The concept of free movement and residence of citizens of the European Union on the territory of the EU member states gives rise to many different situations, which often necessitate the complex application of the norms of different legal systems. Thus, after a divorce, there are cases when one of the parents moves with the child to another country for permanent residence, and the other parent eventually loses contact and interest in the child, as a result of which the question arises about the deprivation of parental rights of the latter.
The best way to understand how to resolve the underlying legal issues in cross-border termination of parental rights is through a legal analysis of the actual situation.
So, case: after a divorce in the Netherlands (both parents and the child are citizens of the Netherlands), the father and the child move to Poland with the mother’s permission. They have been living there for three years, the child attends a local school, has friends, speaks Polish, the father is employed and provides for the family. During the first three years, the mother came to Poland twice to visit the child, called from time to time, was interested in the child’s life. However, there has been no contact with the mother for the past eight months. Since the father took care of the child on his own even before moving to Poland, and the mother had drug problems, the father decided to go to court to deprive her of parental rights in order not to need the mother’s consent to solve key issues in the child’s life.
In order to exercise the right to apply to the court for the purpose of deprivation of parental rights, the following basic issues must be resolved:
- Which country’s court will consider the case and what does it depend on (conflict of jurisdictions)?
- material law of which country will be applied (conflict of laws)?
- what are the main conditions for depriving a person of parental rights under the substantive law that applies to disputed legal relations?
- what are the features of the judicial process?
To answer these questions, it is necessary to apply EU secondary law, the national law of an EU country and one convention. Following the sequence, we analyze and determine.
Which country’s court will consider the case and what does it depend on (conflict of jurisdictions)?
From March 1, 2005, issues related to parental responsibility were regulated by the Brussels II Regulation, well known to international lawyers – EU Council Regulation No. 2201/2003. However, on July 31, 2022, this Regulation expired. It was replaced by the new Regulation of June 25, 2019 No. 2019/1111 “On International Jurisdiction, Recognition and Execution of Court Decisions in Matrimonial and Family Matters and Cases on Parental Responsibility, as well as on International Child Abduction.” The new Regulation applies in legal proceedings regarding official documents and agreements that have been initiated/concluded from 1 August 2022 (not applicable in Denmark).
Therefore, international jurisdiction is determined by the provisions of Regulation No. 2019/1111, and jurisdiction in cases of parental responsibility for a child has the courts of the Member State in which the child permanently resides at the time of going to court.
In order to correctly apply this norm, it is necessary to determine the content concept of permanent residence in EU law. The Regulation uses the term habitual residence in English, which is not new to the legal doctrine of the European Union.
Habitual residence is used in EU law as a supranational anchoring factor, which in terms of its importance for solving jurisdiction issues prevails over other components of a person’s personal law (such as nationality and place of residence). At the same time, it is important to note that the term habitual residence does not have a clear definition and in each case the national court will interpret its meaning depending on the circumstances of the specific case. At the same time, the constants of this term are the level of integration of the child into the social environment of the country; duration, conditions and reasons for the child’s stay in a specific EU country; reasons for family relocation; the location of the school attended by the child; the language spoken by the child and his family members; her nationality; where the center of family and child interests is located.
In addition, it is necessary to take into account other factors, for example, the presence of a child with a serious congenital disease, in connection with which he needs constant supervision and special conditions for education and development; abuse of one of the parents with narcotic substances or alcohol. All this will be taken into account by the national court when interpreting the concept of habitual residence, which determines the jurisdiction of the case.
So, the answer to question #1. Taking into account the circumstances of the situation under analysis, the permanent place of residence of the child will be Poland, since the child lives there for a long time with the father, attends a local school, has socialized, the father has a permanent job there, the mother visited them in Poland, the child’s center of interests is in Poland. Therefore, in this case, the Polish court will have jurisdiction over the application for deprivation of parental rights.
The material law of which country will be applied (conflict of laws)?
Acquis communautaire does not contain legal norms that would regulate the issue of applicable law in cases of parental responsibility. And this is quite logical, because the European Union plays a limited role in matters of family law, and each member state has its own rules. The EU’s role is to ensure that decisions made in one country can be implemented in another.
Issues of applicable law are regulated by the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Child Protection Measures of 1996 (its participants are, in particular, the Netherlands and Poland, as well as Denmark). So, if an issue is not regulated by EU law, then international agreements, to which certain EU member states are parties, are applied. However, if a specific issue is regulated by EU law, then the relevant norms of secondary EU law are applied, not the provisions of international conventions.
Since the issue of the applicable law in cases concerning parental responsibility is not regulated by the law of the European Union, in the situation under consideration, it is necessary to apply Article 15 of the specified Hague Convention, which specifies that during the exercise of their jurisdiction in accordance with the provisions of Chapter II, the bodies of the contracting states shall apply their national law .
That is, answering question #2: in the situation under consideration, the national law of Poland must be applied (both substantive and procedural).
What are the main conditions for depriving a person of parental rights under the material law of Poland?
Answer. The law of Poland, which regulates the grounds and conditions for depriving a person of parental rights, is called Kodeks rodzinny i opiekuńczy (Family and Guardianship Code), adopted on February 25, 1964.
Thus, Article 111 of the Family and Guardianship Code of the Republic of Poland defines gross neglect of parental duties as one of the grounds for deprivation of parental rights. However, the law does not specify exactly what is meant by gross neglect by parents of their responsibilities towards the child. To understand the main components of this ground, it is necessary to refer to the practice of the Supreme Court of the Republic of Poland (Sąd Najwyższy Rzeczypospolitej Polskiej).
The following main legal conclusions emerge from the analysis of relevant court practice:
- gross neglect of parental responsibilities is serious negligence or negligence of a lesser weight, which is characterized by deliberate unkindness, persistence and impropriety;
- evasion of alimony payments, alcohol abuse or participation in criminal activities may also be considered a violation of duties towards the child;
- gross neglect of parental responsibilities can also consist of a complete break in ties with the child or a long absence of contact with the child due to the fault of the parents, lack of interest in his fate.
This approach to understanding the essence of gross neglect of parental responsibilities is permanent in Poland.
What are the features of the judicial process?
Interesting features are that a large number of cases are heard in closed court sessions, cases are considered not by lawsuits (as in Ukraine), but by statements (in the order of non-procedural proceedings) and anyone can file such a statement (in Ukraine, the number of plaintiffs is limited ). The guardianship court of Poland can also initiate proceedings ex officio (“by position”, in this case – independently, on one’s own initiative). Such conditions derive from articles 506, 510, 511, 570 of the Civil Procedure Code of the Republic of Poland (Kodeks poświęcija cywilnego).
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Therefore, cross-border cases of deprivation of parental rights in the EU require a comprehensive approach to the application of various legal systems: EU (secondary) law, international law (multilateral international agreements) and national law of EU member states. However, despite such a multi-vector approach, the relevant legislation is quite clear, and the practice of its application has become. This state of affairs illustrates the principle of legal certainty in action, which is certainly a positive factor.
Natalia Bodnarsenior partner of Prylutska & Partners JSC
