by Jeremy D. Morley
Hungary does not comply with its obligation under the Hague Abduction Convention to promptly return children who are wrongfully taken to Hungary or retained in Hungary.
The Committee of Ministers of the Council of Europe determined on December 3, 2020 that Hungary's failure to meet its obligations under the Convention was so serious that certain specific cases should be reviewed by the Ministers under a special “enhanced supervision” procedure that is reserved for extraordinary cases.
The European Court of Human Rights (the “ECHR”) has reprimanded Hungary on several occasions for flagrant violations of the human rights of left-behind parents whose children have been abducted to Hungary and have never been returned to their prior habitual residence. The European Union's Ministers have now brought the issue to a level of greater seriousness.
It should be noted that in its 2021 Annual Report on International Child Abduction the U.S. State Department lists Hungary as being compliant with the Convention. This is highly misleading. The Department received no completed requests for assistance in 2020 or several prior years for abductions to Hungary.
Having worked on international child custody matters concerning Hungary for many years, and having presented expert evidence on such matters, it is apparent that the problems include the following:
- Hungarian courts frequently misinterpret the Hague Convention's terms, such as “habitual residence,” in favor of the taking parent.- There is no effective procedure within Hungary to enforce court custody orders. Pursuant to the governing Hungarian legislation, the enforcement of final and effective judicial custody and visitation decisions is not within the competence of the court handling the Hague case. The body that is responsible for enforcement cases is the local “Custody Authority.” The Custody Authorities do not have sufficient coercive power and their procedure is slow and inefficient. As a result, even a favorable Hague decision is often completely futile because it is not enforced.- It typically happens that if, as and when enforcement is finally employed, the taking parent cannot be found. The “bailiff” cannot issue a search warrant with criminal consequences but merely reports the matter to the police.- The passage of time in such circumstances typically leads to the child becoming well integrated into the new environment, which helps to create new defenses for the taking parent.
- It is common for the taking parent to successfully preclude the left-behind parent from having any contact with the child during the lengthy court proceedings, thereby enabling a psychologist to subsequently declare that there would be a “grave risk” of harm to the child if the child were sent back to the former residence, especially if the taking parent were not to accompany the child.
The cases heard by the ECHR concerning Hungary's failure to comply with the Hague Abduction Convention include the following:
- Tonello v. Hungary (Application no. 46524/14)
In this case, the child was wrongfully retained in Hungary in 2011 away from her habitual residence in Italy. In 2012, the Hungarian courts ordered that the child must be returned to Italy. That order was never enforced. Although arrest warrants were ultimately issued against the mother, and for reasons that are difficult to understand, the Prosecution Office in Hungary dismissed the criminal charges as “unsubstantiated” and the mother's name was deleted from a list of people who were wanted under an arrest warrant. A host of subsequent proceedings ensued, all without success. In 2018, the ECHR ruled that Hungary had violated Article 8 of the European Convention for the Protection of Human Rights, which provides that, “Everyone has the right to respect for his private and family life.”
- Cavani v. Hungary (Application no. 5493/13),
In Cavani v. Hungary, the children's mother abducted the children from Italy to Hungary in 2005. The Pest Central District Court found that the mother was keeping the children in Hungary illegally in violation of Article 3 of the Convention but refused to order their return to Italy because at their young age the children needed to be cared for by their mother. That ruling was in absolute violation of the Convention since “best interests” must not be considered in a Hague case. On appeal, the Budapest Regional Court ordered that the children should be returned to Italy. However, the Hungarian authorities never enforced that order despite the ongoing efforts of the father, recounted at length in the European Court's ruling, throughout the next several years. The Hungarian authorities repeatedly claimed that they could not find the children. During all of this time the father never saw the children. Seven years after the abduction the children were found, but only because their school principal in Budakeszi, Hungary brought a court action in Hungary in which he stated that the children were in danger in their mother's custody and asked that they be placed in state protection. By this time the children could no longer speak Italian and were totally estranged from their father.
The ECHR ruled in 2014 that: “the Hungarian authorities failed to take adequate measures to facilitate the reunification of the applicants and [it] considers that the applicants must have suffered anguish and distress as a result of the forced separation and the perspective of the father and daughters never seeing each other again.” This was a clear violation of Article 8. However, the only award that it was empowered to make was a financial award to the father.
- Shaw v. Hungary(Case No. 6457/09)
In Shaw v. Hungary, the ECHR ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to diligently process a Hague case brought by an Irish father to secure the return of his child from Hungary to France, where they lived, following the parents' divorce. The family lived in France. In 2007 the mother took the child to her native Hungary for what was supposed to be a Christmas vacation, but never returned the child. The father promptly brought a Hague case in Hungary and also obtained a custody order from the French courts but he never saw his daughter again.
A court in Pest, Hungary ordered the child's return and two appeal courts upheld the return order. The local bailiff twice unsuccessfully called on the mother to comply voluntarily with the court's order. Meanwhile, a French court issued a European arrest warrant for the mother for the offence of change of custody of a minor. She was then arrested in Hungary but was promptly released by the Budapest regional court on the ground that similar proceedings were pending before a Hungarian court. The mother then disappeared with the child and the Hungarian officials thereafter continuously claimed that they could not find her or the child.
Having exhausted his remedies in Hungary the father ultimately brought suit against the State of Hungary in the European Court of Human Rights. He complained that Hungary had violated his rights under article 8 of the European Convention on Human Rights, upholding private and family life, by failing to take timely and adequate measures for him to be reunited with his daughter. The Hungarian government claimed that it had done everything possible to try to secure the child's return to France, but that the mother had absconded with the child which had temporarily prevented the authorities from taking any further measures.
Finding that the Hungarian state had violated the father's rights to family life, the ECHR ordered the payment of €20,000 for the anguish and distress he had suffered as a result of the insufficient measures taken by the Hungarian authorities and awarded €12,000 for legal and related expenses. However, the Court had no power to locate the child or to return the child to the father.
- Prizzia v. Hungary (Case No. 20255/12),
In Prizzia v. Hungary the ECHR ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to honor and implement the rights of a left-behind American father to have contact with his abducted son living in Hungary.
The parents lived in Virginia with their son. The Hungarian mother took the child to Budapest for a Christmas visit in 2003 and then refused to return him. The father promptly commenced a case in Hungary under the Hague Convention and traveled to Hungary on many subsequent occasions for the ensuing litigation. He lost at first instance on the improper ground that the mother was Hungarian and that it was better that her child lived in Hungary. On appeal he won but the media in Hungary complained that American authorities were “bullying” the Hungarian authorities and the Supreme Court of Hungary changed its earlier ruling and refused to return the child on the ground that he should not be separated from his Hungarian half-brother.
The father then engaged in several years of intense litigation in Hungary to try to at least get access to his son. A court in Budapest ultimately gave some limited access rights to him but those rights could not be enforced. Ultimately the father was able to see his son very occasionally but only in Hungary and he was never able to take his son for visits to the United States. The Supreme Court of Hungary eventually ordered that there should be summer visits to the United States but the authorities in Hungary failed entirely to allow those rights to be enforced.
When the father had exhausted his remedies in Hungary, he brought suit against Hungary in the European Court. That Court eventually ruled in 2013 – ten years after the child was abducted -- that Hungary had violated the Convention by failing to provide the father with effective rights of access to his son. Once again, the Court merely made a financial award to the left-behind parent for legal fees and for “having suffered anguish and distress as a result of the withering ties with his son and the insufficient measures taken by the Hungarian authorities.”