Temporary care of a child from ukraine in Poland

Prepared by the Rule of Law Institute Foundation at the request of the Danish Refugee Council

August 10, 2023

The essence of the concept

Temporary guardianship (opieka tymczasowa) is a concept that was introduced in connection with the need to regulate the legal guardianship of children (minors and minors), citizens of Ukraine, who arrived on the territory of Poland in connection with the war in Ukraine. In accordance with the Law of March 12, 2022 on assistance to citizens of Ukraine in connection with the armed conflict on the territory of this country (the so-called Special Law), a temporary guardian is a person who represents and exercises guardianship over the person and property of a child who is a citizen of Ukraine and who is in the territory of the Republic of Poland without the guardianship of adults who are responsible for her in accordance with the legislation in force in Poland. In short, a child who is in Poland must have a person who takes care of him. In a situation where a child, a citizen of Ukraine, is on the territory of Poland without parents or legal guardians, a temporary guardian may be appointed to him on the basis of Art. 25 of the Special Law.

Requirements for a temporary guardian

The temporary guardian can be both a relative of the child and another person who performs the duties of a guardian. When appointing a temporary guardian, the court is primarily guided by the interests of the child. Therefore, candidates of the child's relatives, family members or other persons who are able to provide proper care are considered first of all. These individuals must agree to act as a temporary guardian. The legislation does not set any requirements for the citizenship of a temporary guardian, therefore, regardless of the country of origin or citizenship, a foreigner can also be appointed as a temporary guardian if he meets other criteria and can provide guarantees of proper care for the child. A candidate for a temporary guardian can be an adult who meets the following requirements:

• has full legal capacity and is not deprived of public rights,
• has not been deprived of parental rights, has not been convicted of a crime against sexual freedom and sexual integrity, morality, an intentional crime involving the use of violence against other persons, crimes against children or in complicity with them,
• is not a person who is prohibited from carrying out activities related to the upbringing, treatment, education or care of children, or who is not obliged to refrain from visiting certain environments or places, refrain from contact with certain persons or not leave a certain place residence without court permission. 

In addition, a person who does not demonstrate the ability to adequately perform the duties of a guardian cannot be appointed to this role.

A candidate for a temporary guardian submits an application for compliance with the conditions and circumstances listed above. A sample statement can be found on the page: https://www.gov.pl/web/sprawiedliwosc/formularze-dotyczace-opiekuna-tymczasowego--w-wersjach-jezykowych-polskiej-i-ukrainskiej. This application also contains a record that the applicant is aware of the criminal responsibility for making a false statement. The content of this record replaces the notification of the body on criminal liability for providing false information.

The law also does not exclude in any way the possibility of appointing one person as a temporary guardian for more than one child, if there are no conflicts between their interests. In the case of siblings, if possible, it is recommended that one temporary guardian be appointed for all children. This will be the least stressful situation for the children, providing them with connection and emotional stability during the difficult period when they are separated from their parents or legal guardians. For siblings, a shared temporary guardian can bring a sense of greater security and comfort, giving them the support and understanding of someone they know and can turn to in difficult times.

In the absence of potential candidates for temporary guardians among relatives, relatives or persons who provide a guarantee of the proper performance of the guardian's duties, the court, together with competent family support bodies, takes measures to determine a suitable candidate for temporary guardianship of a child, a citizen of Ukraine.

Temporary carer's rights and benefits available

The main rights and duties of a temporary guardian include representing the child and providing care for both his person and property, unless otherwise stipulated in the decision on his appointment. The list of rights and responsibilities of a temporary guardian includes, in particular, making a decision about the ward's use of medical services, obtaining information about the health of the child for which he is responsible, representing the interests of the child in authorities, as well as solving everyday issues that are necessary for the normal functioning of the child on the territory of Poland (enrollment in school or kindergarten, visiting a doctor or submitting applications and receiving appropriate payments).

As mentioned earlier, the same person can be appointed temporary guardian for several children. A temporary guardian who has more than 15 children under his care has the opportunity to submit an application to the county family support center with a request for the employment of a suitable person who will help in upbringing. The county family support center provides all necessary legal, organizational and psychological assistance to all temporary guardians and children under their care.

A person who temporarily takes care of a child who is a citizen of Ukraine, who arrived in Poland as a result of military operations in Ukraine and remains in Poland without a legal guardian, has the right to the appropriate payments due to him in connection with the performance of the role of temporary legal guardian of this child The main benefits that a temporary guardian can claim are:

• educational payments from the Rodyna 500+ program (so-called 500+),
• family guardian capital (so-called RKO),
• payment under the Good Start program (so-called 300+),
• supplementary financing for stay in kindergartens,
• care allowance,
• others.

A temporary carer, although entitled to benefits, may also benefit from available support. He can receive free legal assistance and counseling for the public, psychological support from the county family assistance center or other relevant social service. In addition, he receives organizational assistance, which may include the support of volunteers, translators or help with administrative matters. A temporary guardian can benefit from various types of support that help him in fulfilling his guardianship duties.

It should be borne in mind that the guardian does not have such broad powers as parents. Although the guardian takes care of the child on a daily basis and represents the child's interests, he can only make decisions in everyday matters, and in all important matters concerning the person or property of the child, the temporary guardian must obtain the consent of the guardianship court.

Responsibilities of a temporary guardian

The main duties of the guardian are to represent the interests of the child and to take care of the child's person and property, unless otherwise specified in the decision on the appointment of the guardian. The most important duties of a temporary guardian are: taking care of the child, taking care of his physical, emotional and social well-being, representing the interests of the child in personal and property matters, as well as cooperation with the relevant institutions in order to support the child. In summary, the guardian must make every effort to understand the child's needs and take measures for his well-being and all-round development.

The temporary guardian is also obliged to notify the relevant court and the competent social protection authority of any changes concerning his whereabouts and the whereabouts of the child.

Place of application submission and controlling authority

An application for the appointment of a temporary guardian is submitted to the appropriate guardianship and guardianship court (district court, family and juvenile department) at the child's place of residence. The application can be submitted personally to the reception department of the court or sent by mail. At the court session, the court hears the candidate for the temporary guardian and the person who actually takes care of the child. The court can also listen to the child and, if possible, take into account his reasonable wishes, provided that his mental development, state of health and maturity allow it. If the applicant or participant does not speak Polish well enough, an application should be submitted to ensure the presence of an interpreter during the hearing.

The decree on the appointment of a temporary guardian enters into force and is subject to execution from the moment of its publication or, if it has not been published, from the moment of issuing the decree.

Supervision of the exercise of the rights and duties of the temporary guardian is entrusted to the center of social protection of the population or another authorized body of social protection of the population at the place of residence of the minor. To carry out such supervision, the court sends a copy of the decision on the appointment of a temporary guardian to the relevant body of the social protection service.

Necessary documents and sample forms

The application to the court must be made in Polish, which is the state language. A sample application can be downloaded from the website of the Ministry of Justice. It can be found in the section "Wzory formosery" in Polish with a translation into Ukrainian:https://www.gov.pl/web/sprawiedliwosc/formularze-dotyczace-opiekuna-tymczasowego--w-wersjach-jezykowych-polskiej-i-ukrainskiej In addition, the Ministry's website has an information brochure in Ukrainian and Polish with detailed information on temporary guardianship. Also, on the website of the Ministry, you can find a sample decree on the appointment of a temporary guardian.

When submitting an application for the appointment of a temporary guardian for a child who is a citizen of Ukraine, it is necessary to submit at least two documents: a self-signed application for the appointment of a temporary guardian and a self-signed statement on compliance with the requirements of the guardian candidate. Since the specified statements are only samples and not a "mandatory" form, you can combine these two documents into one at your discretion. In addition to the above-mentioned documents, the following attachments should be added to the application for the appointment of a temporary guardian:

• a copy of documents certifying the identity of the child and guardian (preferably a foreign passport, if available);
• a copy of the PESEL number assignment notice for the guardian and the child;
• a copy of a document confirming the guardian's legal stay on the territory of Poland, if it is not temporary protection (PESEL with UKR status), for example, a valid residence card (if the guardian will be a foreigner).

The above-mentioned documents are sufficient for the court to start proceedings in the case. However, if you have the following documents or they are not difficult to obtain, you should also add to the application: 

• a statement from one of the parents (two parents) confirming their consent to the appointment of a specific person as a temporary guardian for their child,
• a copy of the birth certificate of the child and the guardian (if the guardian candidate is a relative of the child, and the mentioned documents confirm the family relationship),
• a certificate of registration of the place of residence (registration) of the guardian.

In the substantiation of the application, it is necessary to describe in detail the circumstances under which the child, who is a citizen of Ukraine, ended up in Poland, to inform when and how he crossed the border, as well as who took care of him or took care of him until now. It is also important to describe the situation of the child's parents, their professional activities and the reasons that prevent them from taking care of the child (for example, the inability to leave Ukraine, illness, work, etc.).

The justification of the application and the documents attached to it should be as comprehensive as possible, especially with regard to the possible family relationship between the candidate for temporary guardians and the child. In certain situations, if the guardian's candidacy does not raise doubts in the court, the court may consider the case without the participation of the parties and their hearing. If the court has additional questions, a hearing may be scheduled, and the applicant and litigant will have to appear in court.

Information contained in the application

The procedure for the appointment of a temporary guardian takes place on the basis of an application or ex officio, that is, as a result of a decision of the authority (without the need to submit a statement of the interested person about it). The application for opening proceedings in the case must contain:

• data of the relevant court to which the application is submitted;
• identification data of the applicant, including first and last name or title, address of place of residence or stay, telephone number or e-mail address;
• data about the child, including name and surname, address of the place of residence or stay;
• information about the child's parents, including first and last names, as well as the mother's maiden name, or an indication that their details are unknown;
• child's gender;
• date and place of birth of the child;
• type, series and number of the document that served as the basis for the child's border crossing (if such a document is available);
• data of the candidate for temporary guardians, including surname, first name and patronymic, date of birth, address of the place of residence or place of stay, series and number of the identity document, or an indication that such a candidate is not available;
• data of the person who actually takes care of the child, if it is not a candidate for temporary guardians;
• the reason for submitting the application.

Persons and organizations that have the right to submit such an application

Most often, the applicant in such a procedure is the so-called person who actually takes care of the child, that is, a member of the child's family living in Poland, or a distant relative (grandmother, brother, uncle, adult cousin) or an acquaintance of the child's parents. However, situations may arise when the child actually remains alone in Poland and there is no potential candidate for a guardian. In this case, an application can be submitted to the court, for example: 

• the person who assumed actual custody of the child after his entry into the territory of Poland and performs this custody on the day of the application;
• Border Service;
• the head of the commune, the head of the city, the mayor of the city, the head of the county, the voivodeship marshal;
• public prosecutor;
• police;
• heads of social assistance organizations, for example, regional social policy center, county family assistance center, social assistance center, etc.; 
• representatives of international or non-governmental organizations that provide assistance to foreigners;
• other persons or entities within the scope of their duties.

Court fees

The applicant or participant in the proceedings on the appointment of a temporary guardian is not required to pay a court fee. All costs related to the proceedings are covered by the State Treasury.

Terms of consideration of the case

The court must consider the case promptly, no later than 3 days from the date of receipt of the application to the court or when the court becomes aware of the need to appoint a temporary guardian. However, it is possible that the review may take longer due to the large number of submitted applications. In practice, such cases are considered by Polish courts within approximately 1-2 weeks.