Last edited: February 2006
Summary and Analysis
In Hungary, the court shall hear the child, either directly or through an expert. Once the child is 14, any ruling on his or her placement must have the child’s consent, except when placement chosen by the child can jeopardize the child’s own development.
Hungary signed the Convention on the Rights of the Child on March 14, 1990 and ratified it on October 7, 1991. It has not signed or ratified the European Convention on the Exercise of Children’s Rights. The Constitution of Hungary requires that the country harmonize the country’s domestic law with the obligations assumed under international law.
Since ratifying the CRC, Hungary appears to have made efforts to align its laws with its requirements. Hungary reports that through a 1995 amendment, it established a new rule whereby the court and the the guardianship authority shall hear the child in justified cases concerning parental supervision or the placement of the child, including when the child so requests. The court may hear the child either directly of indirectly through an expert. Further, Hungary noted that it is desirable to establish general procedural rules with respect to requesting and considering the views of the child.[2][3]
In our search through the 1995 Hungarian amendments, we did find an amendment that allows the court to appoint a guardian ad litem in justified cases concerning child custody. It also allows the court to hear the child in the absence of certain other parties. It does not specify whether the court must always hear the child though, nor what the responsibilities of the guardian ad litem are regarding the views of the child.[4]
Under Hungarian law, once a child has reaches the age of 14, they are considered to be of partial capacity and not incompetent. Minors of partial capacity are allowed, without the participation of their legal representatives, to make legal statements of a personal nature for which they are authorized by legal regulation.[5] This explains why Hungary reports that once the child reaches the age of 14, any ruling on his or her placement must have the child’s consent (with an allowable exception when the placement chosen by the child can jeopardize the child’s own development.)[6]
Of concern is the fact that minors under the age of 14 are considered legally incompetent. The law states that legal statements made by incompetent minors shall be null and void and that their legal representatives shall proceed on their behalf.[7] It appears that other laws and regulations may trump this rule, especially when courts rule statements valid. Thus, we suspect that the 1995 amendment that allows the court to appoint a guardian ad litem or hear the child in child custody cases could trump this rule in child protective proceedings.
Specifically regarding the Convention on the Rights of the Child, we would like to note two important areas of concern that the Committee on the Rights of the Child noted in their last report. The committee was concerned that information on the principles and provisions of the CRC was not widely disseminated, and was in fact not even available in all of the languages spoken in the State. It stated that insufficient training on the Convention had been provided to professional groups such as judges and lawyers.[8] The committee also noted concern that the general principle of Article 12 was not fully applied or duly integrated into the implementation of the policies and programs of Hungary.[9]
Despite our best efforts, we were unable to locate a contact for this jurisdiction.
Sources of Law (In Order of Authority)
Constitution
A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA (1949. évi XX. törvény)[10]:
7. § (1) A Magyar Köztársaság jogrendszere elfogadja a nemzetközi jog általánosan elismert szabályait, biztosítja továbbá a nemzetközi jogi kötelezettségek és a belső jog összhangját.
(2) A jogalkotás rendjét törvény szabályozza, amelynek elfogadásához a jelenlévő országgyűlési képviselők kétharmadának szavazata szükséges.
16. § A Magyar Köztársaság különös gondot fordít az ifjúság létbiztonságára, oktatására és nevelésére, védelmezi az ifjúság érdekeit.
56. § A Magyar Köztársaságban minden ember jogképes.
57. § …
(5) A Magyar Köztársaságban a törvényben meghatározottak szerint mindenki jogorvoslattal élhet az olyan bírósági, közigazgatási és más hatósági döntés ellen, amely a jogát vagy jogos érdekét sérti. A jogorvoslati jogot - a jogviták ésszerű időn belüli elbírálásának érdekében, azzal arányosan - a jelenlévő országgyűlési képviselők kétharmadának szavazatával elfogadott törvény korlátozhatja.
60. § (1) A Magyar Köztársaságban mindenkinek joga van a gondolat, a lelkiismeret és a vallás szabadságára.
…
61. § (1) A Magyar Köztársaságban mindenkinek joga van a szabad véleménynyilvánításra, továbbá arra, hogy a közérdekű adatokat megismerje, illetőleg terjessze.
…
67. § (1) A Magyar Köztársaságban minden gyermeknek joga van a családja, az állam és a társadalom részéről arra a védelemre és gondoskodásra, amely a megfelelő testi, szellemi és erkölcsi fejlődéséhez szükséges.
(2) A szülőket megilleti az a jog, hogy a gyermeküknek adandó nevelést megválasszák.
(3) A családok és az ifjúság helyzetével és védel
Translation[11]
Constitution (adopted August 20, 1949)[12]
The Constitution of the Republic of Hungary (Act XX of 1949)
Article 7 [Principles of international law]
(1) The legal system of the Republic of Hungary accepts the generally recognized principles of international law, and shall harmonize the country’s domestic law with the obligations assumed under international law.
(2) Legislative procedures shall be regulated by law, for the passage of which a majority of two-thirds of the votes of the Members of Parliament present is required.
Article 16 [Youths]
The Republic of Hungary shall make special efforts to ensure a secure standard of living, instruction and education for the young, and shall protect the interests of the young.
Article 56 In the Republic of Hungary everyone is legally capable.
Article 57 …
(5) In the Republic of Hungary everyone may seek legal remedy, in accordance with the provisions of the law, to judicial, administrative or other official decisions, which infringe on his rights or justified interests. A law passed by a majority of two-thirds of the votes of the Members of Parliament present may impose restrictions on the right to legal remedy in the interest of, and in proportion with, adjudication of legal disputes within a reasonable period of time.
Article 60 (1) In the Republic of Hungary everyone has the right to freedom of thought, freedom of conscience and freedom of religion.
…
Article 61 (1) In the Republic of Hungary everyone has the right to freely express his opinion, and furthermore to access and distribute information of public interest.
…
Article 67 (1) In the Republic of Hungary all children have the right to receive the protection and care of their family, and of the State and society, which is necessary for their satisfactory physical, mental and moral development.
(2) Parents have the right to choose the form of education given to their children.
(3) Separate regulations shall establish the responsibilities of the State with regard to the situation and protection of the family and youth.
International Law[13]
Convention on the Rights of the Child, Article 12[14]
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Legislation[15]
ACT XXXI OF 1995[16]
ON THE AMENDMENT OF ACT IV OF 1952
ON MARRIAGE, FAMILY AND GUARDIANSHIP
Amend Section 12
Section 279 of Act III of 1952 on Civil Procedure, as amended several times, shall be complemented by the following subsection (4):
“(4) If the court decides, in accordance with Section 74 of the Act on Family Law, on the hearing of a minor child of the parties to the marriage, as interested party, a guardian ad litem shall be, simultaneously, appointed in justified cases. The court may also decide to hear the child in the absence of the parties to the marriage. These rules shall also apply to law suits connected with the custody of the child.”
ACT XV OF 2001[17]
ON THE AMENDMENT OF CERTAIN ACTS CONCERNING LEGAL COMPETENCY AND CONSERVATORSHIP
Section 12.
Persons who have not yet reached the age of eighteen years shall be deemed minors, unless they are married. Marriage shall not constitute adulthood if the marriage has been annulled by a court owing to the absence of the guardian’s permission, which is necessary because of the lack of competency or minority.
Section 12/A.
(1) A minor shall be of partial capacity if he or she has reached the age of fourteen years and is not incompetent.
(2) Unless otherwise provided by law, the legal statement of a minor with partial capacity shall not be deemed valid without the subsequent approval or consent of that person’s legal representative. If and when minors of partial capacity become competent, they shall be entitled to make their own decisions concerning the validity of their pending legal statements.
(3) Minors of partial capacity shall, without the participation of their legal representatives, be entitled
a) to make legal statements of a personal nature for which they are authorized by legal regulation;
…
(5) Legal representatives shall be entitled to issue legal statements in the name of minors of partial capacity, except when the law requires the statement to be made by the minor with partial capacity himself/herself or when the statement concerns earnings acquired through work.
Section 12/B.
(1) Minors under the age of fourteen years are legally incompetent.
(2) Minors over the age of fourteen whom the court has placed in a conservatorship precluding legal competency shall also be legally incompetent. The procedure for placing a minor in conservatorship shall be governed by the provisions of Section 15. Conservatorship shall come into effect when reaching legal age, however, the minor loses his/her legal competency on the date on which the relevant decision becomes legally binding.
Section 12/C.
(1) Legal statements made by incompetent minors shall be null and void; their legal representatives shall proceed on their behalf.
…
Section 12/D.
As regards any statement of a legal representative that effects the person or property of a minor, it shall be made with a view to the minor’s opinion if he/she is of partial capacity, or if deemed legally incompetent but is not impaired mentally
Section 13.
…
(2) The approval of the guardian is not required for the validity of a legal statement that has been judged valid by a court or notary public.
Additional Resources and Links
The Constitutional Court of the Republic of Hungary
Embassy of Hungary, Washington D.C.
UNICEF
Endnotes
[1] This Document is available here and also as .pdf Document.
[2] Id. at 32 available here, and also as .pdf Document, and also as Word Document.
[3] Initial reports of States parties due in 1993: Hungary, U.N. Committee on the Rights of the Child, 32, U.N. Doc. CRC/C/8/Add.34 (1996) available here, and also as .pdf Document, and also as Word Document.
[4] Act XXXI of 1995 on the Amendment of Act IV of 1952 on Marriage, Family and Guardianship (Hung.), April 25, 1995 available here, and also as .pdf Document, and also as Word Document.
[5] Act XV of 2001 on the Amendment of Certain Acts Concerning Legal Competence and Conservatorship (Hung.), 12 A, April 17, 2001 available Hung_here, and also as .pdf Document, and also as Word Document.
[6]U.N. Doc. CRC/C/8/Add.34 (1996) at 32 available here, and also as .pdf Document, and also as Word Document.
[7] Act XV of 2001 at 12B-C available here, and also as .pdf Document, and also as Word Document.
[8] Concluding Observations of the Committee on the Rights of the Child: Hungary, U.N. Committee on the Rights of the Child, 18th Sess. at 11, U.N. Doc. CRC/C/15/Add.87 (1998) available here, and also as .pdf Document, and also as Word Document.
[9] Id. at 13 available Hung_here, and also as .pdf Document, and also as Word Document.
[10] A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA (1949. évi XX. Törvény) available at
[11] The translations in this document are not official translations.
[12]The Constitution of the Republic of Hungary (Act XX of 1949) available at http://www.oefre.unibe.ch/law/icl/hu00000_.html
[13] We were unable to locate the relevant international law in the Hungarian language.
[14] United Nations Convention on the Rights of the Child art. 12, Dec. 12, 1989, UN General Assembly Document A/RES/44/25, available at http://www.unhchr.ch/html/menu2/6/crc/treaties/crc.htm
[15] We were unable to locate the relevant legislation in the Hungarian language.
[16] Act XXXI of 1995 available here, and also as .pdf Document, and also as Word Document.
[17] Act XV of 2001 available here, and also as .pdf Document, and also as Word Document.