The court did not release the children to Germany. The family stays in Poland

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The Court of Appeals in Warsaw dismissed the application for the release of three siblings to Germany. Earlier, by order of the court of first instance, five children and their mother were to be separated. Thanks to the intervention of lawyers from the Ordo Iuris Institute, the family can stay together. It is believed that one of the girls was sexually abused by her grandfather on her father’s side in Germany.

Mrs Zofia has five children, four of whom are from a relationship with a German citizen. The father of the oldest, 12-year-old Krzysztof, is a Pole. In 2017, the woman stayed permanently in Germany, living with the father of her three youngest children. In 2019, her five-year-old daughter began to behave in a disturbing way, she became aggressive towards her siblings and threw food around. The parents could not explain the cause of their daughter’s behaviour.

In March 2019, Zofia, who was pregnant with another child of the German citizen, came to Poland with four children to visit her parents. During her stay in Poland, the five-year-old girl told her mother about the behaviour of her grandfather on her father’s side, which justified the suspicion of sexual abuse. The mother took her child to a psychologist who confirmed that the minor was a victim of sexual abuse. On the basis of the psychologist’s opinion, the mother reported a notification on suspicion of committing a crime. Mrs Zofia informed the girl’s father that she suspected his father of molesting their daughter. Despite this information, the man denied the charges against his father and demanded that the woman return to Germany with all children. The mother refused out of concern for her daughter’s well-being and the fear that the minor would once again be harmed by her relative. In view of the mother’s attitude, the father applied for the release of his three children to Germany under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, without taking into account the oldest of the siblings, 12-year-old Krzysztof, who was the son of Mrs Zofia and a Polish citizen.

The proceedings for the release of minors were held in Gdańsk. The District Court accepted the application of the father and decided to release the children to Germany. It is worth noting that Mrs Zofia was unable to attend the hearing because, on that day, she was in hospital expecting the birth of her fourth child. Although the woman submitted medical documentation to the case file confirming the reason for her absence, the District Court in Gdańsk closed the hearing and decided to release the children to Germany. After receiving a written justification from the court of first instance, Mrs Zofia contacted the Ordo Iuris Institute.

In November 2019, the Institute’s lawyers filed an appeal against the decision of the Gdańsk court. In the contents of the appeal and in the course of the proceedings before the Court of Appeals, Mrs Zofia’s attorneys drew attention to judicial errors of the court of first instance, which consisted, in particular, in failing to verify information about the suspected sexual abuse of children and the emotional bond between all minors. The lawyers of Ordo Iuris pointed out that the father’s application concerned the release of three children, but there were five siblings. The release of three of them would result in the separation of the siblings, which could place the children in an intolerable situation within the meaning of the Hague Convention.

At the same time, while the proceedings were underway before the Court of Appeal in Warsaw, Mrs Zofia’s oldest son, Krzysztof, renewed contact with his biological father, who had had no interest in his child in the past. Therefore, Ordo Iuris’ lawyers filed a written statement for the case file from the father, who categorically opposed Krzysztof’s return to Germany if Mrs Zofia’s three children were released. In addition, a psychological opinion was attached to the case file, which showed a strong emotional bond between Krzysztof and his biological father.

In the course of the proceedings before the court of the second instance, the court admitted evidence from an expert opinion, which showed that all of the children had a strong emotional bond. However, the experts did not examine the minors for possible sexual abuse. In the course of the proceedings before the Court of Appeals in Warsaw, the District Prosecutor’s Office discontinued the criminal proceedings in the case of suspicion of child abuse, justifying this decision by the lack of evidence for the alleged act. Mrs Zofia filed a complaint against this decision with the District Court in Toruń.

On 19 October 2020, the Court of Appeal questioned the mother of the children and closed the hearing. The lawyers of Ordo Iuris argued that the dismissal of the application for the release of minors was justified on the grounds that there was a suspicion of sexual abuse in the father’s family environment and pointed to the risk of trauma associated with the separation of the siblings. The position of Ordo Iuris’ lawyers was supported by the Children’s Ombudsman and the District Prosecutor’s Office in Gdańsk.

Between the time of closing the hearing by the Court of Appeals in Warsaw and issuing its decision, the District Court in Toruń accepted the mother’s complaint and revoked the decision of the District Prosecutor’s Office to discontinue the proceedings for sexual abuse of the girl. Therefore, on 29 October 2020, Mrs Zofia’s attorney submitted an application for reopening the hearing, admitting the decision of the District Court in Toruń as evidence and suspending the proceedings until suspicion of sexual abuse is resolved.

On 6 October 2020, the Court of Appeals in Warsaw issued a decision accepting the appeal drawn up by lawyers from the Ordo Iuris institute. In an oral justification, the court stated that the main reason for dismissing the application was a strong emotional relationship between siblings. Approval of the application for the release of three children would have led to the separation of five siblings. In turn, with regard to the allegation of sexual abuse, the court found that this was not an argument to refuse to release minors on the grounds that the proceedings were still underway.

‘The Court of Appeals in Warsaw, while implementing the main principles of international family law, namely the principle of the welfare of the child and the inseparability of siblings, rejected the father’s application for the release of three children. Despite the multithreaded nature of the case and our involvement before the court of second instance, we have proved that accepting the father’s application is contrary to the Hague Convention and it should be dismissed’, commented Maciej Kryczka, Zofia’s attorney.

The mother was represented by attorneys Jerzy Kwaśniewski and Maciej Kryczka. The decision of the Court of Appeals in Warsaw is final.