The placement of children into foster care in Poland by foreign authorities

ABSTRACT

Cross-border placement of children is addressed by the 1996 Hague Child Protection Convention, which is binding on the United Kingdom, and in EU law. The detailed procedures are governed by the domestic law of each country involved. However, it was not until 2018 that proceedings for placement of children in foster care by foreign authorities were introduced to Polish law. The fact that cross-border placements have become increasingly common has contributed significantly to the enactment of the new law. The available official data indicate that the British and German authorities are the most inclined to place children with Polish citizenship in foster care in their homeland. Although the regulations introduced in 2018 concern the basic rights of children, they have not yet been presented in detail to the involved parties abroad, including British local and central authorities, judges and social workers. Their familiarity with the relevant provisions of Polish law can undoubtedly contribute to speeding up the proceedings and ensuring that their outcome is harmonious with the best interests of the child.

KEYWORDS:

• cross-border placement of children
• foster care
• foster family
• the 1996 Hague Child Protection Convention
• Brexit
• Brussels IIa
• Brussels IIb

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. See: the Migration Observatory at the University of Oxford, Briefing. EU Migration to and from the UK, 2020, available at: https://migrationobservatory.ox.ac.uk/resources/briefings/eu-migration-to-and-from-the-uk/ [Accessed 7 April 2022].

2. However, the information obtained by the author from the Polish Ministry of Justice on 16.06.2021 (document no. DSF-II.082.192.2021) shows that detailed statistics in this area are not kept.

3. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L 338/1.

4. Council Regulation (EU) 2019/1111 of 25.06.2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters, and the matters of parental responsibility, and on international child abduction, OJ L178/1.

5. The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996 in The Hague. It came into force in Poland on 1 November 2010 (Polish Journal of Laws 2010, No. 172, item 1158).

6. Act on the Performance of Certain Activities of a Central Authority in Family Proceedings as part of Legal Cooperation under the European Union Law and International Agreements (Polish Journal of Laws 2018, item 416).

7. Cf issued in 2012 departmental advice for local authorities, social workers, service managers and children’s services lawyers (Department for Education 2012).

8. The Act of 25.02.1964, Polish Journal of Laws 2020, item 1359.

9. The Act of 9.06.2011, Polish Journal of Laws 2020, item 821, as amended.

10. The Act of 17.11.1964, Polish Journal of Laws 2020, item 1575, as amended.

11. See Article 39(1) FSA.

12. The resolution of 14.11.2014, III CZP 65/14, OSNC [Rulings of the Supreme Court, Civil Chamber] 2015 No. 4, item 38.

13. See, e.g. Article 12a of the Act of 29.07.2005 on Counteracting Family Violence (Polish Journal of Laws 2021, item 1249).

14. See also further requirements prescribed in Articles 42(2)-(5) FSA.

15. In the judgement of 13.12.2017 (I OSK 1306/17), the Polish Supreme Administrative Court explained that the fact that candidates meet the other specific requirements set out in the FSA does not automatically mean that they meet the condition of providing a guarantee of satisfactory exercising of foster care. This judgement is available in Polish at: https://orzeczenia.nsa.gov.pl/doc/9BC829FD7E.

16. This should be confirmed by documents listed in Article 42(5) FSA.

17. Exceptions to this requirement are provided for in Articles 42(4) and (5) FSA.

18. See Article 46 FSA and Article 112⁵ § 1 FGC.

19. In this case the training is optional and may be conducted according to an individual plan, depending on the particular needs of the family and the child – Article 44(5) FSA. See the judgement of the Voivodeship Administrative Court in Gliwice of 24.11.2020, II SA/Gl 695/20, available in Polish at: https://orzeczenia.nsa.gov.pl/doc/02E0C232A0.

20. This decision is available in Polish at: http://www.sn.pl/sites/orzecznictwo/orzeczenia3/ii%20ca%201-16.pdf.

21. Cf a critical view of this interpretation: Kallaus 2017, p. 138–140.

22. See Article 56(2) of Brussels IIa (with exceptions stipulated in section 4 of that Article which should not apply to placements in Poland), and Article 82(5) of Brussels IIb.

23. See Article 35a(1) FSA and Article 579⁴ CCP.

24. This system consists of district courts, regional courts, and courts of appeal. Appeals against decisions of district courts are heard by regional courts, and against decisions of regional courts by courts of appeal.

25. The United Nations Convention on the Rights of the Child, adopted and opened for signature, ratification, and accession by General Assembly Resolution 44/25 of 20.11.1989, New York.

26. The resolution of the Supreme Court of 22.11.2017, III CZP 78/17 (OSNC [Rulings of the Supreme Court, Civil Chamber] 2018 No. 5, item 51). See also the resolution of the panel of 7 judges of the Supreme Court of 12.06.1992, III CZP 48/92 (OSNCP [Rulings of the Supreme Court, Civil Chamber, Chamber of Labour and Social Insurance] 1992, No. 10, item 179).

27. See, e.g. the resolution of the Full Bench of the Civil Division of the Supreme Court of 26.01.1973, III CZP 101/71 (OSNCP [Rulings of the Supreme Court, Civil Chamber, Chamber of Labour and Social Insurance] 1973, No. 7–8, item 118).

28. See, e.g. the resolution of the Full Bench of the Civil Division of the Supreme Court of 26.01.1973, III CZP 101/71 (OSNCP [Rulings of the Supreme Court, Civil Chamber, Chamber of Labour and Social Insurance] 1973, No. 7–8, item 118).

29. See also Carpaneto 2016, p. 13.

30. See Articles 1(2)(d), 30 and 34 of Brussels IIb.

31. See the recording of the meeting of the extraordinary subcommittee of the Polish Sejm for the examination of the Bill of 11.09.2017 (print No. 1827) held on 25.10.2017, https://www.sejm.gov.pl/Sejm8.nsf/PosKomZrealizowane.xsp?komisja=SPC12N#2.

32. The information obtained by the author from the Polish Ministry of Justice on 01.07.2021 and on 07.04.2022 (document no. DSRiN-I.082.2.2021).

33. See Article 579¹ § 3 CCP.

34. See, e.g. decision of the Supreme Court of 24.11.2016 (II CA 1/16) and resolution of the Supreme Court of 14.11.2014 (III CZP 65/14, OSNC [Rulings of the Supreme Court, Civil Chamber] 2015 No. 4, item 38.).

35. European Commission, Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), Brussels, 30.6.2016, COM (2016) 411 final, 4.

36. See, e.g. Article 82(5) of Brussels IIb which clearly states that the placement should only be ‘ordered or arranged’ by the requesting Member State after the competent authority of the requested Member State has consented to the placement.