The Hague Convention

Author is not liable for incorrect use of this information.
It is purely abstract and theoretical. Prior to its use, consult with a qualified lawyer.
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"The Village Lawyer" - Pieter Brueghel the Elder

1. What is The Hague Convention ?
That designation hides many acts concerning various legal issues.
This study covers only one: of 25 of October 1980.
It deals with civil aspects of international child removal.

2. What does The Hague Convention do ?
It is vehicle allowing recapture of a child wrongfully removed or wrongfully retained.

3. What is child's removal ?
This question is answered in article 3 of The Hague Convention:
The removal or the retention of a child is to be considered wrongful where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State
in which the child was habitually resident
immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above,
may arise in particular by operation of law
or by reason of a judicial or administrative decision,
or by reason of an agreement having legal effect under the law of that State.

Removing happens when the departure of the child to another country occured without the consent of the other parent.
While retaining is a condition in which the departure of the child to another country had permission of the other parent.
However fixed period of departure was unilaterally extended by one perent without the consent of the other.

4. In which country the proceeding is pending ?
In this, where the child stays – incorrectly resides.

5. Does The Hague Convention allow extraction of the child from every country ?
No !
Only one that is a signatory,
and so introduced the Convention into national legal order.

6. Did Poland sign The Hague Convention ?
Yes !
It was incorporated into national legal order on 25 September 1995.

7. How many countries is party of the Convention?
Over 70.

8. Which court has subject-matter jurisdicton ?
Superior court (sąd okręgowy).

9. Which court has territorial jurisdiction ?
This question is answered in an article 569(1) § 1 of Code of Civil Procedure.
To the jurisdiction of the superior court
based in the city that is the seat of the appellate court
belong the matter of taking a person subject to parental or custody supervision
conducted on the basis of the 1980 Hague Convention,
if in this area a person subject to parental or custody supervision
is residing or staying.

10. What does this mean ?
First, it shall be determined
where the child actually lives or stays.

Secondly, it shall be determined
jurisdiction of appropiate appellate court
where the above mentioned city/village is located.

Thirdly, the place of the appropiate appellate court,
is always a city of the appropiate superior court -
there must be also an appellate court in the city of the superior court.

syndycy
"Syndycy cechu sukienników" - Rembrandt Harmenszoon van Rijn

11. Can it be illustrated ?
When the child lives in Limanowa,
then the right one to hear case
will be in first instance the Superior Court in Kraków,
since Kraków (and not having the superior court the city of Nowy Sącz)
is a superior court based in the town that is the seat of the appellate court -
in Kraków there is an appellate and superior court.

In case the child lives in Głogów,
then the right one to hear case
will be in first instance the Superior Court in Wrocław,
since Wrocław (and not having the superior court the city of Legnica)
is a superior court based in the town that is the seat of the appellate court -
in Wrocław there is an appellate and superior court.

Finally, if the child lives in Sokołów Podlaski,
then the right one to hear case
will be in first instance of the Superior Court in Lublin,
since Lublin (and not having the superior court the city of Siedlce)
is a superior court based in the city that is the seat of the appellate court -
in Lublin there is an appellate and superior court.

12. How many cities in Poland have both superior and appellate court ?
Eleven !

13. What cities in Poland have both superior and appellate court ?
Białystok, Gdańsk, Katowice,
Kraków, Lublin, Łódź,
Poznań, Rzeszów, Szczecin,
Wrocław, Warsaw.

To sum up, only eleven above-mentioned superior courts
will be hearing in first instance Hague Convention cases.

14. In what panel does the superior court hear cases ?
One judge.

15. What is the form of final judgment of that court in Hague Convention cases ?
Court order (postanowienie).

16. Is there a right to appeal ?
Yes

17. Which court in Poland is responsible for appeal ?
Solely Appellate Court (Sąd Apelacyjny) in Warsaw.

18. In what panel does the Appellate Court in Warsaw hear cases ?
Three judges.

19. What is the form of final judgment of that court in Hague Convention case ?
Court order (postanowienie).

20. Is there a right to last resort appeal (skarga kasacyjna) ?
Yes !

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Sąd nad bumelantem (Sąd koleżeński) - Nikołaj S. Schneider

21. Is parent entitled to last resort appeal against a second instance's court order ?
No !

22. Who has a right to last resort appeal in Hague Convention cases ?
Pursuant to article 519 (1) § 2 (1) of the Code of Civil Procedure,
that prerogative has only:
Attorney General (Prokurator Generalny),
Ombudsman for Children (Rzecznik Praw Dziecka)
and the Ombudsman (Rzecznik Praw Obywatelskich).

23. What is entitled to a dissatisfied parent with second instance's court order ?
Such a parent shall turn to one of the above-mentioned entities, to lodge last resort appeal.

24. Which court is responsible for last resort appealt in Hague Convention cases ?
Exclusively Supreme Court (Sąd Najwyższy) in Warsaw.

25. What terms are important in The Hague Convention ?
First age of a child (16 years)..
If minor complited it before the application – the Convention does not apply.
Second one year for submitting an application.
It is counted from the day of removing or retaining.

26. Does the demonstration of removing/retaing always result in recovery of the child ?
No !

27. What are negative premises of child's recovery ?
Based on the Convention we may extract five premises

28. What is the first premise ?
Child's welfare..
This question is answered in article 12 of The Hague Convention:
(...) the child is now settled in its new environment (...).
This responds with article 13b of the Convention:
(...) there is a grave risk that his or her return
would expose the child to physical or psychological harm
or otherwise place the child in an intolerable situation. (...)


This regards the situation when minor – so to say –
is rooted in a new reality, operates in it fully, turnes up.
So, psychological costs of child's return would be higher then its stay

despite illegality of removing/retaining.

29. What is the second premise?
Position of the child.
This question is answered in article 13b of The Hague Convention:
(...) there is a grave risk that his or her return,
would expose the child to physical or psychological harm
or otherwise place the child in an intolerable situation (...)
.

If the minor expressed its willingness to stay in country was removed/retained
it shall be considered, taking into account
its degree of prudence and discernment of life.

30. What is the third premise?
Parental absence of the applicant..

In conjuction with article 13a of The Convention:
(...) he person, institution or other body
having the care of the person of the child
was not actually exercising the custody rights at the time of removal or retention,
or had consented to or subsequently acquiesced in the removal or retention (...)
.
Thus, the Convention will not be a vehicle to recover juvenile by a person,
that early did not exercise parental authority –
was not interested in the child, did not involve in its upbringing.

syndycy
W sądzie - Adrian Wołkow

31. What is the fourth premise?
Post – accordance..

In conjunction with article 13a of The Convention:
(...) the person, institution or other body
having the care of the person of the child
was not actually exercising the custody rights
at the time of removal or retention, or had consented to
or subsequently acquiesced in the removal or retention (...)

In this meaning the illegality of removing/retention of a juvenile
is offset by the Convention.
If after this illegal removing/retention
applicant agreed to a new condition resulting from the wrongfull removal or retention.

32. What is the fifth premise?
Human rights..
Declares it article 20 of the Convention:
(...) The return of the child (...)
may be refused if this would not be permitted
by the fundamental principles of the requested State
relating to the protection of human rights and fundamental freedoms (...)

In this perspectivre it is ddifficult to expect release to a war-torn country,
affected by a weakness of state organisation,
or such where the legal system is based on a completely different culture (tradition).

33. Do indicated premises must occour jointly?
No !
Just existence of only one is sufficient.

34. What characterises the proceedeng by The Hague Convention?
Rapidity.
In conjunction od article 11:
The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of children..
If the judicial or administrative authority concerned has not reached a decision
within six weeks from the date of commencement of the proceedings,
the applicant or the Central Authority of the requested State,
on its own initiative or if asked by the Central Authority of the requesting State,
shall have the right to request a statement of the reasons for the delay. (...)


Although this six-weeks deadline is not always complied with,
nevertheless court–finding during a little more than this deadline is rife.

35. Where to submit application in case of wrongfull removal/retention?
That question is answered in article 8 of The Hague Convention:
(...) Any person, (...)
claiming that a child has been removed or retained in breach of custody rights
may apply either to the Central Authority of the child's habitual residence
or to the Central Authority of any other Contracting State for assistance
in securing the return of the child (...)


Firts,
the request may be filed in any country which is a signatory od The Hague Convention.
Hence, it can even be so, in which the child is not present.
This country should give the request to proper one,
so that where is child's habitual residence
Of course this approach is impractical: time-consuming.

Secondly,
the request from the Convention may be submitted to the central authority of the state,
from which the child was removed/prevented from returning.
This authority shall forward the request to the central authority of the country,
in which the juvenile resides.
This solution is certainly better than the previous one, but in this case there is
the issue of time-consuming transmission of files in international interchange.

Thirdly - and this is the fastest - the request of The Hague Convention may be submitted directly to the central authority of the country to which the child is removed/ prevented from returning (operates under dispute).

36. In what judical mode application is examine?
Nonadversarial.
Requesting return of the child has the status of the petitioner
and the person holding it has the status of respondent.

37. Is the child party in Polish court in the proceedings of The Hague Convention?
No !

38. Is The Hague Convention an instrument for the recovery of the child
only with parental kidnapping ?

No !
The Hague Convention is an vehicle for the situation in which the child has been taken against the wishes of a parent to another country - by anyone, and not only the other parent but a stranger. However it shall be admitted, that it is used mainly in cases of parental kidnapping”.

39. Does The Hague Convention recognize parental kidnapping” as a crime?
No !

40. Does this mean that “parental kidnapping” is not a crime?
This question has no clear answer.
According to what was stated above, The Hague Convention does not mention this issue.
It settles civil matter only. In contrast, “parental kidnapping” is a criminal offense in a number of countries - in their own acts - although it is not considered a criminal offense in all countries. Thus, it is worth checking the status of penalty for such action in a country of child's removing or retaining.

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41. Is “parental kidnaping” a crime in Poland?
No !

42. Is “parental kidnaping” a misdemeanor in Poland ?
No !

43. Does this mean that the “parental kidnapping” is criminally indifferent ?
Not necessarily.
Accordingly, as mentioned earlier parental kidnapping in Poland

is neither a crime, nor even a misdemeanor.
In contrast, during abduction of the child, an incident may occur like: beating, property damage, insult, injury, etc. Then the criminal law will be interested, although not as kidnapping, but in what occured in the course of kidnapping.

44. May someone else attend in the proceedings of The Hague Convention ?
Yes !
There are grounds for participation in the case by the three entities.

45. What are the three entities participating in the case of The Hague Conventionv?
Prosecutor, ombudsman, ombudsman for children.

46. How practically looks such participation like ?
Most often - it does not mean always - attends the prosecutor's office,
then ombudsman for children, finally ombudsman.

47. What is the common prosecutor's position?
In matters of The Hague Convention, the most common prosecutor's position is
leaving the decision to the adjudgement of the court ,
which is equivalent to the repeal from taking a position.

48. How many requests of The Hague Convention go annually to Poland?
According to the Ministry of Justice figures are as follow:
2014r.-64, 2013r.-72, 2012r.-76,
2011r.-79, 2010r.-53, 2009r.-87, 2008r.-70.

49. What is the practical meaning of these numbers?
This means that the majority of judges, lawyers/solicitors
did not deal with The Hague Convention.

50. What countries are signatories of The Hague Convention ?
Albania, Argentina, Armenia, Australia, Austria breach
Bahama Islands, Belgium, Belorussia, Brazil, Bulgaria,
Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic,
Denmark, Dominican,
Estonia Fiji, Finland, France,
Germany,Greece, Georgia, Great Britain, Guatemala,
Holland, Honduras,Hungary,
Ireland, Iceland, Israel, Italy,
Lithuania, Luxembourg, Latvia,
Macao Special Administrative Region of the People's Republic of China,
Malta, Mauritius, Mexico, Moldova, Monaco,
New Zealand, Nicaragua, Norway,
Panama, Paraguay, Peru, Portugal,
Republic of South Africa, Romania,
Saint Kitts and Nevis, Salvador, San Marino, Serbia, Seychelles,
Slovakia, Slovenia, Spain, Sri lanka, Sweden, Switzerland,
Thailand, Trinidad and Tobago, Turkey, Turkmenistan,
Ukraine, United States of America, Uruguay, Uzbekistan
Venezuela,
Zimbabwe

verison 5.0

Maciej Przebindowski