Who and under what conditions can become the legal guardian of a child whose parents went back to Ukraine?

When answering the question asked, first of all, it should be pointed out that leaving a child by a parent may have far-reaching consequences in the sphere of parental authority and upbringing of the child.

In the vast majority of cases, a child left unattended will be covered by the institutional foster care system, e.g. a socialization facility and a family facility. Pursuant to Article 112 (1) of the Family and Guardianship Code, the obligation and right to perform ongoing care of a child placed in foster care, bring him up and represent him in these matters, and in particular in the investigation of benefits intended to meet his needs, belong to the foster family who runs a family orphanage or the person managing a care and educational facility, a regional care and therapeutic facility or an intervention pre-adoption center, in the remaining scope, unless the court decides otherwise, the parental authority remains with the parents. A parent of a child placed in the foster care system will not be able to decide on upbringing, represent the child in current affairs, and receive benefits for them.

Introducing a child to the foster care system is not difficult, while recovering a child from this system is already a difficult and breakneck job – you will have to fight for the child and explain yourself before the court, MOPS and possibly that the probation officer is a guarantor of proper care for the minor .

In practice, the institution of foster care is most often used in the case of children who are not Polish citizens. This sentence may sound unfortunate but is true. It should be pointed out that placing a child without the care of a parent (legal guardian) in the foster care system does not require difficult and lengthy procedures in the field of applying, for example, the child’s national law in the event of depriving a parent of parental authority – children in the foster care system are not children whose parents were deprived of parental authority.

There is also an institution of a tutor. The basic premise for the establishment of custody is that the child does not remain under parental authority – the parents are deprived of it by a court decision or they are unknown. Custody is established by the guardianship court, which is the family department, and for minors of the district court, in the area where the minor has his place of residence or stay. The guardian should be a person appointed by the father or mother who still had the opportunity to look after the children at that time. If there is no such person, the guardian should be a person related to the minor. In the case of siblings, care for him should, as far as possible, be provided by the same person.

The law on assistance to Ukrainian citizens in connection with an armed conflict in the territory of that state introduced the institution of a temporary guardian (Article 25). Such a guardian will be appointed for children of Ukrainian citizenship who came to Poland after February 24 and who remain in this territory without the care of an adult responsible for them in accordance with the law in force in Poland. The temporary guardian will be authorized to represent the minor and to take care of his person and property. The provisions of the special act do not say anything about depriving a parent of parental authority, therefore it seems that the above-mentioned Art. 112 (1) of the Family and Guardianship Code.

Summing up, it should be pointed out that the Polish regulations on the appointment of a legal guardian are the same for every child, be it a Polish citizen or a child without such citizenship (except for the institution of a temporary guardian).

In the aspect of the question asked, it should be clarified what are the differences between a foster family, a legal guardian and a temporary guardian (a special kind of guardian established by the provisions of the Act on Assistance to Ukrainian Citizens in Connection with an Armed Conflict in the Territory of that State).

Foster family is an institution introduced by the Act on supporting the family and the system of foster care. Foster care in the form of a family covers children who, for any reason, do not receive care from their parents. In the case of a foster family, parental rights are limited, which means that every important decision regarding the child (choosing a school or going abroad) must be approved by the biological parent and supported by his consent to do so.

Legal guardianship is an institution described in the Act of the Family and Guardianship Code.

The guardianship court is obliged to establish custody of the child if neither of the parents has parental responsibility or they are unknown. The guardian should be a person appointed by the father or mother who still had the opportunity to look after the children at that time. If there is no such person, the guardian should be a person related to the minor. When a legal guardian is appointed, biological parents are usually completely deprived of the right to care for their children or are unknown. This gives the caregiver much more scope to influence the child’s life.

The law on assistance to Ukrainian citizens in connection with an armed conflict in the territory of that state allows the court to establish the so-called a temporary guardian for children (who meet the conditions set out in the act, i.e. have crossed the Ukrainian-Polish border since February 24, 2022 and are citizens of Ukraine). Such a guardian will have rights similar to that of a legal guardian, but will be under the control of the OPS or other local government unit, and will have to obtain the consent of the court for some decisions on more important matters of the child.

The inclusion of the child in the system of institutional foster care takes place, as it were, automatically – at the request of the institution’s directive. The situation is different in the case of the will to establish a related foster family, temporary guardian or guardian, the establishment of which may take place at the request. If there is someone from the family on the territory of Poland who could act as a temporary foster family, temporary guardian or legal guardian, then when preparing the application to the court, the reasons for leaving the child in the care of other people should be broadly justified, so as to show the Court that leaving the child in Poland is dictated by special circumstances – this may at a later time save us from hardships and problems with recovering the child, without the supervision of MOPS or the Probation Officer. The application is submitted to the court having jurisdiction over the child’s place of residence or residence.

At the same time, it should be pointed out that a person who wants to take care of a child must have an unblemished reputation and guarantee proper care for the child, in particular:

 -must have full legal capacity and

– may not be deprived of public rights,

– cannot be deprived of parental responsibility,

– has not been convicted of a crime against sexual freedom or decency or for an intentional crime involving violence against a person or a crime committed to the detriment of a minor or in cooperation with him,

– she has not been banned from carrying out activities related to the upbringing, treatment, education or care of minors, or the obligation to refrain from staying in specific environments or places, a ban on contacting specific persons or a ban on leaving a specific place of stay without the consent of the court.

Legal basis:

1) ustawa z dnia 9 czerwca 2011 o wspieraniu rodziny i systemie pieczy zastępczej (Dz.U. 2011 nr 149 poz. 887),

2) ustawa z dnia 25 lutego 1964 roku Kodeks rodzinny i opiekuńczy (Dz.U. 1964 nr 9 poz. 59)

3) ustawa z dnia marca 2022 r. o pomocy obywatelom Ukrainy w związku z konfliktem zbrojnym na terytorium tego państwa (Dz. U. z 2022 r. poz. 583, 682, 683, 684, 830, 930)