New Polish rules blocking international child returns “not permitted” under EU law, finds European court

The Court of Justice of the European Union (CJEU) has found that new Polish measures allowing the authorities to suspend court orders for children to be returned to other countries are “not permitted” under European law.

Polish government figures have condemned the judgement, which stems from a case involving a father seeking to have his children returned to Ireland from Poland. The CJEU is “attacking Polish children” and “spitting in the face of parents”, says one minister.

In 2021, two children who had been born in Ireland to Polish parents and had lived their whole lives there were taken by their mother for a summer holiday to Poland, with the consent of their father.

However, the mother subsequently informed the father that she would remain permanently in Poland with the children. He applied to the Polish courts for their return. A lower court ruled that the children should go back to Ireland, and that decision was then upheld by Warsaw’s court of appeal.

In the past, that would have resulted in the children’s return. But last year, new Polish legislation came into force that allows the return of a child to be suspended if the prosecutor general, commissioner for children’s rights, or commissioner for human rights issues an extraordinary appeal to the Supreme Court.

In the case of the children from Ireland, both the prosecutor general – Zbigniew Ziobro, who is also justice minister – and the commissioner for children’s rights – Mikołaj Pawlak, appointed by the government’s majority in parliament – issued appeals against their return.

In response, the Warsaw court of appeal expressed doubts that such a suspension is compatible with Poland’s commitments under the so-called Brussels IIa Regulation – an EU legal instrument that aims to resolve international matrimonial and parental disputes – and the EU’s Charter of Fundamental Rights.

The Polish court asked the CJEU for an opinion on those issues and yesterday the CJEU delivered a judgement that confirmed the Polish court’s concerns.

“EU law does not permit member states to couple proceedings brought against such a decision [to return a child] with an automatic suspensory effect, such as that provided for by the Polish legislation in question,” wrote the European court.

The CJEU found that the new Polish legislation allowing child returns to be suspended “may undermine the effectiveness of the Brussels IIa Regulation”. It notes that such suspensions would delay proceedings beyond the maximum period of six weeks in which child return cases are expected to be processed.

The European court also found that the fact that extraordinary appeals can be issued without the need to provide any justification and without the possibility of judicial review means they do not meet the requirement that child returns only be delayed in “specific and exceptional, duly justified cases”.

Finally, the CJEU expressed the view that the rights of children were already sufficiently protected under the previous system, in which there were two levels of judicial review regarding their return across borders.

The European court’s judgement – known as a preliminary ruling – does not decide the dispute itself but provides an interpretation of EU law for the national court to use when making a ruling.

The CJEU’s ruling was immediately condemned by Ziobro, who accused “political judges” of trying to “deprive Poland of the right to protect citizens who have returned to the country because they feel safe here”.

Michał Wójcik – a minister in the prime minister’s chancellery who belong to the hard-right United Poland (Solidarna Polska) party led by Ziobro – described the CJEU’s judgement as an “attack on Polish children”.

“The ruling that was passed today orders Polish judges not to apply provisions that were created in [the Polish] parliament, provisions that protect children,” said Wójcik, quoted by the Polish Press Agency (PAP).

“We fought to protect their rights,” he continued, but now the CJEU is “spitting in the face of the parents of children and the children themselves”.

Poland’s government, and in particular Ziobro’s justice ministry, has presented itself as a protector of Polish children facing difficulties abroad and of foreign families fleeing what they claim is persecution in other European countries.

In another prominent case, in 2020 Ziobro intervened to help prevent the extradition to the Netherlands of a non-Polish couple who were wanted on a European Arrest Warrant for abducting their autistic son from a care facility and bringing him to Poland.

Earlier this month, Ziobro accused the EU of wanting to get its “dirty hands on Polish children” after the European Commission launched legal proceedings against Poland for allegedly failing to enforce rulings on family matters by courts in other member states.

Main image credit: Luxofluxo/Wikimedia Commons (under CC BY-SA 4.0)

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.