Hungary accused of failing to enforce Hague Convention orders, writes Carol Coulter
WHEN FAMILY disputes arise, or sometimes when there is a dispute between parents and state child care authorities, it occasionally happens that a parent flees the jurisdiction with the child.
This eventuality is covered by The Hague Convention on Child Abduction, to which most countries outside the Islamic world are signatories.
The Irish authorities processed 233 cases relating to international child abduction in 2010, of which 140 were new applications.
Many were subsequently either withdrawn or settled by consent. In 25 cases the children were ordered to be returned to the state from which they had been abducted.
Usually when a child has been wrongfully removed from his or her normal place of residence by a parent and a court orders his or her return, the child is produced and the return takes place in an orderly manner. If this does not happen, the Garda have the power to arrest the parent concerned and secure the child’s return.
However, it may not happen so smoothly in all jurisdictions. An Irish father, Dr Leslie Shaw, is still seeking the return of his daughter Fiona from Hungary more than three years after she was removed from the family home in France by her mother, despite the fact that the Hungarian courts have ordered the return of the child.
He is now seeking the intervention of the European Court of Human Rights (ECHR) and of the European Commission to have the orders seeking Fiona’s return enforced.
He is also seeking to draw international attention to what he claims is the flouting by Hungary of international law.
His lawyer, Laurent Hinkler, has written to the parliamentary members of the Council of Europe, the parent body of the ECHR, drawing their attention to the “violation of the law of the European Union, of private international law and the European Convention on Human Rights”.
Fiona was abducted in December 2007 by her mother Krisztina Orosz and her father immediately took proceedings in Pest, Hungary, seeking her return under The Hague Convention. The court granted his application. This decision was unsuccessfully appealed by Ms Orosz, ultimately to the Hungarian Supreme Court, which confirmed the order in November 2008.
Meanwhile, the French courts had established Fiona’s habitual residence as that of her father in France and granted him sole parental authority in April 2008. It also authorised him to exercise his parental rights in Hungary.
In March 2009 the French courts issued a European Arrest Warrant for Ms Orosz to face child abduction charges. She was arrested on July 27th, 2009, and brought to the High Court in Budapest. However, Dr Shaw’s legal representatives were not informed and she was immediately released and then went into hiding with their daughter.
The French magistrate then issued an international letter rogatory, a request for mutual legal assistance, outlining 14 specific measures sought by the French authorities to obtain the return of the child. A representative of the French prosecutorial service went to Hungary seeking to have them implemented.
According to Mr Hinkler, this initiative was unsuccessful because the Hungarian authorities refused to execute 13 of the 14 points requested. A second European Arrest Warrant and a further international letter rogatory issued in July 2010 likewise remained without effect, he stated.
“These manifest and deliberate failings of the Hungarian authorities resulted in Fiona and her mother going into and remaining in hiding since July 2009. Furthermore, the child has not attended school since October 2008,” he said in his letter to the Council of Europe.
“The refusal of Hungary to respect the statutory objective of the Council of Europe (article 1(a) ‘to achieve a greater unity between its members’) by recognizing the decisions of the French courts is extremely perilous for Fiona, whose health, safety and education are gravely compromised.”
In response to a number of questions from The Irish Times, a spokesman for the Hungarian ministry of public administration and justice said: “On the basis of a letter rogatory issued by the High Court of Paris, further legal proceedings were enacted against Krisztina Orosz on charges of child abduction between February 2010 and September 2010. Under the supervision of the prosecution service, the Hungarian police took all possible action within its competency to ensure enforcement.”
Referring to its refusal to execute the European Arrest Warrant, it said that at the time the Hungarian authorities were also bringing a prosecution against Ms Orosz on the same charges, and this meant it could refuse the request.
The case illustrates the fact that the smooth functioning of The Hague Convention requires wholehearted commitment to the mutual enforcement of orders on the part of contracting states.
Even if the law and the culture relating to child welfare issues vary from country to country, as they do, the essence of the convention is that the child’s place of habitual residence is where that welfare should be decided, in accordance with that state’s laws.