2004. évi LXVIII. törvény
a gyermekek feletti felügyeleti jogot érintő határozatok elismeréséről és végrehajtásáról, valamint a felügyeleti viszonyok helyreállításáról szóló, 1980. május 20. napján Luxemburgban kelt európai Egyezmény kihirdetéséről1
(A Magyar Köztársaság megerősítő okiratának letétbe helyezése 2004. február 4. napján megtörtént, az Egyezmény a Magyar Köztársaság vonatkozásában 2004. június 1. napján hatályba lépett.)
1. § Az Országgyűlés a gyermekek feletti felügyeleti jogot érintő határozatok elismeréséről és végrehajtásáról, valamint a felügyeleti viszonyok helyreállításáról szóló, 1980. május 20. napján Luxemburgban kelt európai Egyezményt (a továbbiakban: Egyezmény) e törvénnyel kihirdeti.
2. § Az Egyezmény eredeti angol nyelvű szövege és hivatalos magyar nyelvű fordítása a következő:
„European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children
The member States of the Council of Europe, signatory hereto,
recognising that in the member States of the Council of Europe the welfare of the child is of overriding importance in reaching decisions concerning his custody,
considering that the making of arrangements to ensure that decisions concerning the custody of a child can be more widely recognised and enforced will provide greater protection of the welfare of children,
considering it desirable, with this end in view, to emphasise that the right of access of parents is a normal corollary to the right of custody,
noting the increasing number of cases where children have been improperly removed across an international frontier and the difficulties of securing adequate solutions to the problems caused by such cases,
desirous of making suitable provision to enable the custody of children which has been arbitrarily interrupted to be restored,
convinced of the desirability of making arrangements for this purpose answering to different needs and different circumstances,
desiring to establish legal co-operation between their authorities,
have agreed as follows:
Article 1
For the purposes of this Convention:
a) child means a person of any nationality, so long as he is under 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed;
b) authority means a judicial or administrative authority;
c) decision relating to custody means a decision of an authority in so far as it relates to the care of the person of the child, including the right to decide on the place of his residence, or to the right of access to him;
d) improper removal means the removal of a child across an international frontier in breach of a decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State; improper removal also includes:
(i) the failure to return a child across an international frontier at the end of a period of the exercise of the right of access to this child or at the end of any other temporary stay in a territory other than that where the custody is exercised,
(ii) a removal which is subsequently declared unlawful within the meaning of Article 12.
Part I
Central authorities
Article 2
(1) Each Contracting State shall appoint a central authority to carry out the functions provided for by this Convention.
(2) Federal States and States with more than one legal system shall be free to appoint more than one central authority and shall determine the extent of their competence.
(3) The Secretary General of the Council of Europe shall be notified of any appointment under this Article.
Article 3
(1) The central authorities of the Contracting States shall co-operate with each other and promote co-operation between the competent authorities in their respective countries. They shall act with all necessary despatch.
(2) With a view to facilitating the operation of this Convention, the central authorities of the Contracting States:
a) shall secure the transmission of requests for information coming from competent authorities and relating to legal or factual matters concerning pending proceedings;
b) shall provide each other on request with information about their law relating to the custody of children and any changes in that law;
c) shall keep each other informed of any difficulties likely to arise in applying the Convention and, as far as possible, eliminate obstacles to its application.
Article 4
(1) Any person who has obtained in a Contracting State a decision relating to the custody of a child and who wishes to have that decision recognised or enforced in another Contracting State may submit an application for this purpose to the central authority in any Contracting State.
(2) The application shall be accompanied by the documents mentioned in Article 13.
(3) The central authority receiving the application, if it is not the central authority in the State addressed, shall send the documents directly and without delay to that central authority.
(4) The central authority receiving the application may refuse to intervene where it is manifestly clear that the conditions laid down by this Convention are not satisfied.
(5) The central authority receiving the application shall keep the applicant informed without delay of the progress of his application.
Article 5
(1) The central authority in the State addressed shall take or cause to be taken without delay all steps which it considers to be appropriate, if necessary by instituting proceedings before its competent authorities, in order:
a) to discover the whereabouts of the child;
b) to avoid, in particular by any necessary provisional measures, prejudice to the interests of the child or of the applicant;
c) to secure the recognition or enforcement of the decision;
d) to secure the delivery of the child to the applicant where enforcement is granted;
e) to inform the requesting authority of the measures taken and their results.
(2) Where the central authority in the State addressed has reason to believe that the child is in the territory of another Contracting State it shall send the documents directly and without delay to the central authority of that State.
(3) With the exception of the cost of repatriation, each Contracting State undertakes not to claim any payment from an applicant in respect of any measures taken under paragraph 1 of this Article by the central authority of that State on the applicant’s behalf, including the costs of proceedings and, where applicable, the costs incurred by the assistance of a lawyer.
(4) If recognition or enforcement is refused, and if the central authority of the State addressed considers that it should comply with a request by the applicant to bring in that State proceedings concerning the substance of the case, that authority shall use its best endeavours to secure the representation of the applicant in the proceedings under conditions no less favourable than those available to a person who is resident in and a national of that State and for this purpose it may, in particular, institute proceedings before its competent authorities.
Article 6
(1) Subject to any special agreements made between the central authorities concerned and to the provisions of paragraph 3 of this Article:
a) communications to the central authority of the State addressed shall be made in the official language or in one of the official languages of that State or be accompanied by a translation into that language;
b) the central authority of the State addressed shall nevertheless accept communications made in English or in French or accompanied by a translation into one of these languages.
(2) Communications coming from the central authority of the State addressed, including the results of enquiries carried out, may be made in the official language or one of the official languages of that State or in English or French.
(3) A Contracting State may exclude wholly or partly the provisions of paragraph 1.b of this Article. When a Contracting State has made this reservation any other Contracting State may also apply the reservation in respect of that State.
Part II
Recognition and enforcement of decisions and restoration of custody of children
Article 7
A decision relating to custody given in a Contracting State shall be recognised and, where it is enforceable in the State of origin, made enforceable in every other Contracting State.
Article 8
(1) In the case of an improper removal, the central authority of the State addressed shall cause steps to be taken forthwith to restore the custody of the child where:
a) at the time of the institution of the proceedings in the State where the decision was given or at the time of the improper removal, if earlier, the child and his parents had as their sole nationality the nationality of that State and the child had his habitual residence in the territory of that State, and
b) a request for the restoration was made to a central authority within a period of six months from the date of the improper removal.
(2) If, in accordance with the law of the State addressed, the requirements of paragraph 1 of this Article cannot be complied with without recourse to a judicial authority, none of the grounds of refusal specified in this Convention shall apply to the judicial proceedings.
(3) Where there is an agreement officially confirmed by a competent authority between the person having the custody of the child and another person to allow the other person a right of access, and the child, having been taken abroad, has not been restored at the end of the agreed period to the person having the custody, custody of the child shall be restored in accordance with paragraphs 1.b and 2 of this Article. The same shall apply in the case of a decision of the competent authority granting such a right to a person who has not the custody of the child.
Article 9
(1) In cases of improper removal, other than those dealt with in Article 8, in which an application has been made to a central authority within a period of six months from the date of the removal, recognition and enforcement may be refused only if:
a) in the case of a decision given in the absence of the defendant or his legal representative, the defendant was not duly served with the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange his defence; but such a failure to effect service cannot constitute a ground for refusing recognition or enforcement where service was not effected because the defendant had concealed his whereabouts from the person who instituted the proceedings in the State of origin;
b) in the case of a decision given in the absence of the defendant or his legal representative, the competence of the authority giving the decision was not founded:
(i) on the habitual residence of the defendant, or
(ii) on the last common habitual residence of the child’s parents, at least one parent being still habitually resident there, or
(iii) on the habitual residence of the child;
c) the decision is incompatible with a decision relating to custody which became enforceable in the State addressed before the removal of the child, unless the child has had his habitual residence in the territory of the requesting State for one year before his removal.
(2) Where no application has been made to a central authority, the provisions of paragraph 1 of this Article shall apply equally, if recognition and enforcement are requested within six months from the date of the improper removal.
(3) In no circumstances may the foreign decision be reviewed as to its substance.
Article 10
(1) In cases other than those covered by Articles 8 and 9, recognition and enforcement may be refused not only on the grounds provided for in Article 9 but also on any of the following grounds:
a) if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed;
b) if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child;
c) if at the time when the proceedings were instituted in the State of origin:
(i) the child was a national of the State addressed or was habitually resident there and no such connection existed with the State of origin,
(ii) the child was a national both of the State of origin and of the State addressed and was habitually resident in the State addressed;
d) if the decision is incompatible with a decision given in the State addressed or enforceable in that State after being given in a third State, pursuant to proceedings begun before the submission of the request for recognition or enforcement, and if the refusal is in accordance with the welfare of the child.
(2) In the same cases, proceedings for recognition or enforcement may be adjourned on any of the following grounds:
a) if an ordinary form of review of the original decision has been commenced;
b) if proceedings relating to the custody of the child, commenced before the proceedings in the State of origin were instituted, are pending in the State addressed;
c) if another decision concerning the custody of the child is the subject of proceedings for enforcement or of any other proceedings concerning the recognition of the decision.
Article 11
(1) Decisions on rights of access and provisions of decisions relating to custody which deal with the right of access shall be recognised and enforced subject to the same conditions as other decisions relating to custody.
(2) However, the competent authority of the State addressed may fix the conditions for the implementation and exercise of the right of access taking into account, in particular, undertakings given by the parties on this matter.
(3) Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating to custody is refused, the central authority of the State addressed may apply to its competent authorities for a decision on the right of access, if the person claiming a right of access so requests.
Article 12
Where, at the time of the removal of a child across an international frontier, there is no enforceable decision given in a Contracting State relating to his custody, the provisions of this Convention shall apply to any subsequent decision, relating to the custody of that child and declaring the removal to be unlawful, given in a Contracting State at the request of any interested person.
Part III
Procedure
Article 13
(1) A request for recognition or enforcement in another Contracting State of a decision relating to custody shall be accompanied by: