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Reyes Gómez
Málaga
Tuesday, 18 February 2025, 13:32
When a parent moves the residence of a child to a state other than that of his or her habitual residence without the consent of the other parent (or the necessary judicial authorisation) this is classed as international child abduction. This situation is unfortunately becoming more and more frequent given the increase in mixed nationality marriages, as well as the geographical mobility of families.
In order to facilitate co-operation between states and the return of children, the Hague Convention of the 25th October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the "HC”) was signed. This instrument has now been ratified by more than eighty states.
If the child has been removed to a state that is a signatory to the Convention, there is a two-track procedure for seeking the child's return before the authorities of the state where the child is located.
On the one hand, the Convention provides for a mechanism of co-operation with the Central Authorities (hereinafter referred to as CAs) of the states. A parent who wishes to apply for the return of a child may do so through the CA or apply directly to the courts of the state where the child is located by instructing a lawyer of said state, without the need to apply to the CA.
If the application is made through the CA, the CA of the state where the child was residing will contact the CA of the state to which the child has been removed, and the CA will contact the abducting parent and ask him or her to state whether he or she agrees to return the child voluntarily or, on the contrary, opposes such return, giving reasons for such refusal, if any. If the abducting parent objects to the return, the matter will be decided before the courts of the state where the child is located, and the CA will represent the parent seeking the return, unless the parent wishes to instruct his or her own lawyer.
The most frequent ground alleged by the abducting parent for refusing the voluntary return of the child is the existence of violence or abuse, either against the parent who has left with the child or against the child.
When a child is wrongfully removed to or retained in Spain and the abducting parent initially alleges abuse or violence before the CA, the CA ceases to represent the other parent seeking the child's return without even a minimal enquiry into the possible veracity of such allegations.
As a consequence, the parent seeking the return of the child has no choice but to engage a specialist lawyer to represent him or her in court.
That is why, without prejudice to the fact that in the event that a child is abducted from a third country and brought to Spain, the other parent may apply to the CA for the return of the child. If there is any possibility that the abducting parent may allege the existence of violence, it is advisable to instruct a specialist lawyer from the outset to start the proceedings before the Courts, without waiting for the response from the Central Authority. This can speed up the procedure by a few weeks, which is important, because in this type of procedure speed and rapidity of action is vital.
De Cotta Law has a Family Law department with professionals who have extensive experience in international child abduction proceedings before the Spanish Courts. In the event that your children have been wrongfully removed to or from Spain, or you fear that they are going to be taken out of Spain by the other parent, do not hesitate to contact this us at De Cotta Law so that we can provide you with the necessary advice and guidance.
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