The possibility of suspending by operation of law the execution of an order in cases for the removal of a person subject to parental authority or guardianship conducted under the provisions of the 1980 Hague Convention
Cases for the removal of a person subject to parental authority or guardianship are conducted on the basis of the provisions of the Convention on the Civil Aspects of International Child Abduction, drawn up in The Hague on October 25, 1980 (Journal of Laws of 1995, item 528 and 1999, item 1085) known as , “the 1980 Hague Convention”.
The provisions of the Code of Civil Procedure in proceedings for the removal of a person subject to parental authority or guardianship provide for the possibility of suspending by operation of law an order for the removal of a person subject to parental authority or guardianship.
This issue is regulated in detail in Article 3881 § 1 of the Code of Civil Procedure, according to which ”in cases for the removal of a person subject to parental authority or guardianship conducted on the basis of the Convention on the Civil Aspects of International Child Abduction, drawn up at The Hague on October 25, 1980 (Journal of Laws 1995, item 528 and 1999, item 1085), hereinafter referred to as the ”1980 Hague Convention. ”, at the request of the entity mentioned in Article 5191 § 22, i.e. (the Prosecutor General, the Ombudsman for Children, or the Ombudsman for Civil Rights ) reported to the court referred to in Article 5182 § 1 (i.e. the Court of Appeals in Warsaw), within a period not exceeding two weeks from the date on which the order on the removal of a person subject to parental authority or under guardianship becomes final, the execution of the order shall be suspended by operation of law.
However, the Court of Appeals in Warsaw, in the course of one of the trials conducted under the provisions of the Hague Convention, came to doubt whether the above provision really should and can be applied in the wording presented above. Accordingly, it asked the Court with the following preliminary question: “Do Article 11(3) [of Regulation 2201/2003] and Articles 22, 24, 27(6) and 28(1) and (2) [of Regulation 2019/111], in conjunction with Article 47 [of the Charter of Fundamental Rights], preclude the application of a provision of national law under which in cases for the removal of a person subject to parental authority or guardianship, conducted on the basis of the 1980 Hague Convention, at the request of the [authorized authorities] notified to the Court of Appeals in Warsaw within a period not exceeding two weeks from the date on which the order for the removal of the person subject to parental authority or guardianship becomes final, the enforcement of the order is suspended by law?”
After considering all the circumstances, on February 16, 2023, the Court issued a judgment, indicating that “The Court (Third Chamber) rules as follows: Article 11(3) of Council Regulation (EC) No. 2201/2003 of November 27, 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, in light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation that grants non-judicial authorities the power to obtain the suspension by operation of law, for a period of at least two months, of the enforcement of a judgment ordering return issued under the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, without having to justify the request for that suspension.”
This means that on the basis of the above judgment of the Court, the Courts may not withhold by operation of law the enforcement of an order for the removal of a person subject to parental authority or guardianship.
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