T.M.C. ASSER INSTITUUT

Comparative study on enforcement procedures of family rights

JLS/C4/2005/06

Annex 15 National Report Hungary

Dr. Orsolya Szeibert-Erdős, University of Eötvös Loránd, Budapest, Hungary

1

Dr. Orsolya Szeibert-Erdős University of Eötvös Loránd

Budapest, Hungary szeibert@ajk.elte.hu

Answers to Legal Questionnaire Part 1. Enforcement in domestic cases 1A. Procedures and practices for enforcement in domestic cases 1. Description of the general law for enforcement of: a. decisions on custody, including orders on the place of residence of the child General rules on the system of parental responsibilities and the placement of the child The current sources of law for parental responsibilities and for the rights and duties of the parent living apart from the child are the Hungarian Family Act, the Act No. IV. 1952 on marriage, family and guardianship, the Hungarian Child Welfare Act, the Act No. XXXI. 1997 on the Child Welfare and Guardianship Administration and the Hungarian Order of Guardianship, the Order of Government No. 149/1997 on Public Guardianship Authority and Proceeding in Child Welfare and Guardianship Cases. The parents exercise not parental responsibilities but parental authority according to the Hungarian legal terminology. (Nevertheless, the expression of ‘parental responsibilities’ is going to be used further on.) If the parents live together, they exercise joint parental responsibilities together. If the filiation between on one side the mother and the father and on the other side the child is legally determined, so if the legal status of the mother and father is settled, both parents exercise parental responsibilities irrespectively of the fact whether they live together in marriage or in unmarried partnership. If the parents dissolute their partnership they can maintain joint parental responsibilities but it is rather exceptional. If they do not maintain this joint form of parental responsibilities, the main rule is that one of them is going to be the sole holder the parental responsibilities. The parental responsibilities are attributed to the parent whom the child is placed. The non-residential partner has the right and duty to contact and has the right to decide important matters affecting the child in conjunction with the holder of the parental responsibilities. These matters are the determination and the change of the child’s name, residence, education and career. In this case, if the parents do not live together, the court has competence to decide their disputes. According to the Hungarian legal terminology the parental responsibilities – in case of parents not living together – are attributed to the parent whom the child is placed. The parents can make an arrangement in which they can decide that with whom the child will be living together on. If they dissolve their marriage with consent they have to agree on this fact. The court has to scrutinize this agreement whether it corresponds to the minor’s interests. If the parents can not reach an agreement, the court has to determine where the residence of the child will be. The main rule is that one of the parents’ residence is determined as the child’s

2

residence further on and there is no judgment to settle that the child should reside with his/her parents on an alternating basis. Nevertheless, it is possible that the non-residential parent can claim (under certain provisions) that the court should change the decision on the placement of the child. There is a general rule in the Hungarian Family Act that the parents, the authorities and courts have to guarantee that a child who is capable of forming his/her own views and express these views concerning all decisions that affect him/her, and due weight should be given to these views according to the age and maturity of the child. Hungarian law has no general rule applicable to every case that states the age at which a child is considered to be capable of forming his/her own views, and so be heard in matters of parental responsibilities or contact. Nevertheless, in some cases it is expressed that according to Hungarian law a child over 14 is capable of forming his/her own views in matters of parental responsibilities. There are rules stating that a child under 14 is to be heard if he/she demands it. The law of enforcement of the decision on the placement (residence) of the child The current sources of law for the enforcement in these cases are the Enforcement Act, the Act No. LIII. 1994 on the judicial enforcement, the Police Act, the Act No. XXXIV. 1994 on the Police Force and the Hungarian Order of Competence of Guardianship Authority, the Order of Government No. 331/2006 on Competence in Child Welfare and Guardianship Cases and the Organization of the Public Guardianship Authority. 1. Calling on for voluntary performance If the court has given a decision on the residence of the child (gyermekelhelyezés) and the parent does not comply with the content of this judgment, i.e. does not give the child to the another parent who is the sole holder of the parental responsibilities according to the judgment, the latter parent can claim the enforcement of the judgment. The judicial enforcement has to be ordered by issuing the enforceable deed (végrehajtható okirat) which is issued by the court upon the claim of the petitioner (11 (1) § Enforcement Act). One type of the enforceable deed is the executory card (végrehajtási lap). The court of first instance issues the executory card on the basis of the judgment which obliges one party to do something in a civil procedure or on the basis of the parties’ arrangement which was approved by the court (15 § Enforcement Act). The executory card can be issued only if it is enforceable, it has full legal effect and the deadline of the performance is over (13 (1) § Enforcement Act). The executory card has a special object in this case as it directs the enforcement of certain action. The enforcement of certain action means a so-called special enforcement proceeding (különleges végrehajtási eljárás) (172 (1) § Enforcement Act). The court calls on the obligor to the voluntary performance of this action and gives a deadline for that (172 (1) § Enforcement Act). In case of the placement of the child the court calls on the parent to give over the child to the parent who exercises the parental responsibilities and the deadline is less than a week (usually 3-5 days). The court sends this enforceable deed to the competent bailiff (bailiff is independent judicial executor according to the Hungarian legal terminology – önálló bírósági végrehajtó) (the competence is determined by the residence of the obligor), to the claimer (claimer means the obligee in this case) (32 (1) § Enforcement Act) and to the obligor. The bailiff also delivers the enforceable deed both to the claimer and the obligor by post (172 (2) § Enforcement Act). The bailiff calls on the claimer that in case of elapse of the deadline he or she should inform the bailiff whether the action was voluntarily performed or not (172 (3) § Enforcement Act)

3

and warns the obligor that in case of defaulting the voluntary performance the enforcement proceeding is going to be going on for the obligor’s cost. The bailiff delivers the enforceable deed to the public guardianship authority as well (180 (2) § Enforcement Act) and calls on the public guardianship authority that it should make a study of surroundings about the surroundings of the child’s residence, encourage the voluntary performance of the obligor and inform the executor within 15 days from the delivery of the deed. (The tasks of the public guardianship authority are performed by the municipal guardianship office in the enforcement proceeding.) The public guardianship authority calls on the obligor to give voluntarily over the child to the other parent and offers their help in coordinating this action. The bailiff makes a report about the delivery of the enforceable deed to the mentioned persons and the calling on for voluntary performance. 2. Failing of the voluntary performance – fine Both the claimer and the public guardianship authority have to inform the bailiff whether the voluntary performance happened or not. If not, the bailiff turns to the court (of first instance) with the information of the claimer (and the public guardianship authority) (173 (2) § Enforcement Act). The bailiff makes a report about this procedural step and let every interested party and authority know it. The court gives a decision about the method of enforcement. It can levy a fine the amount of which can reach 500.000 HUF (it is approximately 1930 euro now) or can force the action with the support of the police (174 c)-d) § Enforcement Act). The obligor is warned about these consequences at the earlier stage of the enforcement proceeding. According to the 177 § of Enforcement Act the court is obliged to order the most effective way of enforcement taking into attention the circumstances of the concrete case. The fine can be levied again and again. The court can decide after hearing the interested parties and taking into attention the wish of the claimer and can ask for the coordination of the public guardianship authority. If fine is levied the court decides its amount in the decision itself. 3. Making use of the police force The court has the competence to order the enforcement with the support of the police. Nevertheless, it’s time to mention that the Enforcement Act contains remedies against the enforcement order. The obligor or the interested party can raise an objection at the court of first instance if the bailiff’ measure was unlawful (217 (1) § Enforcement Act) and it is possible to appeal the court’s decision ordering the enforcement (218 (1) § Enforcement Act). This appeal has delaying force but there are some exceptions to this main rule. If the court orders the enforcement with the assistance of the police force, the obligor can appeal this decision but the appeal has no delaying force (221 § Enforcement Act). When receiving the judicial order the bailiff sets a date for the local proceeding and informs the petitioner, the obligor, the public guardianship authority and the police. If the claimer is absent the bailiff informs the person who has been given authority to represent the claimer. The child is to be handed over to the claimer, in case of his/her absent to the authorised person, in case of this person’s absent to the public guardianship authority. Normally the bailiff asks the competent police force to send two policemen to the site of the local proceeding. If the enforcement action of the police force was unsuccessful (this usually arises when the obligor or/and the child do not reside at that place), the bailiff sets the next date for the local

4

proceeding. Every interested party or authority is informed about this date (claimer, public guardianship authority, police), except for the obligor. The aim is that this proceeding should be in secret. The site of this local proceeding – either for the first time or for the second time – is the residence of the obligor or, if the child does not reside there, the residence of the child. The bailiff has to discover the residence of either the obligor or the child. Sometimes it is not the child’s or the obligor’s home but for instance the school or a medical institution. If the child can be handed over, the obligor is obliged to inform the person taking over the child (the claimer or his/her representative or the public guardianship authority) about the child’s mental status and other circumstances the silence about which may endanger the life or the corporal integrity of the child (180/a (2) § Enforcement Act). The obligor has to hand over the child’s personal documents, the pieces used by the child, the necessary dressing, the materials used during the regular schoolwork and also the necessary medicals (180/A (3) § Enforcement Act). The presence of the public guardianship authority is important for guaranteeing the child’s interests and the person representing the authority can encourage the ‘voluntary’ enforcement action. (The public guardianship authority’s main task is to encourage the obligor to the voluntary performance.) The bailiff has competence to inspect and look over the obligor’s flat or any assets during the enforcement proceeding. If needed the bailiff can open the obligor’s closed flat, closed gate, closed furniture or other movable property. The police can also get into a private flat with the aim of performing the enforcement action (39 (1) e) Police Act) and they can remove the obligor or other persons from the site of the local proceeding if they obstruct the enforcement action. The obligor is warned for this possibility in advance. If the bailiff can not find the obligor and the child, he/she can order their warrant of caption. b. orders on contact and/or access rights General rules on the contact with the child The Hungarian legal terminology uses the concept of contact and not access. The concept of the contact is the following: there are two main types of contact in Hungarian law and legal practice: in one, the non-custodial parent and this parent’s relatives maintain contact with the child who lives with the other parent and in the other case the parent (and relatives) maintain contact with the child put into state care. The question of enforcement of contact order emerges in the earlier mentioned case. The issues of contact are regulated in the Family Act (see above) and the Order of Government No. 149/1997 on Public Guardianship Authority. The parent’s and child’s right to contact is regulated in the Family Act and the particulars are contained in the Order of Guardianship. The forms of contact according to the Hungarian law are the continuous and periodical contact with the right to remove the child from the child’s residence and the duty to return the child back to the child’s residence and other forms of communication, such as correspondence, telephone-connection, presentation and sending a package. Continuous contact means regular contact (e. g. in every second week-end), periodical contact means irregular contact (e.g. to weeks in the summer holiday). Parents are free to make arrangements about how to maintain contact with their child. If they exercise the parental responsibilities jointly they have to agree on the particulars, including issues of contact. If only one parent holds parental responsibilities, the law prefers their agreement to contact. (The agreement has special importance in a divorce by consent.) If there is no agreement between parents on the contact, either the court or the public guardianship authority will give decision. The court resolves this matter if there is a proceeding between the parents not only on the contact issue but also on the placement of the child. If they claim

5

the decision only in the matter of contact, the public guardianship authority has competence. Primarily both of them try to establish a settlement between the parents. The institution of contact with the child is regulated in the Family Act in the following manner: this is the right of child, the right and the duty of the non-residing parent and the parent holding parental responsibilities has the duty of guaranteeing the undisturbed contact between parent and child. The law of enforcement of the decision on the contact with the child The enforcement of the decision on contact is always the task of the public guardianship authority (92 (6) § Family Act, 16 (3) § Order No. 149/1997). The current sources of law for the enforcement in these cases are the Hungarian Child Welfare Act, the Act No. XXXI. 1997 on the Child Welfare and Guardianship Administration, the Hungarian Order of Competence of Guardianship, the Order of Government No. 331/2006 on Competence in Child Welfare and Guardianship Cases and the Organization of the Public Guardianship Authority, the Hungarian Order of Guardianship, the Order of Government No. 149/1997 on Public Guardianship Authority and Proceeding in Child Welfare and Guardianship Cases and the Administrative Authority Proceeding Act, the Act No. CXL. 2004 on the proceeding of the administrative authority. 1. Encouraging the voluntary performance The Order No. 149/1997 establishes that it endangers the child’s development if either the parent entitled to maintain contact or the custodial parent through his/her own fault does not or not properly or repeatedly not act according to the contact agreement or contact order (altogether: contact order). The petition or the enforcement of the contact order has to be submitted to the public guardianship authority if either the deadline for the contact has elapsed or the parent gets to know the endangering behaviour of the other parent (33 (1), (2) § Order No. 149/1997). (The tasks of the public guardianship authority are performed by the municipal guardianship office in contact cases.) If the public guardianship authority ascertains the fault of either party – mostly on the side of the custodial parent – orders the enforcement. (As the enforcement is the competence of the public guardianship authority, the bailiff is not involved in it and the procedure is not determined by the Enforcement Act.) When ordering the enforcement the public guardianship authority warns the defaulting party to perform the contact order at date and manner determined in the contact order and stop to alienate the child from the other parent, calls the defaulting party’s attention to the legal consequences of non-performance of the obligation and obliges him/her to bear the costs emerging from the frustration of contact (33 (4) § Order No. 149/1997). 2. Fine - contact inspection of the child welfare centre - taking the child under protection - child welfare mediation If the defaulting party does not comply with the order of enforcement the claimer can submit a request to the public guardianship authority. The public guardianship authority may choose among certain enforcement measures. The 140 (1) § of the Administrative Authority Proceeding Act contains enforcement measures for the case when an action or a behaviour has to be enforced but the contact with the child is a very special action so only two methods can be chosen from the list: the public guardianship authority can impose a fine for the defaulting party or can enforce the action with the help of the police. In the practice the public guardianship authority imposes fine for the first time and it can be imposed repeatedly as

6

well. Sometimes it proves to be enough for the custodial parent to pay the fine. The enforcement with the assist of the police is not really used. Not only the Administrative Authority Proceeding Act contains enforcement measures but the Order of Guardianship as well. These methods are specially formed to encourage the normal contact between the parent and child. The public guardianship authority can order either the contribution of the contact inspection of the child welfare centre (gyermekjóléti központ kapcsolatügyelete), respectively the contribution of the child welfare service (gyermekjóléti szolgálat) or initiate that the child should get under protection (védelembe vétel). These methods can be chosen if the contact involves conflicts, it is continuously hindered or the parents can not communicate with each other (33 (5) a) § Order No. 149/1997). The establishment of child welfare centre is an obligation for the towns having more than 40 thousand residents and for the towns of county rank since July 2005. The contact inspection is one of these centres’ tasks and it is supported by the state. The contact inspection (kapcsolatügyelet) is a complex method which aims that the parents could agree on the manners of contact, the preparation of the meeting between the child and the parent and guarantees a neutral site for the contact. The parents have to turn to the contact inspection if it is ordered by the public guardianship authority but they can do that voluntarily as well. Taking the child under protection (védelembe vétel) is an other method of encouraging the contact with the help of a third person. The taking the child under protection is regulated in the Child Welfare Act, the Act No. XXXI. 1997 on the Child Welfare and Guardianship Administration as the first measure of the child protection. As a main rule the community’s notary takes the child under protection if the child is endangered and the parent or the legal representative can not stop it by the voluntary recourse of the so-called basic supplies provided also by the Child Welfare Act and it can be assumed that the child’s development can be guaranteed in the family. So the child is not taken out of the family and a third person, the family welfare worker of the child welfare service is ordered to help to the family. In this special case the family welfare worker has to assist in maintaining the contact. The public guardianship authority can order not only the above mentioned measures – turning to the contact inspection or taking the child under protection, (33 (5) a) § Order No. 149/1997), but it can initiate the child welfare mediation (gyermekvédelmi közvetítői eljárás). If the parents declare that they would recourse to child welfare mediation, the public guardianship authority suspends the enforcement proceeding. The child welfare mediation (gyermekvédelmi közvetítői eljárás) is regulated in the Order No. 149/1997 since 2003. The mediation may be initiated either by the parties’ common agreement or by the public guardianship authority if the parents agree with that. If the parents agree to recourse to mediation during the enforcement proceeding, the public guardianship authority inform them about the site and date of the mediation proceeding and suspends the enforcement proceeding for four months. If the mediation process remains unsuccessful, the mediator informs the public guardianship authority which follows on the enforcement proceeding (30/A (2)-(3) Order No. 149/1997). If one of the parents does not cooperate with the mediator and the other parent and the mediation remains unsuccessful, the other party can claim the public guardianship authority to follow the enforcement proceeding within 4 months (30/A (4) Order No. 149/1997). The 30/B and 30/C §§ of Order No. 149/1997 contain specific regulation for the person and some aspects of the proceeding of the child welfare mediation. It is an important rule that the child over 12 is to be heard in every cases and the child who is

7

capable of forming his/her own views and express these views concerning all decisions that affect him/her has to be heard as well if this is initiated by the parents or the public guardianship authority in course of the mediation proceeding. If the parents reach a settlement and undersign it, the mediator delivers it to the public guardianship authority and the authority approves it for the parties’ request. 3. Last measures during the enforcement proceeding If it can be proved that the custodial parent continuously alienates the child from the non-custodial parent and does not comply with the contact order despite the enforcement measures ordered or initiated according to the 33 (4)-(5) § of Order No. 149/1997, the public guardianship authority has competence to bring an action with the aim that the child should be placed with the other parent if it serves the child’s interest or it can make a denunciation because of the minor’s endangering according to the 113 (2) a) § Child Welfare Act and 195(4) § of the Penal Code, the Act No. IV. 1978 on the penal law (33 (7) § of Order No. 149/1997). If the contact cannot be enforced because of the child over 14 declares his/her uninfluenced and independent will, the public guardianship authority suspend the proceeding provided that the parties turn to the child welfare mediation or either of them requests the re-regulation or the withdrawal of contact. 2. Comments as to the practice of the law with respect to: a. decisions on custody, including orders on the place of residence of the child The enforcement of the judgment on the placement of the child is one of the most sensible fields of execution. There are several problems. If the parents agree on the residence of the child and the exercise of parental responsibilities there is usually no problem. But if they can not reach an agreement, the court’s judgment on the placement does not solve any problem at all. In these cases the relationship between the parents are really wrong, in many cases extremely or irreparably wrong. There are also many judicial proceeding on the placement of the child, in connection which the experts and the lawyers think or know that the fight is not for the child but the parents are motivated by another reason. This reason usually may be either monetary interest or revenge and the interest of child remains in the background. Of course, the parent can adhere to the child emotionally as well but his/her interest does not play a main role in this game. There is one another problem which derives from the parent’s fight. The parent who resides with the child and does not return him/her to another parent who is designed as the holder of parental responsibilities by the court, tends to alienate the child from the other parent. According to the practical experiences this is like brainwashing in which the grandparents and other relatives may assist to the parent, the consequence of which may be the situation in which the child obstructs to be handed over to the other parent. It can not be doubted that this symptom endangers the child. If the child does not resist there are two ways in the practice. The fine can force the obligor to give over the child or the local proceeding itself. A problem comes up if the child, who has been systematically alienated from the other parent, resists or makes himself/herself unavailable when the bailiff appears. No coercive action may be taken against the child according to the Hungarian law. In these cases the bailiff, the public guardianship authority and the police have no measure which can be taken. In these cases the result depends on the personal attitude of the bailiff and the

8

experts from the public guardianship authority. If they can convince the parties to agree with each other, the agreement can conclude the fight (at least for a while). The behaviour of the obligor or the child can lengthen the enforcement proceeding as the obligor can appeal the judicial decision, can object the bailiff’s action or can make themselves unavailable for the authority. As time proceeds, the child gets farther and farther from the other parent which makes it less probable that their relationship could get better. The main loser of this terrific situation is unambiguously the child who often needs psychiatric help. The practical experiences of the bailiffs show that the consistency of the enforcement proceeding can bring success but not always in the abovementioned cases when the parents resolutely fight against each other and the child is alienated from the other parent. b. orders on contact and/or access rights The enforcement’s problems in connection with maintaining contact with the child arise usually from the same phenomenon like in the case of enforcement of the judgment on custody. The parents are fighting with each other not bothering with the child whose interests are seriously damaged. If the custodial parent does not provide the undisturbed contact with the other parent and alienates the child from the non-custodial father or mother, at last the child will be the person who does not want to keep contact with the parent, does not want even to see him/her. According to the practical experiences the fine which can be imposed again and again can encourage the obligor to comply with the contact order. The contact inspection works well. It provides a neutral site of contact and neutral third parties who are ready to help the parents who even do not communicate with each other. The child welfare mediation has been regulated not really for a long time and mediation – at least in family issues – is not an old and well-known institution in the Hungarian – legal – society. Nevertheless, the experiences show that it can bring results. The third person – family welfare worker or mediator – can help the parents to be able to comply with the contact order. There is the possibility for the public guardianship authority to bring an action to change the decision on placement but it is not the best solution. If the child has not met with the other parent for a longer time it seems troublesome to place him/her with this – “alien” – parent. If the child resists keeping contact with the parent, the contact order seems impossible to enforce. A solution can be if the parents may be convinced to re-think their situation taking into attention the child’s interests and re-agree or agree on the manner of maintaining contact. 3. Supporting orders a. what supporting orders are available under domestic law? According to the 30 § of Order No. 149/1997 the contact order – either the decision or the agreement itself has to contain every particulars in connection with the maintenance of contact. It can support the parties to comply with the order. It has to contain the frequency and duration of the continuous and periodical contact, the site, date and manner of how to remove the child from the child’s residence and how to return the child back, the obligation to inform the other parent if the contact is off, the system of replacement of the failed contact and the other manners of contact. The detailed order can encourage the parents to keep themselves to

9

it. The practical experiences show that however the custodial parent may cause more serious harm to the child and the other parent as being in a more advantageous situation but the non-custodial parent is also able to bring to ruin the contact. Some supporting measures are used during the enforcement proceeding as well. It has to be mentioned that in a divorce suit the court decide on the custody of the child and the contact issue even ex officio in case of postponing the hearing, if it is needed (287 § of Civil Procedure Code – mentioned later on). b. can you make any remarks as to legal practice? Sometimes the abovementioned particulars are omitted from the order and this can render the enforcement more difficult or even impossible especially in the case if the parents can not communicate with each other. 1A.Specific issues relating to the enforcement of family law judgments in domestic cases 1. The organisation of organs and institutions involved in enforcement of family law a. Regulation under substantive law (legislation that establishes the organ or institution and regulates its tasks and powers) There are several organs being involved in the enforcement of family law judgments, primarily judgments on custody and contact. In custody cases the court has competence to award the judgment and order its enforcement and the bailiff executes the task of enforcement together with the public guardianship authority and in some cases with the police force’s support. Nevertheless, the court has power to give decisions during the enforcement procedure as well. In contact cases both the court and the public guardianship authority have competence to award the judgment but its enforcement is always the task of the public guardianship authority. The public guardianship authority orders the enforcement and performs the task of the execution as well. The judges and certain other judicial officials have power to proceed in the course of the enforcement proceeding. These judicial officials are the judicial secretaries and the so-called executory administrators. The judicial secretaries are lawyers but not judges and are authorised to proceed in cases belonging to the power of the court of first instance. The executory administrators have to pass a special exam on executory administration; they are controlled by the judges but are authorized to sign and responsible for their own acts. Judicial tasks are the issue of the enforceable deed and the consideration of the remedies in connection with the enforcement. Bailiffs (independent judicial executors, önálló bírósági végrehajtók) The system of the independent judicial executors was created by the Enforcement Act, the Act No. LIII. 1994 on the judicial enforcement. The independent judicial executors perform the task of the substantive enforcement. They apply the law within the frames of their independent authorisation and the rules concerning their activity guarantee their real independency. So they have to comply only with the legal rules and the directions of the

10

Hungarian Chamber of the Bailiffs. The bailiffs are appointed for an indefinite term but to a definite seat and aside the court of first instance. So the judicial executor’s service is to be created only to the post being aside the court of first instance. The number of the bailiff’s posts is determined by the Ministry of Justice. (The Ministry of Justice exercises the general supervision above the whole enforcement system.) The bailiff can not have any other earning activity (with some exceptions) and can fill only one judicial executor’s post and earn his/her living while being only judicial executor. The bailiff’s field of competence is the same as of the court of first instance. The field of competence has real significance only by the distribution of the cases, as the executor can proceed in the whole county (according to the seat) and in some cases in the whole country as well. The bailiff has the duty of enforcing the claim or the right of the person requesting for enforcement even by resorting to authoritative constraint after his/her appointment and making the oath. He/she is obliged to proceed the enforcement according to the legal rules. If he/she breaches the rules, he/she is responsible for the damages caused by breaching the proper legal rules. To be able to compensate the damages caused by himself or herself, the bailiff is obliged to enter into a contract on liability insurance. There is another consequence of breaching the legal rules, it is the disciplinary liability. Courts are authorized to determine both the disciplinary liability and its sanction. The proceeding run by the bailiff while enforcing a claim is a special one: it is a judicial non-litigious proceeding. This has the consequence that the bailiff has a status of public authority applying the legal rules but he/she is not employed by the courts and is not remunerated by the state. The bailiff works and pays the tax and contributions (e. g. social security contribution) like an entrepreneur. To be able to guarantee the continuous function of the enforcement, the executor has to provide a deputy executor. The Enforcement Act created the self-governing body of the bailiffs, this is the Hungarian Chamber of the Bailiffs. The Chamber represents the executor’s interests, performs administrative tasks and it is a professional self-governing organ as well, so it controls the activity of the bailiffs and of the deputy executors and has a registration of the bailiffs. Public guardianship authority (gyámhatóság) The Hungarian Order of Competence of Guardianship Authority, the Order of Government No. 331/2006 on Competence in Child Welfare and Guardianship Cases and the Organization of the Public Guardianship Authority regulates the competence of the public guardianship authority. According to its 1 (1) § the tasks of the public guardianship authority are exercised partly by the community notary and partly by the municipal guardianship office. According to the 1 (2) § the tasks of the municipal guardianship office are exercised by the child welfare and guardianship official working in the mayor’s office of the nominated community. According to the Order the municipal guardianship office (the child welfare and guardianship official) assists in the judicial enforcement proceeding (e.g. in custody cases) (4 § m)) and takes the necessary measures to enforce the contact between the non-custodial parent and the child (9 § b)). b. Procedural law rules relevant for the functioning of these organisations (procedural rules on the role of these organisations in the enforcement of family law decisions)

11

The Enforcement Act contains the rules for the bailiff (the particulars are above in Part1. 1. a.). The procedural rules for the public guardianship authority are contained in the Hungarian Order of Guardianship, the Order of Government No. 149/1997 on Public Guardianship Authority and Proceeding in Child Welfare and Guardianship Cases (the particulars are above Part1. 1. b.) c. Practical aspects relevant for the legal position of these organisations Nothing special. 2. Time limits relevant for enforcement proceedings a. Time limits for appeal, both against family law decisions and against decisions supporting their enforcement - The time limit for appeal against family law decisions is 15 days from the disclosure of the judgment (234 (1) § of the Civil Procedure Code, the Act No. III. 1952. on the civil procedure). - Time limit in the enforcement proceeding: There are two stages in the judicial enforcement proceeding. One of them – the first one – is ordering the enforcement upon the judicial decision with legal effect if the deadline for performance is over and the obligor has not performed his/her obligation. The enforcement has to ordered by issuing the executory deed, in custody cases this executory deed is the executory card (10 § Enforcement Act). If the executory card was issued by breaching the law it is to be withdrawn (211 (1) § Enforcement Act). The court which has ordered the enforcement can order the executory card’s withdrawal either for the request of either party or upon the bailiff’s report or by its own initiative at any time. This decision (about the withdrawal) is to be delivered by post to the parties who can file an appeal against it (212 (1)-(2) § Enforcement Act). So, if the executory card (for ordering the enforcement) was issued by breaching the law – e. g. the general conditions of the enforcement did not exist – there is no place for appeal. The remedy in this case is the withdrawal. The other stage of the judicial enforcement proceeding is the second stage, when carrying into effect the enforcement. There are several remedies available for the parties. Two of these remedies are the suit for the termination or limitation of enforcement. The obligor may sue the petitioner for termination or limitation of enforcement if the obligor finds the enforcement injurious and there is no possibility to ask either the termination or the limitation in the frames of the judicial enforcement. (These possibilities are to be mentioned in the frames of the judicial enforcement. According to the general rules of carrying into effect of enforcement if the obligor makes it probable by deed that the claim to enforce is without legal basis or it has been already performed or it has terminated by any other cause, the bailiff calls the petitioner referring to the proves to give a declaration about the existence of the claim within 15 days (41 (1) § Enforcement Act). According to also the general rules the court which has ordered the enforcement terminates or limits the enforcement if it has stated upon public instrument that the judicial decision which was to be enforced was annulled or modified by a final decision (56 (1) § Enforcement Act). So, if these abovementioned possibilities are not available, the obligor can sue for termination or limitation of enforcement. These suits and the conditions and rules are contained in the Act on Civil Procedure Code (365-370/A §§). Another remedy during the second stage is the objection against the bailiff’s measure which has breached the law (217 (1) § Enforcement Act).

12

Appeal may be filed against the decision of court delivered during the carrying into effect the enforcement. So this decision is not the order of the enforcement itself but it is for ordering special and certain enforcement actions (218 (1) Enforcement Act). (There is a difference between the ordering itself – which can be withdrawn e. g. upon the initiation of either party – and the ordering of a special enforcement action – e. g. fine or coercive action – during the second stage of the enforcement process which can be appealed.) There is no special time-limit for this appeal, so the rule contained in 234 (1) § of the Civil Procedure Code is to be applied: 15 days from the delivery of the decision. The general legal link is the 9 § of the Enforcement Act, the special link is the 224 (1) § of Enforcement Act. The 9 § says that rules the Civil Procedure Code are to be applied to the procedural matters not regulated specifically in the Enforcement Act, taking into attention the speciality of the civil non-litigious procedure. According to the 224 (1) § the regulations of the Civil Procedure Code are to be applied – among others – to the time limits of remedies. b. Any other time limits that have an effect on enforceability There are the following connections between time limit and enforceability taking into attention the possible remedies: - According to the 211 (1) of Enforcement Act appeal is not available against the court’s order of enforcement (when ordering the enforcement proceeding itself upon a final judicial decision), but either party can request the withdrawal of the executory card ordering the enforcement (the withdrawal also may happen upon the bailiff’s report or the court’s own initiative). The withdrawal is not appeal but remedy. A remedy which can be submitted at any time, it has no time limit. - There are special remedies regulated in the 41 (1) and 56 (1) §§ of Enforcement Act. If the obligor makes it probable by deed that the claim to enforce is without legal basis or it has been already performed or it has terminated by any other cause the bailiff calls the petitioner referring to the proves to give a declaration about the existence of the claim within 15 days. It has no special time-limit. The court which has ordered the enforcement terminates or limits the enforcement if it has stated upon public instrument that the judicial decision which was to be enforced was annulled or modified by a final decision. This does not have a special time limit, either. - According to the 366 § of Civil Procedure Code the obligor can sue for termination or limitation of enforcement against the petitioner of the enforcement. It can be important that the court proceeding in the suit for the termination or limitation of enforcement may suspend (stay) the enforcement proceeding (370 § of Civil Procedure Code). - During the second stage of the enforcement proceeding (when the enforcement is being carried into effect) is the objection against the bailiff’s measure which has breached the law (217 (1) § Enforcement Act). The objection may be submitted to the competent court either by the party or any other interested person within 15 days of the bailiff’s measure. If the party or the interested person has got knowledge the measure later or he/she was hindered in submitting the objection the time limit is to be calculated from the date of becoming aware of the measure or the termination of the hindrance. It is not possible to submit the objection after 6 months from the bailiff’s measure. This time limit (6 months) has the effect of forfeiture of the right, namely after 6 months the failure of time limit can not be justified. The objection does not have delaying force for the enforcement proceeding but the court may stay it according to the 49 (1) § of Enforcement Act. The court usually stays the enforcement proceeding if the success of the objection seems probable. The request for staying the enforcement procedure has to be submitted by the person who submitted the objection itself. - - There is the possibility of appeal against the decision of court delivered during the carrying into effect the enforcement (218 (1) § Enforcement Act). The time limit is 15 days from the

13

delivery of the decision (234 (1) § Civil Procedure Code). The Civil Procedure Code contains rules about the legal consequences of failing a time limit out of his/her own fault. It is regulated in the 106-110 §§ of the Code. The main rule is that the failure can be justified with the submission of a certificate. The request for the possibility of certification has to be submitted within 15 days from the failed date of the deadline. Nevertheless, if the party has got knowledge the measure later or he/she was hindered in submitting the objection the time limit is to be calculated from the date of becoming aware of the measure or the termination of the hindrance. It is not possible to submit the objection after 3 months from the failure of time limit. This time limit (3 months) has the effect of the forfeiture of the right. The request for certification has no delaying force for the enforcement. Nevertheless, if the success of the request for certification seems probable, the court can order the stay of the enforcement proceeding even ex officio. The appeal against the judgment which obliges one party to take something (e. g. to give over the child, return the child or provide the right to access for the other parent) can be filed once, and the appellate court delivers the judgment with legal effect. Nevertheless, there are so called special remedies during the judicial proceeding. E. g. just in cases of custody the parent can be very desperate and despite of the final judgement which can be enforced they turn to these special remedies. This remedy can affect the enforcement proceeding. One of them is re-opening of the case. It is regulated in 260-269 §§ of Civil Procedure Code. The request for re-opening the case against a final judgment is available if the party refers to a fact, proof or an authority’s or court’s decision with legal effect which were not taken into attention during the legal proceeding, provided that it could have resulted a more advantageous decision to this party and that the non-validation happened not by the party’s own fault (260 (1) a)). The re-opening of the case can be requested also upon the fact that the party become the defeated one because of the judge’s, the other party’s or someone else’s crime despite of law (260 (1) b)) or a final judgment has been delivered for same matter earlier (260 (1) c)). This request has to be submitted within six months from the time when the judgment got legal force. If the enforcement proceeding and the re-opening of the case happen parallel, the court may order the stay of enforcement if the success of the case’s re-opening seems probable. The other special remedy against a final judgment is the request for review but only if there was a breach of law. The request for review has to be filed within 60 days from the communication of the judgment. The request for review has no delaying force for the enforcement of the decision but the judge can stay the enforcement proceeding if the party requests it and the judge – during the preliminary examination of the request for review – holds it reasonable. A request for review can be filed against the final decision of the court ordering the enforcement proceeding. It is regulated in the Enforcement Act and is possible only in exceptional cases. c. The effect of appeal on enforceability The effect of appeal against the judgment itself on the contact or the placement of the child is regulated in §236 of Civil Procedure Code. According to this § the appeal has delaying force on the enforceability of the judgement, except when either the code or the court – according to the code – tells something else. (The § 231 of CPC gives a general rule for the court fixing the circumstances under which the judgment is to be enforced preliminary but these exceptions can be applied for pecuniary obligations.) Nevertheless, the court has the power to give injunction (temporarily measure) in marriage suits in case of the trial’s postponement if it seems to be necessary. The object of this ex officio injunction can be – among others - either

14

the placement of the child (§ 287 a.)) or the contact with the child (§ 287 c.)). According to § 156 (8) CPC the injunction is to be preliminary enforced. In the enforcement proceeding the main rule is that remedy – appeal as well - has delaying force for the enforcement (221§ Enforcement Act). (This is procedural matter but regulated in the Enforcement Act specially.) However, there are special cases when the remedy does not have delaying force for the enforcement. The explanation is that the enforcement proceeding could not be blocked with remedies filed again and again. One exception to the delaying force is when the remedy is in connection with the order of the police’s contribution to the enforcement proceeding (221 b) §) This remedy is not regulated by the Enforcement Act but by the Act No. XXXIV 1994 on Police. According to the Enforcement Act the other exception – the other category of exceptions – is if the law provides diverse ruling (222 a) Enforcement Act). There are different regulations of primarily the Enforcement Act itself declaring that in certain cases the remedy has delaying force. These relate mostly pecuniary claims. One of the remedies is the objection against the bailiff’s measure. According to the 222 § of Enforcement Act the remedy against the measure of bailiff or police has no delaying force for the enforcement. It means that the bailiff is obliged to carry into effect the enforcement measures until the court delivers a different decision. This regulation aims that the enforcement proceeding could not be blocked by unfounded objections. (The state attorney’ office is also has right to take part in the enforcement proceeding with the aim of providing the legality.) d. The effect of the passing of time on the enforceability of a family law judgment According to the 57 (1) § of Enforcement Act the right to enforcement becomes forfeited with the claim to be enforced. The main rule is that the lapse of the right to enforcement has to be taken into attention for request (57 (2) § Enforcement Act). The enforcement can not be ordered and the enforcement procedure which has begun can not be continued for request submitted after the term of limitation. According to the 57 (4) § the lapse of the right to enforcement is interrupted by any enforcement action. In the case of contact order the effect of the passing of time is regulated in the Order of Guardianship (the Order of Government No. 149/1997). The claim for the enforcement of the contact order has to be submitted within 30 days either from expiration of the deadline for the contact, respectively the replacement of contact or from the time when the parents gets to know about the fact that the claimer or obliged parent repeatedly does not or not properly comply with the contact order through his/her own fault and so does not provide the undisturbed contact (33 (1) § of Order No. 149/1997). If the claimer or the obliged parent withdraws the petition for enforcement, a new enforcement proceeding can not be initiated because of the same contact. e. The effect of change of circumstances on the enforceability If the circumstances change in connection with the placement of child, the Enforcement Act contain rules how these changes affect the enforceability of the judgment. The claimer can turn to the court of first instance which has ordered the enforcement to suspend the enforcement proceeding. The court suspends it provided that it does not infringe anybody’s rights. The obligor can also request the suspension of the enforcement proceeding but it is an exceptional measure. The provisions are that the obligor has justified the fact to be

15

appreciated and no fine has been levied on him/her during the enforcement proceeding. The court may hear the parties before deciding on the suspension. 3. Coercive measures to ensure enforcement a. Measures available by law These have partly been already mentioned in Part 1. According to the 5 § of Enforcement Act the obligor can be enforced even with coercive measures to perform his/her obligation either to pay or to behave according to the judgment. The coercive measures can confine the obligor’s property rights and exceptionally also his/her personal rights (5 (2) § Enforcement Act). The bailiff can open the obligor’s closed flat, closed gate, closed furniture or other movable property if it is needed. The coercive measures against the obligor’s person are performed by the police according to the court’s order or the bailiff’s measure. The police has the right and is obliged at the same time to do all coercive measures which may be done according to the Police Act and are needed to the successful enforcement (5 (3) § Enforcement Act). b. Measures usually taken in practice In the practice the bailiff usually opens the flat e. g. the child, who has to be handed over to the claimer according to the custody decision, has hidden or has been hidden by the parent or relatives. In the case of enforcing the contact the bailiff has no competence at all so the police can be at the site of the local proceeding with the public guardianship authority. c. Taking of coercive measures when the child opposes enforcement No coercive measures are taken against the child. If the child opposes the enforcement the persons involved in the enforcement proceeding are incapable to compel the child to go away with the other parent neither to keep contact, nor to reside with him/her. In these cases the only solution can be if the bailiff or the public guardianship authority tries to negotiate with the obliged parent to reach an agreement and settle the problem. 4. The impact of other legal or practical conditions relevant during the enforcement e.g. the hearing of the child In the enforcement proceeding the child may be heard. But if there is a decision on judgment having legal effect and the obliged parent does not comply with that it can be enforced if the claimer requests it. The public guardianship authority is involved both in the enforcement of custody decision and the contact order. They have the task to support the voluntary enforcement and reach a settlement taking into attention both the parents’ and the child’s interests. Part 2. Enforcement in cross-border cases I should premise that there is a Hungarian practice in return cases according to the Hague Convention but we do not have any practise yet concerning the Regulation 2201/2003 as being a member state from May 2004. 2A. Enforcement of return orders issued under the 1980 Hague Convention, and after 1 March 2005, Regulation 2201/2003 1. Legal bases for enforcement

16

The Hungarian Central Authority, the Hungarian Ministry of Justice has not responded the mentioned questionnaire yet. The Convention on the Civil Aspects of International Child Abduction was announced by the Statutory Rule No. 14. 1986. on the announcement of the Hague Convention on the Civil Aspects of International Child Abduction. The particulars, the rules of the implementation of the Convention are contained in the Order of the Ministry of Justice 7/1988. 1. There is no special rule for enforcement of the return order. According to the 10 § of the Order No. 7/1988 if the child was wrongfully removed or retained and if the obliged parent does not perform the court’ judgment voluntarily, namely he/she does not give over the child to the other parent, the rules of the Hungarian Enforcement Act, the Act No. LIII. 1994 on the judicial enforcement are to be applied. If the parent obstructs the right to access, the Central Authority forwards the petitioner’s request to the competent public guardianship authority. The public guardianship authority has to act out of turn (13 (1) § Order No. 7/1988). 2. According to the above mentioned the legal background of the enforcement in cross-border cases is the same as in domestic cases. In return cases the bailiff (önálló bírósági végrehajtó) is in the centre of the enforcement proceeding and the public guardianship authority and the police may and have to assist for the effective enforcement. In contact (access) cases the enforcement is the task of the public guardianship authority (gyámhatóság) (especially the municipal guardianship office - gyámhivatal) and the police can and has to assist for the proper enforcement. 3-4. The problems are the same as in domestic cases. In return cases the bailiff has to proceed in a really consistent way and it is very useful if he/she has a personal character making him/her able to negotiate with the parent who proceeded wrongfully and with the relatives of this parent. Sometimes this parent makes himself/herself with the child unavailable and it can take long time for the bailiff and the police to discover their residence. 2. Procedure and practice with regard to return orders III. A. 1. If the application for return of a child is successful, usually the surrender of the child to his/her habitual residence is ordered. 2. The aim of the enforcement is to hand the child over to the applicant or a person designated by him/her in the State where the enforcement takes place. The court’s order normally says that the child should be handed over to the applicant or his/her representative. According to the 9 (1) § of Order No. 7/1988 in case of successful application the court determines that where and when the child has to be handed over. 3. The repatriation may be organised by the parent who comes to Hungary to take the child back to their habitual residence. It is not an obligation for the applicant to turn to the Central Authority and ask their assistance. Nevertheless, for the case if the assistance of the Ministry of Justice has been requested, the 11 § of Order 7/1988 declares that the Central Authority has to take the necessary measures to repatriate the child to his/her habitual residence. This involves e. g. the administration in connection with the child’s passport and visa and providing air-ticket. The Ministry of Justice acts in cooperation with the Ministry for Foreign Affairs if it seems necessary to request of the authorities or foreign representation of the state in which the child’s habitual residence is. B. 1. If the return order is made, the court determines where and when the child has to be handed over to the applicant. If the obliged parent does not perform it voluntarily, the Hungarian Enforcement Act is to be applied. It means that the applicant has to apply for the enforcement

17

of the judgment. The court can order the enforcement on the basis of the judgment and sends it to the competent bailiff who is going to act like in domestic cases. 2. The applicant initiates the enforcement proceeding. 3. a.) The bailiff, the public guardianship authority and the police are or may be involved in the enforcement proceeding. The court also has competence as the court can determine the most effective way of enforcement. Their roles and function are the same as in domestic cases. Sometimes they can be in even worse situation. Hungary is not a huge country and the media has real interest in bringing forward these cases or some of them. It makes the enforcement more difficult. In practice – as it was mentioned in Part 1.- if the parent who wrongfully does not want to return the child and obstructs any enforcement action – making themselves unavailable or demonstrating that he/she does not hinder the child’s return but the child is the person who does not want to return – the only way is to convince the parent to obey to the court’s judgment. The role of the police is not unambiguous. The public guardianship authority is there to encourage the voluntary enforcement and protect the child’s interests. 3. b.) There are no obligatory measures to de-escalate the enforcement by coercive measures. The public guardianship authority can help to the parent and the child but there are no rules regulating it. It depends on the persons involved in the proceeding. 3. c.) The applicant or his/her representative can be there where the enforcement is proceeded according to the normal rules of the Enforcement Act. 4. a.) The enforcement proceeding are under the control of the Ministry of Justice, this is the general rule. There is no special rule controlling the enforcement procedure in return cases. In determining whether the remove or retain of the child was wrongful is the exclusive competence of the Central District Court of Pest. But there is no special competence rule for the order of enforcement in these cases. In connection with the tasks of the Central Authority it is to be mentioned that its possibilities are determined by the applicant’s request. Its main task is to render assistance to the applicant living abroad in asserting his/her claim before the court. The Central Authority keeps connection with the Central Authority of the state in which the child’s habitual residence is, but it can not do anything during the enforcement proceeding. 4. b.) There is no special rule for this case. If the return is ordered by the court of first instance there is the possibility to make this order preliminary enforceable but it is rarely done as the parties have the right to appeal the judgment. C. 1. There is no special timeline for enforcement. Its length depends on circumstances. 2. Yes, in the return order the court determines a not too lengthy period to comply with the judgment. It is for the voluntary performance. Nevertheless, there is a further period to perform the judgment voluntarily, because after the court orders the enforcement, the bailiff informs the public guardianship authority to encourage the voluntary enforcement. Both the public guardianship authority and the bailiff call the parent upon the performance. (It happens like in domestic cases.) 3. No, there are no such special rules. 4. If the child is taken into hiding before the enforcement and it has the consequence that the bailiff can not enforce the child’s return, the bailiff is going to discover the child’s residence or discover his/her whereabouts (school, medical institution) and appoint a next date for the local proceeding and the return. If it is unsuccessful, the child’s and/or the obligor’s warrant of caption (even on international level) can be ordered. If the parent can make themselves successfully unavailable, the enforcement proceeding can take a really long time. It can be

18

enough for the parent who is actually with the child to bring an action in the matter of custody itself. 5. When the court orders the enforcement and the judgment is not complied with voluntarily, there is a possible measure of imposing fine according to the Enforcement Act. Nevertheless, it does not occur in return cases. So the next step is not the fine but the local proceeding with the assistance of the public guardianship authority and the police. (It happens like in domestic cases.) 6. Pecuniary fines are normally not used in return cases. It is possible to use coercive measures partly by the bailiff, partly by the police. Coercive measures are not used against the child. According to the 180/A (5) § the bailiff can initiate that the police should get away the defendant (the obliged parent) and/or other persons from the site of the local proceeding if they obstructs the enforcement. (According to the 5 (3) § of the Police Act the coercive action against the obligor’s person is done by the police upon the court’s or the bailiff’s order. The police have the right and duty to take all coercive actions which may be applied according to the Police Act and necessary to the successful enforcement.) The bailiff warns the involved persons to this possibility in advance. I should comment that if the defendant wants to obstruct the enforcement the method which is used is not the direct defiance but usually the “tricks” mentioned above. Nevertheless, the police seem not always specially educated enough to manage these special situations. The protection of the child’s interest is main principle of the enforcement proceeding in these cases as well and every enforcement action which can cause physical or emotional harm to the children has to be avoided. 7. a.) The court orders the enforcement measures. 7. b.) Only the court has competence to order coercive measures. 8. There are no special rules in return cases. D. 1. The costs of the court proceeding and the costs of the enforcement are not calculated together. The decision of the court on the merit of the matter is decisive whether the applicant or the obliged parent should bear the costs. If the applicant’s request is successful and the return of the child is ordered the enforcement is cost-free for the applicant. 3. Enforceability and legal remedies of return orders 1. a.) The normal legal remedies are available against the court’s decision on return. Either party can submit an appeal against the decision of the court of first instance. It has to be submitted within 15 days from the disclosure of the judgment (234 (1) § Hungarian Civil Procedure Code). The date of the hearing of the appellate court has to be appointed to make it possible that the hearing should happen within four months from the day when the documents arrived to the appellate court (243 (2) § Civil Procedure Code). The procedure of the appellate court can take shorter time but also longer time as the parties have the possibility to prove. There are special remedies according to the Hungarian law. The party can request the re-opening of the case if there is a judgment with legal effect but it has special provisions. One of the provisions is that the party refers to a fact, proof or an authority’s or court’s decision with legal effect which were not taken into attention during the legal proceeding, provided that it could have resulted a more advantageous decision to this party and that the non-validation happened not by the party’s own fault. This request has to be submitted within six months from the time when the judgment got legal force. The other special remedy is the request for review but only if there was a breach of law. 1. b.) The Central District Court of Pest (Pesti Központi Kerületi Bíróság) has exclusive competence in return cases. The appellant court is the Court of Budapest (Metropolitan Court

19

- Fővárosi Bíróság). The appeal can be made only once. It has a delaying force on the enforcement. 2. a.) It happens according to the rules of Enforcement Act, in the same way as in domestic cases. The applicant can claim the enforcement of the judgment. The judicial enforcement has to be ordered by issuing the enforceable deed (végrehajtható okirat) which is issued by the court upon the claim of the petitioner (11 (1) § Enforcement Act). One type of the enforceable deed is the executory card (végrehajtási lap). The court of first instance issues the executory card on the basis of the judgment which obliges one party to do something in a civil procedure or on the basis of the parties’ arrangement which was approved by the court (15 § Enforcement Act). The executory card can be issued only if it is enforceable, it has full legal effect and the deadline of the performance is over (13 (1) § Enforcement Act). 2. b.) The court has to issue the enforceable deed. The court’s competence is determined by the general rules. 3. The return order is enforceable if it has legal force. It means that neither party has submitted an appeal against the judgment of the court of first instance. If it has been appealed the appellant court’s decision has legal force. 4. a.) The remedy against the court’s decision ordering the enforcement is possible if the general conditions of the enforcement did not exist (211. § (1) Enforcement Act). 4. b.) According to the 211 (1) § of Enforcement Act if the court issued the executory card by breaching the law, it is to be withdrawn. This remedy is in connection with the order of the enforcement not with the enforcement proceeding itself. 5. The remedy which can be usually submitted is the appeal against the decision of the court of first instance. This decision is not determined as preliminary enforceable. 6. If there is no more available legal remedy against the decision ordering return and having legal effect the decision can be requested to be enforced and it has to be enforced according to the Hungarian legal viewpoint. There was a concrete case some years ago, which can serve as a good example. The mother of the child retained him in Hungary and the father as applicant referred to the Convention and suited a proceeding for the child’s return. The competent court decided for the return but after the appeals when there were no other legal remedy for the mother, she did not want to hand over the child to the other parent. She referred to proves which were not taken into attention in the court proceeding but there would have been one legal way available for her: to suit a proceeding for the custody of the child. If there is no other remedy according to the Hungarian law against the court order for return it is to be enforced for the applicant’s request. 2B. Law and practice with regard to enforcement of family law judgments other than return orders 1. Instruments and national legislation relevant for the enforcement of family judgments in cross-border cases The 1996 Hague Convention on Protection of Children entered into force in Hungary in May 2006. (It was announced in Act No. CXL 2005.) Hungary is not party to the 1961 Hague Convention. The International Private Law Act, the Statutory Rule No. 13. 1979 on the international private law determines the general and basic conditions of the enforceability in Hungary (section IX of the Act). The regulations of the International Private Law Act are to be applied if there is no international convention regulating that issue. So if the enforcement is requested by referring to an international convention, the court is going to survey the convention itself and not the Act to decide whether it is possible to enforce that decision.

20

2. National law relevant for cross-border enforcement of family law judgments under Brussels 2A The Enforcement Act has a special, section III on the special enforcement proceedings. One proceeding contained in this section is the enforcement of foreign decision. The decision of foreign court can be enforced under the law, international convention or reciprocity (205 § Hungarian Enforcement Act). As the rules of the Enforcement Act regulating the enforcement of foreign judicial decisions complied with the requirements required by the Brussels 2A in connection with the order of the enforcement of judgments, there are no special internal rules for the application of the Brussels 2A. Instead of special new rules the Enforcement Act determines that for the enforcement of judgments delivered in EU member states – according to also Brussels 2A – the regulations of the Enforcement Act are to be applied. In connection with decisions delivered according to the Articles 41 and 42 of the Council Regulation No. 2201/2003, the Enforcement Act contains new rules (entered into force in 2005) about the measures in connection with the enforcement in the EU member states. According to the 31/C (2) § of Enforcement Act the court of first instance issues the certificate (Annex I, II). The certificate concerning the decisions on right to access or return of the child (Annex III, IV) is issued by the court of first instance ex officio or for the request of either party in case of Annex III (31/C (4) a) Enforcement Act) and ex officio in case of Annex IV (31/C (4) b) Enforcement Act). As no remedy is available against the issue of certification, but only the correction, the court corrects the certificate mentioned in subsection (4) on request and delivers it to the parties. However, remedy is available against the correcting decision. So, for the case of the enforcement in Hungary the competent court issues the certificate for the request of the entitled party. The general requirements of enforceability are required in this case as well. It is not stated in the Enforcement Act but it follows from the Article 28 of the Regulation. The 16 § of Enforcement Act determines the special competence rules of the issue of executory card (végrehajtási lap). The item h) of 16 § - which entered into force in October 2004 – declares which court has competence to issue the executory card upon the basis of the foreign judgment provided with certificate issued under Articles 41-42 of Council Regulation. It was necessary to give a special regulation as in this case the proceeding is not determined by the section IX of the Enforcement Act (the general rules of foreign judicial decision’s enforcement). Before issuing the executory card there is no need to decide on the enforceability of the foreign decision according to the Articles 41-42 of Council Regulation. The Article 45 of Brussels 2A is to be applied for the order of enforcement. It means that the requesting party has to annex the certificate and the translation of certain items as well. As the certificate is issued on the language of the state delivering the decision, its translation may be requested from the party. The Hungarian law (Resolution of Government No. 2057/2005 and No. 2031/2005) determined also the English, German and French languages in which the certificate is to be accepted. The competence of the court issuing the executory deed is determined by the obligor’s and the child’s habitual residence. The 16 § h) determines the issue of the executory card only in connection with the decision for return of the child according to the § 42 of the Council Regulation but the § 41 of the Council Regulation makes it possible to enforce the decision for right to access without exequatur as well, so there have been established further new rules in connection with the 2201/2033 Regulation if it affects the right to access. According to the Order of Government No. 149/1997 on Public Guardianship Authority and Proceeding in Child Welfare and Guardianship Cases the enforcement upon the foreign judicial decision or decision of other

21

foreign authority delivered in access cases according to § 41 of the Regulation provided with certification is performed by the municipal guardianship office (gyámhivatal) of first instance being competent according to the child’s habitual residence (166 (1) § Order No. 149/1997). (Of course, it can be not only decision but also obligation undertaken by the party.) If the request for enforcement is submitted to the Ministry as the nominated Central Authority for Hungary, the Ministry has to forward the petition to the competent municipal guardianship authority. The authentic translation is to be annexed according to the III. Annex to the Regulation (166 (2) § Order No. 149/1997). The certification (Annex III) relating to the decisions delivered in connection with right to access is issued by the competent municipal guardianship authority of first instance ex officio or for request. The municipal guardianship authority issues the certification (Annex II) in connection with decisions on parental custody for request. The certificate can be issued for several times in connection with the same decision. The municipal guardianship authority corrects the certification in case of errata. (166/A (1)-(3) § Order No. 149/1997). 3. National practice with regard to the enforcement of family law decision of your own courts in another member state 4. National practice with regard to the enforcement of family law decisions of another member state in your own member state 5. Setting aside or amending foreign judgments We do not have any practice yet. 2C. Specific issues relating to cross-border enforcement of family law judgments 1. The role of organs and institutions 2. Time limits relevant for enforcement proceedings and the effect of time 3. Coercive measures to ensure enforcement 4. Other legal or practical conditions that may form obstacles to enforcement 5. Issues of specific concern in cross-border cases 6. Mediation/Alternative Dispute Resolution These are the same as in domestic cases in harmony with the answers above. Hungary has practice only in return cases according to the Hague Convention but does not have any practice yet relating to the 2201/2003 Council Regulation.