Yes, this Convention came into force in Poland on 1 November 2010 (Official Journal of the Republic of Poland 2010, no 172, pos. 1158).

1.1 Which law applies to questions of custody and legal representation of a minor? Which criteria are used to determine the applicable law?

The applicable law is determined by Art. 15-22 of the same Convention (chapter 3). The authorities of the country having jurisdiction apply the rules of their own law. But in exceptional circumstances, they can apply or take into consideration the law of another country that has a close relationship to the given situation, on the condition that this will be in the best interest for the child. It is not possible to refrain from applying the law indicated in the provisions of the Convention, unless the application is clearly contradictory to public policy, taking into consideration the child’s welfare.

The Polish legislator has regulated questions regarding custody and legal representation of a minor in the Family and Guardianship Code (consolidated text Official Journal of the Republic of Poland 2012, pos. 788 as amended).

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

The authority having jurisdiction is the guardianship court, by applying Art. 8-15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II) and also Art. 5 of the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children of 19 October 1996 and applicable state regulations. According to Art. 569 § 1 of the Polish code of civil procedure the exclusive jurisdiction lies with the guardianship court of the place of permanent residence of the person whom the procedure shall concern – and in case of lack of a place of permanent residence – the guardianship court of the place where the person usually resides. If there is also a lack of this condition the jurisdiction lies with the district court of the capital city of Warsaw. According to Art. 569 § 2 of this code in urgent cases the guardianship code issues all necessary regulations ex officio even concerning persons for whom it does not have territorial jurisdiction and informs about that the guardianship court having territorial jurisdiction.

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

The jurisdiction lies in these cases with the guardianship court (as above) and according to Art. 583 Polish code of civil procedure the permission for the parents (legal representatives of the child) to undertake an act that exceeds the scope of ordinary management activities concerning the estate of the child or for the parents to allow the child to undertake such an act, is granted by the guardianship court on application of one parent after having consulted the other parent.

According to Polish law, the legal capacity of a person begins at the moment of his/her birth (Art. 8 Polish civil code). Majority and with this full legal capacity starts in principle at the age of 18 (Art. 10 § 2 Polish civil code).

Persons who are younger than the age of 13 or incapacitated do not have contractual capability (Art. 12 Polish civil code). In principle, legal acts performed by a minor are null and void (Art. 14 § 1 Polish civil code). Exceptions concern routine daily business activities that do not have negative effects for the minor.

According to Art. 15 of the Polish civil code, a person who is older than the age of 13 or a person who is partly incapacitated has limited contractual capability. Safe exceptions provided in law, for the validity of a legal act by which a person who has limited contractual capability enters into obligations or disposes of a right, the permission of the legal representative is necessary (Art. 17 Polish civil code). The validity of a contract that has been concluded by a person that has limited contractual capability depends on the confirmation of this representative (Art. 18 § 1 Polish civil code). A unilateral legal act that has been performed by a person who has limited contractual capability without the permission of the legal representative is null and void from the beginning without the possibility of later validation by the legal representative. 

2.1 Is it possible that in some cases the legal capacity of a minor is extended (e.g. right to get married, right to make last will)?

There is an exception for minors who have got married. By marrying, a minor comes of age and has full contractual capability (Art. 10 § 2 Polish civil code). The person keeps full contractual capacity even if the marriage is annulled. This provision stays in relation to Art. 10 § 1 Polish Family and Guardianship Code, according to which a person who has not turned eighteen cannot marry, though for important reasons the guardianship court may allow a woman who has turned sixteen to marry if it results from the circumstances that the marriage will be for the good of the future family.

A legal act performed by a person who has no contractual capacity (a person who has not turned eighteen and an incapacitated person) is invalid, though if a person who has contractual capacity has concluded a contract concerning routine daily business transactions, such a contract becomes valid at the time of performance, unless it causes serious harm for the person who does not have capacity for legal acts. To be valid, in principle, a legal act whereby a person with limited capacity for legal acts (a minor who has attained thirteen years of age and a  person that is partially legally incapacitated) assumes an obligation or disposes of his/her right requires the consent of hi/hers statutory representative. The validity of a contract executed by a person with limited capacity for legal acts without the required consent of his/her statutory representative depends on the contract being ratified by that representative.

A person with limited capacity for legal acts may ratify the contract him/herself upon acquiring full capacity for legal acts. A party who has executed a contract with a person with limited capacity for legal acts cannot plead lack of consent of the statutory representative. It may, however, set that representative an appropriate date by which to ratify the contract; it becomes free when this date passes to no effect. If a person with limited capacity for legal acts performs a unilateral legal act for which the law requires the consent of the statutory representative, such act is invalid.

A person with limited capacity for legal acts may, without the consent of his/her statutory representative, execute contracts of a type commonly executed in minor current day-to-day matters. A person with limited capacity for legal acts may, without the consent of his/her statutory representative, dispose of his/her earnings unless the guardianship court rules otherwise for good cause. If the statutory representative of a person with limited capacity for legal acts gives him/her specific property items for unrestricted use, that person acquires full capacity for legal acts concerning these property items. Legal acts for which the consent of the statutory representative is, according to the law, insufficient constitute an exception.

The provisions stated above result from Art. 12-22 of the Polish Civil code.

In principle, both parents have custody.

If one of the parents is not alive or does not have full legal capacity, the other parent has custody. The same applies when one parent has been deprived of parental rights or if parental rights have been suspended. If neither of the parents has custody or if the parents are unknown, custody has to be appointed for the child. The decision in this scope is taken by the guardianship code. The custody is exercised by the custodian. Joint custody can be entrusted by the court only to married couples.

If it is not contradictory to child welfare, the custodian for a minor should be especially a person indicated by the father or mother if they were not deprived of parental rights. In case this function is not taken up by such a person, the custodian should be one of the relatives or other persons that are close to the person in care or his/her parents. If such persons do not exist, the guardianship court refers to the competent social assistance institution or to a social organisation that is responsible for the care of minors to indicate a person who could be entrusted with the care or if the person in care stays in an educational care facility or in a similar facility or in a juvenile detention centre or in a juvenile shelter, the court can also refer to this facility, centre or shelter.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

Custody includes in particular the duty and right of the parents to care for the person and the property of the child as well as bringing up the child respecting its dignity and rights. The child remaining under parental authority shall obey its parents and, in cases where it can undertake decisions independently, it should listen to the opinion and advice of the parents expressed for its welfare. Parental authority should be exercised according to the demands of the child’s welfare and public interest.  

Before taking a decision in important matters concerning the person and property of the child the parents should consult the child, if the intellectual development, state of health and degree of maturity of the child allow this and they should take into consideration, as far as possible, the child’s reasonable wishes. The parents bring up the child remaining under their parental authority and guide it. They are responsible to care for the physical and intellectual development of the child and prepare it adequately to work for the good of society according to its abilities. Parents who do not have full legal capacity take part in the current personal care of the child unless the guardianship court decides differently for the welfare of the child (Art. 95 and 96 of the Family and Guardianship Code).

Right to represent the child discussed below (4.).

The custodian appointed by court is obliged to execute his/her actions with due diligence, required by the welfare of the person in care and public interest. The custodian takes care both of the person him/herself and the property of the person in care and, within this scope, he/she is supervised by the guardianship court.

The custodian should obtain permission from the guardianship court for all important matters that concern the person or the property of the minor. The parents should be informed by the custodian about all important matters that concern the person or the property of the minor, if they take part in the current care for the child and if they take part in bringing it up.

The custodian must not represent persons remaining under his/her care in the following matters:

1) legal acts between those persons;

2) legal acts between one of those persons and the custodian or his/her spouse, descendants, ancestors or siblings, unless the legal act consists of a donation for the person in care. This principle is also applied in court proceedings or proceedings before other state authorities.

Immediately after taking up custody, the custodian is obliged to prepare an inventory of assets and present it to the guardianship court. The above provision is applied accordingly in case of subsequent purchase of assets by the person in care.

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

The decision on appointing a custodian for a child is taken by the court, when it receives information that this is necessary for the welfare of the child. The source of such information can be the family of the child, public authorities, social welfare, the prosecutor’s office, social organisations, etc. The necessity to appoint a custodian for a child occurs for example when the parents do not have custody or if the parents are unknown or if the parents are dead or if they are completely incapacitated.

3.2.2 Is the competent authority free in its choice of a new custodian?

The court chooses the custodian guided by the welfare of the child and the characteristics of the person that shall become the custodian and is therefore not completely free in the choice in appointing custody. The person of the custodian is verified by specialised curators or care and diagnosis facilities.

The person to be appointed as custodian must: 1. have full contractual capability, have parental rights, not be deprived of public rights by court ruling, 2. guarantee that he/she will fulfil the obligations of a custodian with due diligence (lives a life of integrity and does not give a bad example to the child).

In the first place, a person who was indicated in the will of the parent of the child should be appointed as custodian. Then the custodian should be a relative or a person who is close to the minor or its parents. If it is not possible to appoint a custodian in that way, the court calls upon the community or a social organisation which takes care of minors to indicate a person who could exercise custody.

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Only the parents can exercise custody jointly. The custodians take care of the child in all parts of its life, which makes it impossible to treat custody as a partial institution, interfering only in financial matters or educational matters. If the court has to help the child in a certain narrow matter, a curator is appointed and not a custodian.           

3.3 How and by whom will be determined the right of custody if the parents are arguing about it? Is there a difference between married and unmarried couples?

The competent authority is always the guardianship court. The parents decide together about important matters for the child and in case they cannot reach an agreement the mentioned court decides. There is no difference between married and unmarried couples (the legal act speaks of the parents of the child).

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No.

In principle both parents, whereas the right of legal representation of children is linked to matters of parental authority and care for children, which was already discussed under points 3. and 3.1.

If both parents who live separately have parental authority, the guardianship court may for the welfare of the child define how it should be exercised. The court may entrust parental authority to one of the parents, limiting parental authority of the other parent to certain duties and rights concerning the person of the child. The court may entrust parental authority to both parents if they present an agreement in accordance with the welfare of the child that regulates how parental authority, contacts with the child are being exercised and if it is reasonable to expect that they will cooperate for the welfare of the child.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

In Polish law the legal representatives of the child are by right its parents. The custodian is not the legal representative of the child by right but by appointment on the grounds of a court ruling.

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?
The right of representation can belong to two persons maximum, because Polish law only knows the situation where the child has to parents or one parent. The legal representatives are not appointed – the legal representatives are the parents by law.

4.1.2 Is the competent authority free in its choice of a new legal representative?
The authority is not choosing the legal representative – the legal representative is the parent of the child. It is different with the custodian – he is appointed by court.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes, this issue will be analysed in reference to the legal representatives, this is the parents of the child. The only case where the legal representative of the child is not his/her parent is in case of adoption, whereas Art. 121 § 1 Polish Family and Guardianship Code states clearly that through adoption between the adopter and the adopted such a relationship comes into being as between parents and children and although there are in this case no blood ties, there is in principle no difference as to mutual rights and obligations.

The parents are the legal representatives of the child remaining under their parental custody. If the child remains under the parental custody of both parents, each one of them can act independently as the legal representative of the child. Though neither of the parents must represent the child in the following matters:

1) legal acts between children remaining under their parental custody;

2) legal acts between a child and one of the parents or his/her spouse, unless the legal act consists of a donation for the child or if it concerns means for living and education the child has a right to from the other parent.

This principle is also applied in court proceedings or proceedings before other state authorities.

If neither of the parents can legally represent the child remaining under parental custody, it is represented by a custodian appointed by the guardianship court.

The parents are obliged to exercise with due diligence the administration of the assets of the child remaining under their parental custody. The administration exercised by the parents does not cover the remuneration of the child nor objects it can freely dispose of. Without the permission of the guardianship court the parents cannot

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons having the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

There are special limitations relating to the rights of minors if the welfare of the child is in danger. If the welfare of the child is in danger, the guardianship court issues adequate regulations. The guardianship court can especially:

1) oblige the parents and the minor to a certain action, especially to work with a family assistant, to realise other form of works with the family, to send the minor to a day care facility, described in the regulations concerning family support and foster care or direct the parents to a facility or a specialist for family therapy, consultation or providing other adequate help for families, describing at the same time how it will be checked that the regulations are being followed.

2) describe which actions cannot be undertaken by the parents without the permission of the court, or subject them to other limitations that apply to the custodian;

3) subject parental custody to constant supervision of a court custodian;

4) direct the minor to an organisation or institution devoted to vocational training or another facility exercising partly care for children;

 5) ordain to situate the minor in a foster family, an orphanage or a childcare facility or to entrust the function of a foster family to a married couple or person who do not meet the requirements for foster families, in the range of necessary training described in the regulations concerning family support and foster care or ordain to place the minor in a medical care facility, a nursery care facility or a medical rehabilitation facility.

The guardianship court can entrust the administration of the assets of the minor to a custodian appointed for that purpose.

In case temporarily parental custody cannot be exercised, the guardianship court can decide on its suspension. The suspension will be waived when the reason for this ceases to exist.

If parental custody cannot be exercised due to a permanent obstruction or if parents are abusing parental custody or if they blatantly do not exercise their duties concerning the child, the guardianship court will deprive the parents of parental custody. It is possible to issue a decision on depriving of parental custody in relation to one of the parents. When the reason for depriving of parental custody ceases to exist the guardianship court can restore parental custody.

The deprivation of parental custody or its suspension can be pronounced in a ruling concerning divorce, separation or annulment of marriage.

Concerning rights of succession, the minor always inherits up to the level of net assets, unless the guardianship court permits the rejection of inheritance.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

In principle not, unless the guardianship court were to give the parents permission for such a power of attorney, but this issue is merely academic, as in practice such a situation does not occur.

5.1 Does the law provide some kind of document, which gives evidence of the right of custody and/or representation?

The parents of the child do not have a special kind of certificate that proves their right of parental custody. The document that is the basis for assessing the parents’ right to act is the birth certificate of the child. The custodian though should have authorisation in the form of a certificate of the guardianship court.

5.2 Is there any other kind of document, proving the right of custody and/or representation?

Further documents on the grounds of which rights to represent the child should be assessed are decisions of the guardianship court issued to the parents and custodians, containing the permission to exercise certain actions that exceed the scope of ordinary management activities concerning the assets of the person in care and also court rulings concerning the limitation of parental custody or appointing custody and other that have influence on the situation of the child, his/her legal representatives and custodians.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

Permission for a child to travel abroad is given by the parents (both or one of them, if the other does not have parental custody) or by the custodians, and the administrative authority expects them to grant such a permission in written form with notarised signatures in a proceeding concerning the issuance of an identity card or a passport for a child. In case there is no permission granted by the parents or custodians or if there is controversy between them, the competent authority to take a decision is the guardianship court that decides by way of an order.

A child who has an identity card or a passport may in principle cross the borders of the Republic of Poland with another EU member state without any further permission. In case of other borders, third country authorities will without doubt ask for a permission of the parents.

When travelling with a Polish airline, children under the age of 12 must have assistance provided and the custodians have to fill in a child-care contract with the air carrier, providing amongst others the data of the person that will pick up the child in the destination airport, whereas children older than the age of 12 may travel independently, without assistance and additional permissions.

Part 1: Protective measures for adults with diminished capacit

The Polish legal system distinguishes between guardianship [pl opieka, opiekun] and curatorship [pl kuratela, kurator], with the first being established for the fully legally incapacitated (here the guardianship being of a permanent nature) and the latter for the partially legally incapacitated (in this case the curatorship may be limited in time). Courts also appoint curators to assist the vulnerable, e.g. a curator is appointed for a disabled person to deal with a specific matter.

Pursuant to Article 16 of the Polish Civil Code (http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19640160093), an adult may be partially legally incapacitated due to mental illness, mental retardation or other mental disorders, in particular alcoholism or drug addiction, if his or her condition does not justify a full legal incapacity but he or she requires assistance to manage his or her affairs. A curator is appointed for a person who is partially legally incapacitated (‘curatorship’).

In accordance with Article 13 of the Polish Civil Code, a person who has reached the age of thirteen years may be legally fully incapable if, due to mental illness, mental retardation or other mental disorders, in particular alcoholism or drug addiction, he or she cannot control his or her behaviour. A guardian is appointed for a person with full legal incapacity unless the person is still in the care of his or her parents. The disability requirement justifying the need to appoint a curator for a disabled person in accordance with Article 183 of the Polish Family and Guardianship Code ( http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu19640090059) should be treated liberally. In the case of a general disability caused by old age, account should be taken of the need to appoint a curator for a disabled person rather than a need to partially or fully incapacitate him or her. When deciding whether a person with disabilities should be legally incapacitated or whether a curator should be appointed for that person, the judge must consider which option would be better for the person, taking into account the factual circumstances.

The procedure for the declaration of full legal incapacity is provided for in Articles 544-5601 of the Polish Code of Civil Procedure (https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19640430296). A petition for legal incapacity as well as proceedings conducted on the basis thereof do not determine whether the court will rule on the legal incapacity of the person for whom legal incapacity is requested. This assumption results in the wide scope of courts’ duties towards the persons concerned by incapacity claims and the introduction of many levels of the procedure for taking evidence involving a person whose legal incapacity is petitioned, medical experts, such as a psychiatrist, neurologist or psychologist and other participants in the proceedings.

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