GLOSS TO THE DECISION OF THE SUPREME COURT OF 5 SEPTEMBER 2019, I KZP 7/19

Abstract

Both parents, if they have full parental rights, are persons “obliged to exercise care and responsibility over a minor under 15 years of age” within the meaning of Article 211 of the Criminal Code (CC). Conversely, the parents (or one of them at least) are capable of committing the off ence set out in Article 211 of the CC if their parental rights are terminated, limited or suspended. If a provisional decision of a court, issued in the course of divorce, separation or annulment of marriage proceedings, orders the limitation (termination, suspension) of parental rights of one of the parents, such a decision should, as a rule, be interpreted literally. As such, a parent who no longer enjoys full parental rights under such decision can potentially commit the off ence set out in Article 211 of the CC. Nevertheless, not every court decision which provisionally determines the extent of contacts between a child and a parent, is tantamount to limiting parental rights. Indeed, under Article 107 of the Family and Guardianship Code it is possible to determine such contacts, including severe limitations for the father or the mother in this respect, while leaving both parents’ full parental rights intact.