Dr. Nemes Iván Sándor

Laws Regarding International Child Abduction

Introduction

The Convention on the civil aspects of international child abduction was approved on 25^th October 1980 in Hague (Convention of Hague) and ratified in Hungary by the Law Decree n. 14 of 1986.

The European Union (EU) has brought together in a single legal instrument the provisions on divorce and parental responsibility, with a view to facilitating the work of judges and legal practitioners and to regulating the exercise of cross-border rights of access. This regulation represents a major step forward in the fight against abductions of children. Council Regulation (EC) No 2201/2003of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility contains specific rules about child abduction.

Some Salient Rules from the Convention of Hague

The objects of the Convention of Hague are to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

For the purposes of this Convention "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.  

A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children.

The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.

In particular, either directly or through any intermediary, they shall take all appropriate measures to discover the whereabouts of a child who has been wrongfully removed or retained and to secure the voluntary return of the child, or to bring about an amicable resolution of the issues.

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

The judicial or administrative authority has to decide within six weeks.

Where a child has been wrongfully removed or retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

The judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.

An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

Hungarian Authorities

The competent central authority in Hungary is the Ministry of Justice (Közigazgatási és Igazságügyi Minisztérium).

The competent juridical authority in Hungary is the Court of Central Districts of Pest (Pesti Központi Kerületi Bíróság – PKKB).

Practical Issues

It is imperative to submit the application for the return of the abducted child to the judicial authority (court) within one year from the date of the wrongful removal or retention. Provided that the petitioner parent was the legal custodian of the child prior to the time of the abduction, and provided that the custodial rights were properly exercised and that said parent had not consented to the child’s removal or retention, the judicial authority (court) has to order the return of the child forthwith. (In rare circumstances, the Court may refuse petitioner’s request if it decides that granting the request would put the child at great risk or in an otherwise intolerable situation.)

It needs to be emphasized that the application has to be submitted by the petitioner parent, within one year, to the judicial authority (court) of the country where the child was wrongfully taken (i.e., it is not enough to simply send the application to the Central Authority (Ministry) of either country).  

If, however, the application for the return of the abducted child is submitted to the judicial authority (court)  after one year from the date of the wrongful removal or retention, the judicial authority (court) may refuse the request if the child is already settled in his or her new environment. Using past cases as a guide, we find that the parent who abducted the child can usually demonstrate the integration of the child into the new environment and the court, thus, will refuse the request. NB, thisone year deadline can be deceptive: if the process is begun on time and attended to in a timely manner, the petitioner parent should be fine; if the injured parent tries, however, at first to solve the problem without legal help, he or she will almost certainly realise delays regarding parental resistance and legal inaction etc. If time is short, I therefore recommend submitting the application for return directly to the judicial authority (court) and contacting a local lawyer. 

dr. NEMES Iván Sándor