In child abduction cases, Hungary is bound not only by the Hague Convention but also by the relevant provisions of the Brussels II Regulation, as Articles 23-29 of the Regulation must be applied by all EU Member State courts in return proceedings.
Strengthening children’s right to express their views was a symbolic issue in the drafting of the Brussels IIb Regulation.
As a result, Article 21 of the Brussels IIb Regulation contains an explicit provision on the child’s right to express his or her views – a provision harmonised at EU level: courts in the Member States shall ensure, in accordance with national law and practice, that a child who is capable of forming his or her own views is given a real and effective opportunity to express his or her views freely during the proceedings, either directly or through a representative.
If children express their views during the proceedings, due account should be taken of their opinion, with regard to their age and degree of maturity.
This provision is a development of Article 12 of the Convention on the Rights of the Child, signed in New York on 20 November 1989 (promulgated in Hungary by Act LXIV of 1991).
Article 26 of the Brussels IIB Regulation states that Article 21 (principles relating to the hearing of children) also applies to return proceedings under the Hague Convention.
Accordingly, in proceedings for the return of children who have been wrongfully removed or retained in Hungary, children (who are capable of forming their own views / who have the capacity to judge) must be given the opportunity to be heard in accordance with the rules of national law and the conditions for the hearing of the child must be created.
Being heard is a right of the child, not an absolute obligation. Whether or not the hearing should take place must be considered by the court in each case on the basis of the requirements of the best interests of the child. The hearing may be conducted either directly by the judge or by an expert.
Just as there is no single definition of the child’s capacity to judge in international law, there is no single formula for it in Hungarian law, and it is certainly not linked to the child’s age. Paragraph 2 of the Children’s Act and court practice provide support, and the principle has emerged that a minor who, in accordance with his or her age and intellectual and emotional development, is capable of understanding the essential content of facts and decisions affecting him or her and of foreseeing the likely consequences may be regarded as a child with the capacity to judge.
The following principles should be applied when hearing the child:
– Respect for the child
– Guarantee of sufficient time for the hearing
– Avoidance of waiting time in court or otherwise causing the child unnecessary additional stress
– The possibility for the child to be accompanied by a trusted person (even if neither the parents nor the lawyers are present during the hearing)
– Relief from responsibility for the decision
And how will children be heard in practice in emotionally charged proceedings – for example, when one parent takes a child to another country against the other parent’s wishes?
A study(*) on the practice of Hungarian judges in the first instance in cases of wrongful removal of children was conducted a few years ago. The results of the survey can be used to analyse certain issues and trends, although the answers of the respondents cannot be considered as the position of the judiciary.
The following conclusions can be drawn about the conditions under which children are heard in Hungary in Hague cases:
– There is no age limit, judges often hear children as young as 4-5 years old.
– In almost all cases, both parents request that the child be heard.
– In the majority of cases, the hearing of the child does take place.
– A guardian ad litem is usually not appointed.
Section 473(1) and (4) of the Hungarian Code of Civil Procedure stipulates that if the court decides to hear the child, it shall at the same time, if justified, appoint a guardian ad litem for the child ex officio. The appointment of a guardian ad litem is not compulsory and it is at the discretion of the judge to decide whether it is necessary. In practice, it is not usual to appoint a guardian ad litem.
– Children are usually heard directly by the judge rather than by experts. The reason for this is that there is a clear distinction between the return procedure and the procedure on the merits of parental custody.
– Questions about children generally focus on their kindergarten, school, the circumstances of their arrival in Hungary and their experiences of Hungary and the other country. The judges ask about friends and relationships with parents and relatives. Interestingly, some judges ask about the language the child likes to read. They don’t usually ask which parent the child is more attached to, but they sometimes ask questions that focus on the decision (“How would you feel if they decided to go back?”).
Under Article 473(5) of the Code of Civil Procedure, at the end of the hearing the child’s written statement must be read out loud in the presence of the child. The child may then have the opportunity to make corrections or additions. According to the judges, children often expressly request that their statements are not recorded. However, the transcript is read out to the parents after the hearing in the presence of the lawyers. Therefore, judges usually try to assess the situation in which the problem itself, rather than the exact content of what was said, needs to be shared with the parents.
According to the judges, the hearing is often a source of stress for the children, which they try to alleviate in a variety of ways. There are child-friendly hearing rooms and it is possible to provide toys for children. There are judges who do not wear their judicial robes when the child is being heard and may offer sweets. Judges also try to be sensitive to the needs of the child by drawing on their own experience as a parent.
* Murányi Fanni: A jogellenes elvitel gyermekáldozatainak meghallgatása a bírák szemszögéből (CSJ, 2021/3., 26-32. o.) https://szakcikkadatbazis.hu/doc/5440471
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