=================================================================Editor’s Note: This document was recevied by FAX from the Law
Office of Gerald L. Nissenbaum, Boston, MA on 15 Jul 1992. It
was entered by the editor and comments, as appropriate, were
added.
This document consists of the decision of the Court of First
Instant and the appeal from that court’s order to the Court of
the Capital at Buda Pest
================================================================
Translated from Hungarian
Central District Court of Buda
No. 2.P.I.31.588/1988/2
Petitioner No. II on the question of the Court:
It requires about half a day that I take out fully the items
necessary for my undertaking of the apartment offered for the
petitioner and that I equip the localities according to their
function, so e.g. that I prepare the kitchen for ensuring the
possibility of cooking.
Petitioner No. II on the question of the Court:
On the air ticket presented place can be reserved at any time.
He declares further that he bears the costs of traveling back of
the Respondent as well.
After that the Court has passed the following
ORDER:
The Court orders that the child name [Name Omitted], born on
02 Jul 1985 shall be brought back immediately.
The Court obliges the Respondent to take back the above
mentioned child to the address at [Address Omitted] within three
days.
The Court dispenses with stating the costs.
Against the order an appeal can be lodged during 15 days
from the promulgation.
MOTIFS:
From the marriage of the Petitioner No. II and the
Respondent concluded on 17 Sep 1982 the child named [Name
Omitted] was born on 02 Jul 1985. The relationship of the
spouses recently has spoiled, and, therefore, the Respondent
started for Hungary on 23 Feb 1988 together with her daughter
born from her previous marriage named [Name Omitted] and with her
child named [Name Omitted], born from the Petitioner, from the
flat at [Address Omitted], Neuilly sur Seine.
The Respondent did not inform in advance the Petitioner No.
II on her intent to take away the common child.
Custody over the child was exercised jointly by the two
parents.
In its order dated of 07 Mar 1988 Neuilly sur Seine as Court
of first instance directed the Respondent upon the request of the
Petitioner No. II to take back the child named [Name Omitted] to
his previous address in Neuilly.
The same Court, in its order dated of 17 Mar 988, prohibited
to the Respondent to take the child named [Name Omitted] outside
the borders of the French metropolitan country.
The Respondent in Hungary, the Petitioner No. II in France,
instituted the procedure for the dissolution of their marriage.
The child being 3 years old is not exposed to any physical
or mental harm by being taken back and it does not create an
unsupportable situation for him otherwise either.
The Petitioners No. I and II requested that the Court should
take measure for the child named [Name Omitted], born on 02 Jul
1985 being immediately taken back to his previous residence in
France.
The Petitioner No. II undertook the costs of the traveling
back of both the children and the Respondent, and so they did not
request the charging of the costs of the taking back.
Furthermore, Petitioner No. II promised to ensure an
independent section of flat for the Respondent and the common
child — without charging the general expenses, and to pay for
their support 5,000 francs per month up to the closing of the
divorce process.
He did not object either that the Respondent brings with
herself her daughter named [Name Omitted] born from her previous
marriage.
The Respondent requested the petition be dismissed.
Principally she alleged that she left sooner the common home
because of the rough behaviour of the Petitioner No. II
manifesting itself even in physical assaults, just in the
interest of the child. The Petitioner No. II is unable to
provide for the child under the age of 3 years, and if she would
return together with the child, the child would be exposed to
physical and psychic injury through the physical assaults of the
Petitioner No. II towards her.
She wanted to submit a promotion of evidence to justify
these allegations by the assurance of a deadline.
The Petitioner No. II denied to have displayed the behaviour
indicated by the Respondent towards his spouse.
The petition is well-founded
The law-decree 14 of 1986 on the Civil Aspects of Illegally
Taking Abroad Children (hereinafter called R.) provides in its
Article 1 for the immediate return of the child illegally taken
away or hidden.
Pursuant Article 3 of the decree taking away is illegal if
it hurts the right of custody due according to the previous place
of sojourn (Point [a]), and, respectively, if taking away impedes
the exercise of these rights (Point [b]).
With respect to the child named [Name Omitted] the parents
have actually exercised the rights of custody together. Thus
taking away the child is qualified as illegal because it impedes
the exercise of the parent’s rights of the Petitioner No. II.
There was no doubt that the Petitioner No. II had not
approved the taking away either previously or subsequently. Thus
the Court examined on the basis of Article 13(b) of the decree
whether taking back may expose the child to physical or psychic
injury or whether being taken back could otherwise create an
unsupportable situation for him.
The Respondent herself did not even allege that the
Petitioner No. II displays such a behaviour manifesting itself
directly towards the child which would realize the conditions
mentioned hereinabove.
Besides the guarantees indicated by the Respondent the
Petitioner No. II promised that he ensures an independent flat
for the accommodation of the Respondent and the two children, and
pays 5,000 francs per month.
In such circumstances, even if previously the behaviours
denied by Petitioner No. II would have been realized, which could
lead to the injury of the child, for the future they do not
present any real danger.
As the data available up to now were sufficient for the
decision in the question of taking back, the Court ensured no
deadline for the Respondent to submit her motion for evidence.
The Court fixed the deadline of taking back the child so as
to ensure appropriate time for the preparation of the travel of
both the mother and the children.
The Petitioner No. II did not request charging the travel
expenses and so the Court dispensed with taking decision on this
question.
The record is closed at 18.30 p.m.
Dated as above
Dr. OGSODI Agnes m.p.
Judge.
I certify hereby that this light copy is in every respect
identical with the original.
Dr. Benedek Katalin m.p.
Senior Collaborator
Senior Counsellor of the Ministry of Justice
[Round Seal: Ministry of Justice]
================================================================
Court of the Capital
as
Court of Appeal
No. 50.Pf.24.548/1988/3
In the case instituted by the Ministry of Justice of the
Hungarian People’s Republic (1055 Budapest, Szalay u. 16)
represented by the Law Office No. 16/2 of Budapest (1061
Budapest, Dalszinhaz u. 10 Lawyer: Dr. SASVARI Tibor) as
Petitioner No. I and [Name Omitted] resisdent in France ([Address
Omitted] Neuilly sur Seine) represented by Law Office of Vao
(2601 Vao Pf. 9, Martirok u. 15., Lawyer: Dr. HORVATH Gyorgy) as
Petitioner No. II.
Against [Name Omitted] resident in Budapest ([Address
Omitted]) represented by Law Office No. 12 of Budapest (1114
Rocskai u. i. Lawyer: Dr. BARANDY Gyorgy) and then by Law Office
No. 44 of Budapest (1012 Miko u. 14. Lawyer: Dr. SZUCS Andrea) as
Respondent for taking back the child illegally taken abroad
pursuant to appeals of Serial No. 3 and 5. Submitted by the
Respondent against the order No. 2.P.I.31.588/1988/2 of the
Central District Court of Buda, the Court of Capital as Court of
Appeal has passed the following
ORDER:
The Court of Appeal affirms the order of the Court of first
instance with the following modification as to the way and
deadline of performance:
The mother as Respondent is obliged to take back the child
named [Name Omitted], born on 02 Jul 1985, within eight days to
its usual place of sojurn in France, [Address Omitted], Neuilly
sur Seine. In case of failing to meet this deadline she is
obliged to deliver the child to the father as Petitioner No. II
within 3 (three) days to be counted from his personal
presentation at the guardianship authority of the 1st district.
No appeal can be lodged against this order.
MOTIFS:
On the basis of Articles 1 and 3 the Law-Decree 14 of 1986
the Court of first instance – by examining also the excluding
reasons included in Article 13 and stating with respect to them
that no reasons excluding the taking back of the child exist –
ordered the child named [Name Omitted] born on 02 Jul 1985 being
taken back immediately to his usual place of sojourn in France
preceding his being taken illegally by his mother to Hungary. It
obliged the mother as Respondent to take back the child within
three days to the common flat of the spouses. It dispensed with
stating the costs as the father as Petitioner No. II undertook to
bear them.
In the MOTIFS of its order the Court stated that the
parent’s rights were exercised by the mother and the father
together. The mother, however, took away the child without the
father’s consent, by hurting the rights of custody due to the
father together with the mother and by impeding the exercise of
the parent’s custodian rights, and, therefore, illegally. It
stated furthermore, that the competent French court obliged the
mother to take back the child.
It did not accept the defence of the Respondent saying that
taking back the child would expose him to physical or psychic
injury, and it motivated this standing point in detail.
It mentioned also that the father as Petitioner No. II had
made a promise to ensure the separate accommodation and support
of the mother and the child by offering appropriate guarantee.
Thus, even if sooner there were some foundation of the allegation
not proved by the Respondent that cohabitation with the father
hurt the interests of the child, in the conditions ensured by
Petitioner No II taking back the child would not create an
unsupportable situation for the child.
The Respondent lodged an appeal against the order.
On the one hand she requested the order of the court of
first instance to be changed and to dismiss the request of the
Petitioners concerning the taking back of the child.
On the other hand she asked also to invalidate the order of
the Court of first instance by submitting a motion of further
evidence relating to the circumstances of the child in Hungary,
to his conditions of education here.
The counter demand of the Petitioners was directed towards a
confirmatory decision.
The appeal is not well-founded.
The Court of first instance has taken a position concerning
both the illegality of bringing the child to Hungary and the
legal subsistence of the obligation to take him back after having
conducted a proof of the necessary extent and after having
correctly deliberated all the data of the procedure (Act III of
1952. Sec 206). In such circumstances, however, – on the basis
of the rules of law correctly alleged by it (the appropriate
Articles of the Convention dated in The Hague, 25 Oct 1980 on the
Civil Law Aspects of the Children’s Taking Illegally Abroad,
promulgated by lad-decree 14 of 1986.) ordering to take back the
child is legal and therefore appropriate.
For this reason and because the Court of Appeal agrees not
only with the disposition of the Court of first instance but also
with its detailed motifs as to the facts and law, the Court of
Appeal affirms the order of the Court of first instance –
pursuant to Act III of 1952, Sec 259 and Sec 254/3/ second indent
– by referring back to its correct motifs.
The Court of Appeal modified the disposition affirmed by the
Court of first instance only as to the way and deadline of
performance in the interest of the possibly efficient realization
of the aim properly said of the process, the restoration of the
parents’ common custody and the insurance of the parents’ common
rights.
Relating to the secondary request in appeal of the
Respondent and, respectively, to the further proof mentioned by
her, the Court remarks besides what has been explained that the
circumstances and conditions of the education and custody of the
child in Hungary is irrelevant in the present procedure. In the
present procedure only the circumstances examined by the Court of
first instance have a relevance decisive for the case. (Was
taking away illegal on the basis of the above-mentioned
law-decree and are there reasons of exclusion for taking back
laid down in the law-decree?)
Thus any further proof is unnecessary.
Budapest, 14 Jul 1988
Dr. BARNANE
Dr. MUGZER Erseebet m.p., president of the division
Dr. BENKO Cailla m.p., Judge, referee
Dr. RORDACS Istvanne m.p., Judge
Certified true copy: [Illegible Signature] administrator.
Round Seal: Court of the Capital, Budapest.