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
Dr. Orsolya Szeibert-Erdős
University of Eötvös Loránd
Budapest, Hungary
[email protected]
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 nonresidential 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
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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)
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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
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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
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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
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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
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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 noncustodial 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
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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
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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 noncustodial 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
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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 nonlitigious 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)
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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).
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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 timelimit 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
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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 reopening 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
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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
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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
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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
16
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
17
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 reopening 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 nonvalidation 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
18
- 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.
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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
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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.
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