A judge may refuse to order the return of a child if he/she finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views (art. 13).
How does the court determine that a child refuses to return to the country of permanent residence? How does it assess the child’s stage of development?
There are two ways:
- hearing of the minor
- an OZSS (Opiniodawczy Zespół Specjalistów Sądowych – Opinion Team of Forensic Specialists) opinion.
1. Hearing of the minor
There is no age limit in Polish law for hearing the minor. It is up to a judge.
There are unfortunately no rules how to conduct a hearing of minors?
With a psychologist or without.
I usually ask for a psychologist to be present during the hearing. Judges in Poland – as far as I know – don’t receive training on how to hold a hearing for a minor .
Unfortunately I have had bad experiences in a past so now I prefer the psychologist to be present.
Judges not always want to listen a minor. Sometimes they prefer to receive an OZSS opinion.
2. OZSS
OZSS is an opinion-making institution in domestic and international family matters.
Psychologists and educators working there are the most experienced in family conflicts pending before courts.
Quite often I face a lack of trust for OZSS especcialy from my foreign clients. The case that stuck with me the most was from the UK – my client was concerned about an OZSS opinion.
He could not understand how an opinion could be given after just a few hours of examination. He did not believe me that could work.
The opinion proved to be of great benefit to the client.
We won in I instance but II instance judge decided to refuse to return. The only reason was children’s voice – they did not want to come back.
OZSS opinion (I instance proceeding) mentioned a refusal as follows:
The minors’ expressed will to remain in Poland is mainly due to their identification with the attitudes and decisions of their mother, on whom the children are dependent, but is nevertheless consistent with their experiences. (…) The possible return of the minors with their mother to the United Kingdom will not expose them to physical or psychological harm or otherwise place the child in an intolerable situation
Children were 12 and 10. I should mention I agreed with Ist instance judgement not only becouse I represented a left behind parent. I still believe the return would created a better chance for children, their better psychological development.
Does my client has any relationship with children since their arrival to Poland?
I do not know – I only know that during the proceedings it was completely impossible just because of the attitude of the mother…
Agnieszka Swaczyna
lawyer, adwokat
Photo by Patrick Tomasso on Unsplash
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