Quite often we receive at our office queries from parents who have problems with their partners or ex partners who have taken their under age children to another country.
Thus, we commonly receive questions and doubts as the one recently posed by one of our clients: “My wife from whom I am separating left Spain and returned to England (UK) with our youngest son without my consent, Can this be considered kidnapping or international child abduction?
In principle we must say that in order for this type transfer to be considered illegal and therefore be facing international child abduction the following assumptions must be given:
1.) That the minor (son / daughter / child) is transferred / moved to a country different to where the child habitually lives.
2.) That the transfer is made in violation of or against the custody rights attributed to a person or institution according to the applicable law of the Country / State where the minor has the habitual residence (home).
At this point it is very important to clarify that when we speak about custody rights in relation to this matter, we are mainly speaking about the right to decide where the child should reside. Note that under Spanish law, the parent (father or mother) who holds parental authority (patria potestad) will normally have the right to decide or veto the child’s change of residence, even when the custody – care has not been attributed to him / her, unless a Court Order has been issued stating the opposite.
Therefore, we understand that after a divorce for example the custody care can be granted to the mother, but if the father and mother have the joint right to decide where the child should reside (live), then the mother cannot change the place of residence or transfer to another country on her own, and if she did then it could be considered illegal transfer or international child abduction.
As to the applicable regulations we refer among others to the Hague Convention on the Civil Aspects of International Child Abduction of 1980 and for the European Union, the Regulation known as Brussels II, No. 2201 /2003.,
Through these mechanisms not only can we ask for the restitution or international return of the minor but also to have access and contact with the minors when necessary.
Therefore it is of vital importance when in a divorce proceeding or separation to emphasize the faculties / powers or not of the spouses in reference to deciding the minors’ residence and possible transfers.
If you or someone you know is in this situation and a child has been taken from Spain to another country in the EU (England, Germany etc.) or outside the European Union without authorization or consent; or if a child is illegally brought to Spain from another country whilst you are divorce, separated, have a Court Order or not, we advice you to please contact us for a consultation, we will be more than pleased to assist you.
The information provided in this web is not intended to be legal advice, but merely conveys general information related to legal issues.
White & Baos
Tel:+34 966 426 185
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