Hague Child Abduction and Return Cases in Korea

When a child is taken across a border, or kept abroad, without the consent of a parent who holds custody rights, the question is not who should have custody. It is whether the child should go back to the country where they were living, so that custody can be decided there. Korea has been party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction since 1 March 2013 and applies it through its own implementing Act. For a child under 16 wrongfully brought to or kept in Korea, the parent whose custody rights were breached can seek help from the Minister of Justice and apply to the Seoul Family Court for return. For a child taken from Korea to another country, the Minister can help transmit the application to that country. The Convention applies only where it is in force between Korea and the other country involved, so that has to be checked for the specific country and dates before relying on this route.

When This Becomes a Problem

These cases usually start with a move or a trip that did not happen the way it was agreed:

A child is taken out of Korea by one parent without the other parent’s consent.
A child is brought to Korea from the country where the family lived, without the other parent’s consent.
A holiday in Korea or abroad was agreed, but the child is not returned at the end of it.

Time changes the legal position. If return proceedings start within one year of the wrongful removal or retention, the Convention requires return to be ordered, subject to its limited exceptions; once a year has passed, return can also be refused if the child is shown to have settled in the new environment.

How Korean Law Handles It

Is the Convention in force between the two countries?

The Convention applies only where it is in force between Korea and the other country involved. This guide does not assume any particular country; the treaty relationship has to be confirmed for the specific country and dates in each case.

The Convention applies between contracting states only to wrongful removals or retentions that happen after it entered into force between them (Convention, Article 35). Where a country joined by accession, its accession is effective only in relation to contracting states that have declared their acceptance of it (Article 38). The Korean implementing Act mirrors this: it applies to a given country only from the date the Convention takes effect between Korea and that country (Act, Addendum Article 2). Checking the two countries’ treaty relationship is the first step.

Age: under 16

The Convention stops applying when the child reaches 16 (Convention, Article 4). The Korean Act applies to children under 16 to whom the Convention applies (Act, Article 2(1)).

Habitual residence

The Convention applies to a child who was habitually resident in a contracting state immediately before the breach of custody or access rights (Article 4). Whether a removal or retention is wrongful is assessed under the law of the state where the child was habitually resident immediately before it (Article 3). The Convention text does not define habitual residence, so it is a factual question about where the child’s life was actually based.

Breach of custody rights

A removal or retention is wrongful where both of the following apply (Convention, Article 3):

It breaches rights of custody held, alone or jointly, under the law of the state of habitual residence.
Those rights were actually being exercised at the time, or would have been but for the removal or retention.

Custody rights can arise by operation of law, by a judicial or administrative decision, or by an agreement having legal effect under that state’s law (Article 3). For Convention purposes they include rights relating to the care of the child’s person and, in particular, the right to determine where the child lives (Article 5).

Return proceedings in Korea

Central Authority: the Minister of Justice (Act, Article 4). A person whose custody or access rights were breached by a wrongful removal to, or retention in, Korea can apply for help locating the child, for general information on Korean law relevant to the Convention, and for other assistance the Convention provides (Act, Article 5(1)). The Minister may decline an application that does not meet the Convention’s requirements or is clearly unfounded (Act, Article 5(2)).
Court: return applications are within the exclusive jurisdiction of the Seoul Family Court (Act, Article 11). The person whose custody rights were breached can apply directly (Act, Article 12(1)); the Convention does not prevent a direct application to a court (Convention, Article 29).
Interim protection: the court can make pre-disposition or provisional orders to protect the child or to prevent the child being taken or hidden again (Act, Article 12(3)).
Time: where proceedings start within one year of the wrongful removal or retention, the authority orders return forthwith, subject to the exceptions below; after one year, return is still ordered unless the child is shown to have settled (Convention, Article 12). If no decision is reached within six weeks of the application, written reasons for the delay can be requested (Act, Article 14; Convention, Article 11).

When return can be refused

The court may dismiss a return application if it finds any of these grounds (Act, Article 12(4); Convention, Articles 12, 13 and 20):

More than one year has passed since the removal or retention and the child has settled in the new environment.
The person caring for the child was not actually exercising custody rights at the time, or consented to or later accepted the removal or retention.
There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The child objects to return and has reached an age and maturity at which it is appropriate to take the child’s views into account.
Return is not permitted by Korea’s fundamental principles relating to the protection of human rights and fundamental freedoms.

Each ground is one the court may apply; none ends the case automatically.

A return case is not a custody case

A decision to return a child is not a decision on the merits of any custody issue (Convention, Article 19). Once notified of a wrongful removal or retention, the authorities of the country where the child is held do not decide custody on the merits until it is determined that the child is not to be returned, unless no return application is made within a reasonable time (Convention, Article 16). The Korean Act puts this into practice: a Korean court hearing custody on the merits suspends that case when it is notified, or when a return application is filed, unless the application is dismissed or not filed within a reasonable time after notice (Act, Article 7).

When the child was taken from Korea

If a child who lived in Korea is taken to another contracting state, the Minister of Justice can help, for example by transmitting the application to the central authority of the country where the child is (Act, Article 8). The return proceedings themselves then take place in that country under its own procedures.

Has a child been taken out of Korea, or brought to or kept in Korea, without consent?Tell us the dates, where the child lived before and whether any court order exists. A Korean attorney reviews it and replies. No need to call first. Tell us about your case.

What You Should Prepare

Evidence of where the child habitually lived before the removal or retention: school, childcare, medical and residence records.
Documents showing custody rights under the law of that country: court orders, agreements, marriage and birth records, and, where needed, a certificate or affidavit on that country’s law (Convention, Article 8).
Evidence that those rights were being exercised: day-to-day care, school involvement, communications.
The date of the removal, or the date the child should have been returned, and how you know it.
Anything that shows whether you consented to the move or trip, and on what terms.
Any information about where the child is now.
Translations: documents submitted to the Minister of Justice in a foreign language other than English need a Korean translation, with an English translation allowed where Korean translation is especially difficult (Act, Article 16). Korea has made a reservation refusing the use of French in documents sent to its Central Authority.

What Happens Next

A typical sequence, which can change with the facts:

Confirm that the Convention is in force between Korea and the other country for the relevant dates.
Apply to the Minister of Justice for assistance, to the Seoul Family Court for return, or both.
Ask for interim orders if there is a risk the child will be moved again.
Make sure any court in Korea handling custody is notified, so the merits are put on hold.
The court decides whether to order return or to dismiss on one of the listed grounds.
If a return order is not complied with without good reason, the court can order compliance within a set period, impose an administrative fine of up to 10 million won for breach of that order, and order detention of up to 30 days if the obligation is still not met within 30 days of the fine (Act, Article 13).

Costs: the state does not pay lawyers’ fees or other litigation costs except where legal aid under the relevant legislation applies (Act, Article 15), and Korea has made a reservation to that effect under the Convention.

When Legal Help May Be Useful

The one-year point is approaching or has passed.
There is a risk the child will be moved again or hidden.
A custody case is already running in Korea or abroad.
You are the parent who moved the child and a return application has been or may be filed.
It is unclear whether the Convention is in force between Korea and the other country.

Frequently Asked Questions

Does the Hague Convention apply to every country?

No. It applies between contracting states for which it is in force with each other, and only to removals or retentions after that date (Convention, Articles 35 and 38; Act, Addendum Article 2).

Does a return order decide who gets custody?

No. A return decision is not a determination on the merits of any custody issue (Convention, Article 19). Custody is decided separately.

Is there an age limit?

Yes. The Convention ceases to apply when the child turns 16 (Convention, Article 4; Act, Article 2(1)).

Can the court refuse return because the child wants to stay?

It can, where the child objects and has reached an age and maturity at which the child’s views should be taken into account (Act, Article 12(4); Convention, Article 13). The court is not required to refuse on that ground.

What if more than a year has passed?

Return can still be ordered; passing one year does not end the case. After one year, return may be refused if the child is shown to have settled in the new environment (Convention, Article 12; Act, Article 12(4)).

International Child Abduction and the Hague Convention in Korea