Seventeen Cases and Counting: Same-Sex Parents, Non-Parent Takers, and the Convention's Newest Families

Executive Summary

The 1980 Hague Convention was drafted for a world of married mothers and fathers, and its text is admirably neutral — a "person, institution or other body" can hold the "rights of custody" it protects. But for families whose parentage some countries do not recognise, the treaty has a structural fault line: whether a parent is protected turns on whether they hold "rights of custody" under the law of the child's habitual residence — so a two-mother or two-father family's treaty protection can switch on and off as the family crosses borders, even though the child's actual attachments never change. The 2021 global study logged 17 same-sex-couple return applications, up from 7 in 2015. The CJEU's 2021 Pancharevo ruling — a free-movement, not a Hague, decision — points to the principle the field needs: a child's parents do not change at a border. This article maps the fault line and the fix, with every family form treated equally. It is educational, not legal advice.

Introduction

Buried in the 2021 global study is a sentence that announces the Convention's future: "17 return applications involved a same sex couple, comprising 5 female couples and 12 male couples compared with 7 such applications in 2015". Seventeen cases in a year — more than doubled in six — and, because the study counts only what Central Authorities see, certainly an undercount.

The treaty those families entered was drafted in 1980, for a world of married mothers and fathers. Its text is admirably neutral — a "person, institution or other body" holds rights of custody [Art. 3] — and this series has already shown the machinery working for a non-parent: a grandfather, in the Eitan Biran case, treated exactly as the treaty treats anyone who moves a child without the guardian's consent [#10; the 2% of taking persons who are neither mother nor father — S13]. But for one growing class of families, the Convention has a structural fault line no drafting neutrality can paper over: its protection depends on "rights of custody" under the law of the child's habitual residence — and some countries do not recognise some parents as parents at all.

Legal Background: where "parent" comes from

Two Convention features drive this article. First, "rights of custody" is a term of art, not a synonym for day-to-day care: Article 5(a) defines it to include "the right to determine the child's place of residence," which is why even a travel-veto (ne exeat) right counts as custody, as Abbott held [#7]. Second — and decisively for new family forms — the Convention does not define who is a parent. Under Article 3, whether someone holds "rights of custody" is determined by the law of the State in which the child was habitually resident immediately before the removal. The treaty, in other words, borrows its definition of "parent" from the child's home country. (As always: a Hague return decides only the forum — which country's courts resolve the child's future — not custody itself. Return ≠ custody.) That borrowing works seamlessly when every relevant country agrees who the parents are. It fractures when they do not.

The fault line, precisely

Walk through the gateway logic of articles #2 and #7 with a two-mother family. A child is born, say, in Spain, to a married female couple — one biological mother, one non-biological mother, both on the Spanish birth certificate. The family's habitual residence is Spain; both hold parental responsibility under Spanish law; the Convention protects each against the other's unilateral move, like any parents anywhere.

Now let one mother take the child to a country whose domestic law does not recognise two-mother parentage. The left-behind mother files her Hague application — and meets the question that decides everything: does she hold "rights of custody"? Under the law of the habitual residence — Spain — unquestionably yes, and that is the law Article 3 points to. Most courts stop there, correctly. But the destination country's authorities process, house and ultimately enforce the case through institutions for which she may be, legally, a stranger to the child; every discretionary junction this series has mapped — intake desks [#22], grave-risk assessments [#3], enforcement offices [#4, #12] — is a place where non-recognition can quietly leak into outcomes. And if the removal runs the other way — the child taken from a non-recognising country — the non-biological parent may hold no rights of custody in the habitual residence at all, and therefore no Hague case whatsoever. The family's treaty protection switches on and off across the map, with the child's actual attachments unchanged.

The Court of Justice of the EU confronted the parentage half of this problem in ***V.M.A. v Stolichna obshtina (Pancharevo)*, C-490/20 (Grand Chamber, 14 December 2021)**: a child born in Spain to a married couple of two women — one a Bulgarian national, one a UK national — with a Spanish birth certificate naming two mothers. Bulgaria refused to issue the birth certificate that was, in turn, the prerequisite for the child's identity card and passport — effectively trapping the child. The CJEU held that EU free movement requires Bulgaria to recognise the parent-child relationship as established in Spain for the purposes of the child's movement and documentation — while leaving Bulgaria free not to change its domestic family law on marriage or parenthood. It is a free-movement ruling, not a Hague one, but its logic is the one this field needs: a child's parents do not change at a border, whatever each state's domestic definitions. The HCCH's own Parentage / Surrogacy Project — working toward instruments on the cross-border recognition of legal parentage — is the treaty world's slow answer to the same problem.

The case law is already arriving. In Israel, a 2019 Supreme Court matter (reported under the anonymising caption Plonit, and known here only through a 2023 peer-reviewed survey of habitual-residence developments, not the primary judgment) is said to have involved an Israeli same-sex couple who had travelled to California for post-doctoral studies, with the habitual-residence analysis turning on the parents' shared intentions. The reported details are thin — which is itself the point: these cases are being decided now, family by family, in a doctrinal landscape built for other households.

The other new families

The same structural lens covers the rest of the 2021 study's "2%" :

• Grandparents and relatives — the Biran pattern [#10]: grief- and crisis-driven takings, answered by the treaty when a guardian's rights exist and by nothing when they don't. The prevention lesson stands: after a family catastrophe, formalise guardianship immediately, wherever the child actually lives.
• Institutions — foster and welfare authorities hold "rights of custody" too; a parent fleeing a care order across a border is a Hague respondent like any other [Art. 3's "institution or other body"].
• Unmarried fathers — the oldest "new" family: in several legal systems an unmarried father without a court order holds no automatic custody rights, and courts have repeatedly found removals by the mother in such cases not wrongful — lawful by the letter, devastating in fact. The remedy is the same as for a non-biological mother: get the order before the border.

What This Shows About the Limits of the Hague Convention Alone

The Convention's deepest limit here is that it does not own its own most basic concept. It protects "parents," but it lets each child's home country decide who counts as one — a sensible design in 1980, when family definitions were broadly shared, and a fracture line in a world where they are not. The treaty cannot, by itself, close that gap: no amount of neutral drafting inside the Convention can make a non-recognising state treat a non-biological mother as a parent, because the definition is imported from outside the treaty. That is why the real work is happening elsewhere — in the CJEU's free-movement jurisprudence and the HCCH's parentage-recognition project — and why, for these families, whether the Convention protects their children at all is decided before any abduction, by a question of recognition the Convention itself does not answer.

What Parents and Professionals Should Understand

For LGBTQ+ and other non-traditional families crossing borders, the single most important step — a prompt to consult a lawyer, not legal advice — is to paper the parentage before the plane: a second-parent adoption or a judicial parentage order travels far better across borders than a presumption or a birth-certificate entry, and a court order also engages the Abbott principle, since a travel-consent or ne exeat right is itself a right of custody [#7] — so before any international move, ask a local lawyer one question: in the destination, am I this child's legal parent, and if not, what order fixes that? For courts, Article 3 already contains the answer: apply the habitual residence's law without domestic filtering, because the Convention outsources parentage to the child's home law precisely so that destination-state family-law politics cannot decide return cases — the courts that hold that line make the treaty work for every family, and those that don't build the map of safe havens the treaty exists to abolish. And for the HCCH and states, the parentage-recognition instrument is abduction policy: every gap the Parentage Project closes removes a category of children whose treaty protection currently flickers at borders.

Limitations

This is a fast-moving, emerging area of law, and the position varies sharply by country and may change; the ¶41 count is a floor, not a full measure, since it captures only cases Central Authorities recorded as involving a same-sex couple. Pancharevo is an EU free-movement ruling with no direct force outside the EU and no direct Hague holding. The Israeli Plonit reference is drawn from a secondary survey, not the primary judgment, and should be treated as illustrative only. This is educational and not a substitute for advice from a qualified lawyer in the relevant jurisdiction.

Conclusion

Seventeen same-sex-couple cases in a single year, more than double the last count, in a treaty that never imagined them — that is the shape of the Convention's next decade, and the number will only grow. The families behind it are not asking for special treatment; they are asking for the one thing the treaty already promises everyone else — that a parent remain a parent when a child is wrongfully moved. The Convention can keep that promise for them, but only if courts apply its own logic faithfully and states close the recognition gap around it. A child's parents do not change at a border. The law is finally, slowly, catching up to what every child already knows.

Frequently Asked Questions

Does the Hague Abduction Convention protect same-sex parents? Yes — in principle. The Convention protects anyone who holds "rights of custody," regardless of family form. The complication is that those rights are defined by the law of the child's home country, so if a destination country does not recognise a two-mother or two-father family, protection can become uncertain in practice.

Whose law decides if I'm a "parent" for a Hague case? The law of the country where the child was habitually resident just before the removal (Article 3). The Convention does not define parentage itself — it borrows the definition from the child's home country.

**What was the Pancharevo case?** A 2021 Court of Justice of the EU ruling that Bulgaria had to recognise, for EU free-movement and documentation purposes, the parent-child relationship of a child born in Spain to two mothers — without being forced to change its own family law. It is not a Hague case, but its principle (a child's parents don't change at a border) is directly relevant.

We're a non-traditional family planning to move abroad with our child. What matters most? Before you move, confirm with a lawyer in the destination country whether you are both recognised as the child's legal parents there, and if not, what order (such as a second-parent adoption or a judicial parentage order) secures that recognition. Papering the parentage in advance is the strongest protection.