Child abduction across borders – what to do and how the Hague Convention works

Having a child taken abroad by the other parent is one of the most distressing situations a parent can face. Contact with the child is suddenly lost, and the legal complexity of the situation is compounded by geographical distance and the differences between legal systems. Is there an effective legal tool to get the child back? Yes – and it is called the Hague Convention.

Table of contents

1. What is the Hague Convention and what does it do?
2. When can you use the Hague Convention? Three conditions
3. How to file an application for the child’s return
4. What should the application contain?
5. When can a court refuse to order the child’s return?
6. Practical guidance for parents
7. FAQ

What is the Hague Convention and what does it do?

The Convention on the Civil Aspects of International Child Abduction, concluded at The Hague on 25 October 1980, is the key instrument of international law governing situations where one parent takes a child to another country without the other parent’s consent or in breach of a court order. In Poland the Convention has been in force since 1 November 1992.

The Convention serves two main purposes: it enables a parent to demand the prompt return of a child who has been wrongfully removed or retained abroad, and it protects the right of contact with the child – including where contact has been made impossible by the child being taken to another country.

What is less widely known is that the Convention can be used not only by the parent with day-to-day care of the child but also by a parent who holds contact rights only – where the exercise of those contact rights has been frustrated by the child being taken abroad.

The Convention has 88 signatories, but it applies only as between states that have ratified it. Where a child has been taken to a country that is not a party to the Convention, the process of recovering the child is considerably more complex and requires different legal approaches.

When can you use the Hague Convention? Three conditions

All three of the following conditions must be satisfied simultaneously.

First – the child’s age. The Convention protects only children who have not yet reached the age of 16 (Article 4 of the Convention). Once that age has been passed, the Hague procedure does not apply.

Second – the wrongfulness of the removal. The child must have been taken or retained in breach of the other parent’s rights of custody – whether those rights arise directly from statute or from a court order governing the exercise of parental authority. It is also essential that those rights were actually being exercised at the time of the removal or retention. A parent who had been absent from the child’s life for a prolonged period may find this condition difficult to establish.

Third – movement between contracting states. The removal or retention must involve the child being taken from one state that is a party to the Convention to another state that is also a party (Article 4 in conjunction with Article 35 of the Convention). If the removal occurred entirely within a single country – for example, one parent took the child and is hiding with them in a different city within Poland – the Convention does not apply.

How to file an application for the child’s return

An application for the child’s return can be made in two ways. The first route, which is generally simpler for the applicant, is to submit the application to the central authority of the state in which the applicant is resident. In Poland, the central authority is the Ministry of Justice, Department of International Cooperation and Human Rights, which assists in preparing and transmitting the application to the relevant authority abroad.

The second route is to apply directly to the competent court of the state in which the child is being retained following the wrongful removal or retention (Articles 8 and 29 of the Convention). This option can be faster but requires familiarity with local procedures.

The Convention provides that proceedings for the child’s return should be conducted without delay – a decision should be issued within six weeks of the application being received (Article 12 of the Convention). In practice this deadline is sometimes exceeded, particularly in contested cases.

One significant advantage of the Hague procedure is worth highlighting: courts in the country where the abducted child is present cannot rule on parental authority while return proceedings are pending. The abducting parent cannot therefore obtain a favourable custody order in the new country while the Hague case is ongoing.

The Hague procedure is in principle free of charge for the applicant – no court fees are payable. The applicant bears only the cost of instructing a lawyer and, where necessary, obtaining translations of documents.

What should the application contain?

An effective application for the child’s return should include: information identifying the child (full name, date of birth, last place of habitual residence); details of the parent who took the child; the legal grounds on which the return is sought; all available information about the child’s current whereabouts and the identity of the person with whom the child is believed to be staying; and documents establishing the right of custody – for example, a certified copy of the child’s birth certificate and any relevant court order.

In our experience, it is very helpful to attach recent photographs of the child, information about their appearance and any distinguishing features, as well as any contact details for the other parent and their family. The more concrete information is provided, the faster the child can be located.

When can a court refuse to order the child’s return?

The Convention provides for several exceptions to the obligation to order the child’s return. These are worth knowing, because they are sometimes invoked without genuine justification by the abducting parent.

Failure to exercise custody rights (Article 13(a) of the Convention) – the court may refuse to order return where the applicant was not actually exercising custody rights at the time of the removal or retention, or where the applicant had consented to or subsequently acquiesced in the removal or retention.

Grave risk of harm to the child (Article 13(b) of the Convention) – return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. This is the most frequently invoked exception, often without genuine evidential support. Courts are increasingly scrutinising such claims and require concrete evidence.

Objection by a mature child (Article 13 of the Convention) – where the child has reached an age and level of maturity at which it is appropriate to take their views into account, the court may decline to order return.

One year has passed and the child has settled (Article 12 of the Convention) – where more than a year has elapsed since the removal or retention and the child has become settled in their new environment, the court may decline to order return. This is one of the most important reasons why swift action is essential.

Practical guidance for parents

Act immediately – every day of delay weakens your legal position, and after one year from the abduction the prospect of the child’s return becomes legally uncertain.

Gather documents that establish that you were actively exercising parental authority before the abduction: school reports bearing your signature, medical records, photographs from regular meetings, records of collecting the child from school or nursery. This is the evidence that demonstrates the custody right was genuinely being exercised.

If you are concerned that abduction may be imminent, you can apply to the court for an order prohibiting the child from leaving the country, and ensure that the child’s passport is kept in a secure place where the other parent cannot access it.

Contact a lawyer specialising in family law as soon as possible after the abduction. Coordinating action between lawyers in two countries and preparing the documentation correctly can determine the outcome of the case.

FAQ

Does the Hague Convention apply if the child was taken to Ukraine or Belarus? Ukraine is a party to the Hague Convention, so the procedure applies in principle. Belarus is not a party – in that situation other legal tools are required, including bilateral legal assistance treaties. Every case requires individual verification of the relevant country’s status.

What if the parent who took the child says it was “just a holiday”? This is one of the most common scenarios. The key question is whether the child has been retained abroad in breach of custody rights – even if the trip began as a temporary visit. Where a parent fails to return with the child after the agreed date and refuses to come back, this constitutes wrongful retention within the meaning of the Convention.

Can the Hague procedure fail? Yes – a court may refuse to order return if one of the grounds under Article 13 of the Convention is established. This is why proper preparation of the application and actively countering the other party’s arguments – particularly those relating to alleged risk of harm to the child – is so important.

How long do return proceedings take? The Convention provides for a six-week deadline for a decision. In practice proceedings typically take between several weeks and several months, and in contested cases can take longer. Filing a complete and well-prepared application promptly significantly speeds up the entire process.

Can I file an application myself without a lawyer? Formally yes – the Ministry of Justice provides assistance with filing. In contested cases, however, where the abducting parent raises defences under Article 13 of the Convention, the assistance of a lawyer with expertise in both Polish family law and the procedures of the country to which the child has been taken is invaluable.

I am a foreign national whose child has been taken to Poland – does this procedure work in reverse? Yes. The Hague Convention operates symmetrically – it applies equally where a child has been wrongfully brought to Poland. In that case, the central authority in your country of residence would assist in submitting an application to the Polish Ministry of Justice, which would then refer the matter to the competent Polish court. Polish courts handle incoming Hague cases under the same rules.

What if the other parent claims the child would be at risk if returned – how do courts assess this? The grave risk exception under Article 13(b) is interpreted narrowly by courts in most contracting states, including Poland. General allegations of poor parenting or difficult living conditions are not sufficient. The risk must be grave, specific, and substantiated by concrete evidence. Courts increasingly expect expert psychological assessments and are alert to cases where this exception is invoked strategically rather than genuinely.

Has your child been taken abroad, or are you concerned this may happen? Do not delay. Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl