Bialystok Legal Studies vol. 27 no. 3
Articles:
Kinga Bączyk-Rozwadowska
Status of a Child Born as a Result of IVF Procedure
DOI: 10.15290/bsp.2022.27.03.01
Abstract: Due to the constant development of medicine and biotechnology, including the in vitro procedure, more and more infertile couples can fulfil their desire to have a child. Traditional rules of family law concerning the determination of status familiae of such children have then turned out to be insufficient. The situation is even more complicated when IVF procedure assumes the use of donated genetic material or the involvement of a surrogate mother. Therefore in the field of family law the intention to “create” a child starts to play quite an important role. Family law is then undergoing far-reaching transformations, especially in those countries where same-sex couples are eligible to start IVF procedures (Great Britain, USA, Germany, Austria).
Keywords: birth mother, cryoconservation, gamete donation, genetic mother, in vitro fertilisation, medically assisted procreation, surrogate motherhood
Page range: 11-32
Joanna Helios, Wioletta Jedlecka
Parential Alienation in the Polish Legal System
DOI: 10.15290/bsp.2022.27.03.02
Abstract: The aim of this article is to present an issue that has recently become more and more important in the social and legal discourse, namely parental alienation. This phenomenon is generally only partially regulated in the Polish legal system, hence there are questions about penalizing behavior that manifests itself in counteracting contacts or exercising alternate custody. The aim is to explain the concepts of parental alienation syndrome and parental alienation, to analyze the legal aspects of parental alienation, and to point to the alternate seal as a possibility of preventing cases of parental alienation.
Keywords: child welfare, institution of alternate custody, parental alienation
Page range: 33-48
Kinga Michałowska
Limits of Parental Interference in a Child’s Personal Rights – Selected Issues
DOI: 10.15290/bsp.2022.27.03.03
Abstract: The article discusses the issues of the limits of parental interference in children’s personal rights. The conducted research covers the subject broadly. It starts with the general issues of legal capacity as the basis for the protection of subjective rights and then proceeds to demonstrating the lack of limitations in the protection of a child’s personal rights. A child growing up in a family remains under parental authority, which gives rise to certain obligations and rights of parents towards the child. Parents look after, educate and guide the child, carrying out their duties in the best interests of the child and guided by their good. It happens, however, that by caring for children, parents violate their personal rights. Therefore, the determinants of exercising parental authority were examined. Particular attention was paid to the scope of rights resulting from parental authority, the assessment of the manner of exercising it, the right of the child to express his or her own position and the principle of the best interests of the child. These determinants made it possible to indicate the limit of parental interference in the child’s personal rights. The practical side of the implementation of the right to the protection of a child’s personal rights was also indicated, as well as a proposal to amend the content of the family and guardianship code.
Keywords: a child, parental authority, personal rights, subjective rights, the child’s welfare, upbringing
Page range: 49-69
Olga Sitarz
Significance of Family Law Regulations for a Criminal Law Assessment of Neglect
DOI: 10.15290/bsp.2022.27.03.04
Abstract: The article addresses the difficult and complicated issue of a legal assessment of neglect by an adult family member of a person vulnerable due to their age or state of health. The analysis carried out in the first part showed that the provisions of the Family and Guardianship Code are indispensable for a criminal law evaluation of such behaviour. Then, the family law regulations were interpreted in terms of the principles of liability envisaged in the Criminal Code. The article pointed to legislative shortcomings of family law that have a certain impact on the application of criminal law.
Keywords: guarantor of non-occurrence of result, maltreatment, neglect, not providing aid, vulnerable persons
Page range: 71-90
Beata Goworko-Składanek, Tomasz Prymak
Parent-Child Contacts in the Presence of Legal Court-Appointed Guardian. Practice in View of the Need for Legislative Change
DOI: 10.15290/bsp.2022.27.03.05
Abstract: Contact with the child has for years been the subject of deliberations and discussions of entities interested in the welfare of the child, often caught up in the conflict between the parents. They concern, among others, the role of professional guardians/probation officers, whose presence during parent-child contact, according to the law, constitutes one of the forms of court restrictions on this form of maintenance of the parent-child relationship. The aim of the text is an attempt to identify the technical problems associated with the implementation of the court decisions in this matter, and thus to indicate the gross disproportion between the current shape of the regulations on the participation of a guardian in parent-child contact and the needs of practice. Thus, the aim of the study is to engage the community of guardians in the ongoing work on legislative changes and the potential effects of the proposed legislation, including substantive and implementing provisions of family law aimed at the guaranteed right to contact with the child.
Keywords: family law, forms of contact, guardian ad litem, guardians/probation officers, guardianship, visitation rights
Page range: 91-106
Mariusz Załucki
Selected Codification Challenges in Polish Family Law
DOI: 10.15290/bsp.2022.27.03.06
Abstract: Polish family law is undergoing change. For some time now, there have been various initiatives for its possible revision. However, social needs are ahead of legislators’ actions. Today there are a number of legislative challenges facing the Polish legislator in the context of the metamorphosis of Polish family law. The author presents selected problems connected with it and answers the question concerning the desirable way of further work on the metamorphosis of the present regulation of Polish family law. The author also presents issues that cannot be ignored in the context of preparing possible draft amendments to the current legislation. He highlights the role of the Commission on European Family Law and proposes that the starting point for the further metamorphosis of Polish family law would be the establishment of such a body in Poland based on the model of the Commission for the Codification of Family and Guardianship Law, whose work should be transparent and widely available.
Keywords: codification, family law, recodification
Page range: 107-118
Urszula Drozdowska
Legal Construction of Childhood Vaccinations Against the Background of Polish Law – Remarks De Lege Lata and De Lege Ferenda
DOI: 10.15290/bsp.2022.27.03.07
Abstract: The subject of the article is a reflection on the legal construction of preventive vaccination in children. Using the dogmatic-legal method and the analysis of case law, the author examines the issues related to the consent of the child’s legal representative and the question of legal sanctions applied in the event of opposition to this medical intervention. The subject of consideration are also potential possibilities of solving the conflict between the child’s legal representative and public authorities (represented by the sanitary inspection authorities). Thus, the issue is to find such a solution that would lead not only to the goal of achieving the so-called herd immunity, but also to the proper protection of the rights of persons in a potential conflict and the realization of the so-called best interests of the child.
Keywords: childhood vaccinations, child welfare, consent to vaccination, guardianship court
Page range: 119-139
DOI: 10.15290/bsp.2022.27.03.08
Abstract: The study presents legal regulations and jurisprudence concerning the transfer of the content (transcription) of foreign civil status documents in the event that same-sex persons are indicated in the marriage certificate (as spouses) or in the birth certificate (as parents). In recent years, refusal to transcribe this type of civil status records has increasingly become the subject of decisions of administrative courts. The refusal to transcribe a foreign document due to its inconsistency with the fundamental principles of the Polish legal order remains a contentious issue. The assessment of the admissibility of the transcription of the certificate of marriage contracted between persons of the same sex is closely related to the admissibility of registration of such relationships in a given state. In Polish legislation, the only form of recognition of the relationship of two people between whom there is an emotional, physical and economic bond is marriage. The marriage certificate is the only proof of entering into a legal relationship recognized in Poland. Therefore, it is not possible to transcribe the certificate of marriage contracted abroad between persons of the same sex. With regard to birth certificates in which persons of the same sex are indicated as parents, it is first of all necessary to secure the rights of the child as a Polish citizen to obtain a Polish identity document or passport. Obtaining these documents can under no circumstances be made conditional on the transcription of a foreign birth certificate.
Keywords: birth certificate, civil status records, transcription
Page range: 141-157
Grzegorz Suliński
Management of a Child’s Shares in a Limited Liability Company
DOI: 10.15290/bsp.2022.27.03.09
Abstract: A minor may possess property. The management of such property takes place under the regime of the Family and Guardianship Code (krio), which subjects the management activities exceeding the scope of ordinary management to the control of the guardianship court. Due to the development of the market economy, in many cases shares in the share capital of a limited liability company become the child’s property. Actions within the scope of exercising the child’s shareholding rights in a limited liability company require the prior consent of the guardianship court. Such a solution does not provide adequate protection of the child’s property, because the guardianship court does not have instruments allowing it to actually monitor the economic legitimacy of the actions taken. It also does not meet the requirements of the modern company transactions, which, in consequence, may lead to violation of the child’s financial interest. There is a need, therefore, to consider the possibility of changing the current model of managing the child’s shares in a limited liability company. It seems that the change could be aimed at entrusting the management of shares to a person who has knowledge and skills in terms of functioning of commercial companies and is monitored by the guardianship court, which would periodically evaluate the economic effectiveness of the management actions taken by that person.
Keywords: activity exceeding the scope of ordinary management, child’s interest, management of a child’s property, minor, shares in a limited liability company
Page range: 159-175
Justyna Maliszewska-Nienartowicz
The Right of a Child to Contact Relatives in Cross-Border Situations – Comments Based on EU Legal Regulations and the Case Law of the CJEU
DOI: 10.15290/bsp.2022.27.03.10
Abstract: The article presents EU legal regulations and decisions of the Court of Justice of the European Union (CJEU) relating to one of the most important rights of children, which is their right to direct contact with their parents and other people close to them. Difficulties may be encountered in cross-border situations when the child moves to another Member State or to a third country. In the first case, EU regulations apply, in particular Art. 24 of the EU Charter of Fundamental Rights and the Council Regulation 2019/1111. They are complemented by the case law of the CJEU, which interprets the terms they contain, e.g. the right to personal contact with the child. Its decisions recognise the best interests of the child as an overriding principle. At the same time, the Court tries to adapt existing EU legal provisions to social realities related not only to increased mobility, but also to changes in the structure of the family itself (patchwork families, single-parent families, etc.).
Keywords: art. 24 of the Charter, contact between the child and the parents, Council Regulation No. 2019/1111, judgment in case C-335/17, the best interests of the child, the right of access
Page range: 177-191
Katarzyna Bagan-Kurluta, Anna Klimach
Common Application of EU Regulations and Their Effectiveness in the Context of the CJEU Judgment in the Case of SS v. MCP, C-603/20 PPU
DOI: 10.15290/bsp.2022.27.03.11
Abstract: International child abduction is a problem, seen as growing, and increasingly as an activity that should be ruthlessly stigmatized and, if possible, eliminated from practice. The objectives of reducing, stigmatizing and ultimately eliminating international child abduction are served by a variety of measures within the framework of the Hague Conference on Private International Law and the European Union, including the creation of some sort of rapid response system. In the context of the operation of this combined system, in November 2020, the Court of Justice of the European Union received a preliminary question from the UK High Court of Justice (England & Wales), Family Division, in relation to doubts arising in the course of newly instituted court proceedings concerning jurisdiction in parental matters in situations of child abduction to a third, non-EU country. The issue is important as it relates to the possibility of initiating proceedings in the country from which the child has been abducted when the country to which the child has travelled is not in the EU.
Keywords: best interest of a child, child abduction, habitual residence, jurisdiction
Page range: 193-206
Salvatore Antonello Parente
Family Income Taxation Models in the Italian Legal System: Analysis and Perspectives
DOI: 10.15290/bsp.2022.27.03.12
Abstract: In the regime of sources of Italian law, the taxation of family income has undergone profound changes, in line with the 1975 family law reform, which marked the transition from the patriarchal family, based on the figure of the pater familias, to the nuclear family, composed of spouses and children. Also thanks to the intervention of the Constitutional Court, the model of legal cumulation, in which the husband, in his role as head of the family, was taxed on the income produced by the members of the household, was followed by the system of decumulation, characterized by individual (or separate) taxation of the income produced by each family member. The essay analyses the taxation regime of family income in the Italian legal system, examining its compatibility with the principle of ability to pay, foundation and limit of taxation.
Keywords: analysis and perspectives, compatibility test, family income, principle of ability to pay, taxation regimes
Page range: 207-225
Giovanni Liberati Buccianti
Private Autonomy and Family Public Policy in Italy
DOI: 10.15290/bsp.2022.27.03.13
Abstract: The article deals with the general clause of public policy in Italian family law. It analyses the recent case-law application of both international and internal public policy in the Italian legal system. Nowadays, public policy is used for protecting and developing the fundamental rights of individuals in the EU space. However, the content of this general clause is debated, and there are several theses (e.g. constitutional, discretionary, globalized public policy). Adhering to one concept rather than another has different consequences. Think, for example, of the recognition of double paternity acquired abroad through a surrogacy contract. Moreover, family public policy can be viewed both as public policy of the family (a general clause that protects the family rather than its members) and public policy in the family (a general clause that protects the fundamental rights of the individuals rather than the family). Subsequently, the article analyses prenuptial and postnuptial agreements in Italy. Italian jurisprudence considers both agreements invalid because they are in contradiction to public policy. The article suggests that families can use the contractual instrument. However, personal and patrimonial clauses in domestic family agreements need to be compatible both with the public policy of the family and public policy in the family. Ultimately, public policy becomes a tool attributed to ordinary judges for guaranteeing widespread constitutional legality.
Keywords: family, family public policy, postnuptial agreements, prenuptial agreements, private autonomy, surrogacy contracts
Page range: 227-240
Commentary:
Bożena Gronowska
Commentary to the Judgment of the European Court of Human Rights of 16 September 2021 in the Case of X v. Poland (appl. no. 20741/10)
DOI: 10.15290/bsp.2022.27.03.14
Abstract: At first sight, the commented judgment raises serious dilemmas regarding the basic attitudes of some parts of the Polish society towards a traditional model of marriage and of family relations in confrontation with same-sex emotional bonds. The complicated factual picture of the case comprises both the adult family members and, even more importantly, the minors who are facing the break-up of their family. The European Court of Human Rights tried to properly connect and find a fair balance of all the colliding interests, with necessary exposition of the rights of the youngest child involved in this difficult situation. Dealing with the case the European Court of Human Rights obviously was under the influence of its margin of appreciation doctrine, which is traditionally very important in cases with so-called ‘moral’ content. While approving the final verdict the present commentary confronts mainly the divergent opinion to the judgment, written by the Polish judge, who – as the only one – took a different view to the other members of the Chamber.
Keywords: consistency of the case law, doctrine of margin of appreciation, fair balance of the colliding interests, homosexual union, discrimination, the best interests of the child
Page range: 243-258
DOI: 10.15290/bsp.2022.27.03.15
Abstract: In its judgment of 14 December 2021, the Court of Justice of the European Union ruled that in the case of a child who is a Union citizen and whose birth certificate, issued in the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the EU territory. In its commentary, the author supports the CJEU ruling, observing that it continues the line of reasoning adopted in the Coman case of 2018. The Court attempts to strike a balance between the EU freedoms and the necessity to respect the national identity of Member States that are free to shape their family law without accepting the liberal concepts such us parentage of same-sex persons or homosexual marriages. Additionally, when wondering about the consequences of the ruling for Poland, the author puts forward a thesis that the current practice of Polish organs, resulting from the resolution of the Supreme Administrative Court of 2 December 2019, is consistent with the EU law. Although children of Polish nationality, with same-sex parents, cannot expect their foreign birth records to be transcribed into the civil status register in Poland, they may nevertheless obtain a Polish identity card or passport.
Keywords: citizenship, free movement of persons, national identification documents, parentage of same-sex persons, transcription of foreign civil status records
Page range: 259-275