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International child abduction

In Paloma Zabalgo Law Firm we are specialized in international child abduction, having collaboration with lawyers from different countries, such as United Kingdom, France, Italy, Switzerland in Europe, as well as Chile, Uruguay, Argentina, Dominican Republic, Colombia, among others, for the purpose of the necessary collaboration in this type of procedures.

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What is child abduction?

International child abduction is when a parent wrongfully removes or retains the children in a country other than the country of habitual residence of the children, without the consent or authorization of the other parent and without judicial authorization, thus violating the right of custody or visitation of the other parent.

The right of custody or visitation can result from an attribution as of right, from a judicial or administrative decision or from an agreement in force under the law of that State (art. 3 of the 1980 Hague Convention).

When is relocation considered wrongful retention?

Under Article 3 of the Hague Convention, the removal or retention of a child is considered wrongful:

  • When they have occurred in breach 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 where the child was habitually resident immediately before the removal or retention.
  • When this right was actually exercised, separately or jointly, at the time of removal or retention, or would have been exercised had such removal or retention not taken place.

The right of custody referred to in a) may result, in particular, from an attribution as of right, from a judicial or administrative decision, or from an agreement in force under the law of that State.

What is meant by rights of custody or rights of access?

For the purposes of the Hague Convention

  • rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to decide on the child’s place of residence;
  • rights of access” shall include the right to take the child, for a limited period of time, to a place other than that in which the child has his or her habitual residence.

What are the requirements for the application of the Hague Convention?

  • The Hague Convention applies to a child who was habitually resident in one of the Contracting States immediately before the breach of custody or contact rights.
  • The Convention applies to children under the age of 16 years, after which the Convention ceases to apply.

What measures can I take before the wrongful removal takes place?

Before the removal of the child and in the knowledge that it may take place, an urgent procedure can be requested from the Court, in which measures are agreed to guarantee the protection of the child, so the Court can agree:

 

  • The prohibition to leave the national territory,
  • The prohibition to issue or withdraw the minor’s passport, leaving him/her at the disposal of the court.

What measures can I take when a child has been wrongfully removed or retained?

The Hague Convention provides for the establishment of a procedure to obtain the return of a child wrongfully removed or retained, through a system of co-operation of Central Authorities and an action for the immediate return of the child.

In Spain, the central authority is the Subdirectorate General for International Legal Cooperation of the Ministry of Justice, which is responsible for transmitting and receiving applications on behalf of parents deprived of their children, transferring them to the country where the child has been removed or retained.

The Ministry of Justice website details the procedure to be followed, the necessary documentation and a downloadable application form. In this case, you may initiate return proceedings by litigating directly in the country where the child is located, and you must be assisted by a lawyer from that country.

The main international and EU instruments governing international child abduction are the following:

  • 1980 Hague Convention on the Civil Aspects of International Child Abduction.
  • Council Regulation (EU) 2019/1111 of 25 June 2019 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and international child abduction. This regulation replaces Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, which reinforces and enhances the provisions and safeguards already contained in the 1980 Hague Convention concerning international child abduction. This regulation replaces Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, which reinforces and enhances the provisions and safeguards already contained in the 1980 Hague Convention concerning international child abductions between Member States of the European Union.
  • The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The provisions of this Convention are similar to those of Council Regulation (EC) 2201/2003. This Convention is wider in scope and applies to children up to the age of 18.