In the case of international child abduction by one of the parents, the provisions of the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on October 25, 1980 (hereinafter referred to as the Convention) apply. The provisions of this convention, as well as Council Regulation (EC) No. 2201/2003 of 27 November 2003 (hereinafter referred to as „the Regulation) are referred to by the Supreme Court in its decision of 17 March 2021, reference number I CSKP 38/21 .
Pursuant to Art. 13 lit. b of the Convention „(…) the judicial or administrative authority of the requested State is not obliged to order the return of the child if the person, institution or organization opposing the return of the child demonstrates that there is a serious risk that the return of the child would expose the child to physical or mental harm or any other harm. way would put them at a disadvantage. „
It should be borne in mind that the expression „serious risk” contained in the discussed convention is of an assessment nature and the court may decide differently in any case concerning the return of a child to the country of his residence, depending on whether it considers the risk to be sufficient. serious or not, based on the evidence gathered. The Supreme Court decided that the one-off violation of the child’s physical integrity provided for in Art. 2 point 2 of the Act on Counteracting Domestic Violence is not tantamount to „a serious risk of exposure to physical violence” referred to in Art. 13 lit. b of the Convention.
As a consequence, it is for the court hearing a particular case to decide whether, in a given situation, a single violation of bodily inviolability will make it possible to refuse to surrender the child under the Convention or not. In this particular ruling, the Polish court found that a single hit of a child with a guitar cable on the buttocks by the father did not pose a serious risk of exposure to violence, as the incident was of a one-off nature and the child generally had good contact with the father.