1. Introduction
The harm inflicted on a child can take many forms. Violence against a minor, whether physical, sexual, or emotional, has disastrous consequences for the child's development and leaves a negative mark on his or her future life. Neglect through lack of proper care, conditions for the child's development, or lack of appropriate bonding and emotional care also has negative consequences in the individual and social sphere.
Children must be protected from all manifestations of violence similarly - or actually more with the principle of equality - as other persons. So far in Poland, the provisions relating to the protection of minors from violence have been contained, inter alia, in the Act of 29 July 2005 on counteracting domestic violence [Dziennik Ustaw of 2005 No. 180, item 1493], which was amended by the Act of 9th March 2023 on Amendments to the Act on Counteracting Family Violence and certain other acts [Dziennik Ustaw of 2021, item 1249 and of 2023, item 289], and in the Act of 13 May 2016 on Counteracting the Threat of Sexual Crime [i.e., Dziennik Ustaw of 2023, item 1304].
The Child Protection Act, i.e., the Act of 28 July 2023 amending the Act - Family and Guardianship Code and certain other acts [Dziennik Ustaw of 2023, item 1606], is referred to in Poland as the “Kamilek Act - Lex Kamilek.” This act regulates the subject of the protection of minors. The law is named after an 8-year-old boy, Kamilek, who was tortured by his stepfather and died after many days of suffering.
An interdisciplinary team of, inter alia, lawyers, psychologists, psychiatrists, educators, and representatives of governmental institutions, NGOs, social organizations, and UNICEF was involved in the work on the law, working mainly at the Institute of Justice in Warsaw.
2. Legal representative
Among the new regulations introduced by the amendment of 28 July 2023 was the institution of a statutory representative. According to Article 98 § of the Polish Family and Guardianship Code, "Parents are the legal representatives of a child under their parental authority. If a child remains under the parental authority of both parents, each of them may act independently as the child's statutory representative" [Dziennik Ustaw 2023, item 1606].
The provision of Article 98 § 2 of the Polish Family and Guardianship Code, which refers to the representation of the child in material acts, indicates that “neither parent may represent the child:
1) in legal actions between children under their parental authority;
2) in legal actions between a child and one of the parents or the child's spouse, unless the legal action consists of a gratuitous adoption for the benefit of the child or the legal act relates to maintenance and upbringing owed to the child by the other parent".
On the other hand, Article 98 § 3 of the Polish Family and Guardianship Code, the provision of § 2 of which applies mutatis mutandis in proceedings before a court or other state authority, concerns the representation of the child in actions in administrative, criminal and civil proceedings.
The reference in § 3 to Article 98 § 2 of the Polish Family and Guardianship Code means that the same considerations that indicate when, in substantive actions (e.g., conclusion of a contract for the purchase-sale of real estate before a notary, when the parent is the buyer and the child is the seller), a parent cannot represent the child were applied when determining whether a parent can represent the child in civil criminal or administrative proceedings.
As the law stood until 29 August 2023, when neither parent could represent the child, the court-appointed a guardian for the child, sometimes referred to as a “collision guardian,” e.g., when a legal act is to be performed between a parent and a child when the parent has committed a criminal act to the detriment of the child.
By the law of 28 July 2023, the term “guardian” was replaced by “child representative,” which is more appropriate given the content of his/her powers and duties. Children associate a guardian with a court-appointed guardian and not with a person representing their rights, so the change removes confusion about the role played by the person appointed by the guardianship court to represent the child.
The introduction of the concept of “child representative” will improve the application of the Act in practice by preventing confusion between different types of guardianship and will also make it easier for the courts and the attorneys concerned to discern, which may reduce the scale of confusion, as sometimes proper instruction to the parties to the proceedings is not sufficient [Senate Chancellery, 2023, 8].
According to the amendment, as before, a legal advisor or advocate may represent the child in criminal cases (always - there are no exceptions) and in civil and administrative cases, mainly when they are complicated. On the other hand, in less complex civil and administrative cases, the child may also be represented by another person with a university degree in law and demonstrating knowledge of the child's needs. If exceptional circumstances warrant, a person without a higher legal education may also be appointed to represent the child.
Furthermore, the law details the powers of the court in the matter concerning the child representative. Firstly, the activities of the child's representative are supervised by the guardianship court, which acquaints itself with the activities of the child's representative on an ongoing basis. Secondly, the child's representative shall submit to the guardianship court, at specified times and at least every four months, information on his or her activities and, in particular, on any actions performed in connection with the case. Rules are also laid down for the allocation of remuneration to child representatives.
It should be stated that the appointment of an attorney provides the child with procedural support, as well as accessibility to the judicial authorities. The participation of a professional during the actions taken protects children from secondary victimisation [Państwowa Komisja do spraw przeciwdziałania wykorzystywaniu seksualnemu małoletnich poniżej lat 15, 2023, 2].
3. Hearing the child on family matters
In the Code of Civil Procedure before the amendment, there were provisions on the hearing of the child, but they were very laconic in nature. It was not clear to them how this activity should be carried out, how many times the child could be heard, and, above all, they did not emphasize how important the child's opinion was in matters of importance to the child. These inadequacies created several uncertainties.
The assumption that the child should be listened to in an empathetic and age-appropriate manner was taken as the starting point for the work on the hearing provisions. It was taken into account that the hearing is not an evidentiary act but is intended to establish the position, the will, and the wishes of the minor for the purposes of a decision. It was stated that the child should be provided with appropriate conditions, minimizing his/her stress, which is often due to the family situation and loyalty conflict.
The purpose of the hearing is to ascertain the child's opinion or view on the matter in question and should, therefore, take the form of a conversation with the minor, which should be conducted under appropriate conditions.
The amendment of 28 July 2023 introduced the principle that if a child tells the judge that he or she does not want to be heard, the court is obliged to refrain from doing so. This takes into account the subjectivity of the child and aims to avoid situations where the child does not want to speak, covers his or her face, cries, and is urged to do so. The child may only be heard once during the proceedings. The exception is when the child's best interests require a second hearing or the child's need for a second hearing is requested by the child. The word request is deliberately not used here, as a request is a pleading and, therefore, must comply with certain requirements. On the other hand, the child will be able to make such a request in any way, e.g., by expressing his or her wishes directly in the course of the interview, by writing a letter, by e-mail, by making a telephone call, by someone passing on information which the court will then confirm. As a general rule, the re-hearing of the child will be conducted by the same court unless this is impossible or is prevented by the child's best interests. The child's hearing will be attended by a judge and, when necessary, by an expert psychologist, i.e., when, due to the child's state of health, mental development, or age, it is required to provide psychological assistance to the child during the hearing, and when it is necessary to assist the judge in identifying the child's needs during the hearing. In addition, the hearing of children with intellectual disabilities, children with autism, and Asperger's syndrome will have to take place in the presence of a psychologist familiar with the way such children function. In working on this provision, the Institute for Justice drew on the expertise of experts, and the analysis looked at whether calls for an expert to be present at every hearing were valid. "From a psychological perspective, no person other than the judge should attend the hearing, and under no circumstances be the minor's parents or those representing the parents. Their presence may have an embarrassing effect on the minor and involve an internal compulsion to please the person or persons close to them - a conflict of loyalties. Only in exceptional cases is the participation of a psychologist in the hearing advisable. Such circumstances may be the child's age below eight years, specific developmental dysfunctions, or significant problems in emotional functioning (in the above situations, it is possible to waive the hearing to conduct an examination). In the case of teenagers, a hearing without the presence of a psychologist is advisable. It is mainly to the group of adolescents that the institution of a hearing is dedicated, in order to empower them in the court proceedings." [Extract from the opinion of psychologist A. Budzyńska].
Another important change concerns the requirement for an official record of the child's hearing, so the solution from the regulation has been transferred to the Act. The course of the hearing will not be recorded, as the child should feel at ease and not be afraid that someone, including the parents, will watch or listen to the recording of the hearing. Children often ask about this. On the other hand, if the court has refrained from hearing the child, at the latest before the end of the proceedings, it will have to indicate in the minutes of the meeting or hearing the reasons for which this was not done. This is a mechanism to induce judges to hear children, which was previously omitted without any explanation. It will also prompt judges to analyze the child's situation, as each time, they will have to give a reason as to why the child was not heard. The fact that the child does not speak is not an explanation, as there is the possibility of alternative communication. It should also be noted that the conditions of the hearing will be detailed in a regulation issued by the Minister of Justice.
Reference
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