Parental child abduction occurs when a person who is connected to a child (usually a parent) takes that child away from his/her country of habitual residence without the permission of those with parental responsibility (i.e. the other parent) or the courts.
Most commonly such abduction takes place following a separation or a divorce and results in a considerable amount of stress and anxiety for that parent in seeking the return of the child.
It is generally a criminal offence to take a child from one jurisdiction to another without the consent of any other person who has parental responsibility for that child or a consenting order from the courts.
Matters of international child abduction are normally dealt with under the Hague Convention on the Civil Aspects of International Child Abduction which is an agreement by convening states to work together in order to deal with situations where a child aged under 16 has been wrongfully taken from his/her habitual country of residence to another without the other parent's permission or legal authority to do so.
Spain has ratified this convention but sadly Spain has also acquired a reputation for generally ignoring conventions and not co-operating with other jurisdictions.
An incoming application can be publically funded but this will result in the file being dealt with by a poorly trained state lawyer and there can be language and communication issues. Therefore, and funds permitting, it is far better to instruct a private lawyer specialising in family law and preferably a dual qualified (English & Spanish) practising solicitor with knowledge of laws in both countries and also fluent in both Spanish and English.
Another major problem in Spain is that convention cases must be dealt with in the Courts of First Instance and these courts are notoriously slow with Judges appearing to have a somewhat limited knowledge of the law in such matters. By comparison a convention case in the UK would normally be heard by a High Court Judge.
The Convention is not able to settle custody disputes and its regulations seek to ensure the swift return of the child to his/her country of residence in order that the court in that country of residence can make the appropriate orders regarding that child.
The court of the jurisdiction to which the child has been abducted, when considering an application for the return to the child's place of habitual residence, has discretion to refuse to return a child if any of the following circumstances apply:-
- If it can be proved that the person or institution having the care of the child gave his/her consent to the removal or was not exercising custody rights at the time of the removal.
- There is a risk that the return of the child could expose the child to physical or psychological harm.
- If a child has been wrongfully removed for more than one year then it could be argued the child has settled in his/her new environment and further removal would not now be in the best interest of the child.
- If the child has reached sufficient maturity to be able to say he/she does not wish to be returned.
It is vital in the case of any parental abduction issues to seek legal advice swiftly and act immediately to secure the safe return of the child.
Useful links
The Hague Convention on the Civil Aspects of International Child Abduction - http://www.hcch.net/index_en.php?act=text.display&tid=21
Foreign & Commonwealth Office - http://www.fco.gov.uk/en/travel-and-living-abroad/when-things-go-wrong/child-abduction/
British Embassy Madrid - http://ukinspain.fco.gov.uk/en/help-for-british-nationals/when-things-go-wrong/child-abduction
Reunite International - http://www.reunite.org/index.asp
PACT - http://www.pact-online.org/
Missing Kids - http://www.missingkids.co.uk/missingkids/servlet/PublicHomeServlet?LanguageCountry=en_GB&
NPIA Missing Persons Bureau - http://www.npia.police.uk/en/10200.htm
Article published August 2011 - Spain child abduction
Paloma España
Accredited expert on international family law
Solicitor of the Supreme Court of England & Wales
Spanish lawyer
