How to prepare an application for the return of a child under the Hague Convention

The abduction of a child abroad by one parent is a situation that turns life upside down. The scale of the problem is growing alongside the increase in international relationships and the greater mobility of modern society. When such an event occurs, the key legal instrument is the Hague Convention – and the effectiveness of its application depends largely on how quickly and how well the application for the child’s return is prepared.

Table of contents

1. Where to file the application for the child’s return
2. What the application must contain
3. What documents to attach
4. Formal requirements – language and time limit
5. What happens after the application is filed
6. The most common mistakes when filing the application
7. FAQ

Where to file the application for the child’s return

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (in force in Poland since 1 November 1992) gives the applicant two options (Articles 8 and 29 of the Convention).

The first – and most commonly recommended – is to file the application with the central authority of the state in which the applicant lives. In Poland, the central authority is the Ministry of Justice, Department of International Cooperation and European Law. The Ministry takes on the task of communicating with the central authority of the state where the child is located, which significantly simplifies the entire procedure for a parent already dealing with enormous stress.

The second option is to file the application directly with the competent court of the state in whose territory the child is being wrongfully retained or to which the child has been wrongfully removed. This route requires familiarity with local procedures and typically involves retaining a lawyer in the country to which the child has been taken.

The same dual-track approach applies to an application for the protection of rights of access – where such an application is filed instead of, or alongside, an application for the child’s return.

What the application must contain

Under Article 8 of the Hague Convention, an application for assistance in securing the return of a child should contain the following elements.

The identity of the applicant. A copy of an identity document should be attached, together with documents confirming the family relationship with the child (for example, an excerpt from the child’s birth certificate).

The identity of the child. It is essential to provide as complete information as possible, including a recent photograph and a detailed physical description – this can significantly speed up the process of locating the child.

The child’s date of birth. This may seem obvious, but providing an incorrect date of birth can delay the entire proceedings.

The identity of the person alleged to have removed or retained the child. Any known contact details should be provided – place of work, relatives or friends abroad, addresses – anything that may help establish where the child is being kept more quickly.

The grounds on which the applicant relies in seeking the child’s return. This is the most critical element of the application. It must be shown that the applicant was actually exercising parental responsibility before the removal, and that the removal or retention took place without the applicant’s consent and in breach of the law of the child’s place of habitual residence.

Information about the child’s whereabouts. The more detail the better – an address, a telephone number, information about the school the child is attending since the removal.

What documents to attach

A well-prepared application goes beyond the minimum required by the Convention. It is worth supplementing it with the following: certified copies of any court orders or agreements relating to parental responsibility; a certificate confirming how parental responsibility is regulated in the state of the child’s habitual residence (in Poland, such a certificate can be issued by the Ministry of Justice); photographs documenting the relationship between the applicant and the child over the years; correspondence confirming the absence of consent to the departure or its intended temporary character (text messages, emails); school and medical records relating to the child’s time in Poland; and airline tickets or other travel documents if the date and details of departure are known.

In our experience, it is precisely the relational documentation – photographs from school events, certificates from educational institutions, correspondence – that can prove decisive when it is necessary to establish that Poland was the child’s actual place of habitual residence before the removal.

Formal requirements – language and time limit

Language. Documents are prepared in Polish and then translated into the official language of the state in which the child is located (Article 24 of the Convention). It is advisable to use certified translators – although the Convention does not make this an absolute requirement, unprofessional translations can lead to misunderstandings and delays in the foreign proceedings.

Time limit. The application should be filed as quickly as possible. Under Article 12 of the Convention, the period from the date of removal to the date of receipt of the application should not exceed 12 months. After one year has elapsed, the court may decline to order the return of the child if it finds that the child has become settled in its new environment. This is one of the most significant deadlines in the entire process – delay, even where motivated by a hope of reaching an amicable resolution, can have consequences that cannot be undone.

What happens after the application is filed

Once the application has been correctly filed, a decision on the return of the child should be made within six weeks of the date of receipt. This deadline is not always met – procedures vary significantly between countries, and the proceedings become more complex where the abducting parent raises the defences available under Article 13 of the Convention (including serious risk of harm to the child, or the child’s own objections expressed with sufficient maturity).

Two important principles are worth remembering. First – during the Hague proceedings, courts in the state where the abducted child is located cannot rule on the question of parental responsibility. This prevents the abducting parent from quickly obtaining a favourable custody order in the country to which the child has been taken. Second – proceedings under the Convention do not give rise to court costs for the applicant. The applicant bears only the costs of retaining a lawyer (where they choose to do so) and of translating the documents.

The most common mistakes when filing the application

Incomplete information about the child’s whereabouts. A general statement (“they went to Germany”) is not sufficient – the more precise the information, the faster the child can be located.

No evidence of the actual exercise of parental responsibility. The fact of being a parent is not enough in itself. The court expects documentation confirming that real care was being exercised before the removal.

Filing the application too late. Waiting in the hope of an amicable resolution may result in the one-year time limit under Article 12 of the Convention being exceeded – with consequences that cannot be reversed.

Incomplete documentation. The absence of important documents weakens the applicant’s position and may extend the proceedings.

Poor quality translations. Unprofessional translations lead to misunderstandings and delays in the foreign proceedings.

FAQ

Can the application be filed directly with a foreign court? Yes – Article 29 of the Convention gives the applicant the right to apply directly to the competent court of the state where the child is located. In practice, however, the route through the Ministry of Justice is simpler, particularly where the applicant does not speak the language and is unfamiliar with the procedures applicable abroad.

What if the abducting parent claims the child is at risk in Poland? Article 13(b) of the Convention allows a court to refuse to order return if there is a grave risk that the child’s return would expose them to physical or psychological harm or otherwise place the child in an intolerable situation. This exception is interpreted narrowly – the mere risk arising from the conflict between the parents is not sufficient. The burden of proof lies with the parent opposing the return.

What if the child objects to returning? Article 13 of the Convention provides that a court may refuse to order return where the child objects to being returned and has reached an age and degree of maturity at which it is appropriate to take account of their views. This is an individual assessment – the court considers the child’s age and maturity and the circumstances in which the objection was expressed.

Is the Hague Convention procedure free of charge? Yes, in terms of court costs – the applicant does not bear court fees in proceedings under the Convention. Costs do include retaining a lawyer (where the applicant chooses to do so) and having documents translated.

What if the country to which the child has been taken is not a party to the Hague Convention? The Convention applies only between states that have ratified it. Where a child has been taken to a non-signatory state, the Hague procedure does not apply. In that situation, other available measures must be considered – including diplomatic channels and proceedings before a Polish family court. Legal advice should be sought as quickly as possible.

How long do the proceedings take? The Convention envisages a six-week period for a decision to be made. In practice, proceedings frequently take longer – several months, and in contested cases potentially a year or more. Filing a complete and well-prepared application at the outset is the single most important factor in shortening this timeframe.

What is the difference between a return application and an access application under the Convention? A return application seeks to have the child physically returned to the state of their habitual residence. An access application seeks to protect or enforce the rights of contact of the parent who has been separated from the child. Both can be pursued through the central authority mechanism. In some cases both applications are filed simultaneously – for example, where immediate return appears unlikely and maintaining contact in the meantime is a priority.

Has your child been taken abroad without your consent? Act immediately – 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