The Hague Child Abduction Convention at 45: Is the Prompt Return of a Child Still the Rule?

Forty-five years is a long time for any legal framework to hold together. It is an especially long time for an international treaty that depends on countries, courts, and government agencies to apply the same basic principles with discipline and urgency.

In March 2026, family law attorneys, judges, and government officials from across Europe and the United States gathered in Sofia, Bulgaria, to take stock of the Hague Convention on the Civil Aspects of International Child Abduction. 

The event, titled “The Hague Child Abduction Convention at 45: Lessons Learned, Judicial Dialogue, and the Way Forward,” was organized by the Family Law Commission of the Federation of European Bars (FBE) and the Attorneys’ Training Center in Sofia. Yordanka Bekirska, President of the FBE Family Law Commission, opened the proceedings and Philippe Lortie, First Secretary of the Hague Conference on Private International Law (HCCH), delivered the keynote.

Our managing partner, Alphonse F. Provinziano, was one of four featured speakers on the panel titled “The Limits of Discretion: Safeguarding the Architecture of the 1980 Convention.” He joined Carolina Marin Pedreño (UK), Alexandre Boiché (France), and Mayte Garcia (Spain). 

The broader event covered many issues, but this recap focuses mainly on the question at the center of that panel because it goes to the heart of what the Convention is supposed to do: When a child is wrongfully taken to another country, are courts still treating the obligation to send that child back as a firm rule? Or is the system slowly shifting toward so much flexibility that prompt return starts to feel optional?

For Alphonse, the trip to Sofia also carried a personal thread. He and Yordanka Bekirska had previously sat down to compare how California and Bulgaria handle international child custody cases, an exchange that made this later conversation especially meaningful.

The Child at the Center

Before getting into the legal debate, it helps to remember what these cases are really about.

When a child is taken from one country to another in violation of the other parent’s rights, the harm is immediate. The child’s schooling is disrupted. Their daily routine vanishes. Their relationships with the parent left behind, with extended family, with friends, with the life they knew, are severed without warning. The child may suddenly be living in a different language, a different legal system, and a different emotional reality with little or no say in what happened.

That human reality was part of the Sofia discussion as well. The event’s final session addressed the psychological impact of international child abduction, including the stress of being pulled between two parents in two countries, the shock of losing a familiar environment, and the need for judges, lawyers, and other professionals to think carefully about how children are protected throughout the process, not only after it ends.

As Alphonse reflected after the event, these cases can affect a child’s sense of stability, trust, and connection long after the litigation is over. At the same time, the discussion also recognized the other side of the story: when the Convention works as intended, it can help restore continuity and preserve meaningful relationships with both parents.

“It is easy to forget that international family law is not about countries,” Alphonse wrote after the event. “It is about children.”

Why the Convention Was Created

The Hague Convention on the Civil Aspects of International Child Abduction was concluded in 1980 to address a very specific problem. Parents were increasingly taking children across international borders and then trying to gain an advantage by forcing the custody dispute into a different country’s courts. The parent left behind often had no reliable process to get the child back and no meaningful way to return the case to the court that was supposed to handle it.

The Convention was designed to stop that pattern. Its basic logic is simple: if a child has been wrongfully removed from or retained away from the country where the child was habitually living, the child should usually be returned promptly so the courts there can decide custody. Return first, deal with custody later. 

That sequence is the backbone of the treaty because the Convention is not a custody treaty. It does not decide which parent should ultimately have custody or where the child should live long term. It is meant to correct the disruption caused by the wrongful removal and send the case back to the country that is supposed to decide those larger issues.

To make that system work, the Convention also created a network of Central Authorities in member countries to help locate children, encourage voluntary return, share information, and move proceedings forward.

The treaty also allows parents to raise certain limited defenses against a return order, including situations involving serious harm to the child.

What Was Being Questioned at 45

This was the core of the Sofia panel. Forty-five years in, the question is whether courts and institutions were still delivering what the treaty was built to deliver: a fast, focused return mechanism.

Fewer Children Being Sent Back

The data presented at the conference showed a troubling pattern. Published HCCH statistical studies show that the percentage of Hague cases that end with the child being returned has dropped steadily, from roughly 45–50% in 2008 to 30–35% in 2020 among cases that went all the way through court. That means more cases are ending with the child staying in the country they were taken to.

At the same time, parents opposing return have been raising the “grave risk” defense more often. A grave risk defense is an argument that returning the child would expose the child to serious physical or psychological harm. That defense exists for a reason. 

Some cases truly do involve abuse, domestic violence, or other serious danger. But the question raised at the panel was whether the growing use of these defenses, together with slower proceedings, is changing the way the Convention works in practice.

The concern raised at the panel: when delays in the court process, from drawn-out hearings or slow-moving institutions, start to shape outcomes, the treaty’s logic weakens. A system designed for fast, focused hearings loses something when cases drag on for months.

How a 2022 Supreme Court Ruling Changed the Picture

In the United States, a major part of this story is the Supreme Court’s 2022 ruling in Golan v. Saada (596 U.S. ___ (2022).

A mother took her child from Italy to the United States without the father’s consent. Italy was the child’s home country. A U.S. court found that returning the child would pose a serious risk of harm because of documented violence by the father. 

Before Golan, some courts felt they had to work through every possible safety measure that might make a return workable, even after finding serious danger. That could include things like counseling, financial protections, supervision, or orders from a foreign court. 

Golan changed that. The Supreme Court said a judge does not have to go through every possible workaround before deciding against return once serious risk has been found.

In simple terms, Golan gave judges more room to say no to a return when a child would be in danger. That is an important protection. The panel’s concern was not that the ruling was wrong, but that the freedom it created is being applied differently depending on where the case is filed. 

In some parts of the country, a finding of serious risk now effectively ends the case. In others, courts still look at safety measures, but with less rigor than before. The result is that the same case can produce different outcomes depending on the courtroom.

The Deeper Tension

The Convention’s defenses exist for serious reasons. Cases involving domestic violence, child abuse, armed conflict, or conditions that genuinely threaten a child’s safety are exactly the situations where the system should be willing to pause.

For families, the longer a case takes, the more a child settles into the new environment. The more a child settles, the stronger the argument becomes that sending them back would be harmful. Time itself becomes a factor that rewards the parent who moved. That dynamic is not what the Convention intended.

Protecting the Convention’s Core Design

Alphonse’s position was that the Convention only works if courts and institutions stay faithful to what the treaty was built to do. His presentation covered both the principles and the practical mechanics, starting with why prompt return is important and then working through how U.S. and California courts handle these cases in practice.

Prompt Return Has to Mean Something

The first point he emphasized was prompt return. In plain terms, the Convention is supposed to start from the idea that a child who was wrongfully taken or kept away should usually be sent back quickly. 

If a parent can gain an advantage just by crossing a border and waiting, the system starts rewarding the conduct it was created to prevent. Prompt return is not a technical preference. It is the backbone of the treaty.

A Hague Case Is Not a Custody Trial

Another point he emphasized was that Hague proceedings are not supposed to turn into full custody fights. This is where Article 19 comes in. 

A return hearing is not meant to decide which parent is better, where the child would be happier, or what final parenting arrangement should exist. It is meant to answer a narrower question: should the child be returned so the proper court can decide those issues there? 

Once return proceedings start absorbing broad best-interests arguments or custody-style analysis, the structure of the Convention begins to weaken.

In the United States, the System Is Built to Favor Return

Alphonse also highlighted how a Hague case works in the United States, because the burden of proof reflects what the Convention is trying to protect. The parent seeking return must first show that the child was wrongfully removed or retained. If that showing is made, the burden shifts to the parent opposing return to prove one of the recognized defenses. 

In most situations, that defense must be proved by a preponderance of the evidence, meaning it is more likely than not to be true. But for the most serious defense, grave risk of harm, U.S. law requires a higher standard: clear and convincing evidence. 

That structure reinforces the Convention’s basic design. Return is the starting point, and the exceptions must be proved.

How California Courts Handle the “Well-Settled” Defense

Alphonse also addressed how courts hearing Hague cases in California address the argument that a child has become so rooted in the new environment that returning them would be harmful.

This defense is only available if more than one year has passed since the wrongful removal and the parent opposing return can show the child is settled: enrolled in school, part of a community, and stable in their new life.

In California, courts take that argument seriously when the facts support it, but they do not treat it lightly. Alphonse pointed to Lozano v. Montoya Alvarez to explain an important part of the analysis: the one-year clock does not stop just because the child was concealed. Even so, concealment can still matter in a different way. 

A California court may look closely at whether a child who was moved around, kept out of sight, or living in unstable circumstances was ever truly well settled in the first place.

The passage of time can open the door to the well-settled defense, but it does not automatically prove it.

Enforcement Matters as Much as the Law Itself

The next point was that enforcement matters just as much as doctrine. A treaty on paper does not bring a child home by itself. Someone has to receive the application, locate the child, assess flight risk, get the case before a court quickly, coordinate with foreign authorities, and help enforce the result.

California has built a public and private framework around Hague cases that is unusual in the United States. The Attorney General’s Child Abduction Unit works with the U.S. State Department and local district attorneys, while private counsel also play a role on both sides of these cases. That structure is intentional. Hague cases are enforcement problems, time-sensitive cross-border matters in which delay or weak coordination can change outcomes.

The state has handled more incoming Hague cases than many countries. During the five-year period from 2007 through 2011, California received an average of 69 new incoming cases each year. In 2003 alone, California received 78 incoming cases. That was more than Canada, Australia, or France, and behind only Germany, Spain, and the United Kingdom. California’s caseload accounted for roughly 23 percent of all incoming Hague cases in the United States.

That volume means California courts and public agencies have had to confront these cases repeatedly, not occasionally. They have seen the procedural pressure points, the enforcement difficulties, and the real consequences of delay.

California’s experience with Mexico also gave Alphonse’s remarks practical weight. A large share of the state’s Hague caseload involves Mexico, which has forced California institutions to develop real operational experience with cross-border coordination, child recovery logistics, and execution of return orders. 

The Goal Was Not to Eliminate Discretion

One important point from the panel deserves to be stated plainly.

The issue was not whether judges should have discretion. Serious defenses exist for a reason. Courts need room to protect children in cases involving real danger.

The concern was more structural. If discretion becomes so broad that return is treated as just one option among many, then the Convention stops functioning the way it was designed to function.

In other words, the problem is not that defenses exist. The problem is when the rule itself begins to lose force.

Alphonse’s conclusion was direct. U.S. courts, and California courts in particular, are still enforcing the Convention’s core structure. Prompt return is still the starting point. Defenses are still treated as exceptions. But the pressure is real. 

Grave risk findings are more frequent than they were a decade ago. Post-Golan, courts have more room to deny return once risk is found. And in a system built for speed, delay continues to be the single biggest threat to the treaty’s effectiveness.

What Judges, Lawyers, and Central Authorities Should Do

One of the things that makes Hague cases different from ordinary custody disputes is that everyone involved has a defined and limited role. The Convention was designed that way on purpose.

Judges hearing these cases are expected to move fast. The treaty says the court should use the fastest process available, and if no decision is reached within six weeks, the parent seeking return can demand an explanation for the delay.

The judge’s job is specific: decide if the child was wrongfully removed, and if so, order the child returned. The judge is not supposed to weigh in on which parent is better or where the child would be happiest long-term. That is for the custody court in the child’s home country to determine.

Lawyers are expected to stay focused too. They present evidence about where the child was living, what custody rights existed, whether those rights were breached, and whether any recognized defense applies. They also need to help clients understand that a Hague case is not the place to tell every painful chapter of the relationship unless it directly relates to the treaty question before the court.

Central Authorities and related public agencies help the system work in practice by locating children, sharing information, encouraging voluntary return where possible, and helping proceedings get started.

And underneath all of the process, there is a human dimension. These cases involve frightened parents, stressed children, attorneys coordinating across countries and time zones, consular officials, and institutions operating under time pressure with high emotional stakes. The people doing this work are applying more than legal rules. They are managing situations where a child’s stability, safety, and relationship with both parents are all at stake at once

A Continuing Conversation

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