandatory. Neither consular staff nor the Central Authority can provide parents with legal advice. We therefore strongly advise all left-behind parents to engage the services of a Polish lawyer.

Since August 2018, there are eleven courts (Sąd Okręgowy) in Poland which deal with Hague Convention cases at first instance and one Court of Appeal in Warsaw on appellate level.

The recommended processing time for a case in the Polish courts is 6 weeks for first-instance proceedings, and a further 6 weeks for appellate proceedings if the original verdict is not accepted by one of the parties and they appeal the return order.

The Prosecutor General (the Minister of Justice), the Ombudsman and the Child Ombudsman are also able to put cases on hold in case they consider bringing a cassation appeal. If a cassation appeal is lodged, the enforcement of the return is stayed by law until the cassation appeal is heard. This means potentially holding up the enforcement of the return for several months. You should remain in contact with your lawyer during proceedings.

Hague Convention proceedings deal solely with the issue of the alleged wrongful removal or retention. They do not make decisions regarding care (‘custody’) and contact arrangements for the child. Once a return has taken place, it is for the courts in the child’s country of habitual residence to determine these matters, should parents be unable to reach an agreement.

If you know your child has been abducted, we strongly advise you to seek legal advice and consider submitting a Hague Convention application as soon as possible. It is highly recommended you seek legal representation from a lawyer that specialises in the Hague Convention and International Parental Child Abduction cases.

You can check our list of English-speaking lawyers on gov.uk to seek legal advice.

Legal representation in Hague Convention cases in Poland is mandatory. If you are unable to pay for private legal representation, you may request a lawyer under the legal aid scheme. The request for a legal aid counsel should be attached to the return application alongside a declaration of income and capital means. ICACU or the Polish Central Authority will provide the appropriate form. The court may ask you to provide supporting documentation for the information provided in the form.

Enforcement

Once Hague Convention proceedings have been concluded, if your application is successful, the Polish court will issue an order for your child’s return (‘return order’). The next step (requiring a separate court motion) is enforcement of the return order.

Executing court orders can be a long and complex process, often resulting in significant delays. There have been a number of cases where, despite a decision by the Polish Court to order the child’s return to their country of habitual residence, the orders have not been successfully enforced.

If the abducting parent does not comply with the return order voluntarily, you will need to request that the Court enforce its decision. You should continue to seek legal advice throughout this process.

Upon application, the court can appoint a court officer (curator) to execute the court’s decision. The court officer will attempt to collect your child. The left-behind parent, or a person authorised by the left-behind parent, must be present during a collection. Please note that a Polish police officer may also be present at the collection attempt. At the request of the curator, the police officers are obliged to assist him/her in collecting the child. The curator may stop the collection attempt if they judge that their actions are adversely affecting the child’s emotional wellbeing. Following a collection attempt, the curator will report back to the court.

If your child’s location is not known, the court can instruct the Polish police to locate them. However, as parental child abduction is a civil matter in Poland, the police cannot use all the powers that would be open to them during a criminal investigation. This can lead to delays and difficulties in identifying a location for a collection attempt.

Under current procedure, the curator will not inform the abducting parent of a planned collection attempt in advance. However, the abducting parent may be able to deduce this information from the court files, or other actions that have been taken, e.g. if police have recently attended their address to check if the child is living there. This can give the abducting parent the opportunity to evade the collection attempt. The curator has the authority to collect a child from any person with whom he or she is staying, including their nursery or school.

If the collection attempt is unsuccessful the curator may repeat attempts to collect the child for three months after the return order is issued. After the three month period, another request for enforcement of the return order must be filed. This process can be lengthy and we have seen cases where multiple collection attempts have been unsuccessful. There is no limit on the number of collection attempts that can be ordered.

We are aware of some cases where parents have travelled directly to Poland and, using a copy of the return order, have collected their child themselves without agreement of the other parent. However, you should consider carefully the potential consequences of such actions, such as your potential arrest and your actions being adversely used by the abducting parent during Hague Convention proceedings.

Locating your child

Under Polish law, a missing person is someone who needs to be located as there is a risk to their welfare, life or freedom. Where a child is understood to be in the care of their other parent, the Polish police may not consider them as missing.

If you have reason to believe your child is at risk of harm whilst in their other parent’s care, you should provide this information, and any supporting evidence, to the Polish police when you report them missing.

It will be the police’s decision as to whether your child’s situation meets the conditions to conduct a criminal missing persons investigation. Even if the police do investigate and locate your child, the police may not share your child’s location with you.

Child Welfare

If you know your child’s location and are concerned about their welfare or safety, you can consider contacting local social services in Poland and requesting they conduct a welfare check. In order for social services to conduct a welfare check, you will need to provide them with the residential address of your child. We would also suggest you provide any evidence you have to substantiate your concerns.

Please be aware that we would only expect social services to investigate if there are safeguarding concerns. We would not expect them to intervene in disputes between parents or to arrange for or facilitate contact between an abducted child and their left-behind parent.

UK court orders

There is no requirement to obtain a court order from a court in the UK when your child has been abducted. However, you may already have a court order issued by a UK court, for example if there have already been proceedings to decide on your child’s residency, or if the other parent has previously made an application to relocate to Poland with your child.

In Poland, decisions issued by foreign courts in civil cases are recognised by operation of law, unless there are obstacles to recognition specified by law e.g. the party was deprived of the right of defence, the order is not yet final, or public policy exception. Foreign return orders that require enforcement in Poland must be first issued with a declaration of enforceability. The British government cannot seek the enforcement of orders made by a UK court. Even where a UK court order is in force, we would still recommend that you consider a prompt application under the Hague Convention, as this is the only international mechanism specifically aimed at returning abducted children.

You should consult a Polish lawyer and ensure they are aware of any existing orders. They can advise on whether it is appropriate for the UK court orders to be presented as part of proceedings in Poland.

There are mechanisms in place for family court judgements made in one EU country to be recognised in another EU country; the most commonly referred to is the ‘Brussels IIa recast’ Regulation. Now that the UK has left the EU, this regulation does not apply to orders made in the UK since our withdrawal. If you have a UK court order and want this order to be enforced in Poland, you should speak with a Polish lawyer regarding your options.

It is your decision whether you wish to pursue proceedings in the UK as well as in Poland. Although any orders made by a UK court will not be binding on the Polish authorities, the court may be able to impose sanctions on a parent if they do not comply, which may be relevant if the abducting parent later travels to the UK.

Mediation

An alternative to legal proceedings is to mediate and come to an amicable agreement with your child’s other parent. Given that a delay in initiating legal proceedings for your child’s return may negatively impact your chances of success, we advise you seek legal advice on how best to approach this. You may be able to initiate proceedings and then ask for proceedings to be halted so that mediation can be attempted. Reunite is a UK based charity that provides mediation support. Their contact can be found in the ‘Useful Contacts’ section.

Travel

Children born to a Polish national or British-Polish dual national parent in the UK are automatically granted Polish citizenship. According to the current interpretation of the Polish immigration rules, Polish nationals, including dual nationals, must enter and exit Poland using a Polish passport or Polish national identity card. There are cases of Polish border guards not allowing dual nationals to enter and exit at ports and airports on their foreign passport.

We are also aware of cases where British-Polish dual national children have been able to exit Poland by land border through another country in the Schengen area using a British passport or Emergency Travel Document. It is your responsibility to check documentary requirements for exit before travelling. We cannot interfere in Polish immigration requirements.

Useful Contacts

CENTRAL AUTHORITIES

Central Authority for England and Wales

The International Child Abduction and Contact Unit (ICACU)
The Official Solicitor and Public Trustee

Post Point 0.53

102 Petty France

London

SW1H 9AH
Tel: 020 3681 2756
Email: icacu.soteria@ospt.gov.uk

Central Authority for Scotland

Scottish Government

Central Authority & International Law Team
GW15 St Andrews House
Edinburgh

EH1 3DG
Tel: 0131 244 4827

Email: childabduction@gov.scot

Central Authority for Northern Ireland

The International Child Abduction Unit

Operational Policy Branch
Northern Ireland Courts and Tribunals Service
Laganside House
23-27 Oxford Street
Belfast

BT1 3LA
Email: internationalchildabduction@courtsni.gov.uk
https://www.justice-ni.gov.uk/articles/child-abduction-matters

Central Authority for Poland

Ministerstwo Sprawiedliwości   / Ministry of Justice
Departament Spraw Rodzinnych i Nieletnich / Department of Family and Juvenile Matters
Wydział Międzynarodowych Postępowań Rodzinnych  / Division of International Proceedings in Family Matters
Al. Ujazdowskie 11
00-950 WARSZAWA
P.O. Box 33
POLAND

Phone number: +48 (22) 23 90 470
E-mail: Polandchildabduction@ms.gov.pl

Legal Advice

List of English-speaking lawyers in Poland:

Find a professional service abroad - Find a lawyer in Poland (fcdo.gov.uk)

The Polish National Chamber of Legal Advisers and the Supreme Bar Council maintain registers of legal advisers and advocates admitted to practise in Poland:

• https://rejestrradcow.pl/Home/Index
• KRAIA - adwokaci, prawnicy zagraniczni, aplikanci (rejestradwokatow.pl)).

NGOs

Reunite

Reunite are a UK based charity funded by the FCDO who specialise in international child abduction, custody and contact issues. Reunite offers a range of support services, including helping with mediation and providing details of specialist lawyers and offering peer support. Reunite also operate an advice line: 0116 2556 234. If you’d like to discuss mediation with them, you can call 0116 2555 345 or email reunite@dircon.co.uk.

Lawyers in Europe focusing on international Parental Child Abduction (LEPCA)

LEPCA is a network of lawyers and legal professionals who deal with international child abduction cases.

ITAKA (Centre for Missing People) and Fundacja Dajemy Dzieciom Siłę (Empowering Children)

Two Polish NGOs that may be able to assist. Although both organisations primarily assist in other types of cases, they are also able to provide advice on parental child abduction and custody issues. They have a list of lawyers who specialise in family disputes, have English-speaking staff and provide their services free of charge. ITAKA can offer psychological support and mediation services.

Fundacja ITAKA

Centrum Poszukiwań Ludzi Zaginionych

Skr. Poczt. 127

00-958 Warszawa 66

tel. +48 22 620 16 10

e-mail: Itaka@zaginieni.pl

Fundacja Dajemy Dzieciom Siłę

ul. Mazowiecka 12/25

00-048 Warszawa

tel. +48 22 616 02 68

e-mail: biuro@fdds.pl