Article 59816 § 1 of the Code of Civil Procedure states that if the person taking care of the child does not perform or improperly performs the obligations regarding contact with the child resulting from a judgment or settlement concluded before a court or a mediator, and despite the court’s threat to order payment to the child, a specified sum of money to the person authorized to have contact with the child, for each violation of these obligations the court continues to fail to fulfill them, the guardianship court orders the person to pay the amount due. In the judgment of the Constitutional Tribunal SK 3/20, this provision was found to be inconsistent with the Constitution to the extent that it covers situations in which the improper performance or non-performance of obligations regarding contact is related to the child’s behavior which was not caused by the person under the care of the child. finds.
For the control model when examining Art. 598 16 § 1 of the Code of Civil Procedure two provisions of the Constitution of the Republic of Poland were adopted:
- – art. 48 section 1 sentence 2, which states that the upbringing of a child by parents should take into account the child’s level of maturity, as well as his or her freedom of conscience, religion and beliefs;
- – art. 72 section 3, according to which, in the course of determining the rights of the child, public authorities and persons responsible for the child are obliged to listen to and, if possible, take into account the child’s opinion.
In the justification of the judgment, the Tribunal pointed out that the above constitutional regulations emphasize the legal personality of the child. They indicate what the child’s rights are in matters that concern him or her, and on the other hand, they impose on other entities (persons responsible for the child and public authorities) the obligation to respect these rights. The cited provision of the Code of Civil Procedure is therefore inconsistent with the obligation arising from the Constitution to treat the child subjectively, and not objectively, to the extent that it does not take into account the situation in which the improper performance or failure to perform obligations regarding contact with the child is not the fault of the person having custody of the child, but is related to the behavior of the child himself. The application of this provision may lead to a situation in which the person having custody of the child will be punished for taking into account the will of the child who does not want to meet with the person authorized to contact him on the basis of a court decision or settlement. Regulation of art. 598 16 § 1 of the Code of Civil Procedure therefore, it does not ensure that the person taking care of the child respects the child’s right to express an opinion on matters relating to his or her contacts with the authorized person in accordance with the standards established by constitutional regulations.
For the reasons given, Art. 598 16 § 1, insofar as it covers situations in which the improper performance or failure to perform duties is related to the behavior of a child not caused by the person in whose care the child is, has been found to be inconsistent with the Constitution.