International child abduction can occur both when a child is taken abroad without the necessary consent and when they fail to return after an initially authorised trip. In both situations, urgent questions arise: which State must intervene, what habitual residence means, how much elapsed time matters, and what reasons can prevent repatriation?
I will explain how the 1980 Hague Convention operates and what changes in relations between European Union Member States. Above all, I want to clarify the difference between the return proceedings and the custody lawsuit: the former serves, as a rule, to restore the situation prior to the unlawful removal; the latter decides with whom the child will live and how parental responsibilities will be exercised.
When the transfer or failure to return is unlawful
Not every move abroad is an abduction. Article 3 of the Convention requires that the removal or retention breaches rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the breach. Those rights must also have been actually exercised, or would have been so exercised but for the removal or retention.
The right of custody, in this context, also includes the power to participate in choosing the child's place of residence. Therefore, an abduction can also be committed by the parent with whom the child predominantly lives, if the other retains the right to concur in the decision to move them permanently to another country. A prior custody judgment is not always necessary, because the right may derive directly from the applicable law.
The failure to return can become unlawful after a permitted departure. If a parent authorises a three-week holiday, this does not normally amount to consent to permanently relocate the child. Therefore, the content of communications, agreed dates, any authorisations, return tickets and any other element showing what movement was actually accepted are decisive.
The Convention concerns children who, prior to the breach, were habitually resident in a Contracting State and ceases to apply upon the child turning sixteen years of age. These conditions, together with the notion of custody, result from Articles 3, 4 and 5 of the institutional text of the 1980 Hague Convention.
Habitual residence does not automatically coincide with citizenship
The starting point is the child's concrete life, not the parents' passport or mere population registry entries. Habitual residence identifies the country in which, immediately before the removal or failure to return, the actual centre of their life was located. The stability of the stay, schooling, medical care, family and social relations, and daily organisation all matter.
The duration of the stay is important, but counting the months is not enough. A family may spend a period abroad for a temporary assignment while keeping their centre of life elsewhere; conversely, a relatively recent move may prove stable when the parents have closed their previous home, arranged schooling and set up the new family project without a deadline.
The parents' intention can contribute to the reconstruction, especially for a young child, but it must be weighed against the facts. If intentions diverge, it is not sufficient for one of them to declare that they considered the stay definitive or temporary. The child's situation must be reconstructed as a whole, with particular attention to the period immediately preceding the alleged abduction.
What the repatriation judge decides
The judge does not determine which parent is more suitable or definitively assign the child. They verify whether the conditions for return to the State of the previous habitual residence are met and whether any of the grounds allowing a refusal exist. Article 19 of the Convention specifies that the decision on return does not address the merits of the custody right.
Repatriation is therefore a return to a State, not an automatic handover to a parent. Following the return, the competent authority of that country will be able to decide on custody, placement, contact and future relocations, while also adopting necessary protective measures. For the same reason, the Hague proceedings should not be turned into a full lawsuit on the couple's history.
Not even a custody decision obtained in the State to which the child was taken resolves the issue on its own. Article 16 limits the possibility of ruling on the merits of custody until the return issue is clarified, while Article 17 excludes that the mere existence of a local decision justifies a refusal.
Why acting promptly is crucial
The Convention mandates urgent treatment. Article 11 provides that if the authority has not reached a decision within six weeks from the commencement of the proceedings, the applicant may request a statement of the reasons for the delay. However, this is not an absolute guarantee that the case will conclude within that period: locating the child, notifications, translations, hearings and essential investigations can affect actual timelines.
The first year alters a potential defence. If the application reaches the judicial or administrative authority of the State where the child is located before a year has elapsed from the removal or failure to return, Article 12 directs towards immediate return, without prejudice to the exceptions provided by the Convention. After one year, return remains possible, but may be refused if it is demonstrated that the child has settled in their new environment.
The lapse of the year does not automatically extinguish the right to request a return. Instead, it adds an evaluation issue that does not operate beforehand: the child's integration into the new reality. For this reason, it is risky to wait in the hope that informal dialogue will spontaneously produce a return, especially when there is no clear and concretely workable agreement.
Defences against return and their limits
Lack of exercise, consent and subsequent acquiescence
Return may be refused if the person seeking it was not actually exercising custody rights, or had consented to or subsequently acquiesced in the removal or retention. Actual exercise does not necessarily require daily cohabitation, but must be concrete: care, contact, decisions and participation in the child's life take on significance according to the circumstances.
Consent must refer specifically to the contested transfer. Authorizing a trip, signing a document for travel abroad or tolerating a short delay does not necessarily prove acceptance of a new place of residence. On the other hand, unequivocal communications or subsequent conduct incompatible with the request for return can support the defence of the opposing party.
Grave risk to the child
Mere hardship upon return is not sufficient. Article 13, letter b), considers the well-founded risk that repatriation would expose the child to physical or psychological harm or otherwise place them in an intolerable situation. Concrete facts linked to the consequences of return are required, not merely conflict between the parents, a preference for life in the new country, or better economic and educational opportunities.
Allegations of violence require particular attention. The Supreme Court of Cassation has noted that when a form of violence falling within the scope of the Istanbul Convention is alleged and established, the judge must determine whether and to what extent it affects the assessment required under Article 13, letter b). This principle is recalled in the institutional report of the Court of Cassation. Violence therefore cannot be ignored, but its effect on return depends on the proven facts, the risk to the child, and the protections concretely available.
The child's objection
The child's views may influence the decision when they possess sufficient age and maturity to make it appropriate to take account of those views. There is no numerical threshold beyond the general limit of sixteen years: the judge considers the capacity to understand the situation, the authenticity of the expressed position, and its subject matter.
A distinction must be drawn between an objection to return and a preference for a parent. Stating a wish to stay because a city, school or home is more appealing does not necessarily amount to opposing repatriation in the meaning provided by the Convention. Furthermore, any influence exerted by adults must be considered, without automatically presuming that the opinion is manipulated.
How to initiate the procedure and alternatives to consider
The Central Authority facilitates international cooperation. It can assist in locating the child, transmitting the application to the foreign authority, promoting voluntary return and facilitating the commencement of proceedings. For a child resident in Italy and taken or retained abroad, the Ministry publishes contact details and instructions on the page dedicated to abduction abroad.
The Central Authority route does not always preclude direct action before the competent authorities of the State where the child is located. The two options are not identical: central cooperation helps with transmission and coordination; direct action may immediately require local legal counsel and compliance with foreign procedural rules. The choice must avoid duplication and, above all, delays.
A voluntary return or mediation can reduce conflict, provided they do not compromise safety or delay the urgent application. A useful agreement must clearly regulate travel, escort arrangements, temporary housing, contact, and the subsequent custody lawsuit. If there is violence, pressure, risk of further relocation or severe imbalances, a negotiated solution may not be appropriate.
To set up the request, it is useful to reconstruct an essential timeline: previous residence, departure date, agreed return date, current location of the child, and the content of any consent given. Orders, agreements, school and health documents, and communications between parents serve only to the extent that they prove these decisive points.
If the destination State is not bound by the Convention in its relations with Italy, the Hague procedure cannot be applied automatically. Local law, any international agreements and available assistance instruments must then be verified. The child's Italian citizenship alone does not replace the conventional mechanism.
Additional rules in relations between European Union Member States
EU Regulation 2019/1111 supplements the Convention in proceedings between Member States bound by the Regulation. Articles 22 to 29 reinforce speed, the hearing of persons involved, the ability of a child capable of discernment to express their views, and the coordination of measures necessary to protect them.
The requested central authority must acknowledge receipt of the application within five working days. Except in exceptional circumstances, the first-instance court decides within six weeks from the submission of the application, and the upper court within six weeks from when it can examine the appeal. These are legal target times, not promises regarding actual duration, as shown in EU Regulation 2019/1111.
Grave risk does not necessarily lead to a refusal if adequate measures are arranged to protect the child after return. Moreover, a refusal based solely on grave risk or the child's objection may be followed, under the conditions of Article 29, by proceedings on the merits of custody in the State of previous habitual residence. An intra-EU non-return decision therefore does not always close the matter.
Under the framework applicable in Italy as of 17 September 2026, when a child resident abroad is taken to or retained in Italy, the Central Authority transmits the file to the public prosecutor's office at the juvenile court of the place where the child is located. The prosecutor initiates the proceedings; the applicant may participate, be heard, and appoint counsel. The return order is immediately enforceable, and an appeal to the Court of Cassation does not suspend its execution on its own, according to the procedure illustrated by the Ministry of Justice.
Frequently asked questions
Is a custody judgment already issued required?
Not necessarily. The right of custody protected by the Convention can derive directly from the law of the State of habitual residence, as well as from a decision or an agreement in force. However, it must be shown that it included the right to participate in choosing the residence and that it was actually exercised, or would have been but for the abduction.
Does authorising the trip prevent requesting repatriation?
No, if the consent was limited to a holiday or a stay with a return date. The application can concern the subsequent unlawful retention. The answer changes when permanent relocation is proven to have been accepted, or when subsequent conduct shows unequivocal acceptance of the failure to return.
Can I take action if more than a year has already passed?
Yes, the one-year period is not a forfeiture term. After that period, however, the judge must also consider any integration of the child into the new environment, if demonstrated. Before the year elapses, this specific defence does not operate, while the other exceptions provided by the Convention remain applicable.
Can the child decide not to return?
Their views may be decisive, but they are not an automatic veto. The judge considers age, maturity, the authenticity of the objection, and the reasons expressed. They must also distinguish a genuine objection to return from a simple preference for a school, a city, or one of the parents.
Does domestic violence always prevent repatriation?
Not automatically. Alleged and established violence must be assessed to determine whether return exposes the child to a grave physical or psychological risk or an intolerable situation. In intra-EU relations, protections concretely arranged and applicable after return also count.
Does the return order decide with whom my child will definitively live?
No. The Hague procedure establishes whether the child must return to the State of previous habitual residence. Custody, placement, contact, and authorisation for a future relocation are matters of the merits, normally decided by the competent authority of that State in separate proceedings.
How to navigate the first steps
Speed and precision must proceed together. It is important to avoid unilateral initiatives that could produce a second relocation, immediately gather information on the child's location, and clarify what consent was given. If you wish to examine the procedure applicable between the countries involved and distinguish the return application from the custody lawsuit, you can contact us.