How to recover a child taken to a country outside the Hague Convention?

Introduction

International child abduction is one of the most stressful and urgent situations parents may face. In most cases, the primary legal mechanism enabling the prompt return of a child to their country of habitual residence is the Hague Convention of 25 October 1980.

The Hague procedure was created specifically to prevent the unlawful removal or retention of children abroad and to ensure their prompt return. A detailed discussion of this procedure can be found in our article: “International child abduction or retention and the Hague Convention”.

In practice, however, more complex situations arise when a child is abducted to a country that is not a party to the Hague Convention, or when the child was removed from such a country. In such cases, the standard procedure does not apply, and recovering the child requires more complex, multi-track legal actions.

When does the Hague Convention not apply and what does this mean in practice?

Countries covered by the Hague Convention include, among others, Poland, Germany, France, Spain, the United Kingdom, and the United States. However, many countries still remain outside the Convention, particularly in parts of Asia, Africa, and the Middle East, or apply it only to a limited extent.

From the parent’s perspective, it is therefore essential to determine two issues:

• whether the country to which the child was taken is a party to the Hague Convention,
• whether the child’s country of habitual residence is also a party to the Hague Convention.

As a general rule, the Convention applies only when both states are parties to it (unless other international agreements apply).

It should be clearly emphasized that the lack of applicability of the Hague Convention does not mean that the removal of the child becomes lawful. Such conduct may still be unlawful. We discuss in more detail when child abduction or retention is considered unlawful in the article “When will child abduction or retention be considered unlawful under the Hague Convention?”.

The difference is that, in such situations, there is no uniform international mechanism obliging the state to which the child has been taken to act promptly. Consequently, the matter becomes a complex international dispute requiring parallel actions in different legal systems.

What options are available if the Hague Convention does not apply?

The inability to apply the Hague Convention does not mean that the parent is deprived of legal remedies. In practice, however, it is necessary to undertake several actions, often simultaneously, in different countries.

1. Proceedings before the courts of the country to which the child was taken

It is crucial to initiate proceedings in the country where the child is currently staying. For this purpose, it is necessary to determine how the legal system of that country classifies conduct involving the abduction or retention of a child by the other parent and whether any international agreements regulating this issue exist between the countries concerned.

2. Proceedings conducted in Poland

In cases concerning international child abduction outside the scope of the Hague Convention, it may be necessary to take action both in Poland and abroad. However, each case requires an individual analysis, particularly regarding applicable international agreements and the jurisdiction of the courts in the relevant country.

Under Polish law, parental child abduction does not always constitute a criminal offence. Therefore, appropriately selected legal actions concerning, among others, the child’s place of residence and the exercise of parental authority are of key importance.

In practice, taking prompt legal steps is essential both to protect the child’s situation and to increase the chances of securing the child’s return or restoring contact with the child. Due to the international nature of such cases, every situation requires an individually tailored legal strategy.

3. Diplomatic channels and consular assistance

In practice, actions undertaken through state authorities, including the Ministry of Foreign Affairs and consular offices, also play an important role. Their support primarily involves facilitating contact with local institutions and providing information about the legal system of the relevant country.

However, it should be emphasized that diplomatic actions are supplementary in nature and do not replace court proceedings.

Summary

Cases concerning the abduction of a child to a country outside the Hague Convention are among the most complex issues in family law practice. This is primarily due to the absence of a uniform procedure and clearly defined deadlines, which are crucial in proceedings conducted under the Hague Convention.

Proceedings in such matters usually take significantly longer, and their outcome largely depends on the domestic laws of the country where the case is being heard.

Nevertheless, it should be emphasized that child abduction outside the scope of the Hague Convention does not mean that no action can be taken. In such cases, time, a properly selected strategy, conducting proceedings both in the child’s former country of habitual residence and in the country to which the child was abducted, as well as proper legal preparation, are of key importance.