The Constitutional Court adopted a decision in the case of the wrongful removal of children29 November 2018
The Constitutional Court pointed out in its recent decision: in a procedure related to the wrongful removal of a child, the court should, as far as possible, use all the tools of evidence offered by the parties in the interest of clearly verifying the interests of the minor. A procedure where the clarification of the child’s interests is rendered impossible does not comply with the requirement of fair trial enshrined in the Fundamental Law.
The procedure of the Constitutional Court was based on a constitutional complaint. The marriage of the parents who live partly in Spain and partly in Hungary has been broken down and the Hungarian mother decided that she wanted to live in Hungary with her four years old son and two years old daughter. The father of Italian origin launched a procedure against the mother due to the wrongful removal of the children. Finally the Hungarian courts assessed the pieces of evidence to establish that the mother wrongfully removed the children from Spain.
The mother petitioned the Constitutional Court by referring to the violation of the fundamental right to fair trial. She argued that during the procedure of taking evidence the court rendered the taking of evidence impossible for her, for example by not appointing a forensic psychologist expert, by not entertaining the application aimed at hearing the older child and it also made a mistake in establishing the usual place of residence of the older child. She also claims that neither did the courts examine whether the children would be placed in an appropriate environment if taken to Spain, although this should have been examined.
The Constitutional Court underlined: the Fundamental Law grants everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Constitutional Court had to examine – taking into account the interests of the children as well – whether the individual procedural mistakes as a whole, claimed by the petitioner, could have led to the unfairness of the procedure.
According to the Hague Convention on the Civil Aspects of International Child Abduction, promulgated in Hungary as well, the taking of evidence related to the wrongful removal should also cover the question whether the return of the child would cause any physical or mental damage to the child. The authorities shall not be obliged to order the return of the child if it would cause a physical or mental damage to the child or if it would create an unbearable situation to him or her in any other way. The right of the child to the protection and care necessary for his or her proper physical, intellectual and moral development is enshrined in the Fundamental Law.
According to the decision, in the case concerned, the motion to appoint an expert was rejected without an interpretable reasoning, thus essentially depriving the mother from using the only possible tool of evidence. Although the courts examined in details the circumstances (e.g. usual place of residence, wrongfulness of the removal) as required by the international and domestic regulations, but at the same time they failed to examine with due scrutiny the actual and potential psychical or physical consequences the return of the children would imply. As this feature violated the fundamental right to fair trial, the Constitutional Court annulled the court decisions.
Judges dr. Balázs Schanda and dr. Marcel Szabó attached concurring opinions, while Judges dr. Ágnes Czine, dr. Egon Dienes-Oehm, dr. Ildikó Hörcherné-Marosi, dr. Imre Juhász, dr. Béla Pokol and dr. László Salamon attached dissenting opinions to the decision. The full text and the data-sheet of the decision is available on the Constitutional Court’s website.