Unfair Justice

POLAND: The Polish Central Authority has been cooperative and responsive in its dealings with the U.S. Central Authority. However, the U.S. Central Authority has informed the Polish Central Authority of concerns that the Polish judiciary is not fulfilling its obligations under the Convention, in large measure because it considers issues related to custody in Hague proceedings, makes inappropriate use of Article 13 (b), and affords uncertain, uneven enforcement of orders.

There is no specific legislation that implements the Hague Convention in Poland. Hague cases are generally not handled expeditiously. Unless there is a voluntary return, children normally remain in Poland during the entire appeals process, which usually takes a minimum of two years. In addition, in almost every Hague case, Polish courts require the left-behind parent to undergo psychological testing, and in many cases have also requested home studies of left-behind parents. The courts also call and accept the testimony of witnesses on behalf of both parents; this places an undue burden on a left-behind parent in another country. Such inquiries go to the merits of custody and are thus inappropriate for consideration in the context of a Hague proceeding, and are properly left to the courts of the country of habitual residence, as per Convention Article 16. Enforcement of Hague decisions is also problematic, as there is no entity charged with enforcement of Hague rulings. Because these are civil matters, police will not intervene to enforce Hague orders.

There has been some progress in the past year. In October 2000, the U.S. Ambassador to Poland sent a letter to the Minister of Justice regarding our areas of concern. In response, the Ministry stated that Poland required no special implementing legislation due to the nature of the Polish legal system. Procedural legislation was implemented on July 1, 2000 whereby Hague cases may no longer be appealed beyond the Appeals Court (i.e., to the Supreme Court). The Ministry has not addressed our concern that there is no legal requirement for a higher court to hear Hague cases expeditiously, but stated there are changes pending in regulations governing Hague orders, which will simplify enforcement procedures. While a December 1999 Polish Supreme Court review pointed out that proving an Article 13(b) allegation is the responsibility of the taking parent, the Ministry advised us that the Supreme Court decision is not binding on judges adjudicating Hague cases.

Communication with the Central Authority continues to improve. The Central Authority has been responsive to our inquiries and helpful in explaining Hague procedures in Poland. We recently received a copy of a Hague court decision (already translated into English) for the first time in almost four years. The decision, while recognizing that the removal was wrongful, declares that the child is firmly resettled in Poland. There is also an assumption that returning the child to the United States would automatically preclude any exercise of custodial rights by the mother which would cause “grave risk to the child” under Article 13(b). At the March 2001 Hague Special Commission, the U.S. delegation raised the cases and the systemic problems noted above with the Polish delegation.