Child abduction in Hungary: wrongful removal and wrongful retention

In today’s fast-paced and increasingly globalized world, parents of different nationalities often have common children and, unfortunately, in many cases, their relationship ends in divorce when both parents want to continue raising the children in their own country. This can lead to years of fighting and bad decisions: for example, taking children abroad illegally.

Our office receives inquiries in many cases where the marriage breaks down between the spouses, and the foreign spouse – mostly because of being not aware of the Hungarian and European Union rules – goes abroad permanently with the couple’s common children without the permission of the spouse who remains in Hungary.

No matter how surprising, our experience gained from the cases of our law firm reflects that many of these illegal abduction cases happen because the foreign spouse is not aware of the Hungarian and international rules. Our present article cannot describe all legal options and legal solutions, we only want to draw attention to the most important aspects. But if the reader contacts our office, we are ready to give legal assistance with the full knowledge of the background of the specific case.

According to the Hungarian Civil Code, the child may, alone or with one of his parents, stay abroad for an extended period such as to study, work, or for another similar purpose, with the consent of both parents. For a minor child to settle abroad parental authorization shall be required. Furthermore, according to Hungarian law, separated parents shall exercise their rights concerning substantial matters affecting the future of the child even if parental custody is exercised by one of the parents by virtue of the parent’s agreement or the court’s decision, except if the parental custody of the parent living separately from the child has been withdrawn or restricted by the court in this regard. Determining and changing the name of the minor child, determining his place of residence if other than his place of domicile shared with the parent or his place of residence abroad for an extended period or the purpose of settlement, changing the nationality of the child, and choosing the school and career path of the child shall be considered as substantial matters affecting the future of the child.

Based on this, it does not matter whether one or the other parent obtains exclusive parental custody over the child during the divorce proceedings, because neither parent can permanently take the child abroad without the consent of the other, not even the one who can exercise parental custody exclusively by the court following his decision.

If one of the parents takes the child without the other parent’s consent, the provisions of the Hague Abduction Convention (1980) and the Council Regulation (EC) No 2201/2003 of 27 November 2003 may apply.

According to the international standards in force as stated above, wrongful removal or retention means a child’s removal or retention where it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the State where the child was habitually resident immediately before the removal or retention; and, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.

Since, in Hungary, the parents can only jointly decide on the child’s long-term stay abroad or settlement abroad, based on the above international rules, it is illegal for one parent to take the child abroad without the consent of the other parent.

With reference to Article 10 of the Council Regulation, it should be emphasized that the procedure for the return of the child must be initiated within one year of the child’s illegal abduction, otherwise, the child acquires habitual residence in the state to which the other parent took him/her.