Tuesday, July 15, 2014

The Hague Abduction Convention in Hungary

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Hungary

By Judge dr. Márta GYENGE-NAGY, judge at the Municipal Court of Szeged, Szeged

The enlargement of the European Union and the free movement of workers within it have considerably increased the number of cross-border disputes, and made clear in Hungary the need for access to international legal instruments in relation to other Member States of the European Union and to third countries. Hungary acceded in 1986 to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the “1980 Child Abduction Convention”) (Act 14 of 1986). An implementing Ministerial Decree has also been issued (Decree 7/1988// VIII.1/IM) in order to specify the extra-judicial procedure relating to children wrongfully removed to or retained in Hungary or the return to Hungary of children retained or removed abroad. In addition, as Hungary is a Member State of the European Union since 1 May 2004, it is also required to apply Regulation Brussels IIa.

The specific features of the judicial procedure in Hungary
A single court, the Central Court for the Districts of Budapest (Pesti Központi Kerületi Bíróság), has jurisdiction for proceedings relating to the return of children wrongfully removed or retained in Hungary. The number of such cases is fairly low. Nevertheless, any ruling concerning Hungary’s international commitments has an impact on the country’s image abroad, and also arouses public sentiment and media attention. From the point of view of the child and the parent accompanying the child, execution of the return decision is a sensitive issue, while absence of execution harms or may harm the left behind parent - and in the long term, the child- by afecting the fundamental right to family life. Thus it is no accident that the legislation relating to the application of the Convention has changed several times in the past decade.

Jurisdiction and provisional measures
In line with practice of the European Court, Hungarian case law considers that the child’s best interest demands immediate restoration of exercise of the right of the parental authority having suffered damage. In accordance with guidelines issued by the Curia of Hungary (the Supreme Court), if return proceedings are initiated pursuant to the 1980 Child Abduction Convention, the competent court may not take any measure inconsistent with the aim of the Convention until a decision regarding return is made. However, the fact that the court to which the application relating to the rights of the child’s custody is referred is not always informed of the initiation of return proceedings can cause a problem. If the application for return is channeled through the Central Authority, in order to prevent any decision inconsistent with the Convention, that authority, sua sponte, informs the court trying the proceedings of the application. It would be desirable in such cases for all the courts to apply the same practice: i.e., if a Hungarian court has jurisdiction to rule on the right of parental authority, it ought to hold in abeyance the proceedings relating to rights of custody until a final judgment has been delivered in the abduction proceedings.

In relations between Hungary and the other Member States of the European Union, under Article 11(6) and (7) of Regulation Brussels IIa, the court of competent jurisdiction is that of the Member State where the child was habitually resident before the abduction. Under Article 20(1) of Regulation Brussels IIa, in abduction proceedings, the court may take provisional measures. In Hungary, under Hungarian law, the court having jurisdiction in cases of wrongful child abduction may take provisional measures, including protective measures, which in most cases concern contacts between the applicant parent and the child during the proceedings or until the child’s return.

Hungarian procedural rules in return cases, including issues of execution of return decisions
In order to assist in complying with the period of six weeks set by Article 11(3) of Regulation Brussels IIa, domestic Hungarian law has laid down specific rules: the parties must be heard within eight days after the application reaches the court. Of the 24 cases determined on the merits, only six lasted more than six weeks: on the basis of other States’ experience, this is faster than the average. In order to be able to meet this deadline, the Hungarian court maintains a stand-by service during the summer and Christmas holidays. Naturally, the concentration of jurisdiction facilitates the acquisition of a certain level of expertise, resulting in reduced delays. Speed would be fundamental during appeal proceedings also, but there is no specific rule relating to the timing of an appeal. The customary period for appeal (15 days) in itself makes it impossible to issue a final judgment within six weeks, as stipulated by the international instruments.

In Hungarian practice, with respect to evidence, the hearing of witnesses is limited. Evidence consists of documents, emails, SMS messages, Skype conversations and sound recordings. The appointment of an expert or the procurement of a welfare report are rare, but increasingly, the judge hears the minor child directly, in accordance with general European practice and under the pressure of having to make an expeditious decision. The child is heard outside the parties’ presence, and usually, a court-appointed guardian is in attendance; the judge records the hearing, which is then reported to the parties. Among children heard to date, the youngest was aged five and a half, and the eldest, nine.

Issues of execution of return decisions
Since the promulgation of the 1980 Child Abduction Convention, Hungarian legal rules relating to the execution of return decisions have changed several times. In the past, execution was not necessarily within the jurisdiction of the court which decided upon return, but rather of the court having jurisdiction at the location where the child is present. This procedure delayed by several weeks, or even months, the child’s return and accordingly, the restoration of the child to the left behind parent. This legislation was not consistent with the requirement of the “most expeditious procedures available in national law” under Article 11(3) of Regulation Brussels IIa.

In Hungary, the consistency of case law is promoted by the fact that a single court, the Central Court for the Districts of Budapest, has jurisdiction to try wrongful child abduction cases. However, the current Hungarian rules do not adequately secure the exceptional nature of such cases at all stages of the procedure (including execution), and have not provided for the human resources and material conditions required for recourse to international mediation (in particular judicial mediation).

With the aim of promoting understanding of the law and in order to better inform foreign jurisdictions, we wish to prepare for the Central Authority an authoritative interpretation of Hungarian rules relating to parental authority. We intend to organise specific training courses for jurists (judges and counsel) involved in return cases, including on the psychological aspects of a child’s testimony, and in the interest of informing public opinion in an appropriately objective and even-handed manner about specific cases, we shall also reinforce judicial communications with the media. Through the realisation of these aims, we wish to contribute to a more rapid and flexible procedure in cases of wrongful child abduction, endeavouring to encourage amicable settlement and maintaining family relations, as a result serving the best interests of the minor child concerned.