Lawyers specialized in international child abduction in spain

Abduction or international kidnapping of minors

Unfortunately, there are more and more cases of abduction or international kidnapping of minors coming to us at IENE Abogados. For this reason, given the international component that this type of issues have and the problems they raise, we find important to analyse the most basic elements of this type of situations.

If your partner has taken your child without your permission and they are in Spain right now, you will need a Spanish law firm to initiate the procedure in front of the Spanish authorities. We are here for you.

Specialization is required to claim international child kidnapping

It is essential we are aware that when a minor is illegally retained or transferred to a country other than his or her habitual residence, we are facing an international issue. So, in this specific case, you will not only need a matrimonial lawyer, but specialized international family lawyer as well.

At IENE Abogados we have lawyers specialized in family law in Madrid at an international level, who have the necessary academic training for the matter as well as many years of experience in these subjects.

What is international child abduction?

When we talk about international child abduction, we are referring to the transfer or retention of a minor that one of the parents does illegally, without the consent of the other parent. This transfer takes place to establish their residence in a country other than the one in which the minor was living before the transfer occurred.

What law applies when a father or mother takes a child abroad without permission?

It is important that we know that there are two key international standards for this type of matter. The entire procedure is regulated by the Hague Convention of 1980 and the Brussels II Bis Regulation. The Hague Convention of 1980 regulates the restitution mechanism itself, having to resort to the Brussels II Bis Regulation in aspects that the Convention does not contemplate.

However, these rules only apply when the two states involved are party to these conventions. That is, when the states involved have accepted and signed the aforementioned international instruments. Otherwise, this regulation would not be applicable, and we would have to resort to other international instruments such as bilateral agreements signed between the different countries.

Given that the most common countries where these illegal transfers take place are part of the Hague Convention of 1980, a mechanism par excellence. So, we will be analysing in this article the situation as it is regulated in this convention as well as in the Brussels II Bis Regulation.

If your case is outside these international mechanisms, do not hesitate to contact our family lawyers and they will advise you on the specific steps to take.

When is it considered that a father or mother has taken a child illegally?

The transfer or retention is considered illegal when it has occurred in violation of a custody right attributed to a person, conferred by a judicial or administrative authority. That is, mainly, when it has taken place without the consent of the other parent.

When we talk about custody rights, we are referring to the right to choose the country of residence of the minor. We cannot forget that in Spain this power is granted by parental authority, which is exercised jointly by both parents in the vast majority of cases.

In the event you would like to change any of the measures that were established in the initial divorce decree, you would have to initiate a procedure to modify the measures.

If I have guardianship and custody of our child, can I change his or her place of residence or domicile without consulting my partner?

It is important to know that the change of residence to another city, and much more if it is to another country, is a decision that affects parental authority. As such, it must be adopted by mutual agreement by both parents. Therefore, the fact that we have been entrusted with the guardianship and custody of a minor does not entitle us to transfer his or her residence to another country.

In order to understand it better, guardianship and custody refers to the person with whom the minor will enjoy more stays. Nevertheless, all the important decisions that affect the life of the minor (change of place of residence, choice of school, medical treatments, celebration or not of communion, etc…) are part of the exercise of parental authority that is shared by both parents.

Could the Judge of the foreign country where the minor is located not accept his return?

The general principle that prevails in the Hague Convention and in the Brussels II Bis Regulation, as well as in the rest of the international instruments applicable in the matter, is to “agree on immediate restitution”. However, the Convention itself includes, in its articles 13 and 20, a series of grounds for refusal that the Judge of the requested state may use to agree on non-restitution.

Reasons to not agree to the return of the minor immediately

1. That the person who is assigned custody of the minor does not exercise effective custody of the minor at the time of retention

2. If there is a serious risk that the return of the child will expose the child to serious physical or mental danger or in any other way put the child in an intolerable situation.

3. When the minor himself opposes the restitution, having reached an appropriate age and degree of maturity to take his opinions into account

4. When human rights and fundamental freedoms are being violated in the state of habitual residence of the minor, prior to the transfer

In addition to the above, if a period of one year has elapsed since the retention or illegal transfer of the minor took place, it will also be possible to allege «integration of the minor into his new environment».

The most common reason that is alleged to avoid restitution is «serious risk to the minor». In spite of this, we cannot forget that for this reason to prosper it is necessary to prove that risk as something real, current, high and serious. In addition, this reason will not prosper if the opposing party requesting the return proves and justifies that in the country of origin of the minor, the appropriate measures have been adopted to guarantee the protection of the minor after his return. (Art. 11.4 of the Brussels II Bis Regulation https://www.boe.es/buscar/doc.php?id=DOUE-L-2003-82188)

Therefore, the work carried out at this point by your matrimonial lawyer will be essential, which will undoubtedly tilt the final result of the process towards one side or the other.

What is the deadline to claim the abduction of the minor?

There is no specific deadline to start the restitution procedure. But, if we are consulted, our answer would be to start it immediately. The passage of time will not only harm the minor, who will remain outside their environment for longer, but also the parent with whom the minor previously lived, since one year after the transfer took place, another reason is created to deny the restitution as we explained before.

Will the minor’s statement be taken in the return process?

The Brussels II Bis Regulation in its article 11.2 contemplates the possibility that in the event that the previously alleged reasons for refusal apply, the practice of hearing the minor will be possible, as long as it is considered appropriate in view of their age or maturity level.

Normally, it is understood that around the age of 12 the minor has reached sufficient maturity for the exploration to take place. However it will depend on each case.

It is important to know our Penal Code, in its article 225 bis, punishes the parent who abducts their minor child, without there being a justifiable cause, with a prison sentence of two to four years plus special disqualification for the exercise of the right to parental authority for a period of 4 to 10 years. https://noticias.juridicas.com/base_datos/Penal/lo10-1995.l2t12.html

For this reason, the parent who commits the abduction should know that he or she is facing the risk of being sentenced not only to a prison sentence, but also to the prohibition of the exercise of parental authority for a period of 4 to 10 years, to the detriment direct that this entails not only to the parent but also to the minor.

Given the negative consequences that the illegal transfer or retention of a minor can cause, it is important that the parent who wishes to transfer the country of residence of their child carefully assess the pros and cons of their actions. He or she should consult with a specialized lawyer in family law, which should inform you of the judicial procedures that exist to prevent the commission of a crime such as child abduction.

The measure modification procedure is precisely the procedure indicated to avoid these situations. In it, the parent who considers the change suitable may allege, with due guarantees, the reasons why the change of residence is considered beneficial for the minor, without incurring in any criminal or civil offence.

At IENE Abogados we understand it is vital to be duly advised in these emergency situations. Not only to defend ourselves against improper conduct by the opposing party, but also to avoid committing any illegal act that in the long run causes damage that is difficult to solve. Call us and we will solve all your doubts.

Nuria Pérez Melego
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