According to information found on the Hungarian Government Portal, a Website of the Hungarian Prime Minister's Office, the legal provision that determines the practice, procedure and criteria for child protection and guardianship is Act XXXI of 1997 on the "protection of children and the administration of guardianship" (Hungary 2002a). Referred to as the Child Protection Act (ibid.) it is based upon the Hungarian Constitution and Act LXIV of 1991 (Hungary 12 Nov. 2002), which ratified the United Nations Convention on Children's Rights (CEM 14-16 June 1999) and was amended in 2002 (UN 8 May 2002).

The Hungarian child protection system functions to guarantee provisions assisting families in raising children in families through a basic child care system and provides a specialised child protection system for children who fall out of family care for one reason or another (UN 8 May 2002). The child welfare service is responsible for detecting risks to children, determining the causes of these risks, initiating the intervention of authorities and developing proposals for child removal and return (SEELINE 6 Nov. 2002). The decision to remove a child is the responsibility of the Public Guardianship Authority based upon information provided by child welfare service and the town clerk (Hungary 19 Nov. 2002b).

The Hungarian government describes the Child Protection Act in Hungary as having

the fundamental objective of assuring that a system of benefits providing equal opportunities for every child in need be created, and where the activities of the system of institutions supporting, or replacing if required, the family build on each other. The Child Protection Act focuses on the formation of a sustainable system concentrating on family care, and also places emphasis on the efficient co-operation of municipal, state and non-governmental organisations.

The maintenance of the child protection system is the responsibility of the state and of local governments.

In addition to cash benefits, it promotes the raising of children in the family through the child welfare basic benefits, which is the primary responsibility of local governments. The specialised child protection service provides care to children who cannot be raised in their families, substituting the family or approximating the family model, providing the care appropriate for the child and the needs of the child while respecting the rights of children. This has introduced significant changes in the tasks of county governments.

To promote the above objectives, the Child Protection Act consistently separates service provision and regulatory function. The regulatory functions are distributed between the town clerk of the local government and the public guardianship authority. The regulatory tasks vested in the town primarily serve the purpose of prevention [permanent placement] and immediate measures (temporary placement), or facilitat[ing] the administration of the most common issues locally (e.g. the making of an affiliation statement).

The tasks and competencies requiring special professional expertise have been moved to the town public guardianship authorities.

The case descriptions cover the regulatory measures that fall within child protection care, which tasks are performed by the state through the town clerk of the local government and the local public guardianship authority (ibid. 19 Nov. 2002a).

The temporary removal of a child from a family home occurs only after the intervention of the child welfare services, and the town clerk and when it has been determined by the Public Guardianship Authority that the child's development in the family is in jeopardy (ibid. 19 Nov. 2002b). The duration of public custody lasts until the Public Guardianship Authority considers the family able to care for the child again (ibid.). According to the Hungarian government Website,

the public guardianship authority places the child with foster parents, or if this is impossible, in a children's home or other residential facility and appoints a guardian, as the parental rights of the parent of the child in temporary custody is suspended. The contact between child and parent must be assured.

If the public guardianship authority places the child in temporary custody, the child receives full board and assistance to the elimination of circumstances that endangered his development and to his return to the family environment.

The place of custody is determined based on the expert opinion of the special child protection service, but the reasonable opinion of the parent and the child must be taken into consideration.

The temporary custody arrangement must be reviewed annually, and if the reasons for the placement no longer exist, it must be terminated (ibid. 19 Nov. 2002b).

Where immediate action is needed, for instance if the child is left without supervision or the family environment seriously jeopardises the physical, intellectual, emotional or moral development of the child, the immediate placement of the child elsewhere is justified and necessary.

Serious jeopardy consists in such ill-treatment or neglect of the child that puts his life in immediate danger, or threatens significant and irreparable damage to his development.

The proceedings may be initiated by:

1.

the town clerk,

2.

the public guardianship authority,

3.

the court,

4.

the police,

5.

the prosecutor's office,

6.

a penal institution (ibid. 19 Nov. 2002c).

In addition, a Hungarian delegate responding to a question posed at the meeting of the UN Committee on the Rights of the Child stated that "doctors, teachers and institutions concerned with defending children's interests [are] obliged to report their findings" with respect to proving corporal punishment -- illegal under Hungarian law -- is taking place in the family (UN 25 May 1998, para. 33). When immediate action must be taken to remove a child from a home, the modes of temporary placement in order of priority according to the Hungarian government are:

1. the other, separated parent, other relative or third person suitable for and willing to take care of the child,

2. foster parent,

3. children's home, residential institution.

From the beginning of the temporary placement, the right of the parent to provide care and education is suspended, but the rights of legal representation are not.

The duration of placement may not exceed 30 days except if an action has been initiated for the placement of the child, the alteration of placement or the termination of parental rights.

If ... temporary measures [are] taken by some party other than the public guardianship authority, the competent guardianship authority examines within 30 days if the temporary placement can be terminated or if an action is required.

In the course of the proceedings all those who had previously worked with the child must be given a hearing, and a survey of the environment must be conducted, to be followed by decision making (Hungary 19 Nov. 2002c).

With respect to permanent custody, the government Website also stated:

The public guardianship authority takes a child into permanent custody if he has no parent exercising parental rights and no guardian can be appointed because no one from the family or from among acquaintances undertakes the responsibility. This is also possible if the parent gave his consent to the adoption of his child without knowledge of the identity and personal data of the adoptive parents, that is, does not want to know the data of the adoptive parents.

Simultaneously with the taking of the child into permanent custody, the public guardianship authority places the child with foster parents, or if this is not possible, in a children's home or other residential institution, and appoints a guardian.

Children in permanent custody receive full care in the facility providing a home to assist adoption or other family substitute environment. The future care and education of the child is determined in an individual placement plan, which is approved by the public guardianship authority.

Permanent custody must be reviewed annually to determine if the designated place of care and the individual placement plan promotes the interest of the child.

Permanent custody is terminated if the child is adopted, or the court restores the supervisory rights of the parent, or the court places the child under the guardianship of someone else in a child placement proceeding (ibid. 19 Nov. 2002d).

A Hungarian official speaking before the United Nations General Assembly noted that a 2002 amendment to the Child Protection Act placed emphasis on adoptions as a means of family replacement in cases of permanent removal of children (UN 8 May 2002). A second study also noted that in the case of temporary placement, adoption could occur after one year if the Public Guardianship Authority determines that the family in question has not maintained regular contact or that the circumstances that had resulted in the removal were unchanged (SEELINE 6 Nov. 2002, Sec. 6). In addition, once an adoption is finalized, the custody, alimony rights, obligations and legal status of the birth parents ends (ibid.).

Concerning the equal application of child welfare laws and process, the Research Directorate was unable to find specific mention of discriminatory or unequal application of laws based on social strata or location among sources consulted. One 2001 report concerning social service availability for the elderly noted there were significant differences in social services, including child welfare, provision among districts in Budapest and it was not harmonized with the particular conditions of a district (EDE 2001, 2).

The Cultural and Press Attaché and Consul of the Hungarian Embassy in Ottawa stated in a telephone interview with the Research Directorate that biological parents are able to obtain the birth certificate records of children removed from their home by applying to the Public Guardianship Authority (21 Nov. 2002). Birth certificates may be released to a biological parent with a court order subsequent to a child's adoption, provided that consent has been received from the adoptive parents and if the child in question has reached the age of majority, from the child as well (ibid.). The Consul noted that the child may have been issued a new birth certificate reflecting their conditions after adoption; however, although the records may be sealed, the Public Guardianship Authority maintains copies of the original birth certificate (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Conference of European Ministers Responsible for Family Affairs (CEM). 14-16 June 1999. XXVI Session, Stockholm. "Towards a Child-Friendly Society National Reports: Hungary." (Centre for Europe's Children) http://eurochild.gla.ac.uk/Documents/CoE/Reports/ChildFriendly/Hungary.htm [Accessed 19 Nov. 2002]

Embassy of the Republic of Hungary. 21 November 2002. Telephone interview with the Consul, Cultural and Press Attache.

European Association for Directors of Residential Care Homes for the Elderly (EDE). 2001. Joseph Skulteti. "The Situation of Social Services Operated by the Local Authority of Budapest." http://www.ede-association.org/uk/ssi/doc/ungheria/bpszocellgb.doc [Accessed 19 Nov. 2002]

Hungary. Office of the Prime Minister. 19 November 2002a. Hungarian Government Portal. "Child Protection." http://www.ekormanyzat.hu/english?kateg=english":1569 [Accessed 19 Nov. 2002]

_____. 19 November 2002b. Hungarian Government Portal. "Placement of Children in Temporary Custody." http://www.ekormanyzat.hu/english?kateg=english":1571 [Accessed 19 Nov. 2002]

_____. 19 November 2002c. Hungarian Government Portal. "Temporary Placement of Children." http://www.ekormanyzat.hu/english?kateg=english":1572 [Accessed 19 Nov. 2002]

_____. 19 November 2002d. Hungarian Government Portal. "Taking Children into Permanent Custody." http://www.ekormanyzat.hu/english?kateg=english":1573 [Accessed 19 Nov. 2002]

Hungary. Parliamentary Commissioner for Civil Rights. 12 November 2002. Albert Takács. The Activities of the Parliamentary Commissioner for Human Rights in the Protection of the Civil Rights of Children in Hungary. (European Network of Ombudsmen for Children) http://www.ombudsnet.org/Ombudsmen/Hungary/Activities_01_02.htm [Accessed 19 Nov. 2002]

South Eastern European Women's Legal Initiative (SEELINE). 6 November 2002. Eniko Pap. "The Family Law in Hungary." http://www.seeline-project.net/FamilyLaw/HungaryFL.htm [Accessed 19 Nov. 2002]

United Nations General Assembly (UNGA). 8 May 2002. "Hungary. Statement by Mr. Imre Szakács State Secretary, Ministry of Youth and Sports at the Twenty-Seventh Session of the General Assembly on Children." http://www.un.org/ga/children/hungaryE.htm [Accessed 19 Nov. 2002]

United Nations Committee on the Rights of the Child. (UNHCHR). 25 May 1998. CRC/C/SR.456. "Summary Record of the 456th Meeting: Hungary." http://eurochild.gla.ac.uk/Documents/UN/StatePartyReports/SummaryRecord/HungarySR456.htm [Accessed 19 Nov. 2002]

Additional Sources Consulted

NEXIS

Internet sites including

British Council Hungary

Centre for Europe's Children (UK)

Commission on European Family Law

EUMAP

European Roma Rights Centre

European Social Welfare Information Network

Hungary. Parliamentary Commissioner's Office

National Institute for Family and Social Policy (in Hungarian)

TMC Asser Institute for Private and Public International Law, International Commercial Arbitration and European Law

World News Connection