If one parent has taken a child to another country without the other parent’s consent, or has failed to return the child after an agreed trip, one possible legal remedy is the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

However, the fact that a child is abroad does not automatically mean that the Convention applies. It is necessary to establish where the child habitually lived before the removal, whether the applicant held rights of custody, whether the removal or retention was wrongful, and whether the Convention is in force between the relevant States.

Russian case law shows that even a proven wrongful removal does not always result in the child’s return. Courts also examine whether there are grounds for refusal, such as the child’s settlement in the new environment, a grave risk of physical or psychological harm, the other parent’s consent, or the independent objections of a sufficiently mature child.

The 1980 Hague Convention provides a special procedure for the return of a child who has been wrongfully removed to, or wrongfully retained in, another country. Its main purpose is to restore the situation that existed before one parent unilaterally changed the child’s country of residence.

In such proceedings, the court does not determine:

• which parent is the better caregiver;
• with whom the child should live permanently;
• what contact arrangements should be put in place;
• who is to blame for the family conflict.

The court decides a narrower question: whether the dispute concerning the child’s residence and upbringing should be determined in the State of the child’s habitual residence. Accordingly, return under the Hague Convention does not necessarily mean handing the child directly to the applicant. The primary issue is the child’s return to the relevant State.

Several conditions must be met before the Convention can apply.

The Child Is Under 16The 1980 Convention ceases to apply once the child reaches the age of 16.

The child’s age and the speed with which the application is made are therefore critically important.

The Child Was Habitually Resident in Another State

The court determines the child’s habitual residence immediately before the alleged wrongful removal or retention. Habitual residence is not necessarily the country of:

• the child’s nationality;
• the child’s formal registration;
• the child’s birth;
• the location of the parents’ property.

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

• where the child lived on a regular basis;
• 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 the country;
• whether the stay was intended to be permanent or temporary.

The Removal Breached the Other Parent’s Rights of Custody

The applicant must have held rights of custody and must have been exercising those rights, or would have exercised them but for the child’s removal or retention.

Rights of custody may arise:

• automatically by operation of law;
• under a court order;
• under an administrative decision;
• under a legally binding parental agreement.

A separate court order determining the child’s residence is not always required.

The Convention Is in Force between the Two States

It is not enough for both countries to appear in the general list of Contracting States. Where a State acceded to the Convention at a later date, the Convention may apply in its relations with another State only if that accession has been accepted.

In every case, it is therefore necessary to verify:

• whether the Convention is in force between the specific pair of States;
• whether it was in force on the date of the child’s removal or retention.

Russia has been a party to the Convention since 2011. However, the Convention mechanism does not operate in all of Russia’s relations with States that are formally parties to the Convention.

A wrongful removal occurs when one parent takes the child to another State in breach of the other parent’s rights of custody. For example, a parent may:

• secretly take the child abroad;
• change the child’s country of residence without agreement;
• present the journey as a short trip while planning in advance not to return;
• act in breach of a court order or parental agreement.

For the purposes of the Convention, it is not enough to ask whether the child was formally entitled to cross the border. A notarised consent to travel may show permission for a holiday or a specific trip, but it does not necessarily amount to consent to a permanent change in the child’s residence.

Wrongful retention occurs where the child initially travelled lawfully but was not returned after the agreed period. For example, the parents may have agreed that the child would spend one month abroad with the father. At the end of the trip, the father announces that the child will remain with him.

The date of wrongful retention may be:

• the agreed return date;
• the date on which one parent expressly refused to return the child;
• the point at which it became clear that a temporary stay had been converted into permanent residence.

Consent to a holiday, school break, medical treatment or temporary education is not the same as consent to relocation.

Yes. The absence of a registered marriage does not prevent the Hague Convention from applying. It is necessary to establish:

• whether legal parenthood has been recognised;
• what rights the applicant held;
• whether the applicant had the right to participate in decisions about the child’s residence;
• whether the applicant was actually exercising parental rights.

The rights of an unmarried parent are determined under the law of the State of the child’s habitual residence.

Not always. The right to participate jointly in decisions concerning the child’s residence may arise directly by operation of law. Therefore, the absence of a prior court order does not in itself mean that the other parent is unable to seek the child’s return.

At the same time, court orders and agreements may help prove:

• the scope of rights of custody;
• the child’s place of residence;
• existing contact arrangements;
• a prohibition on changing the child’s residence;
• the absence of consent to relocation.

The Convention provides for cooperation between Central Authorities. In Russia, the Central Authority is the Ministry of Education of the Russian Federation.

A parent may:

• apply to the Central Authority of the State of the child’s habitual residence;
• apply to the Central Authority of the State where the child is located;
• apply directly to the competent court;
• instruct a lawyer in the State where the child is located.

Central Authorities may assist with:

• locating the child;
• transmitting documents;
• exchanging information;
• facilitating voluntary return.

However, an application to a Central Authority does not always replace court proceedings or the work of a local lawyer.

The documents required will depend on the countries involved and the circumstances of the case. It is usually advisable to prepare:

• the child’s birth certificate;
• documents proving legal parenthood;
• court orders and parental agreements;
• evidence of the child’s place of residence;
• school or nursery records;
• medical records;
• housing documents;
• correspondence between the parents;
• tickets and travel information;
• a notarised consent to travel, if one was issued;
• evidence of the agreed return date;
• messages showing a refusal to return the child;
• information about the child’s whereabouts;
• photographs and copies of the child’s identity documents.

The most important task is to present a coherent picture of the child’s life before the removal. A passport or formal registration alone is usually insufficient.

The applicant must establish:

• The child’s habitual residence before the removal or retention.
• The applicant’s rights of custody.
• The actual exercise of those rights.
• A breach of those rights as a result of the removal or retention.
• The date on which the breach occurred.
• That the Convention applies between the two States.

The other party may rely on one or more grounds for refusing return, but those grounds must be supported by evidence.

The one-year period is particularly important. It is calculated from the date of the wrongful removal or retention until the commencement of return proceedings.

Where proceedings are commenced within one year, the Convention starts from the principle of prompt return, subject to the specified exceptions.

Where more than one year has passed, return may still be sought. However, the court may additionally consider whether the child has become settled in the new environment. Negotiations between the parents should therefore not completely replace legal action.

The court may refuse return if it is established that:

• the applicant was not actually exercising rights of custody;
• the applicant consented to the removal or retention;
• the applicant later acquiesced in the situation;
• there is a grave risk of physical or psychological harm;
• return would otherwise place the child in an intolerable situation;
• the child objects to return and has reached an age and degree of maturity at which the child’s views should be taken into account;
• more than one year has passed and the child has become settled in the new environment;
• return would be inconsistent with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

These circumstances do not operate automatically. Conflict between the parents, disruption to the child’s routine or a close emotional bond with the parent who removed the child will not necessarily amount to a grave risk.

In Russia, these cases are considered under Chapter 22.2 of the Code of Civil Procedure. An application cannot be filed in any district court. Special territorial jurisdiction applies: depending on the federal district, the application must be brought before one of the courts designated by law.

The proceedings must involve:

• a public prosecutor;
• the guardianship and custody authority.

The law provides for an expedited timetable. In some cases, a foreign parent may participate by videoconference.

A counterclaim seeking a determination of the child’s residence cannot be brought within the return proceedings. The court decides the return issue and does not determine the custody dispute on the merits.

Return to Kazakhstan

The father collected the child from nursery and took the child from Kazakhstan to Russia without the mother’s consent. The child had lived in Kazakhstan with the mother and sisters for five years, attended nursery, was preparing to start school and received medical care there.

The child’s Russian nationality and subsequent stay in Russia did not change the child’s habitual residence. The court ordered the child’s return to Kazakhstan.

Return to Romania

The child had lived with the mother in Romania since birth. The father, who was working in Russia under a fixed-term contract, changed the child’s country of residence without the mother’s consent.

The court took into account Romanian court decisions and the temporary nature of the father’s stay in Russia. The child was ordered to return to Romania.

Return to Ukraine after a Initial Refusal

The first-instance court refused the mother’s application, finding that the child’s habitual residence in Ukraine had not been proved. The appellate court established that the child had lived there with the mother, attended childcare institutions, received medical care and maintained family connections.

The refusal was set aside and the child was ordered to return.

France Was Not the Child’s Habitual Residence

The mother travelled to France shortly before giving birth in order to receive medical care. She was there on a short-term visa and retained strong ties with Russia. There was no evidence that the parents intended to settle permanently in France. The court found the stay to be temporary and refused return.

The Applicant Did Not Hold Rights of Custody

The father sought the child’s return to Switzerland. However, before the mother’s departure, a Swiss court had deprived him of parental responsibility and rights of custody. The mother had the sole right to determine the child’s residence. The court refused return because the applicant’s rights had not been breached.

The Child Had Become Settled in Russia

The father sought the child’s return to Israel more than two years after the removal. The child had been living in Russia with the mother and relatives, attended nursery, spoke Russian and had an established social environment. The court found that the child had become settled and refused return. Settlement is considered as a separate ground only after the one-year period has expired.

Return to Belgium Created a Grave Risk

The court found that the mother could face criminal proceedings and might be unable to accompany the children. The evidence also showed a strong attachment to the mother, a risk of serious psychological trauma and concerns about the father’s treatment of the children. Return was refused.

The Court Took the Child’s Views into Account

In one case, a girl who was nearly 15 strongly objected to returning to Spain. The court considered her position independent and mature. Her younger sister was closely attached to her, and the court also considered the potential harm caused by separating the siblings. Return of both children was refused.

In another case, an appellate court refused the return of a 10-year-old girl to Germany, finding that her position was consistent, reasoned and sufficiently mature.

However, a young child’s wishes will not always justify refusal. The objections of a child under six to returning to Estonia were not considered sufficiently independent or mature.

The Poland Case

The first-instance court ordered the child’s return to Poland, but the appellate court set the order aside. The Polish courts had determined that the child should live with the mother and had restricted the father’s rights. The mother could not remain in Poland after her residence permit expired.

The appellate court concluded that return could leave the child without proper parental care.

The Hong Kong Case

The child had lived with both parents in Hong Kong for several years. The mother first took the child to Thailand and then to Russia. Courts in Hong Kong and Thailand had recognised Hong Kong as the child’s habitual residence. In Thailand, the parents concluded a settlement providing for the child’s return, but it was not complied with.

Russian courts at first instance and on appeal ordered the child’s return. However, the cassation court set those decisions aside and remitted the case for reconsideration.

The cassation court required the lower courts to examine further:

• whether the mother could accompany the child;
• her immigration position;
• the risk of criminal prosecution;
• the child’s attachment to the mother;
• the consequences of separation;
• the child’s settlement in the new environment;
• the risk of psychological harm;
• whether the child’s views should be ascertained.

The cassation court did not decide that return should be refused. It held that the lower courts had failed to determine all legally relevant circumstances.

Yes. Even after court proceedings have begun, the parents may move to negotiation or family mediation.

In one case, the father sought the return of the child to France. During the proceedings, the parents concluded a notarised agreement dealing with:

• the child’s residence;
• contact arrangements;
• child maintenance;
• citizenship issues;
• the exercise of parental responsibility;
• the involvement of relatives in the child’s life.

The applicant then withdrew the claim and the proceedings were terminated.

Where there is a risk that the child may be hidden, moved within Russia or taken to a third country, the applicant may ask the court to impose interim measures.

The court may:

• prohibit any change in the child’s place of stay;
• temporarily restrict the child’s departure from Russia;
• adopt other measures necessary to secure enforcement of the future judgment.

In some Russian cases, the order prohibiting a change of residence specified the exact address at which the child was to remain until the proceedings ended.

The absence of the 1980 Convention does not necessarily mean that the child cannot be returned. It is necessary to consider:

• whether the 1996 Hague Child Protection Convention applies;
• whether there is a bilateral treaty;
• whether a decision can be obtained in the State of the child’s habitual residence;
• whether that decision can be recognised in the State where the child is located;
• whether direct proceedings may be brought before the foreign court;
• whether urgent protective measures are available;
• whether negotiation or international family mediation is possible.

In such cases, it is important to assess not only whether a judgment can be obtained, but also whether it can realistically be enforced.

• Establish the exact date of removal or non-return.
• Record in writing that there was no consent to relocation.
• Preserve correspondence, tickets and documents.
• Determine the child’s habitual residence.
• Establish the scope of rights of custody.
• Check whether the Convention applies between the countries.
• Identify the child’s address.
• Contact the Central Authority or a local lawyer.
• Prepare the court application.
• Consider whether interim measures are required.

Can a child be returned if the child is a Russian citizen?

Yes. Nationality does not by itself determine habitual residence and does not prevent return to another State.

Is the other parent’s notarised consent required?

A notarised consent may be important evidence, but the broader question under the Convention is whether there was consent to changing the child’s country of residence.

Can a child be returned after one year?

Yes. However, once one year has passed, the court may consider whether the child has become settled in the new country.

Does the court decide which parent the child should live with?

No. The Hague court decides whether the child should be returned to the State of habitual residence. The substantive custody dispute is considered separately.

Can the child’s views justify refusal?

Yes, where the child has reached an age and degree of maturity at which the child’s views can be regarded as independent and informed.

Can a parent participate in Russian proceedings from abroad?

In some cases, participation by videoconference is possible. The arrangements must be agreed with the court.

A child may legally be returned under the 1980 Hague Convention where the child is under 16, was habitually resident in another State before the removal, the applicant held and exercised rights of custody, and the Convention applies between the relevant countries.

However, contemporary Russian practice reveals a significant gap between the formal structure of the Convention and the outcomes of its application. While return applications were granted in approximately one third of the cases covered by the 2016–2018 Supreme Court review, no positive return decisions are visible among the published decisions of the Tverskoy District Court for 2024–2025.

The few cases from 2023 recorded as granted or partially granted appear to be exceptions. The public case cards also do not reveal whether those outcomes concerned the child’s physical return or only access rights.

A parent seeking the return of a child from Russia should therefore assess the prospects realistically.

From the outset, the application must address not only the wrongfulness of the removal, but also habitual residence, rights of custody, absence of consent, the time elapsed, the child’s settlement, the child’s views and any alleged grave risk.

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