International child abduction
At Zabalgo Family Lawyers we handle international child abduction cases across multiple jurisdictions. We work with specialist correspondents in the United Kingdom, France, Italy, Switzerland, Chile, Uruguay, Argentina, the Dominican Republic and Colombia, among others.
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What is child abduction?
International child abduction is when a parent wrongfully removes or retains a child in a country other than the country of habitual residence, without the consent or authorisation of the other parent and without judicial authorisation, 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 (Article 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 it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- When those rights were actually being exercised, either jointly or alone, at the time of the removal or retention, or would have been so exercised but for the removal or retention.
The rights of custody referred to above may arise by operation of law, by a judicial or administrative decision, or by an agreement having legal effect 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 it ceases to apply.
What measures can I take before the wrongful removal takes place?
If there is a risk that the child may be removed, urgent protective measures can be requested from the Court, including:
- A prohibition on leaving the national territory without judicial authorisation;
- The withdrawal or non-issuance of the child’s passport, which remains at the disposal of the court.
What measures can I take when a child has been wrongfully removed or retained?
The Hague Convention establishes a procedure to obtain the return of a child who has been wrongfully removed or retained, through a system of cooperation between 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. It is responsible for transmitting and receiving applications on behalf of parents deprived of their children, and for coordinating with the Central Authority of the country where the child is located.
The Ministry of Justice website provides details of the procedure, the required documentation and a downloadable application form. Alternatively, you may initiate return proceedings by litigating directly in the country where the child is located, in which case you must be assisted by a lawyer admitted in that jurisdiction.
The main international and EU instruments governing international child abduction
- The 1980 Hague Convention on the Civil Aspects of International Child Abduction — the principal instrument for securing the prompt return of a child wrongfully removed or retained between Contracting States.
- Council Regulation (EU) 2019/1111 of 25 June 2019 (Brussels II ter) — governs jurisdiction, the recognition and enforcement of decisions in matrimonial matters and parental responsibility, and specific aspects of international child abduction between EU Member States. It applies to proceedings instituted from 1 August 2022 and recast Regulation (EC) No 2201/2003 (Brussels II bis), which is now relevant only under its transitional provisions.
- 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 — particularly important where the case concerns a State outside the EU framework. It applies to children up to the age of 18.
The applicable instrument depends on the countries involved, the child’s habitual residence, the date and nature of the proceedings and the specific facts of the case. Urgent individual legal advice is essential.
International child abduction cases require immediate legal action
Our team includes lawyers specialized in cross-border disputes and international child abduction cases, providing clear guidance and urgent legal support when it matters most.
Related pages: guardianship and custody, parental authority, international family law and enforcement of court orders.