Wola dziecka ponad ustawą? Glosa krytyczna do Wyroku Trybunału Konstytucyjnego z 22 czerwca 2022 r., sygn. akt SK 3/20

Abstract

The Constitutional Court in its judgment of 22 June 2022, ref. No. SK 3/20 declared the limited unconstitutionality of the provisions providing ordering for payment of a specified sum of money to the person under whose custody was a child nonperforming or incorrectly performing contact. In the opinion of the Constitutional Court, it is inconsistent with the Constitution of the Republic of Poland to order payment in a situation where non-performance or improper performance of contact is related to the child's behavior, not caused by the person who was in custody of the child. This decision, although it would seem in reverse, is a step towards the empowerment of the child and care for its well-being, upon deeper reflection, appears as a threat to the child's well-being in the long run. The judgment denies the accepted – though criticized – concept of contact as a right and duty of both the parent and the child. It should be emphasized that the challenged construction was adopted as a result of a number of ECtHR judgments in cases of fathers deprived of contact with their children – cases which the Republic of Poland was losing. Nor can one downplay the breach of procedure that was necessary for the judgment to be made.