This story is an example where a Polish court did something right and decided to order the return of two girls from Poland to Spain. The mother of 7-year-old Nicole and 4-year-old Daria, Iwona Czygier, decided to “return” to Poland, claiming to have received the permission of the Spanish father. The court decided differently.
As this case indicates, both girls CAN be returned to Spain immediately, and the need for the appeal process to be finished is not required. This is something new, as far as I know. The case seems to be very typical: mother could not find herself in a new country, and after problems with the father of her children reached “the point of no return” – she packed both daughters and left Spain for Poland. The parents are not married, but still, the Polish court in Suwalki decided that both girls must return back to Spain. Ms. Iwona Czygier, the mother, refuses to return with the girls back to Spain, as she sees no future for herself there.
The article claims that both girls want to stay with the mother, and since she refused to go back with them, this qualifies as an exception included in article 13b of the Hague Convention. Article 13b gives courts the right to refuse the order to return if
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
It is the most abused article of the convention by all countries since its clearly vague wording seem to leave a lot of room for interpretation[…and boy, most judges in EU are VERY loose on over-interpreting the above sentence].
However, this gentleman has not done his homework and did not learn what the Polish and worldwide legal practices and precedents say about rules in the application of article 13b. All legal scholars and high courts insist on a very narrow and strict application of the exception included in article 13b. As the decision of the court in Suwalki proved, the mere refusal to return with the children by the abducting parent cannot be used as a valid condition for 13b. Same goes for alleged psychological harm being done due to the separation of the children from the abducting parent. The stupidity of this argument is so unbelievable, that it shows how irrational the person invoking it is: “separating my children from me is harmful, but separating from the father is … good, actually, very good!“.
Should the child be 2-4 months old, and still being breastfed, that would be a completely different story, as the Polish Supreme court ruled a long time ago. With 2->7-year-old children, separation from a mother does not constitute any physical harm.
This story is the first for Poland, on so many levels, and this is what Polish media have a problem with. The author of the article, Artur Kubaszewski wrote
The provisions of the Convention can be interpreted. The courts of different countries are doing it, and often adjudicate in favor of its citizens. Therefore Suwalki decision has been a surprise.
Sure it is. I am surprised too. Twice. First, the fact that a Polish judge decided actually to follow the spirit and the letter of the law included in the Hague Convention. Secondly, both children are girls, and giving them to a foreign father is a total going against the crowd in the country where domestic custody cases, mothers win exclusive custody in 96%. Fathers are relegated to the role of weekend uncles like they were during the Brezhnev/Khrushchev era communist Poland! [I hear today’s “progressive” Sweden is no better, or even worse, but I digress].
The only thing that did not surprise me was the reaction of the media.
Artur Kubaszewski followed a very typical for many EU countries stereotype (with a British and Irish positive exception). German, France, Switzerland, and many others are as bad as Poland in returning abducted children to the countries of the habitual residence. The same nationalistic mentality does not allow judges (and the journalists) in these “progressive” countries to bring themselves to follow the law of the Hague Convention. The law, which clearly was put in place to protect the best interest of all abducted children. I don’t think Mr. Kubaszewski is opposing the return because he is somehow personally involved in the case. His opposition is based on the typical “us versus them” mentality. A mentality that allows him to ignore the simple fact: child abduction is one of the worst forms of child abuse. Mentality, that was supposed to disappear after Poland joined the EU kolkhoz. This consequence of EU membership is not something that he, and most of his media colleagues, have predicted for their country’s future. Too bad.
This case is a sharp contradiction to a similar case of certain two girls (both also 7 and 4 years old). In that case, the judge from Warsaw decided to refuse the return of the girls back to their father, even though there is NO LEGAL reason to do so. The legal justification is a very clear example of what Mr. Kubaszewski was describing – a very loose interpretation of the existing law (in translation – total arrogance with a twist of incompetence by an activist female judge). Since the case is still in an appeal, I cannot write about it. I believe that the father is going to win it, and both girls will return back to their home in America.
The story of Iwona Czygier and her daughters (in Polish) can be read on pages of Wspolczesna.pl.