The Commissioner for Fundamental Rights on preventing wrongful removal
Incomplete and ambiguous domestic regulations and the authorities’ practices based thereon do not properly ensure the prevention of international child abductions. It infringes upon the rights of the parents concerned and their children, concluded László Székely. In the report on his comprehensive investigation, the Commissioner for Fundamental Rights calls for the revision of the relevant regulations, the education of experts, providing more information to parents moving abroad, and the wider use of mediation.
International child abduction, wrongful removal means that a parent takes the child abroad or retains the child in another country without the other parent’s consent, violating the latter’s rights to custody. Wrongful removal places a heavy burden on the children concerned and their parents as well; the international aspects of this issue make the weaker party even more vulnerable. The Ombudsman’s inquiry was prompted by the complaints submitted to his Office indicating that the number of international child abductions is growing, while the staff members of the competent authorities are under-qualified and the parent concerned, living or working abroad, are poorly informed.
The report points out that the international legal standards applicable in Hungary are set forth in the Hague Abduction Convention; in addition, being a Member State of the European Union, the provisions of the Brussels II Regulation, covering parental responsibilities, must also be taken into consideration. In cases of international child abduction, the domestic implementing rules of the proceedings to be conducted are stipulated in a ministerial decree issued back in 1988. In his response to the Commissioner’s questions, the Minister of Justice admitted that the decree was obsolete and incomplete; the investigation also showed that the prevailing regulation raises issues that may not be solved through being interpreted by administrative and judicial organs. Referring to the above, the Ombudsman concluded that the situation is in violation of the requirement of legal certainty, and carries a risk that the principle of due process corresponding to the best interest of the child will be infringed upon.
The report also notes that the guardianship authorities’ proceedings aimed at designating the child’s place of stay abroad require the obtainment of a home study, which may take considerable time. In many cases, such delays may result in a situation when a parent unwilling to wait for the decision wrongfully takes the child abroad. It was learned that the requesting parent has to enclose with the request a school attendance certificate, which may lead to misunderstandings, since requesting a school attendance certificate assumes that the child already does have a home abroad and does attend a school in the given country, which, in itself, constitutes wrongful removal.
In Ombudsman Székely’s opinion, the due process corresponding to the best interest of the child would be best served if proper awareness-raising information on wrongful removal was provided in the course of the guardianship authorities’ decision-making. He pointed out the significance of providing incentives for the parents to effectively use mediation that takes into account the interests of all parties concerned, and the importance of being able to provide such services. It also gives cause for concern that the majority of the professionals concerned may receive professional education and training on preventing wrongful removal only on rare occasions and in a limited framework. In connection with situations potentially leading to wrongful removal and their prevention, it would be necessary to develop a uniform professional protocol and publish a handbook for professionals working with children. It is high time to prepare an educational, easy to understand online handbook for potentially affected persons working or moving abroad.
The Commissioner for Fundamental Rights requested the Minister of Justice to consider the comprehensive revision of the ministerial decree on the implementation of the Hague Abduction Convention, and the Minister of Human Capacities to review the regulations specifying the scope of documents to be submitted by the parent requesting the designation of the child’s place of stay abroad, and to revise all professional and educational materials on the efficient prevention of wrongful removal. The Commissioner requested the Heads of the county and metropolitan government offices to ensure that the guardianship authorities under their supervision provide awareness-raising information on the regulations related to taking the child abroad, and that the staff members of the guardianship offices under their supervision have continuous access to knowledge and up-to-date information on the regulations related to wrongful removal.