Can the law guarantee love? A commentary on the decision of the Court of Appeal in Katowice – I ACa 131/15

Can the law be a tool for claiming fatherly love? The question may seem abstract but it has become the subject of consideration by the court of second instance (the case closed with a legally valid decision of the Court of Appeal in Katowice of 15 May 2015, ref. No: I ACa 131/15).

In anticipation of questions about how this case is related to the subject matter of this blog, let me clarify that the case did not, as it may seem, concern family or guardianship law but… the protection of personal interests.

In the lawsuit, the plaintiff-daughter demanded from the defendant-father, payment of compensation and damages in the amount of PLN 80 thousand. The basis for the lawsuit was the defendant — the father — had shown no interest in his daughter ever since she was born and evaded child support payments due to her. As a consequence, according to the plaintiff, she was unable to adapt to life appropriately. The plaintiff emphasised that as a child she had suffered because of the absence of her father and she felt inferior to other children.

The District Court which heard the case in the first instance fully dismissed the action, stating there had been no violation of the plaintiff’s personal interests. The Court of Appeal shared this position.

The Court of Appeal assessed primarily whether there was any value at stake that could be protected by the law as “a personal interest” within the meaning of Art. 23 of the Civil Code.

In accordance with Art. 23 of the Civil Code, personal interests, such as health, freedom, honour, freedom of conscience, a name or nickname, image, secrecy of correspondence, immunity of residence, as well as scientific, artistic, inventor’s and rationalising achievements, shall be protected by civil law regardless of the protection envisaged in other provisions. As follows from this provision, the list of personal interests is open. Except for the “main” personal interests directly mentioned in the provision, it also allows for protecting other values.

Despite discrepancies in matters of doctrine as to the concept of personal interests, the “objective” stance seems to prevail. Such position directs that personal interests are “values that are non-proprietary, related to personality of a given person, generally recognised by the society” (e.g. A. Szpunar, Ochrona dóbr osobistych [Protection of personal interests], Warsaw 1979, p. 106). For the existence of a personal interest, and recognising that it has been violated, it is important to consider both the social and reasonable person’s assessments. The subjective belief of the interested party is, however, of no importance (e.g. P. Księżak (ed.), M. Pyziak-Szafnicka (ed.) in: Civil code. Commentary. General part, LEX 2014).

The existing case-law has added some “more” personal interests not included in the main list stipulated in Art. 23 of the Civil Code. Some of them, such as “the memory of a deceased person” have been embedded for good within our legal system and the demand  protection against infringement is no longer in question by courts. Other values are more incidental and may raise controversies as to the justification for their legal protection (e.g. infringement of personal interests as a result of failure to deliver car tyres — decision of the District Court for the Capital City of Warsaw of 24 September 2014, ref. No I C 978/13, using environmental resources — decision of the Supreme Court of 20 July 1984, ref. No II CR 5/84, decent housing — decision of the Court of Appeal in Warsaw of 13 April 2011, ref. No VI ACa 1310/10).

In the case at hand, the Court of Appeal considered whether the fact that the defendant (the father) showed no interest in the plaintiff (his daughter) and did not show fatherly affection towards her could violate her personal interests. The Court had no doubt that such type of parental indifference did not violate personal dignity and honour. However, a doubt arose as to the existence of a personal interest in the form of “the right to family bonds”, i.e. as to whether “the parental obligations towards the child, resulting from the Family and Guardianship Code (and corresponding rights of the child) didn’t constitute some sort of interest of the child, protected by civil law, regardless of the protection provided for in other provisions.”

Art. 87 of the Family and Guardianship Code states that parents and children “are obliged to respect and support each other.” As a result of the doctrine, this provision expresses an obligation “for parents and children to mutually comply with personal interests” ( G. Jędrejek, Commentary to Art. 87 of the Family and Guardianship Code, LEX 2014). It appears, a violation of this provision may be recognised if: first, there exists a family bond between certain persons; and, second, as part of this bond certain behaviours infringed personal interests. However, an obligation to form a family bond, and sustain it, cannot be derived from this provision.

Such reasoning was also assumed by the Court of Appeal. In particular, the Court pointed out that “[…] the affection between people, even next-of-kin, is the outcome of many factors and depends, among other things, on their relations with other family members, physical attention or the lack of it, on certain personal features and many others. For this reason, family life, by its very nature, is burdened with a risk of conflict or oblivion. In particular, this takes place […] in the case of a child born out of wedlock (formalised or not), if the parents live separately and if there was no time for the parent and the child to develop bonds as a result of closeness.”

In consequence, the Court concluded that the right of the daughter,the plaintiff, to the feelings of the defendant and to his interest towards her are not protected by civil law within the meaning of Art. 23 of the Civil Code. Therefore, the Court dismissed the lawsuit.

We believe that the Court’s decision is justifiable. It does not add to the recent tendency of “fractioning” personal interests and providing protection for the values that result only from subjective perceptions, sense of injustice or distress. It must be remembered that the case law frequently protects family bonds and other emotional bonds (e.g. judgements of the Supreme Court: of 2 December 2009 r., I CSK 149/09; of 14 January 2010 r., IV CSK 307/09; of 10 November 2010 r., II CSK 248/10; of 11 May 2011 r., I CSK 621/10; of 25 May 2011 r., II CSK 537/10; of 15 March 2012 r., I CSK 314/11; of 11 July 2012 r., II CSK 677/11, resolutions of the Supreme Court: of 22 October 2010 r., III CZP 76/10; of 13 July 2011 r., III CZP 32/11, quoted after P. Księżak (ed.), Commentary …). However, in the above mentioned cases, the substantive issue was the protection of the already existing bonds and emotions related to them, not — like in the discussed case — the level of emotions and experiences resulting from the lack of such bonds.

The relationship between law and love was aptly summarised by the Court of Appeal, which indicated that although undoubtedly “every person could crave happiness and love,” such craving cannot be “ordered” by law.

Judgement of the Court of Appeal in Katowice of 15 May 2015 (I ACa 131/15)