Guardianship Code Research Articles

Social worker as an implementer of solutions introduced by lex Kamilek

The Act of July 28, 2023 amending the Act – Family and Guardianship Code and certain other acts (Journal of Laws 2023, item 1606), in force since February 15, 2024, introduced new solutions aimed at increasing the protection of minors against harm. The changes covered several legal acts and apply to all institutions whose activities are related to the care of children, their education, upbringing, developing their interests or providing them with support. One of the entities performing tasks for a family raising a child is a social worker. Some of the legal solutions introduced by so called lex Kamilek are reflected in his daily work. First of all, as part of the procedure for ensuring protection for a child in the event of a threat to his life or health in connection with domestic violence, a social worker will be obliged, together with a police officer and a doctor, paramedic or nurse, to complete a questionnaire assessing the risk of threat to the child's life or health. Moreover, in the case of employment in institutions dealing with child care, the person must be verified in terms of information from the Register with limited access or in the Register of persons in relation to whom the State Commission for Counteracting the Sexual Exploitation of Minors under 15 years of age has issued a decision on entry in the Register and the National Criminal Register. It is also obliged to implement standards for the protection of minors.As an employee of a specific institution, he or she may be obliged to provide the Team of Experts for the Analysis of Events as a result of which a minor died or suffered serious bodily injury, certain information and documents without the obligation to maintain professional secrecy.

Reprezentacja małoletniego i jej ograniczenia

Representation of a minor is one of the elements of parental authority of parents over a child, together with custody of the child’s person and property. The subject of this article is the regulation of aspects of the representation of a minor in the Family and Guardianship Code and its limitations. Due to the principle of the child’s good, which has the character of a superior principle in Polish family law, the norms concerning the child’s representation should be created with particular care, as they directly affect the legal situation of a minor. A dogmatic method has been applied with the use of an analysis of case law and international norms contained in the European Convention on the Exercise of Children’s Rights. In conclusion, the authors also analyse and evaluate the planned amendment of the Family and Guardianship Code in comparison with the provisions in force. It is concluded that the regulations contained in the Family and Guardianship Code not only protect the interests of the child, but also meet the requirements of the European Convention on the Exercise of the rights of the child.

Przedstawicielstwo ustawowe jako forma ochrony interesów osób małoletnich w postępowaniu cywilnym

Statutory representation is one of the institutionalized forms of party representation in civil proceeding. In addition, this institution is important from the point of view of children's rights protection due to the fact that it allows their parents, guardians or curators to take procedural actions on their behalf. The aim of this article is to present statutory representation as one of the forms of minors’ interests protection in civil proceeding. For this purpose it uses the law-dogmatic method to analyse the regulations contained in the Law of November 17, 1964. - Code of Civil Procedure, the Law of April 23, 1964. - Civil Code and the Law of February 25, 1964. - Family and Guardianship Code. The article shows the judicial and procedural capacity of a minor, the subject and object scope of statutory representation, as well as the most significant actions that a statutory representative can take to protect minor’s interests in civil proceedings.

Ograniczenia związane z prowadzeniem działalności gospodarczej przez małoletniego

The article provides a comprehensive analysis of regulations limiting the possibility of conducting proprietorship by a minor, as envisaged in the provisions of the Civil Code, the Code of Civil Procedure, and the Family and Guardianship Code. The author discusses the current legal state, highlights particularly problematic issues related, among others, to unregistered activities and the status of a minor as a shareholder in capital companies. Furthermore, the article describes the direction of legislative changes that will liberalize restrictions on the activity of young entrepreneurs.

Ochrona interesów małoletnich w prawie rodzinnym na przykładzie obowiązku alimentacyjnego

Parents are liable to alimony for the child since its birth until attaining the age of financial independence. It is a legal responsibility imposed by the law-giver in an act imposed on February 25, 1964 of Family and Guardianship Code. The word “alimony” comes from Latin word alimentum and means “eatables”. It is a family law attitude which is based on providing not only means of support but also correction, providing housing, maintenance, clothing and healing as well as meeting cultural needs. This legal institution is very complex and rigorously settled. Its main objective is child welfare, which is a superior value among others. It is to provide being for the weakest and incapable people. For those, who are not able to fulfill their most essential needs without the help of immediate family. Alimony obligation is necessary for the society to function properly. What is important is the fact the obligation concerns not only underage, however, in the following article I am going to limit my thoughts to child alimony issues only.

Wysłuchanie małoletniego w postępowaniu cywilnym. Refleksje de lege lata i de lege ferenda

The purpose of this article is to acquaint the reader with the procedure of a minor’s hearing in civil proceedings. The location of the provisions in Polish and international law concerning: the basic norms regulating the rights of the child, the definition of a minor, the rights afforded to them, and the process of their hearing by the court will be presented. The conditions that must be met in order for a minor’s hearing in a civil process to take place will be indicated. The procedure for a court hearing, which is significantly more complicated than the examination of an adult, will be described. This is due to the fact that the child’s welfare and psychological state, which are still developing in childhood, must be taken into account, thereby providing them with a proper sense of security. The article will discuss issues related to changes arising from the draft act of May 11, 2023 – amending the Family and Guardianship Code and some other laws aiming to provide more favorable conditions for minors than has been the case so far.

Ochrona interesów małoletniego w prawie medycznym

The purpose of this article is to discuss issues related to the protection of the interests of a minor in the procedure of medical law. Using a dogmatic-legal research method, the case law of the Supreme Court, the provisions of the Family and Guardianship Code and the provisions of the Act of November 6, 2008, on Patients’ Rights and the Ombudsman for Patients’ Rights, were analysed. According to the jurisprudential line, “one of the manifestations of an individual’s autonomy and freedom of choice is the right to decide for oneself, including the choice of treatment method. A reflection of this right is the institution of consent to the performance of a medical procedure, which is one of the prerequisites for the legality of therapeutic activities”. A person’s health and life are personal goods under the special protection of civil law. Equally protected is the personal good of autonomy of decision-making, which is the basis for the “disposal” of one’s own body and, consequently, health and life. The situation of minor patients, who are deprived of the right to decide on the health services provided to them, as well as minors, who have no influence on the decision on the choice of treatment, should also be considered. How are their interests protected? What if the minor and his parents have different opinions about the treatment, or if they do not consent to his treatment at all? How far can the legislature interfere in the exercise of parental authority and how is the minor patient protected? Can the guardianship court make decisions concerning life or health? The issues raised are extremely interesting not only legally, but also ethically and socially, for as a rule it is the parent who decides what is good for their child. It happens, however, that his decisions may contradict both the protected good and the principles of social coexistence themselves harm the interests of the minor.

Ochrona dobra dziecka w postępowaniu cywilnym - uprawnienia i obowiązki procesowe dotyczące małoletniego w postępowaniu nieprocesowym

The subject of the privileges and obligations of a minor in non-trial proceedings is still not sufficiently studied in the Polish procedural law doctrine. The protection of the welfare of the child, which should be embodied in the laws and the practice of justice, still requires numerous changes and refinements. The planned amendment to the Family and Guardianship Code and some other laws emphasizes the need for reforms in Polish legislation, proposing amendments to several legal acts in order to raise the standards of minors' participation in court procedures, strengthen their protection, including systemic protection from harm. The purpose of this paper is to collect and describe the main duties and rights of the child in non-trial proceedings, and to show how the cited regulations implement the protection of the child's welfare. Minors are participants in proceedings with special needs, so the justice system should be ready to accommodate them, providing them with decent conditions and taking into account their individual situation. On the basis of the analysis of the literature and case law in the field of civil procedure, civil law and family and guardianship law, certain deficiencies in the existing mechanisms were shown and the inadequacy of civil procedure institutions responsible for protecting the welfare of the child was exposed. Polish legislation requires such regulations that will allow the formation of a smoothly functioning system of protection of minors.

Zasada nierozdzielania rodzeństwa na tle prawa rodzinnego

This article deals with the implementation of the principle of not separating siblings introduced by the legislator in the Polish family law system in the context of protecting the interests of a minor in the Polish legal system using the document research method and the method of literature analysis and criticism. The article analyzes the reasons for systematizing the principle in the Polish family law system and its concretization in the family law institutions such as divorce, separation, marriage annulment, exercise of parental authority when parents live apart, custody, foster care and adoption. The discussed solutions have their sources in particular in the Act of February 25, 1964 – Family and Guardianship Code (i.e. Journal of Laws 2020.0.1359) and the Act of June 9, 2011 on supporting the family and foster care system (i.e. Journal of Laws 2022.0.447).

THE PROPER UNDERSTANDING OF THE PRINCIPLE OF EQUAL RIGHTS OF HUSBAND AND WIFE

Article 23 sentence 1 of the Polish Family and Guardianship Code (the FGC) of 1964 emphasises that spouses have equal rights and obligations in marriage. This regulation is commonly understood as establishing the principle of equality between a wife and a husband in Polish family law. That principle has its foundations in international law, including the Universal Declaration of Human Rights, which provides that men and women are entitled to equal rights as to marriage, during marriage, and at its dissolution. After the enactment of the Polish Constitution of 1997, the principle of equality between a husband and a wife derives directly from Article 32(1) and Article 33(1). It constitutes a basic element of the institutional guarantee of marriage which cannot be altered by ordinary legislation. The aim of this article is to discuss how the principle of equality of spouses ought to be understood and correctly applied under Polish family law. It should also be considered whether Polish law on marriage provides exceptions from the rule of equality between spouses and, if so, whether they are justified. Furthermore, it can be argued that Article 23 sentence 1 of the Family and Guardianship Code stipulates not only the fundamental principle of Polish law, but also grants each of the spouses a subjective right to be treated equally in the relationship by the other person. It should be analysed what exactly this right entails. There is no doubt that one spouse has neither more rights nor responsibilities in the marriage than the other. However, a properly understood right to equal treatment should also mean that one spouse cannot demand the other to perform specific functions and roles.

The Importance of the Principles of Social Coexistence for Divorce in the Context of Cultural and Social Changes A Polish Perspective

Cultural and social changes may affect the methodology adopted by the courts at a certain time in interpreting and applying the law, in particular provisions containing general clauses. These clauses make the law more flexible, enabling it to adapt to changing conditions. They are treated as a kind of “safety valve” to avoid solutions that are unjust, or ethically and morally unacceptable in society. From this perspective, this article will consider the significance of the general clause of the principles of social coexistence in adjudicating a divorce from the perspective of Polish law. The purpose of this article is to answer the question whether, and in what direction, the cultural and social changes that may be taken into account through the general clause of Article 56 of the Family and Guardianship Code affect the dissolution of a marriage by divorce, namely whether or not they hinder the pronouncement of a divorce where the other prerequisites for divorce are met.

Próba określenia roli i miejsca pieczy naprzemiennej w polskim prawie rodzinnym

The article focuses on alternating custody as one of the acceptable forms of childcare by the divorced or separated parents in the system of Polish family law. Alternating custody system, introduced in 2015, has become a real turning point in the family law. Changes in the Polish legal order, already initiated in the Family and Guardianship Code of 1964, allow the transition from the judicial model, referred to as "leave - limit" parental authority to both parents, to solutions that allow the introduction of a real balance and equal treatment of parents holding joint and full parental responsibility. Such shift will open the way to predestinate custody of a child in alternating periods of time.

Odpowiedzialność przedstawicieli ustawowych małoletnich sprzeciwiających się obowiązkowym szczepieniom ochronnym

The aim of the article is to present legal regulations concerning the liability of statutory representatives of minors opposing mandatory preventive vaccination. In the event of failure to comply with this duty, execution procedure is instituted through administrative enforcement proceedings. The enforcement authority is of course the provincial governor who, pursuant to Article 121 of the Act of 17.06.1966 on administrative enforcement proceedings, can impose a fine of up to 50,000 PLN. On the other hand, a doctor is authorized to notify a family court. According to Article 109 section 1 of the Act of 25.02.1964: The Family and Guardianship Code, if a child’s welfare is at risk, a guardianship court shall issue relevant decisions. Moreover, a guardianship court can order that the minor’s parents should take certain actions (Article 109 § 2 item 1 of the Family and Guardianship Code) or that their parental authority should be exercised under permanent supervision by a probation officer (Article 109 § 2 item 3 of the Family and Guardianship Code). Furthermore, an ultimate step is deprivation of parental authority. If parental authority cannot be exercised due to a lasting obstacle, if parents abuse their parental authority, or if they neglect grossly their duties towards the child, a guardianship court shall deprive them of parental authority.

The principle of not separating siblings in the Polish legal system

This article is devoted to the analysis of the principle of not separating siblings in the Polish legal system. It is described in particular in the Act of February 25, 1964 – Family and Guardianship Code (i.e., Journal of Laws 2020, item 1359) and the Act of 9 June 2011 on supporting the family and foster care system (i.e., Journal of Journal of Laws 2022, item 447 as amended). As part of the study, the implementation of this principle was discussed within such legal institutions as divorce, separation, annulment of marriage, residence order in the case of parents living separately, foster care and adoption. The article also refers to the Act of 12 March 2022 on assistance to Ukrainian citizens in connection with the armed conflict on the territory of the country (Journal of Laws 222, item 583, as amended) introducing the principle of not separating siblings when appointing a temporary guardian for unaccompanied minor citizens of Ukraine residing in Poland.

Temporal nature of foster care as a rule of conduct when placing a child outside their natural family

The subject of this study is the temporal nature of foster care as a rule of conduct when placing a child outside their natural family. This principle has not been explicitly expressed in the provisions of the applicable law, nevertheless, it may be interpreted, in particular, based on the Act of 9 June 2011 on Family Support and Foster Care System and the Act of 25 February 1964 – Family and Guardianship Code. In addition, its existence and the need to respect it have been acknowledged both by representatives of the doctrine and the extensive case-law on the subject. Putting the principle into practice (which is possible, inter alia, by respecting other principles related to the placement of a child outside their natural family), in my opinion, serves, in fact, to implement the fundamental right of the child, which is the right to be cared for and brought up in a natural family. This, in turn, constitutes one of the key elements of the child's welfare, which encompasses not only the satisfaction of the child's subsistence needs, but also their emotional and psychological needs, expressed in particular by the right to be cared for and brought up primarily in a natural family.

Limits of Parental Interference in a Child’s Personal Rights – Selected Issues

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.

Management of a Child’s Shares in a Limited Liability Company

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.

Significance of Family Law Regulations for a Criminal Law Assessment of Neglect

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.

Responsibility instead of authority? Analysis of the arguments for and against the modification of the term parental authority in the Family and Guardianship Code

Despite the fact that the term parental authority has been in force in the Family and Guardianship Code for over fifty years, the discussion on the validity of its replacement with the term parental responsibility is still quite vivid in the doctrine of family law. The aim of the paper is to analyse selected arguments for and against terminological modification in this area and to try to answer the question: what point of view on this problem does pedagogy offer.

Funkcjonowanie instytucji separacji w świetle analizy danych statystycznych dotyczących orzecznictwa sądowego

The subject of considerations contained in the article is the functioning of the institution of separation, introduced to the Family and Guardianship Code by the amendment of 1999. The analysis uses the results of empirical research (files) published in the literature on the adjudication of separation and its abolition – in the practice of Polish courts – and, above all, data statistics on the institution in question, published by the Central Statistical Office in the years 2000–2020. The considerations contained in the article allow for the formulation of several conclusions. Statistical data clearly show that the number of adjudicated separations is successively decreasing, while the number of divorces is increasing. More and more couples are therefore choosing divorce rather than separation as a way of resolving difficulties in marital life. However, the process described above applies primarily to couples of short duration. This group of married couples is not interested in the effort to maintain the marriage, rather they strive to end it quickly and “put their lives in order” again. The institution of separation, especially according to this group, is only a temporary solution, which ultimately leads to the dissatisfaction of the spouses with the legal situation between them. Based on the analysis made in the article, it can be concluded that there is a certain category of marriages for which the discussed institution meets the assumptions adopted by the legislator when it was adopted. This is evidenced by the practice of abolition of separation. Despite the decrease in the number of adjudicated separations, the number of abolished separations has remained at a similar level for years. The discussed institution will probably continue to evolve and “look for its proper place” in changing social contexts, implementing the legislator’s intention and related functions, including, in particular, helping married couples in crisis. In this context, according to the authors of the article, it would be worth considering various possibilities of institutional support for separated married couples, who are currently left to their own devices. Perhaps this is where the reasons for the process of decreasing the attractiveness of the separation institution, according to the opinion of the spouses, should be sought.