================================================================= Editor's Note: This document was recevied by FAX from the Law Office of Gerald L. Nissenbaum, Boston, MA on 15 Jul 1992. It was entered by the editor and comments, as appropriate, were added. This document consists of the decision of the Court of First Instant and the appeal from that court's order to the Court of the Capital at Buda Pest ================================================================ Translated from Hungarian Central District Court of Buda No. 2.P.I.31.588/1988/2 Petitioner No. II on the question of the Court: It requires about half a day that I take out fully the items necessary for my undertaking of the apartment offered for the petitioner and that I equip the localities according to their function, so e.g. that I prepare the kitchen for ensuring the possibility of cooking. Petitioner No. II on the question of the Court: On the air ticket presented place can be reserved at any time. He declares further that he bears the costs of traveling back of the Respondent as well. After that the Court has passed the following ORDER: The Court orders that the child name [Name Omitted], born on 02 Jul 1985 shall be brought back immediately. The Court obliges the Respondent to take back the above mentioned child to the address at [Address Omitted] within three days. The Court dispenses with stating the costs. Against the order an appeal can be lodged during 15 days from the promulgation. MOTIFS: From the marriage of the Petitioner No. II and the Respondent concluded on 17 Sep 1982 the child named [Name Omitted] was born on 02 Jul 1985. The relationship of the spouses recently has spoiled, and, therefore, the Respondent started for Hungary on 23 Feb 1988 together with her daughter born from her previous marriage named [Name Omitted] and with her child named [Name Omitted], born from the Petitioner, from the flat at [Address Omitted], Neuilly sur Seine. The Respondent did not inform in advance the Petitioner No. II on her intent to take away the common child. Custody over the child was exercised jointly by the two parents. In its order dated of 07 Mar 1988 Neuilly sur Seine as Court of first instance directed the Respondent upon the request of the Petitioner No. II to take back the child named [Name Omitted] to his previous address in Neuilly. The same Court, in its order dated of 17 Mar 988, prohibited to the Respondent to take the child named [Name Omitted] outside the borders of the French metropolitan country. The Respondent in Hungary, the Petitioner No. II in France, instituted the procedure for the dissolution of their marriage. The child being 3 years old is not exposed to any physical or mental harm by being taken back and it does not create an unsupportable situation for him otherwise either. The Petitioners No. I and II requested that the Court should take measure for the child named [Name Omitted], born on 02 Jul 1985 being immediately taken back to his previous residence in France. The Petitioner No. II undertook the costs of the traveling back of both the children and the Respondent, and so they did not request the charging of the costs of the taking back. Furthermore, Petitioner No. II promised to ensure an independent section of flat for the Respondent and the common child -- without charging the general expenses, and to pay for their support 5,000 francs per month up to the closing of the divorce process. He did not object either that the Respondent brings with herself her daughter named [Name Omitted] born from her previous marriage. The Respondent requested the petition be dismissed. Principally she alleged that she left sooner the common home because of the rough behaviour of the Petitioner No. II manifesting itself even in physical assaults, just in the interest of the child. The Petitioner No. II is unable to provide for the child under the age of 3 years, and if she would return together with the child, the child would be exposed to physical and psychic injury through the physical assaults of the Petitioner No. II towards her. She wanted to submit a promotion of evidence to justify these allegations by the assurance of a deadline. The Petitioner No. II denied to have displayed the behaviour indicated by the Respondent towards his spouse. The petition is well-founded The law-decree 14 of 1986 on the Civil Aspects of Illegally Taking Abroad Children (hereinafter called R.) provides in its Article 1 for the immediate return of the child illegally taken away or hidden. Pursuant Article 3 of the decree taking away is illegal if it hurts the right of custody due according to the previous place of sojourn (Point [a]), and, respectively, if taking away impedes the exercise of these rights (Point [b]). With respect to the child named [Name Omitted] the parents have actually exercised the rights of custody together. Thus taking away the child is qualified as illegal because it impedes the exercise of the parent's rights of the Petitioner No. II. There was no doubt that the Petitioner No. II had not approved the taking away either previously or subsequently. Thus the Court examined on the basis of Article 13(b) of the decree whether taking back may expose the child to physical or psychic injury or whether being taken back could otherwise create an unsupportable situation for him. The Respondent herself did not even allege that the Petitioner No. II displays such a behaviour manifesting itself directly towards the child which would realize the conditions mentioned hereinabove. Besides the guarantees indicated by the Respondent the Petitioner No. II promised that he ensures an independent flat for the accommodation of the Respondent and the two children, and pays 5,000 francs per month. In such circumstances, even if previously the behaviours denied by Petitioner No. II would have been realized, which could lead to the injury of the child, for the future they do not present any real danger. As the data available up to now were sufficient for the decision in the question of taking back, the Court ensured no deadline for the Respondent to submit her motion for evidence. The Court fixed the deadline of taking back the child so as to ensure appropriate time for the preparation of the travel of both the mother and the children. The Petitioner No. II did not request charging the travel expenses and so the Court dispensed with taking decision on this question. The record is closed at 18.30 p.m. Dated as above Dr. OGSODI Agnes m.p. Judge. I certify hereby that this light copy is in every respect identical with the original. Dr. Benedek Katalin m.p. Senior Collaborator Senior Counsellor of the Ministry of Justice [Round Seal: Ministry of Justice] ================================================================ Court of the Capital as Court of Appeal No. 50.Pf.24.548/1988/3 In the case instituted by the Ministry of Justice of the Hungarian People's Republic (1055 Budapest, Szalay u. 16) represented by the Law Office No. 16/2 of Budapest (1061 Budapest, Dalszinhaz u. 10 Lawyer: Dr. SASVARI Tibor) as Petitioner No. I and [Name Omitted] resisdent in France ([Address Omitted] Neuilly sur Seine) represented by Law Office of Vao (2601 Vao Pf. 9, Martirok u. 15., Lawyer: Dr. HORVATH Gyorgy) as Petitioner No. II. Against [Name Omitted] resident in Budapest ([Address Omitted]) represented by Law Office No. 12 of Budapest (1114 Rocskai u. i. Lawyer: Dr. BARANDY Gyorgy) and then by Law Office No. 44 of Budapest (1012 Miko u. 14. Lawyer: Dr. SZUCS Andrea) as Respondent for taking back the child illegally taken abroad pursuant to appeals of Serial No. 3 and 5. Submitted by the Respondent against the order No. 2.P.I.31.588/1988/2 of the Central District Court of Buda, the Court of Capital as Court of Appeal has passed the following ORDER: The Court of Appeal affirms the order of the Court of first instance with the following modification as to the way and deadline of performance: The mother as Respondent is obliged to take back the child named [Name Omitted], born on 02 Jul 1985, within eight days to its usual place of sojurn in France, [Address Omitted], Neuilly sur Seine. In case of failing to meet this deadline she is obliged to deliver the child to the father as Petitioner No. II within 3 (three) days to be counted from his personal presentation at the guardianship authority of the 1st district. No appeal can be lodged against this order. MOTIFS: On the basis of Articles 1 and 3 the Law-Decree 14 of 1986 the Court of first instance - by examining also the excluding reasons included in Article 13 and stating with respect to them that no reasons excluding the taking back of the child exist - ordered the child named [Name Omitted] born on 02 Jul 1985 being taken back immediately to his usual place of sojourn in France preceding his being taken illegally by his mother to Hungary. It obliged the mother as Respondent to take back the child within three days to the common flat of the spouses. It dispensed with stating the costs as the father as Petitioner No. II undertook to bear them. In the MOTIFS of its order the Court stated that the parent's rights were exercised by the mother and the father together. The mother, however, took away the child without the father's consent, by hurting the rights of custody due to the father together with the mother and by impeding the exercise of the parent's custodian rights, and, therefore, illegally. It stated furthermore, that the competent French court obliged the mother to take back the child. It did not accept the defence of the Respondent saying that taking back the child would expose him to physical or psychic injury, and it motivated this standing point in detail. It mentioned also that the father as Petitioner No. II had made a promise to ensure the separate accommodation and support of the mother and the child by offering appropriate guarantee. Thus, even if sooner there were some foundation of the allegation not proved by the Respondent that cohabitation with the father hurt the interests of the child, in the conditions ensured by Petitioner No II taking back the child would not create an unsupportable situation for the child. The Respondent lodged an appeal against the order. On the one hand she requested the order of the court of first instance to be changed and to dismiss the request of the Petitioners concerning the taking back of the child. On the other hand she asked also to invalidate the order of the Court of first instance by submitting a motion of further evidence relating to the circumstances of the child in Hungary, to his conditions of education here. The counter demand of the Petitioners was directed towards a confirmatory decision. The appeal is not well-founded. The Court of first instance has taken a position concerning both the illegality of bringing the child to Hungary and the legal subsistence of the obligation to take him back after having conducted a proof of the necessary extent and after having correctly deliberated all the data of the procedure (Act III of 1952. Sec 206). In such circumstances, however, - on the basis of the rules of law correctly alleged by it (the appropriate Articles of the Convention dated in The Hague, 25 Oct 1980 on the Civil Law Aspects of the Children's Taking Illegally Abroad, promulgated by lad-decree 14 of 1986.) ordering to take back the child is legal and therefore appropriate. For this reason and because the Court of Appeal agrees not only with the disposition of the Court of first instance but also with its detailed motifs as to the facts and law, the Court of Appeal affirms the order of the Court of first instance - pursuant to Act III of 1952, Sec 259 and Sec 254/3/ second indent - by referring back to its correct motifs. The Court of Appeal modified the disposition affirmed by the Court of first instance only as to the way and deadline of performance in the interest of the possibly efficient realization of the aim properly said of the process, the restoration of the parents' common custody and the insurance of the parents' common rights. Relating to the secondary request in appeal of the Respondent and, respectively, to the further proof mentioned by her, the Court remarks besides what has been explained that the circumstances and conditions of the education and custody of the child in Hungary is irrelevant in the present procedure. In the present procedure only the circumstances examined by the Court of first instance have a relevance decisive for the case. (Was taking away illegal on the basis of the above-mentioned law-decree and are there reasons of exclusion for taking back laid down in the law-decree?) Thus any further proof is unnecessary. Budapest, 14 Jul 1988 Dr. BARNANE Dr. MUGZER Erseebet m.p., president of the division Dr. BENKO Cailla m.p., Judge, referee Dr. RORDACS Istvanne m.p., Judge Certified true copy: [Illegible Signature] administrator. Round Seal: Court of the Capital, Budapest.