In recent months we have heard about several media cases of child abduction in the event of the breakup of an international couple.
This is what we commonly call child abduction: a situation in which one of the parents (the abducting parent), unilaterally – without the consent of the other parent and without judicial authorization – moves or retains a child under 16 years of age from the state where the child usually resides to a different state in an unlawful manner, that is, without being authorized to do so. In this post I will delve into this concept and the regulation that exists on this matter.
If you need help in a case of this type, or in any legal matter related to Family Law, please contact me without obligation. The most important thing to keep in mind is that, if this happens, the most common way to end this situation and return the child to – in this case – Spain is to apply the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and Regulation 2201/2003 (Brussels II bis).
This is an instrument that creates a procedure designed to allow the child to return to his or her country, thanks to an oral hearing in the country where the child is located, which will decide on his or her return.
Also, in case of risk of abduction, it is possible to take provisional measures to minimize the risk of abduction through civil proceedings.
In practice, it is common practice to resort to the Hague Convention in order to achieve the main interest of the abducted parent: the return of the child home.
How does the Hague Convention apply in the case of international child abduction?
In order to obtain the return of a wrongfully removed or retained child, the 1980 Hague Convention on the Civil Aspects of International Child Abduction applies.
This Convention has been signed by Spain and a total of 90 countries, and is only applicable between those signatory States.
The Hague Convention establishes a system of cooperation between Central Authorities and an action for the immediate return of the child to the country of habitual residence.
In this context, each signatory State to the Convention has designated a Central Authority which, in the case of Spain, is the Subdirectorate General for International Legal Cooperation of the Ministry of Justice, based in Madrid.
This Central Authority, to which the lawyer addresses the request, is in charge of transmitting and receiving the requests on behalf of the parents deprived of their children and making them to the competent authorities of the country to which the child has been transferred or where he/she is retained (requested country).
Thus, in order for the Spanish Ministry of Justice to be able to initiate the international return procedure, it is essential that the country to which the child has been removed has signed the Hague Convention or is a member state of the European Union.
In addition to the application filed with the Ministry of Justice, you may also apply to the judicial authority competent to hear the merits of the case in order to obtain a decision specifying that the removal or retention has been wrongful.
However, it is possible to be assisted directly by a private lawyer in the country where the child is retained in order to speed up the return proceedings.
According to Article 3 of the Convention, the removal or retention of a child is considered wrongful:
- a) When they have occurred in violation of a right of custody attributed, separately or jointly, to a person, an institution, or any other body, in accordance with the law in force in the State in which the child was habitually resident immediately before the removal or retention; and
- b) when this right was actually exercised, separately or jointly, at the time of the removal or retention, or would have been exercised if such removal or retention had not occurred.
The right of custody referred to in a) may result, in particular, from an attribution by operation of law, from a judicial or administrative decision, or from an agreement in force under the law of that State.
On the other hand, if the child has been removed to a country outside the European Union or not party to the Hague Convention, the Ministry of Justice is not competent to process and send the application for international return in the absence of a legal instrument governing this claim.
In these cases, it is necessary to initiate the return proceedings by litigating directly in the country where the child is located.
What is important to know about handling a child abduction case under the Hague Convention?
The Hague Convention is an instrument that, while it serves to return the child to the country where the child is habitually resident, it does not serve for the judge to rule on the custody and guardianship of the child.
On this point – which is considered a matter of substance – the judges of the country of habitual residence will have to decide.
Therefore, it is possible that the return may take place and that the custody and guardianship measures may subsequently be modified by the national judge.
The issue here is not what the living arrangements should be, but whether the relocation was lawful or unlawful.
It is also possible that the relocation is lawful but that, at the same time, one of the exceptions giving rise to refusal of return occurs.
This occurs when:
- (a) The person, institution or agency taking charge of the person of the minor was not effectively exercising the right of custody at the time the minor was removed or retained or had consented to or subsequently consented to the removal or retention; or
- b) there is a serious risk that the return of the child would expose the child to serious physical or psychological danger or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the child’s return if it finds that the child himself or herself opposes the return, where the child has reached an age and degree of maturity at which it is appropriate to take account of his or her views.
On the other hand, it is very important to bear in mind that there is a greater chance of return if the petition is filed within one year of the abduction, when it is automatic.
After this period, the return is more difficult and may even be denied if the child has been integrated into his or her new environment.
It is also important to note that the age limit for the application of the Convention is 16 years.
What civil provisional measures are available to prevent child abduction?
Prevention is always better than cure.
Therefore, in the event that a separation or divorce action has been admitted for processing and there is a risk of abduction of the child by one of the spouses or by third parties, the judge may adopt some of the following provisional measures as a preventive measure:
- Prohibition to leave the national territory, except with prior judicial authorization.
- Prohibition of issuance of a passport to the minor or withdrawal of the passport if it has already been issued.
- Submission to prior judicial authorization of any change of address of the minor.
The ideal is to try to negotiate an amicable solution with the couple, taking into account the best interests of the minor, as well as to contact the issuing authority of passports or identity cards to prevent the issuance of new travel documents to the minor.
Also request the competent court, under Article 158 of the Civil Code, the necessary measures to prevent the abduction of minor children by one of the parents or by third parties.
All these measures can be adopted through a civil process.
In this regard, it is important to know that the procedure as it was established in the Civil Procedure Act (LEC) has been revised by the Voluntary Jurisdiction Act (2015): it is necessary to have a lawyer and a solicitor and file the claim for provisional measures before the courts of first instance or, preferably, the family courts.
In these cases, both the custodial parent and the non-custodial parent can sue, as well as the Central Authority.
This procedure is regulated in the new articles 778 bis, ter, and Quáter of the LEC 1/2000.
In the case of Catalonia, section h) of article 233.1 of the Catalan Civil Code speaks of the measures “necessary to avoid the illicit displacement or retention of the children, if the risk exists”.
This type of measures can be requested even if there is already a divorce or separation sentence.
International child abduction: a growing problem International child abduction is a serious phenomenon in progressive increase, which generates a growing concern.
Among the factors favoring the phenomenon of illegal child abduction are the increase in marriages and mixed marriages, cross-border facilities or the ease of divorce today.
We are faced with a phenomenon of enormous legal complexity both from a regulatory point of view, in which international, European and national rules and conventions coexist, and from a procedural point of view, in which two jurisdictions are involved, civil and criminal, with different procedures and precautionary measures depending on the case in which we find ourselves. If you need help in a case of this type, do not hesitate to contact me.
