Critical gloss to the judgment of the Constitutional Tribunal of June 22, 2022 in the case SK 3/20

Abstract

The provisions of Article 59815 1 of the Code of Civil Procedure, in conjunction with Article 59816 1 of the Code of Civil Procedure, enabling the threat of an order for payment and an order for payment for improper performance and non-performance of contacts, were found by the Constitutional Court in its Judgment dated 22 June 2022, to be incompatible with the provisions of Article 48 section 1, 2nd sentence, and Article 72 section 3 of the Constitution of the Republic of Poland insofar as they cover situations in which the events covered by the disposition of the provisions under review are related to the behavior of the child, not caused by the person under whose custody the child is placed. The effectiveness and efficiency of proceedings for the performance of contacts, which have so far been alleged to be lengthy and ineffective in the wake of the judgment, will be significantly reduced, as courts reviewing applications filed under the provisions under review will be forced to examine whether there are any factual circumstances that may justify the unconstitutionality of the decisions. The study, in a synthetic form, includes a description of the circumstances surrounding the issuance of the judgment, the arguments adopted by the Constitutional Court and the postulated legislative actions, while focusing on the analysis of the negative consequences of the Judgment in the sphere of the application of contact performance regulations.

Keywords

• the best interest of the child
• improper performance and non-performance of contacts