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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
Introduction
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.
Aims
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.
