Work has begun on a project intended to ensure a swift and effective response when court-ordered contact obligations are not fulfilled or are poorly implemented. This update was outlined by Michał Wójcik, the minister in the Prime Minister’s Chancellery, during questions from the Commissioner for Human Rights.
According to the minister, one key change involves replacing the practice of paying a monetary sum to the other parent with drawing fines from the state treasury. The proposed amendment to the Code of Civil Procedure would also implement a Constitutional Court ruling from June of the previous year. It would require courts to consider whether contact obstruction or non-performance stems from the child’s will.
The minister’s letter to the Commissioner for Human Rights has been posted on the Office of the Commissioner for Human Rights website. It responds to questions raised by Marcin Wiącek in February about plans to reform the law following last year’s Constitutional Court decision.
On 22 June 2022, the Constitutional Tribunal held that provisions requiring a parent to pay the other parent in cases where contact is obstructed are unconstitutional if the contact does not align with the child’s will. The ruling sparked debate among lawyers about how to apply and enforce the provisions in practice, and the Commissioner for Human Rights has repeatedly highlighted problems with implementing the judgment.
The focus has been on penalties for preventing contact with a child, with the Tribunal signaling that the current system can be unfair. In January, Wiącek argued that the child’s best interests should be the priority and the main consideration in such cases. He circulated questions to the Ministry of Justice and also raised the issue in the Senate Legislative Committee.
Minister Wójcik answers to the Ombudsman
In early April, Wójcik sent a reply to the defender about these matters. In the Civil Rights and European Identity department of the Chancellery, legislative work has begun on a draft amendment to the Code of Civil Procedure. The aim is to introduce a mechanism that ensures an effective response to non-performance or improper performance of obligations arising from a judgment or settlement concerning child contact, replacing the payment of money to the other parent with a fine payable to the State Treasury.
Wójcik noted that the draft regulation places greater emphasis on the child’s best interests by reducing mental stress and conflict between the parents during the contact process. He also acknowledged situations where a parent, accused of obstructing contact, seeks monetary penalties from the other parent, potentially aimed at pressuring the implementation of contact rather than addressing the underlying issue.
The minister emphasized that the proposed provisions aim to counter the use of financial penalties as retaliation or additional nuisance in ongoing parental disputes.
He also highlighted that the amendment would implement the Constitutional Court’s judgment by requiring courts to examine, on their own initiative, whether the obstruction or non-performance of contact is truly due to the child’s independent will, free from influence by the caregiver.
The Tribunal had noted that the relevant provisions in the Code of Civil Procedure allowed guardianship judges to threaten or order payments if a parent with custody failed to fulfill duties and that, if non-compliance persisted, the other parent could receive a proportionate payment for violations. The Court ruled these rules unconstitutional where the child’s will drives the non-fulfillment.
The ruling did not erase all contested provisions but narrowed their application. Courts would need to assess whether the non-fulfillment or improper performance was caused by the child’s will, expressed independently and without influence from the caregiver, according to the Tribunal’s stance at the time.
In the minister’s letter, it is stated that the draft project was added to the Council of Ministers’ legislative and program agenda last year. After refinement, the proposal will undergo interdepartmental consultation, public consultation, and further expert review before moving forward.
Earlier this year, Krzysztof Kwiatkowski, chair of the Senate Legislative Committee, indicated that the committee was also pursuing an initiative to cover visits between a parent and child within the framework of financial sanction instruments. Lawmakers are actively studying the issue.
tkwl/PAP
Source: wPolityce