A child may travel abroad entirely lawfully: for a holiday, to visit relatives, for medical treatment, temporary education, or to spend time with the other parent. The parents agree on the destination, the duration of the trip, and the date of return. However, one parent then announces that the child will remain abroad.

In this situation, an initially lawful trip may turn into the wrongful retention of a child. In international family law, wrongful retention is considered alongside wrongful removal and, in certain circumstances, may justify an application under the 1980 Hague Convention.

In international child disputes, it is important to distinguish between two situations.

Wrongful removal occurs when a child is taken to another country from the outset without the other parent’s necessary consent and in breach of that parent’s rights of custody.

Wrongful retention occurs when the child travelled abroad lawfully but was not returned to the State of habitual residence after the agreed period expired.

For example, the parents agreed that the child would spend the summer holidays with the father in France and return to Russia on 25 August. The mother consented to the trip. However, after 25 August, the father refused to return the child. From that point, the temporary stay abroad may amount to wrongful retention.

Accordingly, in a wrongful removal case, the key date is usually the date on which the child crossed the border. In a wrongful retention case, the key date is the date on which the lawful trip should have ended or the date on which the parent expressly refused to return the child.

One of the most common mistakes in these cases is to assume that consent to travel automatically authorises the child to remain abroad permanently.

It is necessary to determine precisely what the other parent agreed to:

• a tourist trip;
• a holiday with the other parent;
• temporary medical treatment;
• education for a limited period;
• residence abroad until a specific date;
• permanent relocation.

Where consent was limited by the purpose and duration of the trip, the other parent is not entitled to convert a temporary stay into permanent residence unilaterally.

Even notarised consent to travel does not always amount to consent to changing the child’s country of residence. The court will consider not only the wording of the document, but also the entire history of the parents’ arrangements: correspondence, tickets, school plans, immigration documents and the parties’ conduct before and after the trip.

The precise date of wrongful retention can be legally significant. It may affect applicable time limits and whether the other parent can argue that the child has become settled in the new country.

The retention may become wrongful:

• after the agreed return date;
• when one parent expressly refuses to return the child;
• when one parent communicates an intention to remain abroad;
• when the parent’s conduct makes it clear that the child will not be returned.

For example, the child was due to return on 1 September. However, on 20 August, the other parent stated that the child had already been enrolled in a foreign school and would not be returning. In that situation, the date on which wrongful retention began would have to be assessed in light of the correspondence, the prior arrangements and all other relevant circumstances.

It is therefore important to preserve not only the return tickets, but also all correspondence before and after the trip.

In disputes concerning the non-return of a child, evidence of the parents’ original agreement is especially important.

Relevant evidence may include:

• return tickets;
• hotel or accommodation bookings for a limited period;
• correspondence confirming the agreed travel dates;
• notarised consent specifying the countries and period of travel;
• the school calendar;
• the child’s enrolment in a school or nursery in the previous country;
• medical appointments scheduled after the expected return date;
• arrangements concerning the handover of the child;
• messages from the other parent confirming when the child would be returned;
• evidence that the child’s belongings, bedroom and ordinary life remained in the previous country.

A combination of evidence is usually the most persuasive. A return ticket alone can be cancelled. However, tickets together with correspondence, school records, medical appointments and everyday circumstances may show that permanent relocation was never intended.

Silence does not always amount to consent. However, prolonged inaction creates serious risks.

The parent retaining the child may argue that:

• permanent relocation had been discussed in advance;
• the other parent had effectively agreed;
• the other parent did not object for a long period after the non-return;
• the parties continued communicating as though the new residence had been accepted;
• the other parent helped enrol the child in a foreign school or obtain documents.

It is therefore not enough merely to disagree internally. The objection should preferably be expressed clearly and in writing.

Consent to the removal or subsequent acquiescence in the new situation may be relied upon as a ground for refusing the child’s return under the Hague Convention.

Notarised consent may be important evidence, but it must be considered together with the other documents.

It may specify:

• particular countries;
• the travel period;
• the accompanying person;
• the purpose of the trip;
• a broad period, sometimes extending until the child reaches adulthood.

Even broadly worded permission to travel does not always amount to consent to permanent relocation.

For example, permission for repeated travel to several countries until a specified date may authorise travel, but not give the other parent the right to relocate the child unilaterally and stop returning the child.

On the other hand, where a parent participated in obtaining a residence permit, signed documents for enrolment in a foreign school and approved a long-term lease, it may be easier for the other side to argue that relocation was agreed.

In international child abduction cases, the central issue is usually not the child’s nationality, but the child’s habitual residence immediately before the removal or retention.

The court examines the child’s actual life, including:

• where the child regularly lived;
• where the child attended school or nursery;
• where the child received medical care;
• what language the child used;
• where the child’s relatives and friends were located;
• how long the family lived in each country;
• whether the trip was temporary;
• what the parents had planned before the journey.

If the child normally lived in Russia and travelled abroad for a two-week holiday, the short stay in another country would not usually change the child’s habitual residence.

However, in cases involving extended travel, temporary employment abroad or unclear arrangements between the parents, habitual residence may become the central issue in the entire dispute.

Where the child has not been returned from a State in relation to which the 1980 Hague Convention applies, the parent may seek the child’s return to the State of habitual residence.

As a rule, it is necessary to establish that:

• the child is under 16;
• before the wrongful retention, the child was habitually resident in another State;
• the retention breached the applicant’s rights of custody;
• the applicant was actually exercising those rights;
• the Convention was in force between the relevant States.

Return proceedings do not finally determine with whom the child should live. Their purpose is to return the child to the State whose courts are competent to determine the substantive custody dispute.

For more information about the requirements of the Convention, the application procedure, grounds for refusal and Russian court practice, see “How to Return a Child under the 1980 Hague Convention.”

The first step is to identify the date on which the child’s stay abroad became wrongful.

You should then:

1. Preserve all correspondence and documents concerning the agreed trip.
2. Request the child’s return in writing.
3. Record that there was no consent to permanent relocation.
4. Determine the child’s habitual residence.
5. Check which international treaties apply between the States.
6. Establish the child’s exact or likely address.
7. Collect school, medical and other records showing the child’s life before the trip.
8. Contact the Central Authority or a lawyer in the country where the child is located.
9. Consider whether urgent court or interim measures are necessary.
10. Avoid relying solely on prolonged verbal negotiations.

In international child abduction cases, the one-year period from the date of wrongful retention is particularly important.

An application for return may still be made later. However, after one year, the other parent may argue that the child has become settled in the new country.

Over time, new circumstances develop:

• the child starts attending a new school;
• the child learns the language;
• the child forms social relationships;
• the child becomes accustomed to the new home;
• contact with the left-behind parent may become less frequent.

Negotiations and attempts to reach agreement should therefore not completely replace legal action.

The parent retaining the child may argue that the child does not want to return. However, such a statement does not automatically justify refusal.

The court will consider:

• the child’s age;
• the child’s degree of maturity;
• whether the position is independent;
• the reasons for refusing to return;
• the possible influence of the parent with whom the child is staying;
• the duration of the stay in the new country;
• whether there is pressure or a conflict of loyalty.

The child’s views may be taken into account where the child has reached an age and degree of maturity at which the position can be regarded as independent and informed.

The statement “I do not want to return” is not usually sufficient on its own.

In return proceedings, the court generally does not decide which parent is better or with whom the child should live permanently.

The court examines:

• whether there was consent to permanent relocation;
• when the temporary trip became wrongful retention;
• where the child was habitually resident;
• whether the other parent’s rights of custody were breached;
• whether the applicant was exercising those rights;
• whether the Hague Convention applies;
• whether there are grounds for refusing return.

If the child is returned, the question of the child’s future residence, parental responsibility and contact arrangements must be determined separately by the competent court.

Is It Child Abduction If the Child Travelled Abroad with the Other Parent’s Consent?

Yes. An initially lawful trip may become wrongful retention if the child is not returned after the agreed period.

Is a Return Ticket Enough to Prove That the Trip Was Temporary?

A return ticket is important evidence, but it is better to submit it together with correspondence, school records, medical appointments and other evidence showing that permanent relocation was not intended.

Can Consent Be Withdrawn after the Child Has Travelled Abroad?

It is important to distinguish between consent to a particular trip and consent to a permanent change of residence. Where permission was limited to temporary travel, the parent may require the child’s return once the agreed period has expired.

What If No Exact Return Date Was Agreed?

The court will examine the purpose and expected duration of the trip, the parents’ correspondence, tickets, school arrangements, immigration documents and the point at which it became clear that the child would not be returned.

Does the Child’s Russian Nationality Matter?

Nationality alone does not determine habitual residence and does not exclude the use of an international return mechanism.

Can the Parents Try to Reach an Agreement First?

Yes. However, negotiations should not result in prolonged inaction. At the same time, the parent should preserve evidence, record the absence of consent and assess the applicable legal time limits.

A lawful trip abroad may become wrongful retention where one parent refuses to return the child after the agreed period.

The following issues are especially important:

• the exact or expected return date;
• the scope of the other parent’s consent;
• correspondence before and after the trip;
• evidence that the stay was temporary;
• the child’s habitual residence;
• the speed of the left-behind parent’s response.

Consent to a holiday, school break, medical treatment or temporary education is not the same as consent to permanent relocation. However, that distinction must be supported by documents and consistent conduct.

This material does not constitute legal advice and is published for informational purposes only.