What is international child abduction?
International child abduction is understood as a situation in which one of the parents (the abducting parent) unilaterally, meaning without the consent of the other parent and without judicial authorization, relocates or retains a child under 16 years of age from the state where the child habitually resides to a different state.
Difference between abduction and retention:
- Abduction: There is an intention to abduct from the beginning, from when the abductor leaves with the child.
- Retention: There is no intention from the beginning to keep the child outside the country where they reside.
- The general rule is restitution, and the exception is non-return. In the European Union, this applies based on the principle of trust in the judicial systems of other countries.
Hague Convention:
There are other conventions related to the issue of abduction, so it is not the only one.
The objective of the Convention is to restore custody.
The nationality of the child is important because if they are not of the nationality of a country that has ratified the Convention, it cannot be applied.
The Convention seeks to determine whether the transfer is lawful or not.
It aims to return the child so that the competent judge can decide on custody, visitation, alimony, etc.
How does the Convention work?
In the administrative phase:
- Identify the Central Authority of each country. In Spain, it is in the Ministry of Justice.
- The Central Authority of the requesting country sends a request to the Central Authority of the country where the minors are.
In the judicial phase:
- A restitution lawsuit is filed.
There is no abduction when a child has not been born. For there to be a residence of the child, it is wanted that the child has lived in that place.
Powers of the central authority:
These are:
- Locate the child with the abductor: This is to determine the competence of the court that should handle the case. Also, to know if the abductor has the right to access free legal aid or not.
- Promote international mediation: Some countries have a mediation service.
It must be proven that if the child returns to that country, they will not be provided with the necessary protective measures.
Once a year has passed, there is no obligation for immediate restitution because it is understood that the child has already adapted to the new country.