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Child Abduction to the Costa del Sol

This guide was written by Manzanares Abogados S.L. (info@manzanaresinternational.com) in collaboration with Guides.Global (office@guides.global).

It was written on 1 June 2016. The law and practice in Spain change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.

Our guides are prepared by professionals from many countries. They are, of necessity, both brief and general and can take no account of your personal circumstances. They are intended to be a good introduction to the subject BUT ARE NO SUBSTITUTE FOR PROPER PROFESSIONAL ADVICE, which our contributors will usually be happy to provide upon request.

The advice and opinions contained in the guides are those of the author and are not necessarily those of Guides.Global.

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The scope of this guide

This guide covers what to do if your child or children (usually under 18, unless the child has emancipated) are abducted - taken to Spain without your consent and without legal authority.

It describes, in particular, how to deal with this issue in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one "autonomous community" (comunidad autónoma) lightbulb image - click here for more information on this subject to another.

This guide does not cover the issues involved in deciding which parent should take care of a child. These usually arise in course of divorce proceedings. See our Guide to Divorce on the Costa del Sol for more information.

This guide does not cover the abduction of children for criminal purposes such as ransom.

Introduction

The abduction of a child is a terrible thing for a parent to go through. Not only is it extremely upsetting but you know it is also going to be difficult to fix the problem, particularly when you may be living far away from the place to which the child has been taken.

With the increased ease of travel between countries in the modern world and the larger number of relationships formed between people of different nationalities and different cultures it is not surprising that such problems arise.

In the course of an "ordinary" divorce where both of the parents will still live in the same area, the question of who should have primary responsibility for looking after the children and the arrangements for giving the other parent the right to see them often cause endless trouble, heated arguments and much expense.

It is obviously far worse when one of the parents will be living on the other side of the world and when the chances for the parent without primary custody to see those children will be rare. If you add the problem that there may be cultural and religious differences between the parties - and a strong tradition in the case of the father or mother that it is his or her inalienable right to bring up their children - then we can understand how these massive issues are amplified still further.

Fortunately, international law has kept pace - to a certain degree - with these developments and there are well-established remedies available where a child has been abducted.

Who is entitled to the protection of the law in cases of child abduction?

In the case of international child abduction there are at least two and often three legal systems involved.

Sometimes a child is taken away to a foreign country even when both of the parents are of the same nationality. This is done in the somewhat desperate and usually ill-founded hope that distance will make it more difficult for the other parent to get the child back.

In this case there will only be two legal systems involved: the law of the parents' country and the law of the country where the child has been taken.

In other cases, a child might be taken where the parents are of different nationalities. In this case, the legal system governing each of the parents will be relevant and if (which is relatively rare) the child has been taken to a country which is not the country of either of the parents, the legal system of that country too will come into play.

In Spain we are lucky to have a strong and competent legal system, but it is not guaranteed that the other countries involved will have one.

You can imagine that these different legal systems could well take a very different view of what is in the best interests of the child and which parent should have the right to have the child live with them.

This is where international law steps in.

In 1980 - after years of debate and thousands of heart-breaking cases of child abduction - an international convention was adopted to regulate how these cases should be dealt with around the world.

This is the "Hague Convention on the Civil Aspects of International Child Abduction". It has been adopted by 93 states - so only roughly half of the countries in the world - including Spain.

It's important to understand that the convention does not change any of the legal rights of the parents or of the child. It only decides which country should decide the outcome of the dispute and provides for the return of the child to that country.

The convention requires the courts in all of the countries that have signed up to it - including, of course, Spain - to return the child to the country which is allocated jurisdiction under the terms of the convention.

Where a child was "habitually resident" in a country that is a signatory to the convention immediately before a "wrongful action" the courts must order the child to be returned to that country. It also requires them to do so quickly, with a decision being made within six weeks.

Habitually resident has its common sense meaning. It means that the child was normally resident in that country. If a child spends 40 or 50 weeks per year in a country and only goes away on holiday they will be considered to be habitually resident in that country. The test will be applied by looking at a period of several years but if, for example, the child spent the first ten years of their life in Spain and then the family moved to, say, Germany then - after a relatively short period - the child would be considered to be habitually resident in Germany. Evidence of the permanent move to Germany would include having a long-term home there, being registered in school etc.

A "wrongful action" is defined by the convention. Being a legal definition it is lengthy but, basically, the removal or retention of a child is "wrongful" when it is in breach of the rights of custody that a person has under the law of the State in which the child was habitually resident immediately before the abduction.

Note that the law covers both removal and retention. In other words, if one parent allows the child of which they have custody to travel to another country in order to see the other parent and that parent refuses to return the child the rules in the convention will still apply.

The rest of this guide assumes that the child was resident in one of the countries that has signed up to the Hague Convention immediately before the abduction. See the list of countries under the Hague Convention here.

It is important to understand that, with very few exceptions, if a child is taken unlawfully then they must be returned.

What should you do if you're worried that your child might be abducted?

Many parents fear that the other parent will do something rash and abduct their child or - which is more often the case - refuse to return the child at the end of an agreed period of visitation. Fortunately, these fears are often ill-founded and derived from a combination of the natural desire to protect the child and excessive caution.

However, if you fear that the other parent might take the child there are some precautionary steps that you can take. These include:

Other steps that can be taken some time in advance are to make sure that, in any court order relating to the custody of the child, you expressly acknowledge that the Hague Convention should apply and agree the arrangements for visits.

You might also consider an order that places the child's travel documents in safe custody.

If you have a court order of any kind, you will need to have several copies of it, preferably certified.

You also need to have as much information as you can about the child. This might include:

You also need to have information about the other parent. This might include:

If you are worried about abduction, it is probably a good idea to download a copy of the relevant law in your own country and the Hague Convention - and, of course, to read it.

Of all of these things, the most important as a way of preventing abduction is to keep the lines of communication open. If you discuss your worries you may be reassured or you may have cause to worry further - in which case, further action can be taken.

It is not uncommon for the other parent to threaten to abduct the child. It is wise to take such threats seriously. If threats are made you should contact a specialist lawyer in your own country or the child protection services in your country. They can then advise you as to the steps open to you. These might involve going to court and would almost certainly involve warning your child's school and other relevant people that there might be a risk.

What should you do if your child has been abducted?

The first thing to say is that you should not panic. You will, of course, do so. However, fortunately, most children who are abducted are recovered quite quickly.

The first thing to do is to seek help. How you should do that will depend upon where you live.

There will be two main strings to your activity.

If you are not sure whether the child has yet been removed from your country your first contact should be with the police. This is the case whether a Hague Convention country is involved or not. In most countries there is a specialist department that deals with these cases and appreciates the urgency and significance of them. If you have been engaged in court proceedings you might want to go back before the civil court for an order prohibiting the removal of the child from the country.

You may want to contact the police or civil courts via a lawyer, who will probably be able to get to the heart of the problem more quickly than you would on your own.

The reason for contacting the police so quickly is that they may be able to issue an immediate arrest warrant and so prevent the removal of the child from the country.

The next people to contact - either yourself or via your lawyer - are the people who have been designated in your country as the "designated central authority" (DCA). Under the Hague Convention, each signatory country has to designate a central point of contact for use in international abduction cases. A full list of these can be found on the Hague Convention website . For example, in the United States it is the US Department of State Bureau of Consular Affairs Office of Children's Issues. In the UK it is (for England and Wales) the Foreign Process Section of the High Court in London. In Spain it is the Ministry of Justice in Madrid. The point of mentioning this is that the nature of the designated authority varies quite a lot from country to country. However, the main point is that the authority you should contact is the authority in the country where you are living, even if you know that the child has been taken abroad.

The designated authorities are used to dealing with these applications and will usually have guidance leaflets and other materials available to assist you.

Taking action in these cases needs to be done quickly and it needs to be done correctly the first time round. For these reasons it is usually a good idea to involve a specialist advisor - usually a lawyer - to assist with your application and guide you generally at a very stressful time.

The law here is complicated and you will be dealing with multiple jurisdictions, often where there are language issues.

How does this procedure work in Spain?

As we've already said, Spain is a signatory to the Hague Convention.

Although you'd of course prefer these cases to be dealt with speedily, the judges often decide to carry out a "best interests" evaluation. This means that they consider whether it is in the best interests of the child to remain in Spain or to be returned to the country in which they were resident.

This is completely against the provisions of the Hague Convention, which makes it quite clear that it is the responsibility of the courts to order the return of the child to the country in which they were habitually resident. It is for the courts in that country to decide the child's long-term future.

In all cases, it is very important that you engage the services of a lawyer who is experienced in dealing with cases of this type so that this point can be made very forcibly and very early in the proceedings. This can be done in writing or, if that fails, ideally at the first hearing of the case.

Under the provisions of the Hague Convention you should start your quest for the return of your child in your country via the central authority. However, this does not stop you also engaging a lawyer on the Costa del Sol and the central authority will usually respect your wish to use the services of that lawyer, particularly if they're known to be experienced in the field.

Delay

We have stressed several times the need to take action quickly and, obviously, a parent who has lost their child is usually more than keen to get the child back quickly. However you do need to be aware that delaying taking action can seriously damage your case. If you wait more than one year after the date of the abduction of your child, your rights under the Hague Convention will be seriously limited.

What if the other parent ignores the local court's order?

If a parent who has abducted a child ignores the order of the court in Spain to return the child this could constitute an offense. The child will then be taken into the care of the authorities in Spain who will, after a short delay, arrange for the child to be returned to their home country.

How long will it take to get your child back?

The target timescale set out in the Hague Convention is six weeks but this will very seldom be achieved.

If all goes well and the judge accepts the fact that he or she should not be undertaking a "best interests" evaluation you should think in terms of about two to three months.

If the other parent wishes to be difficult (and, especially, if they can persuade the court to do a best interests evaluation) the time spent by the courts of Spain is likely to be well over a year and if the case then needs to be appealed it can take longer again.

How much will all this cost?

It is impossible to predict the cost of taking legal action.

The central designated authority will not make any charge for its work but it only administers the process and cannot give you legal advice.

Lawyers' fees will entirely depend on the specific circumstances, and cases of this kind can be hugely time consuming and therefore expensive.

Expats' Tips

Have you had experience with the abduction of a child? Tell us about it and share your story by emailing office@guides.global.

Conclusion

There is no doubt that child abduction is a horrible experience for both the parent and the child. It happens thousands of times each year.

However, by taking prompt action and using the right people there is usually better chances of having a good outcome in that the child is recovered.

Other guides of interest

 Description Link 
Divorce on the Costa del Sol
How to deal with a divorce on the Costa del Sol.
divorce in the Costa del Sol
Family Law on the Costa del Sol
Family law is a very wide ranging field of law. It covers all aspects of family life and family break down.
family law in the Costa del Sol

You may also want to read:

 Description Link 
Reunite
"The leading UK charity specialising in the movement of children across international borders."
child abduction help UK
Child Find of America
"A national not-for-profit organization that provides outstanding professional services designed to prevent and resolve child abduction and the family conflicts that can lead to abduction and abuse."
child abduction help america
CARI – Child Abduction Recovery International
(Australia, US & UK) "We are dedicated to bringing your child/children home safely in a non-violent manner."
child abduction help US

Readers' Comments

 

Further information?

We hope you have found this guide useful. If you need any further help, please contact us.

Manzanares Abogados S.L.

1 June 2016


 

This guide was co-authored by John Howell (Email: John.Howell@Guides.Global or John@jhco.org. Web: www.jhco.org or www.Guides.Global)

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