Divorce and separation in Poland

Jurisprudence regarding parental authority

Decision of the Supreme Court of December 12, 2000.

(V CKN 1805/00, LEX No 52400)

The same principle is the principle of protection of the child's good (interest) adopted in the Convention of 25 October 1980 drawn up in The Hague, concerning the civil aspects of child abduction abroad (Journal of Laws of 1995 No. 108, item 528), Convention of 20.X.1989 on the rights of the child (Journal of Laws of 1991 No. 120, item 526), as well as in other normative acts of the national legal order, in particular in the Family and Guardianship Code and in the Code of Conduct civil.

52400

OJ95.108.528: Article 5; Article 21

OJ91.120.526: General

OJ 64.43.296: Article 57

OJ64.9.59: art.56; art.61 (1); art.106; art.109; art.113; Article 114; Article 125; art.147; art.149

Chairman: SSN Lech Walentynowicz.

Judges of the Supreme Court: Bronisław Czech (comp.), Krzysztof Kołakowski.

The police officer: Ewa Zawisza.

From the concubinage of Viotetta K. (later K.) and Anton K. K. was born on November 11, 1989 in Munich, Margareta K., recognized by Anton K. The parents of the child then entered into a marriage on 28 August 1898. By the verdict of the District Court in Munich of 15.V.1997, the marriage was dissolved by divorce and, among others, the exercise of parental authority over the said minor was entrusted to mother Wioletta K. There were several cases concerning parental authority over the daughter, as well as criminal cases against the mother of the child and his father, both in Poland and in the Federal Republic of Germany. On 31.V. 1992, Wioletta K. brought the child. Margaret K. to Poland. District Court in Będzin by decision of 22.VI.1995, reference number act (...), dismissed the application of Anton K. for the release of him. Margarety K., entrusted to mother Wioletta K. exercising parental authority over this minor under the supervision of the probation officer and limited parental authority of Anton K. over the said minor "to the right of personal contact with the child". Then, the District Court in Będzin in the case conducted under the Hague Convention of 20 October 1980, concerning the civil aspects of child abduction, by decision of October 5, 1995, Ref. act (...), resolved the application of Anton K. to regulate contacts with the child in such a way that he allowed him to meet once a month on the first Friday of the month at the Child and Family Support Center in B. from 10 to 17 in the presence probation officer and mother of a child.

In the case of this application, both parents filed for parental responsibility.

Wioletta K., in the application of January 6, 1998, requested that Anton K. be deprived of parental responsibility over the minor Margareta K. and his personal contact with him.

Anton K. requested the removal of Wioletta K.'s applications, and he also demanded: a) the release of his child, b) entrusting the exercise of parental authority to the father, c) "limitation of parental authority" by Wioletta K. over the child for "personal contacts", d) "widening" of the father's rights of seeing the child in relation to the rights resulting from the decision of the District Court in Będzin from 5.X.1995, reference number Act(...).

District Court in Będzin, by virtue of September 9, 2000, reference number Act(...):

1) dismissed Wioletta K.'s application,

2) "dismissed the application of Anton K. for the issue of a minor (...) and entrusting him with exercising parental authority and expanding contacts",

3) change the decision of the District Court in Będzin of 22.VI.1995, reference number file (...), in the second point, in such a way that he "overturned the supervision of a probation officer", 4) changed the decision of the District Court in Będzin from 5.X.1995, reference number file (...), in this way that "he allowed his father to contact his daughter three times a year, every four months, starting from January 2000, every first Friday of the month at the Children and Family Help Center at K Street in B., from 13.00-17.00 in the presence of the court's guardian and mother of the child Wioletta K. "

The factual basis of the decision made the District Court very detailed arrangements regarding the conditions under which the minor lives, its needs for proper development, both material and mental, the relationship of both parents to each other and to each other and their qualifications (predispositions) to raise a child. In assessing the factual circumstances, the District Court came to the conclusion that the good of the child speaks for the adopted decision (Article 109 of the Civil Code and Article 577 of the Penal Code).

An appeal by Anton K. against this decision was dismissed by the District Court in Katowice by a decision appealed against by cassation. The Regional Court accepted as its findings and applications the District Court.

Anton K. in cassation, accusing the violation of art. 21 in conjunction from art. 5 of the Convention concerning the civil aspects of international child abduction, asked for "changing the appealed decision and establishing contacts between the participant in the proceedings with the daughter Margaret, in accordance with his application", possibly - to "annul the challenged provision in its entirety and refer the case back to the General Court instance. "

The Supreme Court weighed the following:

1. In the matter of thisthe provisions of the Code of Civil Procedure regarding cassation in the wording before 1.VII.2000 apply (Article 5 paragraph 2 of the Act of 24.2.2000 amending the Act - Code of Civil Procedure, the Act on registered pledges and the pledge register, Act on court costs in civil cases and the Act on court bailiffs and execution (Journal of Laws No. 48, item 554)).

2. The applicant in cassation alleged only a violation of substantive law. The assessment of the merits of this allegation is made by the Supreme Court on the basis of the facts on which the contested decision was based (see the judgments of the Supreme Court of 7 III.1997, II CKN 18/97, OSNC 1997, No. 8, item 112 and 26). III.1997, II CKN 60/97, OSNC 1997, No. 9, item 128). The factual assertion made in cassation, different from the one set by the Court, can not affect the assessment of the validity of cassation, the more so as the justification of the allegation of a violation of substantive law can not consist in questioning the facts but in demonstrating the application of improper substantive law or misinterpretation of substantive law.

3. Pursuant to art. 8 sec. 2, art. 91 par. 1 and art. 241 para. 1 of the Constitution of the Republic of Poland of April 2, 1997 (Journal of Laws No. 78, item 483), the ratified international agreement is part of the national legal order and is directly applicable if it does not require the issuance of a statute. Such agreements include Convention concerning the civil aspects of international child abduction, done at The Hague on 25 October 1995 (Journal of Laws of 1995 No. 108, item 528.). See. eg provisions of the Supreme Court of 16 September 1998, II CKN 855/97, OSNC 1998, No. 9, item 142 and the justification of the Supreme Court provision of 7 February 2000, I CKN 372/98, OSNC 2000, No. 9, item 156).

4. In the case - due to the factual circumstances and legal relations between minor parents - the Hague Convention is applicable. The complainant alleged violation of art. 21 in conjunction from art. 5 of the Convention, but did not specify what kind of violation is going. Violation of substantive law may consist in either its misinterpretation or misapplication (Article 3931 point 1 of the penal code).

The justification for cassation seems to indicate that the applicant alleges both forms of violation of substantive law. The allegation of improper substantive law is accurate, but it can not lead to cassation.

When settling the case, the courts of both instances did not invoke the provisions of the said Hague Convention, but referred only to Art. 109 § 1 k.r.o. and 577 k.p.c, as the legal basis for the decision, stressing the importance of the principle of protection of the child's good referred to in these provisions. From its preamble, it follows that the child's interest (goodness) is of fundamental importance in all matters relating to caring for him. Therefore, the interpretation of all provisions of this Convention - in conjunction with the Convention of 20XI.1989 on the rights of the child (Journal of Laws of 1991 No. 120, item 526) - should take into account the principle of protecting the child's interest (goodness) (see eg the decision of the Supreme Court of 31.III.1999, I CKN 23/99, OSNC 1999, No. 11, item 188). This also applies to the articles listed by the complainant 5 and 21 of the Hague Convention on the so-called the right to visit the child. The regulations contained in these provisions correspond precisely to the principles of art. 109 § 1 k.r.o., which was guided by the Court by resolving the case. The decision therefore also corresponds to art. 5 and 21 of the Convention. The content of the principle of protection of the child's good (interest) adopted in the said Convention concerning the civil aspects of international child abduction as well as in the Convention on the rights of the child and other normative acts of the national legal order, in particular in the Family and Guardianship Code and in the Code of Conduct is the same. civil.

The findings, which the applicant did not challenge by citing the cassation basis of art. 3931 point 2 k.p.c., indicate that the good (interest) of the child speaks for the decision adopted by the District Court and approved by the District Court. The allegation of misinterpretation of substantive law is therefore unjustified.

5. The decision appealed against in cassation, in spite of partly wrong reasoning, therefore corresponds to the law.

Since the basis for cassation proved to be unjustified, and the lack of invalidity of proceedings taken ex officio, the Supreme Court ruled as in the operative part (Article 39312 of the Code of Civil Procedure in its wording until 30.V.2000, in conjunction with Article 5 paragraph 2 of the Act from 24.V.2000, amending the act - Code of Civil Procedure (...) and in connection with Article 13 § 2 of the Code of Civil Procedure).