Ruling 284Passed on 09 December 1991
by the Civil College
Supreme Court
Republic of Hungary
I. In accordance with the law in Hungary, the removal from
Hungary or the retention abroad of a child is to be considered
wrongful if
a/ one of the parents living together and exercising the
rights of custody jointly removes the child abroad without the
approval of the other parent, except for a decision by the
Guardianship Authority rendering it possible;
b/ in the case of parents living separate, the one having no
custody rights removes the child abroad without the approval of
the other parent, that is, the custodian;
c/ in the case of parents living separate, the one having no
custody rights removes the child abroad with the intention of a
prolonged stay or final settlement there, whereas the other Parent
had only approved of the trip abroad, but not of defection;
d/ in the case of parents living separate, the one having
custody rights removes the child abroad with the intention of a
prolonged stay or final settlement there, except for a decision by
the Guardianship Authority rendering it possible;
e/ a parent whose custody rights are terminated or suspended;
and the act of wrongfulness is not countermanded by the approval
of the parent having custody rights;
f/ a third party removes the child abroad without the approval
of either of the parents exercising custody rights jointly, or
does so – in the case of approval of the trip – with the intention
of a prolonged stay or final settlement there, except for a
decision by the Guardianship Authority rendering it possible;
g/ the parent having custody rights had consented to the final
removal abroad of a child, but his/her declaration to that effect
had not been endorsed by the Guardianship Authority.
II. Entitled to commence proceedings is the parent exercising
full or partial custody rights. If the child is not in parental
custody, the right to act on his/her behalf is to be exercised by
the guardian (the official guardian of the institute).
If the parent having custody rights was not actually
exercising those rights, or wrongfully approved of the removal
abroad of the child, or his/her declaration consenting to the
final settlement abroad of the child had not been endorsed by the
Guardianship Authority, it is the Guardianship Authority that is
entitled to commence the proceedings.
The Convention on the Civil Aspects of International Child
Abduction concluded on October 25, 1980 in The Hague (hereinafter
“the Convention”) was promulgated in Law-decree 14 of 1986. By
virtue of the convention, the issue of application for the return
of a child wrongfully removed or retained abroad shall be decided
by the relevant authority of the State where the child is to be
found. When making its decision, it shall apply the Hungarian
substantive law to decide whether a given case of removal or
retention is wrongful, or not.
In order to ensure the uniform and correct interpretation of the
Hungarian legal regulations the Civil College of the Supreme Court
of the Republic of Hungary deemed necessary to issue a ruling.
I. The contents of parental custody rights should be the
guide-lines when wrongfulness is to be established.
Parental custody rights are regulated by Chapter VIII of Act IV of
1952 on Marriage, Family, and Guardianship (hereinafter the Act).
The major rule of para /1/, Section 72 of the Act is that custody
rights-are to be jointly exercised by the parents. All the
questions concerning custody – except for the ones pertaining to
the freedom of conscience and religion – when the parents jointly
exercising custody rights fail to come to agreement shall be
decided by the Guardianship Authority (para /1/, Section 73 of the
Act). If the parents of the child live separate, custody rights
are exercised by the parent in whose care the child has been given
(para /2/, Section 72 of the Act). Even in such a case, however,
the parent living separate is also entitled to exercise certain
elements of parental supervision: namely the regulation provides
rights of decision to be exercised jointly by the parents living
separate in the case of issues of vital importance from the point
of view of the child’s fate (para /3/, Section 72 of the Act).
Among others, such a vital issue is the placement of the child
(para /4/, Section 72 of the Act). If the parent living separate
fail to come to agreement as regards jointly exercised rights of
supervision, the decision – except for the appointment of the
domicile of a minor aged 16 (para /2/, Section 77 of the Act) –
shall fall within the jurisdiction of the court (para /2/, Section
73 of the Act). As provided by Section 34 of Order 4/1987
/VI.l4./IM (Minister of Justice), the issue of the appointment of
the domicile of the child shall be decided by the court in the
case of disagreement between the parents living separate if the
parent exercising custody rights wants, besides other instances,
to remove the child abroad for a prolonged period of time (in
excess of a year).
The parent exercising the rights of custody, or the Guardianship
Authority, may demand the return of the child by the person or
persons retaining him/her wrongfully (para /4/, Section 76 of the
Act). The endorsement of the Guardianship Authority shall be
required for the declaration of the parent consenting to the final
departure abroad of the child (para /3/, Section 77 of the Act).
The minor not under parental custody shall be placed under
guardianship (Section 93 of the Act). Except for the case of
guardianship by an institute, the Guardianship Authority shall
appoint a guardian for the minor requiring guardianship (para /1/,
Section 94 of the Act). The minor is under the guardianship of an
institute if he/she is placed in the care and education of a
state-run institute, Furthermore, if he/she is temporarily kept
there for against the parent an action to terminate his/her
parental supervision is under way (para /1/, Section 98 of the
Act). The criteria to be met by a person who can assume
guardianship are regulated by the other provisions at the same
heading of the statute. Unless provided otherwise by law,
provisions relating to the rights and obligations of the parent
exercising custody rights shall accordingly be valid also for the
rights and obligations of the guardian (Section 102 of the Act).
From the above provisions it follows that in the case of parents
living together and jointly exercising custody rights the removal
abroad of the child is wrongful if one of the parents takes the
child abroad without the consent of the other parent. In the case
of disagreement between the parents, if is, however, possible to
apply to the Guardianship Authority for a decision in the matter
of the removal or the retention abroad of a child. If the
Guardianship Authority grants its approval, the removal or the
retention abroad of the child is not wrongful, even in lack of the
other parent’s consent.
In the case of parents living separate, it must be taken into
consideration by which parent and for what period of time the
child is removed abroad.
The removal abroad of the child is wrongful in each and every case
if the parent having no custody rights removes the child abroad
without the consent of the other parent, or if the latter had
approved of the trip abroad, but not of defection, and yet the
former stays abroad with the child with the intention of a
prolonged stay or final settlement there.
However, the placement of the child with either of the parents
does not entail exclusive and full-scope custody rights for that
parent, except for the case when the custody rights of the other
parent are limited, suspended, or terminated by the court.
If a parent may exercise the right of supervision but the other
parent exercises the custody rights, the right to commence the
proceedings on the ground of the removal abroad of the child is
dependent on the duration of the stay abroad.
If the parent having the custody rights goes abroad with the child
for a period less than a year, the removal of the child is not
wrongful, and the return of the child may only be asked for by the
parent in the native country if he/she institutes an action for
the reversal of the custody of the child and the court gives the
child into his/her care.
If, however, the parent having the custody rights wishes to remove
the child abroad for a period over a year, he/she needs the
consent of the other parent remaining in the native country, or
the decision of the court competent to designate the domicile of
the child. In lack of the said parental consent or court decision,
the retention abroad of the child qualifies as wrongful.
To constitute wrongfulness, it is not necessary for the retention
abroad of the child for over a year to be realized: it suffices if
the parent removes the child abroad with such intention. The
intention of the parent shall be established through the
assessment of all the circumstances of a given case.
The removal or the retention abroad of the child is wrongful in
each and every case if the child is removed abroad by a parent
whose custody rights are terminated or suspended. In such an
instance, even the approval of the other parent exercising the
custody rights shall not countermand the wrongfulness of the
removal abroad of the child.
The removal or the retention abroad by a third party of a child is
wrongful if either of the parents refuses to consent to it, or it
is not rendered possible by a decision of the court. To establish
wrongfulness in the case of the removal or the retention abroad of
the child with the intention of a prolonged stay or final
settlement there, it is not necessary for the retention abroad of
the child for over a year to be realized either: it suffices if a
third party removes the child abroad with such intention.
Finally, wrongful is the removal abroad of the child with the
intention of final settlement there, if the other parent’s
declaration consenting to it is not endorsed by the Guardianship
Authority.
In each and every case, a precondition to establishing
wrongfulness is the criterion that the parent (the guardian) was
actually exercising the rights of custody, or he/she would have
exercised them but for the removal or retention. To establish that
in given cases will, however, be an issue to be decided under the
heading of the facts of the cases.
The actual exercise of the rights of custody by the Guardianship
Authority means the measures taken in the course of discharging
the duties delegated to its scope of activities by the statute.
II. In the above cases where the child is wrongfully removed or
retained abroad, the parent remaining in the native country is
entitled – on the basis of his/her full or partial custody rights
– to apply for the commencement of the proceedings of the return
of the child.
If the minor is not under parental custody (his/her parents are no
longer alive, the rights of custody of the parent are terminated
or suspended), his/her guardian (in the case of institute
guardianship, the head, or the deputy in charge of such matters,
of the institute) shall exercise the rights of custody otherwise
vested in the parent. Thus, in all the above instances where the
removal abroad of the child qualifies as wrongful, the guardian
(the official guardian of the institute) may apply for the
commencement of the proceedings of the return of the child.
The Act also provides that the Guardianship authority directly
demand the return of the child by the person or persons retaining
him/her wrongfully. And as for the final settlement abroad of the
child, the approval of the Guardianship Authority is always
indispensable.
These provisions vest rights in the Guardianship Authority, which
qualify – as far as their contents are regarded – as rights of
custody attributed to an institution or institutions under the law
of a State in accordance with item a/ of Article 3 of the
Convention, which rights could not be exercised because of the
removal or the retention of the child. By virtue of this power
vested in it, the Guardianship Authority may commence the
proceedings for the return of the child, if the parent having
custody rights was not actually exercising such rights, or had
wrongfully consented to the removal abroad of the child, or the
Guardianship Authority had not endorsed the declaration of the
parent consenting to the final settlement abroad of the child.
[WMH Note 01]
====================Appendix One=================================
ACT No. VI. 1952 ON MARRIAGE, FAMILY AND GUARDIANSHIP (Uniform
text determined in Act No. I. 1974, and amended by Act No. IV.
1986)
[WMH Note: This was received by FAX from the Department of State
on 26 Feb 1992 as part of a longer transmission. It was sent as
part of a package from Hungary.]
CHAPTER SEVEN: The Parental Supervision and Minors Under State
Care.
1. The parental supervision in general
Sec. 70 Minor children are either under the supervision
of parents, or under guardianship.
Sec. 71 (1) The parental supervision has to be practiced
in accordance with the minor child’s
interests.
(2) The parental supervision includes the care
and education of the minor child,
administration of his or her properties, the
right and duty of legal representation of
the minor, the right of the appointment of
the guardian and the right of exclusion from
guardianship.
(3) –
Sec. 72 (1) The parental supervision is practiced by the
parents together.
(2) The the child’s parents do not live
together, and if the child lives with one of
the either according to the parents’
agreement, or in accordance with the
decision of the court, supervision is
practiced by the parent with whom the child
lives.
(3) Parents living separately decide together on
important matters concerning the child’s
future, except if the supervision of the
parent living separately has been limited,
suspended or terminated by the court.
(4) Important matters concerning the child’s
future are in determination of the minor
child’s name, the determination of the
child’s domicile, the further direction of
the child’s education and the determination
of the child’s career.
(5) The parent living separately from his or her
child may be authorized by the court to be
the child’s legal representative in the
matter of the child’s properties or their
utilization, or if the child’s interests
require so, the parent’s rights of
supervision — including the right of making
decisions on important matters concerning
the child’s future — may be limited or
terminated, or the court may decree the
suspension of the practicing of some of
these rights.
Sec. 73 (1) On matters belonging to the sphere of
supervision in which the parent practicing
supervision together cannot come to an
agreement in the respect of the right of
supervision practiced by the parents
together, the public guardianship authority
decides, except if this Act contains a
different measure.
(2) If the parents living separately cannot come
to an agreement in respect of the right of
supervision practiced by the parents
together, the decision is made by the court
— except on the determination of the
domicile of a minor over the age of sixteen
[paragraph 77, section (1)].
Sec 74 (1) The public guardianship authority is obliged
to hear both parents during the procedure
regarding the parental supervision — except
if there are unavoidable obstacles. The
other closest relatives of the child and the
minor child him- or herself has to be heard
too, if necessary.
(2) The public guardianship authority may alter
or invalidate their measures regarding the
parent’s supervision any time, if this is
necessary in the interests of the child.
=====================End Text===================================
WMH Note 1: See also In re J (1989) United Kingdom [INREJ.UK]
where a minor was made a ward of the court and the court, not the
parents, had the “right of custody” within the meaning of Art 3
of the Convention.