International child abduction within the European Union – what does the child return procedure look like?

Introduction

Parents whose child has been taken abroad often wonder whether the country to which the child has been taken affects the possibility of the child’s prompt return. In practice, the most common question is whether the procedure differs when the child has been abducted to a Member State of the European Union, such as Germany, France, Belgium, or Spain, compared to a situation where the child has been taken to a third country outside the European Union.

If you have not yet familiarized yourself with what international child abduction or retention is and how the child return procedure works, we have explained these issues in more detail in the article “International Child Abduction or Retention and the Hague Convention.“

Does the Hague Convention still apply if a child is abducted to a European Union Member State?

Yes. The fact that a child has been taken to a Member State of the European Union does not mean that the provisions of the 1980 Hague Convention cease to apply. All EU Member States are parties to the Convention, which therefore remains the primary legal basis for determining whether a wrongful removal or retention of a child has occurred.

This means that, first of all, it is necessary to determine:

1. where the child’s habitual residence was before the departure;
2. whether the other parent had rights to participate in decisions concerning the child’s place of residence;
3. whether the removal or retention of the child took place without the required consent.

It is the answers to these questions that make it possible to determine whether, in a given case, a wrongful removal or retention of a child has occurred within the meaning of the Hague Convention.

If you would like to find out when the removal or retention of a child is considered wrongful, please also read our article: “When Will the Removal or Retention of a Child Be Considered Wrongful Under the Hague Convention?“

However, if the child has been taken to a country that is not a party to the Hague Convention, entirely different legal mechanisms may apply. We discuss how to seek the return of a child in such a situation in the article: “How to Recover a Child Taken to a Country Outside the Hague Convention?“

What changes if the child has been abducted to a European Union Member State?

If a child has been abducted to another Member State of the European Union, the 1980 Hague Convention continues to apply. However, it is not the only legal instrument governing such proceedings. The Convention is supplemented by Council Regulation (EU) 2019/1111, which introduces additional measures intended to improve the handling of cases between EU Member States.

In practice, this means, above all, that:

1. the central authorities of the Member States are required to cooperate promptly, including by immediately exchanging information and taking steps aimed at ensuring that the case is examined;
2. the courts of EU Member States may cooperate directly with one another, in particular by exchanging information concerning the child’s situation and the measures that may ensure the child’s safety upon return;
3. if the court refuses the return of the child on the grounds that the child’s return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation, or if it upholds the child’s objection to returning, the proceedings do not automatically come to an end. The court or a party forwards the relevant information and documents to the court of the State in which the child had his or her habitual residence before the wrongful removal, enabling that court to further determine issues relating to parental responsibility. That court may then issue a decision concerning custody of the child, including one providing for the child’s return;
4. decisions concerning parental responsibility issued in one EU Member State benefit from simplified rules on recognition and enforcement in the other Member States, making them easier to enforce in practice.

It should, however, be emphasized that the provisions of European Union law do not result in the automatic return of the child. It remains necessary to conduct proceedings under the Hague Convention and to establish that a wrongful removal or retention of the child has occurred. The court also continues to examine whether exceptional circumstances exist that justify refusing the child’s return. We discussed in greater detail when, despite a wrongful removal, a court may refuse to order the child’s return in the article “Can a Court Refuse to Order the Return of a Child in an International Child Abduction Case to the Country of the Child’s Habitual Residence?“

Summary

Cases involving the abduction of a child to another Member State of the European Union require prompt and well-considered action. Although the primary legal instrument remains the 1980 Hague Convention, European Union legislation introduces additional mechanisms designed to facilitate cooperation between the courts and authorities of the Member States and to increase the effectiveness of the proceedings.

It should be remembered, however, that the mere fact that a child has been taken to an EU country does not mean that the child’s return will automatically be ordered. Each case requires an individual assessment, including determining the circumstances of the child’s departure, the scope of parental rights, and whether the conditions justifying the child’s return exist or whether exceptional circumstances weigh against it.

In such cases, time is of crucial importance. Promptly taking the appropriate steps, properly preparing the necessary documents, and conducting the proceedings professionally can significantly contribute to protecting the parent’s rights and effectively safeguarding the best interests of the child.