What to Do When the Other Parent Takes Your Child Abroad Without Consent
What to Do When the Other Parent Takes Your Child Abroad Without Consent
This is one of the most difficult situations we encounter in family law practice. The child is abroad, the other parent is not answering the phone – or has made it clear they have no intention of coming back. The first hours and days matter enormously. That is why it is worth knowing what to do before this happens, or what to do immediately when it already has.
Table of Contents
- What is parental abduction?
- The Hague Convention – what it offers and when it applies
- When can you file an application?
- How to file an application for the child’s return
- What the application contains and what documents are needed
- How the proceedings unfold
- When can a court refuse to order the return?
- What if the country of abduction is not a party to the Convention?
- Costs
- FAQ
What Is Parental Abduction?
The first question clients ask in these cases is almost always the same: “Can it really be abduction if the child’s own parent did it?”
Yes. In legal terms, parental abduction occurs in two situations: when a child is taken from their place of habitual residence without the consent of the other parent who holds parental authority, or when a child is kept abroad beyond the period for which the other parent gave consent – for example after a holiday or a visit that was supposed to be temporary.
Contrary to what many parents assume, having parental authority does not entitle you to unilaterally relocate a child abroad. If both parents hold full parental authority, every significant decision concerning the child – including a change of residence to another country – requires both parents’ agreement. Without that agreement, the departure becomes unlawful under international law.
The Hague Convention – What It Offers and When It Applies
The primary legal instrument in these cases is the Convention on the Civil Aspects of International Child Abduction, concluded at The Hague on 25 October 1980. It currently applies between more than 100 states, including all European Union member states, the United States, Canada, Australia and many others. The up-to-date list of contracting states is worth checking directly on the website of the Hague Conference on Private International Law at hcch.net – it changes as new states accede.
The Convention serves two purposes: securing the prompt return of a child to the state from which they were wrongfully removed, and ensuring that rights of access to a child living abroad are respected.
A separate note for cases involving EU member states: alongside the Hague Convention, Council Regulation (EU) 2019/1111 of 25 June 2019, known as Brussels II ter, applies here. It has been in force since 1 August 2022 and replaced the earlier Brussels II bis regulation. Brussels II ter supplements and modifies the Hague procedure in relations between EU member states – it introduces stricter time limits for handling applications and additional mechanisms for enforcing orders. In practice, intra-EU cases can move faster than those involving non-EU countries.
One important caveat remains: the Convention only operates between states that are parties to it. If the child has been taken to a country that is not on that list, the process becomes significantly more difficult. More on that further below.
When Can You File an Application?
To use the Hague Convention mechanism, four conditions must all be met.
The child’s age – the child must be under 16. The Convention simply does not apply to older children.
Wrongfulness of the removal – the departure or retention must violate the rights of custody being exercised by the other parent at the time of the removal.
Jurisdiction – both the country the child was taken from and the country they were taken to must be parties to the Convention.
Time – and this is the point many parents underestimate. An application filed within one year of the abduction obligates the court to order the child’s return. After that year has passed, the court also considers whether the child has already settled into the new environment – and the chances of securing a return drop significantly. A year passes faster than it seems, especially when informal negotiations with the other parent are dragging on in the background.
How to File an Application for the Child’s Return
There are two routes.
Through the Central Authority – in Poland this is the Ministry of Justice, Department of International Cooperation and European Law. The application is submitted to the Polish Ministry, which forwards it to the Central Authority in the country where the child is located. This route is free of charge, provides support with preparing documents and is the most commonly used option.
Directly to a foreign court – possible and sometimes faster, but it requires knowledge of local procedures and usually involves working with a lawyer in that country.
In the vast majority of cases we recommend the first route. The exception is where particular circumstances favour going directly to a foreign court – for example when the child’s exact whereabouts are known and speed is critical.
What the Application Contains and What Documents Are Needed
The application should include identifying information about the applicant, the child and the person who removed or retained them, the child’s date of birth, the grounds for requesting the return, and any available information about where the child is currently located.
Useful attachments include: certified copies of court orders concerning parental authority or contact arrangements, the child’s birth certificate, photographs of the child and the other parent, and a certificate on Polish family law in force (obtainable from the Ministry of Justice).
All documents submitted abroad must be translated into the official language of the relevant country – this is required by Article 24 of the Convention. The translations must be sworn translations. Documents translated by the applicant personally or using an online tool will be rejected. The cost of translations is borne by the applicant – this is one of the few expenses in this procedure, since the Hague proceedings are in principle free of charge.
The more complete the documentation from the outset, the more smoothly the entire process tends to run.
How the Proceedings Unfold
Once the Polish Central Authority forwards the application to the Central Authority in the country where the child is located, the case is referred to the competent court. The court schedules a hearing, examines whether the conditions for applying the Convention are met, considers any objections raised by the other party and issues its decision.
Under Article 11 of the Convention, judicial or administrative authorities must act expeditiously. If a decision has not been reached within six weeks of the application being received, the applicant or the Central Authority of the requested state may ask for a statement of the reasons for the delay. In practice these deadlines are not always met – but the mechanism itself creates real pressure for prompt handling of the case.
In intra-EU cases, Brussels II ter introduces additional time limits and oversight mechanisms for the conduct of proceedings, which in practice can accelerate the process compared to cases involving non-EU countries.
If the court orders the child’s return and the parent who removed the child refuses to comply, enforcement measures can be applied. In most cases, the presence of engaged state authorities and the determination of the other parent is enough to prompt voluntary compliance with the order.
When Can a Court Refuse to Order the Return?
The Convention provides a narrow list of exceptions – a court may refuse to order the return in four situations.
Settlement of the child – when more than a year has passed since the abduction and the child has already settled into the new environment.
Rights of custody not actually exercised – when the applicant was not actually exercising rights of custody at the time of the removal, or had previously consented to or subsequently acquiesced in the removal or retention.
Grave risk of harm – when there is a grave risk that the child’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. This is the most frequently invoked ground by the parent who removed the child. Courts interpret it narrowly, however, and require specific documented evidence – a bare assertion is not sufficient.
The child’s objection – when 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.
It is worth knowing that the grounds for refusal are interpreted restrictively. The Convention’s starting assumption is that the child should be returned – refusal is the exception.
What If the Country of Abduction Is Not a Party to the Convention?
The situation becomes significantly more complicated. There is no single standard procedure – each case requires an individual approach.
Examples of countries that are not parties to the Convention include India, most African countries and parts of Asia. Before taking any steps, it is worth verifying the current status of the relevant country at hcch.net – the list of contracting states is kept up to date.
The options available include: seeking assistance from the Polish consul in the country where the child is located, initiating court proceedings directly in that country (which requires a local lawyer), relying on bilateral legal assistance treaties if Poland has concluded one with the country in question, or pursuing international mediation.
That last option tends to be underestimated. In cases where the formal route is blocked or likely to take a very long time, mediation can lead to an agreement faster than any court proceedings. Not always – but it is worth considering alongside other steps rather than leaving it as a last resort.
Costs
Proceedings under the Hague Convention are in principle free of charge – the applicant does not bear court costs, as provided by Article 26 of the Convention. Expenses to budget for include translations of documents, a possible lawyer in the country where the child is located, and travel costs. Many states that are parties to the Convention provide free legal assistance to applicants from abroad – it is worth checking this before incurring costs.
FAQ
Can I file an application if I do not have a court order on parental authority? Yes. The Hague Convention protects rights of custody arising from the law itself – not only from a court order. If both parents hold parental authority by operation of law and one of them took the child abroad without the other’s consent, the wrongfulness condition may be met even without a formal court order.
What if the other parent claims they had my consent for the trip? This is a common argument in these proceedings. That is precisely why any consent given for a child to travel abroad should be formulated precisely – with a specific return date. Blanket consent or consent given verbally is hard to challenge, but equally hard for the other side to prove.
Can I go and collect the child myself? No. Taking the child by force against the will of the parent who is retaining them can be classified as a criminal offence in the country where the child is located. The correct course of action is legal proceedings.
How much time do I have to file an application? One year from the abduction is the threshold beyond which the procedure becomes significantly harder. In practice the sooner you act the better – every week of inaction reduces the chances of a successful outcome.
Does the Convention apply if the child has dual nationality? Yes. The child’s dual nationality does not exclude the application of the Convention. What matters is the child’s place of habitual residence before the abduction, not their citizenship.
I am a foreign national and my child has been kept in Poland. Does the Convention work both ways? Yes. Poland is a party to the Convention and its mechanisms work in both directions. The Central Authority in Poland is the Ministry of Justice – that is where the application should be directed.
I do not speak Polish well. Can I still use this procedure from abroad? Yes. The application can be submitted through the Central Authority in your own country, which will coordinate with the Polish Ministry of Justice. You do not need to navigate Polish legal proceedings alone – having a lawyer in Poland who can represent you and communicate with the authorities on your behalf makes the process significantly more manageable.
Do you need legal help with a parental abduction case involving Poland? 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 circumstances and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For legal 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