Putting children’s welfare first in parental kidnapping and parental abduction cases

Children missing as a result of parental kidnapping are a special group of missing children. Very often services and institutions refuse to provide assistance with the search, because parental kidnapping in Poland is not a crime. Parental kidnapping is treated as a form of family internal conflict that should be resolved without involving additional services. In addition, there is a common belief that a child staying with one of their parents is safe by definition. The reality, however, often ruthlessly verifies the imagination. It all makes children vulnerable, especially in high conflicted custody cases, when they are often used as a bargaining chip. The article discusses the problem of parental kidnapping cases in Polish law with particular reference to the principle of the child’s welfare. It presents the differences between parental kidnapping and parental abduction. The latter is a crime under Article 211 of the Penal Code. The question is, whether the parent whose parental authority has not been limited, suspended or who has not been deprived of it may become the offender in regard to the criminal offence from Article 211. However, above all, taking up the subject of parental kidnapping and parental abduction cases, this is not about deciding which of the parents is right. The overriding goal is to help the child whose right to be with their parent has been unlawfully taken away, and bring about the legal regulation of the child’s relationship with both parents. In the paper the remedies and procedures against parental kidnapping and parental abduction are presented, with particular emphasis on family mediation. One of the key conclusions is that both parental kidnapping and parental abduction are always a form of the abuse of parental authority, or even more broadly – parental responsibility. Under no circumstances this ‘authority’ can be used in a way that is detrimental to the child’s welfare.