Kryteria oceny sprzeciwu dziecka wyrażonego na podstawie art. 13 ust. 2 Konwencji dotyczącej cywilnych aspektów uprowadzenia dziecka za granicę w świetle wybranego orzecznictwa sądów

Abstract

The subject of this paper is the way in which the courts assess a minor’s objection to a request for ordering his/her return, expressed on the basis of Article 13(2) of the Convention on the Civil Aspects of International Child Abduction. The author has found it relevant to deal with the titular issue, bearing in mind the importance and topicality of the problem. Despite the fact that the contents of Article 13(2) of the Hague Convention could suggest that the court, when assessing the child’s objections, considers only the question of his/her age and degree of maturity, the practice shows that many more demands are placed on the child, sometimes contradicting the general desire to empower the child in all proceedings concerning himself/herself. In order to illustrate this problem, the author analyses Article 13(2) of the Convention and selected court decisions based on this provision. On this basis, she specifies the factors evaluated by the courts if a child files an objection. The author distinguishes four categories of factors that are assessed by the court when a child objects, i.e. the form of the objection, the significance of the reasons given by the child to justify the objection, the independence of the child in making the decision to object, and the firmness of his/her views. Discussing the factors mentioned in the paper, the author expresses her conviction that courts often unreasonably, i.e. despite lack of support in the relevant provisions of law, set requirements that are almost impossible for a child to meet. Bearing this in mind, the author points out that the postulate of empowering children in civil proceedings will only be realizable if the courts enable them to oppose the petition in any way, but in accordance with their own convictions. Moreover, it seems reasonable to require that the child justify his/her standpoint in a manner adequate to his/her age, degree of maturity, and individual features, using arguments grounded in reality or justified from the point of view of the child and his/her subjective experiences. The author considers imposing any further requirements on the child to be unjustified and contrary to the best interests of the child in the broadest sense, as well as to the very idea of the Hague Convention.