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Warning! AUTOMATIC TRANSLATION FROM POLISH LANGUAGE

• Complaint for declaration of illegality in cases concerning contacts with a minor2025-05-26

  ATTENTION! automatic translation from Polish

  One of the extraordinary remedies provided for in civil proceedings (including family cases) is the complaint for declaration of illegality of a final court decision, regulated in Article 424(1-12) of the Code of Civil Procedure. According to Article 424(1) §§ 1-2 of the Code of Civil Procedure, such a complaint may be lodged against a final judgment of the second instance court concluding the proceedings in the case, if the party was harmed by its issuance, and changing or repealing this judgment by other legal means available to the party under the Code was not and is not possible.

  In exceptional cases, when the illegality results from a violation of the fundamental principles of the legal order or constitutional freedoms or human and civil rights, it is also possible to request a declaration of the illegality of a final judgment of the court of first or second instance ending the proceedings in the case, if the party has not used the legal remedies available to it, unless it is possible to amend or set aside the judgment by other legal remedies available to the party.

  A parent’s contacts with a minor child may be established as a rule either by issuing a court judgment (e.g. in a divorce or separation case) or by non-contentious proceedings on contacts. After the final conclusion of the proceedings in which contacts were established, can a parent who believes that in a legally concluded court case on contacts he has been harmed or a gross violation of the law have occurred, file such an extraordinary complaint and claim compensation or

  A significant element characterizing this legal remedy is the harm caused to the complainant by the contested judgment or the violation of fundamental principles of the legal order or constitutional freedoms or human and civil rights. The harm must be substantiated.

  As regards the admissibility of a complaint seeking to establish the illegality of a judgment regulating contacts, the Supreme Court in one of its judgments unequivocally ruled against such a possibility, upholding the previous line of case law. It was indicated in the justification that: „the structural elements of a complaint to determine the illegality of a final judgment include: (…) demonstrating that the revocation of the contested judgment in another procedure was not and is not possible. (…) In particular, in non-contentious proceedings, in which this case was also conducted, additional measures are provided for enabling the court to change the decisions made. This category of legal solutions includes Article 577 of the Code of Civil Procedure, according to which the guardianship court may change its decision, even a final one, if the good of the person concerned by the proceedings so requires. The contested decision is therefore not a decision that cannot be revocated. This issue has already been decided in the case law of the Supreme Court, which indicated that the possibility of changing or repealing a final decision on contact with a child excludes the admissibility of a complaint to determine its illegality. (see: written justification of the Supreme Court’s decision of 17 October 2024, file reference I CZP 76/24 and the Supreme Court’s decisions cited therein). In light of above, established in the Supreme Court’s case law, it should be clearly indicated that a parent dissatisfied with a final decision on contacts with a minor cannot use a complaint to determine the unlawfulness of the final decision and the legal protection instruments available under this remedy. The correct action aimed at changing or repealing a final court decision establishing contacts is an application to change the final decision of the guardianship court, provided for in Article 577 of the Code of Civil Procedure, and in such proceedings it is necessary for the person applying for the change to demonstrate that the desired change is justified by the good of the person concerned by the proceedings, which in doctrine and literature is interpreted, as a rule, as the good of a minor child or another person subject to care.

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