Hungary: Family Law

       Hungary Violates the Hague Convention on Abduction


Having worked on international child custody matters concerning Hungary for several years, and having consulted with Hungarian counsel on such issues, it is unfortunately clear that Hungary does not comply with its obligation under the Hague Abduction Convention to promptly return children who are wrongfully taken to Hungary or retained in Hungary.
My conclusions have now been reinforced by a decision of the European Court of Human Rights, issued July 22, 2011, in the case of Shaw v. Hungary (a case with which I was peripherally involved).
The problems include the following:
-Custody and visitation cases are not completed within the requisite time limitations. This is often a result of lengthy disputes on preliminary jurisdictional matters. It is also because of the work overload of Hungarian judges. Consequently it often take eighteen months or more for first and second instance courts to issue a final ruling. The Hungarian Supreme Court’s procedures may then take another year.

-Hungarian courts frequently misinterpret the Hague Convention’s terms, such as “habitual residence,” in favor of the taking parent.

-There is no effective procedure within Hungary to enforce court custody orders. Pursuant to the governing Hungarian legislation, the enforcement of final and effective judicial custody and visitation decisions is not within the competence of the court handling the Hague case. The body that is responsible for enforcement cases is the local “Custody Authority.” The Custody Authorities do not have sufficient coercive power and their procedure is slow and inefficient. As a result, even a favorable Hague decision is often completely futile because it is not enforced.

-It typically happens that if, as and when enforcement is finally employed, the taking parent cannot be found. The “bailiff” cannot issue a search warrant with criminal consequences but merely reports the matter to the police.

-Hungary will not recognize and enforce foreign custody orders.

-The passage of time in such circumstances typically leads to the child becoming well integrated into the new environment, which helps to create new defenses for the taking parent.

-It is common for the taking parent to successfully preclude the left-behind parent from having any contact with the child during the lengthy court proceedings, thereby enabling a psychologist to subsequently declare that there would be a “grave risk” of harm to the child if the child were sent back to the former residence, especially if tha taking parent were not to accompany the child.



In the Shaw case the European Court of Human Rights ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to diligently process a Hague case brought by an Irish father to secure the return of his child from Hungary to France, where they lived, following the parents’ divorce.
A court in Pest, Hungary ordered the child’s return and two appeal courts upheld the return order. The local bailiff twice unsuccessfully called on the mother to comply voluntarily with the court’s order. Meanwhile, a French court issued a European arrest warrant for the mother for the offence of change of custody of a minor. She was then arrested in Hungary but was promptly released by the Budapest regional court on the ground that similar proceedings were pending before a Hungarian court. The mother then disappeared with the child and has not been located.


The father complained to the European Court of Human Rights that the Hungarian state had violated his rights under article 8 of the European Convention on Human Rights, upholding private and family life, by failing to take timely and adequate measures for him to be reunited with his daughter.
The Hungarian government claimed that it had had done everything possible to ensure the child’s return to her habitual place of residence, but the absconding of the mother with the child had temporarily prevented the authorities from taking further measures.

In its judgment, the Court noted that 31 weeks had elapsed since the first claim before the Hungarian courts and their final decision, contrary to the obligation under the Hague Convention to issue a judgment within six weeks. It found that that alone amounted to a violation of the Hungarian state’s obligations under the Convention.

The Court also found that the authorities also failed to take adequate and effective measures to enforce the return order for almost 11 months after the delivery of the final enforceable judgment and that no attempt was made to enforce the return order on the day when she was finally arrested.

Finding that the Hungarian state had violated the father’s rights to family life, the Court ordered the payment of €20,000 for the anguish and distress he had suffered as a result of the insufficient measures taken by the Hungarian authorities and awarded €12,000 for legal and related expenses.


Hong Kong: Family Law

Hong Kong Divorce: Jurisdiction and Inconvenience


Jeremy D. Morley


The courts of Hong Kong deal with large numbers of international divorce cases. Hong Kong has jurisdiction if certain specified conditions are fulfilled but it is important to understand that the courts may decline jurisdiction on the grounds of inconvenience in some cases.


Jurisdictional Requirements:


Hong Kong courts have jurisdiction of divorce cases if –


a) Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; or


b) Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or


c) Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.


The meaning of the term “domicile” is significantly affected by a Domicile Ordinance “to consolidate and reform the law for determining the domicile of individuals” enacted as of 1 March 2009, which amends the common law of domicile in certain respects.


The meaning of the term “substantial connection” has been discussed in several international divorce cases. Cases have held that a party’s connection with Hong Kong must be “of sufficient significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect of matters going to, and consequential upon, the dissolution of that party’s marriage.” In this regard, a judge stated that, “good sense dictates that there is a difference between residing in Hong Kong for a month or two to oversee a short-term project and being posted here together with one’s family for a period of several years.”



Declining Jurisdiction in International Cases:


Hong Kong courts may decline to accept jurisdiction by reason of the doctrine of forum non conveniens.


In order to warrant such an order the applicant must establish that there is another available forum that has competent jurisdiction and that is the appropriate forum for the trial of an action i.e. in which the action may be tried more suitably for the interests of all the parties and the ends of justice.


In order to answer this question, the applicant for the stay has to establish that:


  1. That Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action); and


  1. That there is another available forum which is clearly or distinctly more appropriate than Hong Kong.


If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceeding has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.


If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer.  Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.


While the Hong Kong courts have granted applications to stay divorce cases in some international divorce cases the courts have often expressed pride in their experience in international matters and their ability to handle such matters. In one cases the judge stated that,


“The family courts in Hong Kong have vast experiences in dealing with cases of an international dimension.  Many involved the large expatriate community in Hong Kong whose assets are located both in Hong Kong and overseas.  The Hong Kong courts regularly deal with the valuation of overseas properties and make orders thereto.  In terms of convenience and expense of hearing, Hong Kong has a purpose-built technology court room with video linkage to overseas countries. ”


Honduras: Family Law


US Department of State’s 2009 Report

The United States continues to view Honduras as noncompliant due to its ongoing failure to carry out its obligations under the Hague Convention.  As in 2007, the Department finds Honduras  not compliant with the Convention in 2008.  The Honduran Central Authority has made little progress toward meeting its obligations  under the Convention.  After many months of inability to communicate  with members of  the Honduran Central Authority, the USCA has successfully reestablished communication with a staff member of the Honduran Central Authority but it is apparent that the Honduran Central Authority has inadequate staff to perform the required functions set forth in the Hague Permanent Bureau’s Guide to Good Practice.  The USCA notes that it is difficult to learn of the outcome of Convention proceedings or the efforts of law enforcement  due to this communication barrier.

In early 2004, the Honduran Congress ratified the Hague Convention, but Honduras has not passed any legislation implementing the Convention in Honduran Law.  The Honduran legislature introduced a decree to approve the “National Law to Resolve International Child Abdution Cases” before the end of 2007, but the legislature has not yet passed that law.  During 2008, the Ministry of Foreign Affairs agreed to accept the transfer of the Central Authority responsibilities from the Honduran Institute of Children and Families.  New legislation reflecting this change in the Ministry of Foreign Affairs’ responsibilities and establishing specific legal procedures in implementing the Convention is currently under consideration.

Only one abduction case was resolved during the reporting period.  This resolution, however, resuled from the taking parent’s voluntary decision to return the child to the United States.  Two cases were reported in 2007, both of which remain unresolved at the end of this reporting period.  These cases are discussed in the “Unresolved Return Applications” section of this report and are examples of the systemic, institutional weakness of Honduras’ Convention progress.  As in 2007, courts were unreliable in adjudication of first instance Convention claims, and reviewing courts rejected meritorious claims without adhering to Convention principles.  The USCA notes that judicial training is scheduled for Honduran judges in 2009 in an effort to increase understanding of the Convention’s requirements.


Greece: Family Law


As in the year 2007, Greece demonstrated patterns of noncompliance with respect to judicial performance during the 2008 reporting period.  These patterns of judicial noncompliance arise from procedural complexities and hindrances in Greek law.  Respondent taking parents often influence the judicial timeline refusing to cooperate with summons and orders.  Lenghty appeals processes further prolong cases.  These significant delays in Convention proceedings continue to be the Department’s main concern.  The Hague Permanent Bureau’s Guide to Good Practice states that parties’ obligation to process return applications expeditiously also extends to appeal procedures.

In addition, the Greek judiciary frequently denies requests for return under the Convention by finding that there would be a grave risk of physical or psychological harm for the child if returned, or that return would otherwise place the child in an “intolerable situation.”  See Convention, art. 13 (b) (setting forth this exception).  Such findings may suggest that Greek courts place undue emphasis on the “best interests” of the child.  The USCA acknowledges that a Greek court ordered return in one case during the reporting period, in compliance with the provisions of the Convention, which may indicate a positive shift in the judiciary’s application of the Convention.

The USCA has a sound, cooperative relationship with the Greek Central Authority (GCA) and is able to monitor case progress through clear and effective communication.  The GCA sends circulars on the Convention’s requirements and procedures, and requests Greek courts to process Convention cases expeditiously.  The GCA organizes regular seminars on the Convention for judges and law students in Athens and Thessaloniki.  Greek law enforcement appears to be improving its handling of these cases.  In one case in northern Greece, police efficiently located the taking parent and the child, took the taking parent into custody, and placed the child under the supervision of local authorities pending resolution of the outstanding custody matter.