Work has started on a project that should enable an effective response to non-execution or poor implementation of contact obligations imposed by the court, Minister of the Prime Minister’s Chancellery, Michał Wójcik, said in response to questions from the Commissioner for Human Rights.
As the minister added, one of the planned changes is “to replace the institution of payment of a sum of money to the other parent with the institution of a fine from the treasury”. The planned amendment to the Code of Civil Procedure would also implement the ruling of the Constitutional Court of June last year by the need for courts to take into account whether the obstruction or non-performance of contact is due to the will of the child.
The letter from Minister Wójcik has been published on the website of the Office of the Commissioner for Human Rights. It is an answer to Marcin Wiącek’s questions from February this year about, among other things, plans to change the law after last year’s Constitutional Court ruling.
The Constitutional Tribunal ruled on 22 June 2022 that the provisions imposing an obligation on a parent to pay the other parent in connection with obstructing established contact with the child are unconstitutional if the contact is not in accordance with the will of the child . At that time, the judgment provoked comments from lawyers on the problem of implementation and application in practice.
The Commissioner for Human Rights has also repeatedly pointed out the problem with the implementation of this judgment of the Tribunal.
It was a ruling on penalties for preventing contact with a child, in which the Constitutional Court made it clear that this system is unfair
he said in January. Pap Wiącek. At the same time, he stressed that in such cases the best interests of the child “should be the priority and the main value”.
In this case, Wiącek sent questions to the Ministry of Justice, he also raised the issue in the Senate Legislative Committee.
Minister Wójcik is accountable to the Ombudsman
At the beginning of April, Minister Wójcik sent an answer to the defender about this.
In the Department of Civil Rights and European Identity of the Chancellery of the Prime Minister, under my supervision, legislative work has started on the draft amendment to the Code of Civil Procedure, which aims to introduce a mechanism to ensure an effective response on non-performance or improper performance of obligations arising from a judgment or settlement before a court or before a mediator concerning contacts with the imposition of payment of a sum of money to the other parent to be replaced by the imposition of a fine to the State Treasury
he inquired.
Wójcik added that “the draft regulation assumes that the contact procedure takes greater account of the principle of the best interests of the child by minimizing the mental strain caused by stress and possible conflicts between the parents.”
On the other hand, this proposal takes into account situations where a parent, because of alleged obstruction of contact with the child, demands a certain amount of money from the other parent, apparently aimed only at the implementation of these contacts
Wojcik said.
Thus, the draft provisions are intended to counter the obligation to pay to the other party as an instrument of retaliation and additional nuisance as part of the ongoing parental conflict
– noted the Minister in the Prime Minister’s Chancellery.
Judgment of the Constitutional Court
In addition, he added, the planned amendment is intended to implement the judgment of the Constitutional Tribunal, as it stipulates that the courts must take into account the circumstances, whether the prevention or non-performance of contacts is due to the will of the child, expressed independently without the influence of the one who cares for him.
The judgment of the Constitutional Court referred to two provisions of the Code of Civil Procedure, which stipulate that if the parent who has custody of the child fails to fulfill or does not comply properly, the Guardianship judge may threaten him with ordering payment to the person who has the right to deal with the child. If that person still fails to fulfill their obligations, the court may order the other parent to pay an amount in proportion to the number of violations.
The Constitutional Tribunal ruled that these rules are unconstitutional in the context of situations where the improper performance or non-performance of duties by the parent with authority is related to the will of the child himself.
The Tribunal emphasized that the effect of the ruling is not the loss of binding force of all contested provisions, but the abolition of the stated scope.
The courts will therefore have to consider ex officio whether the non-fulfillment or improper performance of the obligation by the person in whose care the child is placed is due to the fact that the will of the child has been independently expressed and taken into account without the influence of the person in whose care the child is placed
TK emphasized at the time.
In his letter, Minister Wójcik informed that the planned project was submitted to the list of legislative and program work of the Council of Ministers last year.
After implementation, the draft will be sent for interdepartmental consultation, public consultation and advice
– added the Minister in the Prime Minister’s Chancellery.
In January this year, the chair of the Senate Legislative Committee, Krzysztof Kwiatkowski, also told PAP that this committee was working on an initiative that would cover the implementation of visits between a parent and a child – also “in the context of financial sanction instruments”. Lawmakers are working on the issue, he said.
tkwl/PAP
Source: wPolityce