International relocation of children in Spain: overview

A Q&A guide to international relocation of children in Spain.

This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.

This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.

For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.

Alberto Perez Cedillo and Paula Piquer Ruz, Alberto Perez Cedillo
Contents

Rights and responsibilities of parents

Legal responsibility for upbringing

1. What is the legal position of married and unmarried parents in relation to a child's upbringing, and is there a difference? Who has legal responsibility for a child's upbringing?

The legal position for married and unmarried parents in relation to a child's upbringing is set out in the Spanish Civil Code of 24 July 1889 as amended (Civil Code). Article 108 of the Civil Code establishes that filiation (that is, the fact of being the child of a certain parent) can be both matrimonial and non-matrimonial and produces the same effects. Therefore, whether the parents are married or unmarried makes no difference.

Matrimonial filiation can be evidenced and therefore legally determined by either:

  • Registration of the birth at the Civil Registry.

  • Court order.

Non-matrimonial filiation is determined by any of the following:

  • Recognition before the officer in charge of the Civil Registry, in a will or in another public document.

  • Resolution issued in proceedings processed in accordance with the legislation of the Civil Registry.

  • Court order.

For a parent to have parental responsibility (patria potestad) over a child, filiation must have previously been established as otherwise the parent will have no legal rights or duties towards the child.

Non-emancipated children are placed under the authority of both parents.

Parental responsibility will always be jointly exercised by both parents on behalf of the children, unless a parent is deprived of it, and will include the following duties and faculties:

  • Looking after them and keeping them in their company.

  • Feeding them.

  • Educating them and providing them with a full formation.

  • Representing them and administering their assets.

 

Rights and responsibilities post-separation

2. Do parents continue to share rights and responsibilities for the child following separation?

Parental responsibility remains shared between both parents following separation. Therefore, both parents continue to share the rights and responsibilities for the child. This includes decisions in relation to (among others):

  • The child's education.

  • The child's religion.

  • The child's place of residence.

  • The child's medical decisions.

Under Spanish law, custody is a concept that includes being granted the child's residence, and the basic day-to-day decisions to do with the child, but the main decisions affecting the child's life have to be jointly made. Custody can be:

  • Exclusive (attributed to one parent).

  • Shared (attributed to both parents). In practice, this means the child spends regular time residing with each of his/her parents.

Custody can be established by mutual agreement by the parents or by the court taking into account the best interests of the child and the specific circumstances of each case.

See also Question 3, Custody and access.

 
3. How do parents generally share the care of children following separation?

Overview

In most cases parents will agree that the care of children during weekends will be shared on an alternative basis. However, disputes can arise in relation to care on weekdays and, generally it is difficult for parents to agree on this straight away. Advice from lawyers to parents in this respect can be helpful. However, the Spanish courts now tend to order shared care on alternative weeks if the particular circumstances of the family allow for this.

Custody and access

The Civil Code is the primary source of law in relation to the welfare of children, including custody and access on the separation of the parents.

In addition, Spain is also divided into various Autonomous Communities which have developed their own set of family laws and which apply within the boundaries of their territories. The Civil Code therefore applies to these territories if there is no applicable legislation from the Autonomous Community. The Autonomous Communities have their own civil law systems covering certain matters (known as "interregional law"), with rules determining when the relevant civil law must be applied rather than the national Civil Code. For this reason, it is vital to ascertain whether the specific Autonomous Community in question has its own specific provisions applicable to the matter. However, details of specific interregional laws are beyond the scope of this article.

For Spanish nationals, the applicable family law is determined by the regional citizenship (vecindad civil) of the person concerned (that is, the relationship between a person and a particular place, which determines the applicable local law (if any)).

On the parents' separation, the court will determine, whether or not by agreement, the care of the children and access (among other things). Shared custody of the child will be granted when it is requested by both parents by mutual agreement. In exceptional cases, Article 92 of the Civil Code provides that the court can order shared custody even if there is no agreement between the parties if both:

  • The public prosecutor (a party in proceedings where minors are involved) supports this arrangement.

  • It is considered to be in the best interest of the child.

However, judgement of the Spanish Supreme Court, Civil Section 1 257/2013 of 29 April established that the interpretation of Article 92 must always be made taking into account the best interests of the child. Therefore, when exercising discretion on granting custody, the judge can apply the following criteria (suggestions from the Supreme Court in this case):

  • Past dedication of the parents towards the daily care of the child.

  • The parents' personal aptitudes.

  • The wishes of the child.

  • The number of children.

  • Compliance by the parents of their duties towards the children.

In some of the Autonomous Communities (for example Aragon, Catalonia, Navarra and Valencia) the system of shared custody is a preferable measure and is established in their local legislation. However, for territories where the Spanish Civil Code is applicable, due to the way Article 92 is drafted, shared custody has, historically, been reserved for exceptional circumstances only. However, Judgement 200/2014 of the Spanish Supreme Court, Civil Section 1 of 25 April determined that shared custody should not be reserved for exceptional circumstances simply due to the drafting of Article 92. Instead, shared custody should be considered a common and ideal situation, as it allows the right of the child to have a relationship with both parents to be effective. Although it is not included in the law, courts are bound by the Spanish Supreme Court's decisions.

The Civil Code on family law is due to be amended by a draft bill dated 10 April 2014 (see Question 23).

Whether custody of the child is attributed to both parents or to one of them, the court will also determine the way the care of the child will be divided. In cases of sole custody, the non-custodial parental will care for the child on alternative weekends and an additional mid-week day. Even if custody is shared, this does not necessarily mean the child will spend equal time with each parent. Currently, there is a tendency by the courts, if the specific circumstances of the case allow so, to grant care of the children on an alternative-week basis.

Court orders

When determining and regulating the child's care and living arrangements, the court will need to establish the following in its order:

  • The status in relation to parental responsibility which will always be shared between both parents except in very exceptional circumstances.

  • Custody of the child, and whether it is to be shared or held by one of the parents.

  • The contact arrangements, including details relating to the pick-up and drop-off place and time.

 

Relocation/right to remove

Overview

4. Are relocation cases a familiar feature of family law within your jurisdiction?

Relocation cases in Spain have become a more familiar feature over the past ten years due to the freedom of movement within the EU member states and migration. However, Spain is still behind when compared to other member states, which can be seen by both:

  • A lack of specific legislation addressing this issue.

  • The reduced case law establishing the principles to be applied.

 
5. When do relocation disputes tend to arise and what are the most common reasons for parents seeking to relocate?

Relocation disputes tend to arise following separation of the parents; especially where one of the parents is a foreign national living in the country where the family resides. In these circumstances, the foreign parent may feel that since the relationship has ended, there is nothing keeping him/her in the jurisdiction and so decides to relocate with the child to his/her country of origin. In the authors' experience it is usually the mother who seeks to relocate. These disputes may also arise, however, at a later stage.

The most common reasons for seeking to relocate are:

  • To return with the child to his/her country of origin.

  • Work opportunities or offers.

  • Health and educational issues of the child.

  • The existence of a new partner that lives abroad.

 

General principles and guidance

6. What is the legal position of a parent who seeks to relocate a child internationally?

If a parent wishes to relocate a child internationally, the parent intending to relocate with the child must seek and obtain authorisation from the court.

The decision in respect of the child's place of residence is conferred to both parents in the exercise of their parental responsibility. Any change to the place of the child's residence will affect fundamental aspects of his/her life. This can include, for example:

  • Change of school.

  • Change of social environment.

  • Change of relationship with the other parent.

  • Any changes to the child's language, customs and traditions.

All of these aspects are within the exercise of parental responsibility and therefore any changes must be either:

  • Agreed by both parents.

  • Authorised by the court.

A change to the child's habitual residence can never be a unilateral decision made by one of the parents, as it will generally imply a breach in the status quo or the legal measures established in a court order. It would violate the rights of the other parent and those of the child to maintain a fluent and frequent relationship with each other.

The fact that one parent has custody of the child does not give that parent the right to unilaterally determine the place of the child's residence. It also does not confer a greater power to make that decision, as it is part of the exercise of the parental responsibility which is shared, unless there is an order to the contrary.

 
7. What are the legal principles applicable to relocation disputes?

In family proceedings (and particularly family proceedings affecting children, such as relocation disputes), the only legal principle established by law that the judge will take into account above all other matters is the child's best interests, which includes the welfare of children and the protection of fundamental rights recognised in both Spanish and international legislation. The "interests of the child" is a general concept contained in Spanish law. However, there is no specific definition in Spanish legislation. There are general aspects as to what may be considered the interests of the child, but it is a vague and imprecise concept and subject to personal interpretation. Therefore, what is in the interests of the child will vary in accordance with social and cultural circumstances. However, despite its indeterminacy, the interests of the child is accepted as the most important and significant principle in Spanish family law.

There are no established rules within Spanish law to assist the court in determining what the bests interests of the child are. The court is therefore left with the difficulty of determining what is best for the child on a case-by-case basis, taking into account the specific circumstances. This generates the problem of having a decision made on what a specific judge may consider being in the child's best interests, regardless of whether the decision is actually best for the child. It is therefore a subjective decision more than an objective one.

The Spanish courts must therefore review and consider the case law of the Spanish Supreme Court for guidance on how to assess what the best interests of the child are. Particularly helpful is the report from the Public Prosecutor included in the Judgement of the Spanish Supreme Court of 31 of July 2009, which contains the criteria to determine the concept of the child's interests. This report provides the following points:

  • The best interests should provide for the material and vital needs of a child (housing, health, maintenance and so on) and the spiritual needs in accordance with the child's age and circumstances: emotional, educational, avoidance of emotional tension and problems.

  • The wishes, feelings and opinions of the child should be taken into consideration as long as they are compatible with the above and interpreted in accordance with his/her personal maturity.

  • The continuation (if at all possible) of the material and spiritual status quo of the child may be in the child's best interests. It is therefore necessary to weigh up and analyse the advantages (if any) of the continuation of the current circumstances and status quo, as well as the impact that any change to the following may have to his/her personality (including his/her physical and mental health) and future:

    • change of place of residence and his/her personal environment;

    • change of school and colleagues;

    • changes to friends and family; and

    • change of (system of) education.

  • Particular consideration should be given to the child's age, health, sex, personality, religious beliefs, spiritual and cultural development, of both his/her current and potential future environment, and the impact of all the above in the welfare of the child towards the decision that is to be made.

  • It is necessary to assess the risks that the current and potential future circumstances of the decision may have; risks for his/her physical and psychological health (in a broad sense).

  • Equally, the personal, intellectual and professional perspectives of the child (particularly for an adolescent) to whose expansion and improvement should be directed should also be a consideration when assessing the child's well-being and best interest (both current and future).

The above criteria can equally be applied when determining the best for a child in relocation disputes.

In addition to the above criteria, the court will also take the following into consideration specifically in an application to relocate:

  • The reasons given to seek relocation.

  • The distance of the move.

  • The country of origin of the family, if applicable.

  • The child's relationship with both parents.

  • The relationship between the parents, in particular their ability to communicate and co-operate and their willingness to put the interests of the child first, above their individual interests.

  • Whether the parent seeking to relocate with the child will encourage frequent and continuing contact with the other parent.

  • The chances of the other parent relocating in the event that the application was granted.

Taking into account the criteria above, and the fact that Spanish judges tend to consider that it is the child's primary interest and right to be able to develop and to maintain a fluid and frequent relationship with both parents (if possible), it is difficult, although not impossible, to succeed in an application to relocate.

 
8. Do the principles applicable to relocation disputes differ in cases where the parent is seeking to relocate temporarily rather than permanently?

The duration of the period for which a parent is seeking to relocate will be a determining factor when the court is to make a decision. Again, the interests of the child will be paramount to the judge (see Question 7).

The court will apply the same principles as set out in Question 7. However, the parent seeking to relocate will have great difficulties in arguing that the temporary move is in the best interests of the child. This is likely to be considered as a negative aspect unless the application to temporary relocate arises in circumstances that are directly linked with the child's best interests. This would be in cases where, for example the:

  • Child requires specific medical treatment that is not available within the jurisdiction.

  • Relocation is for the child's educational development.

In the event that the grounds for seeking temporary relocation are based on the interests of one of the parents, it is very unlikely that the court will authorise the removal of the child.

 
9. Have the courts in your jurisdiction provided any guidance to help the judges to apply the principles correctly?

Guidance on the child's best interests has been provided by the report from the Public Prosecutor included with the Judgement of the Spanish Supreme Court of 31 July 2009 (see Question 7). However, this report does not provide sufficient guidance on how to apply the principles correctly, as it only determines what the court will need to look into but not how to assess the facts.

 
10. What is the perception of the public and/or legal profession of the way in which relocation disputes are determined by the courts?

Despite the right of freedom of movement and the fact that a parent may be seeking to relocate to his/her country of origin, the reality is that judges tend to be very reluctant to change the child's place of habitual residence.

It is no longer the view that courts tend to allow mothers to relocate with children. This is due to the fact that shared care of the children, if possible, is now considered to be in the best interests of the child, which makes the success of a relocation application more difficult.

Since there are no specific legal principles established in Spanish law applicable to relocation disputes, judges have great discretion. In addition, the fact that there are no specialised family courts among the whole territory of Spain, but only in the main cities, adds a difficulty: you may have the same court dealing with an application to relocate and standard civil or criminal proceedings which may not provide the expertise required in family law proceedings generally and in relocation disputes particularly. Moreover, the fact that Spanish courts suffer a backlog of work (that implies very lengthy proceedings) is seen by public and legal professionals to be an impediment to the effective exercise of justice.

 
11. Where are the most common places to which parents seek to relocate with children from your jurisdiction?

The most common places to which parents seek to relocate are generally either other EU member states, due to the EU rules on freedom of movement, and countries in South America.

The most common places can also vary depending on the particular area of Spain. For example, in the areas of Costa del Sol (Andalusia) and Costa Blanca (Valencian Community), relocation to the UK is common due to the large community of British nationals living in that area.

 

Procedure for relocation

12. What is the legal procedure for seeking to relocate?

Procedure

There is no specific legal procedure established within Spanish law for applications to relocate. Therefore, it is necessary to apply the rules applicable to the general provisions regulating the exercise of parental responsibility, which allow parents to seek relocation through different sources of law.

There are generally two procedures that can be followed:

  • A parent can seek to apply for relocation through Article 86 of the new Law of Jurisdiccion Voluntaria 15/2015 of 2 July. Article 86 regulates the judicial intervention in cases of disagreement on the exercise of parental responsibility. Once the application is made, the court will summon the parties to a hearing. Therefore, there is no written reply by the other parent, as it will take place in standard family proceedings. Parents can make this application without the need for legal representation.

  • An application for the establishment of parent-child measures can be made by the parent seeking to relocate. Here, the relocating parent can request that custody of the minor should be attributed to him/her on the basis that the residence of the child will be established abroad, following the provisions established in Article 769 and following the Spanish Civil Procedural Act 1/2000 of 7 January.

If there are already judicial measures in place regulating custody, contact and maintenance of the child, the parent can apply for a variation of the above measures, requesting the change of place of residence of the child. However, the parent needs to prove to the court that there have been substantial changes in the circumstances of the case that justify the necessity to change the measures.

In the above two procedures, on the application having been made, the court will allow the other party to reply to the application in writing within a statutory period of 20 working days. Subsequently, the court will summon the parties to a hearing and will then issue the decision in writing. In these cases, legal representation is compulsory.

Since Law 15/2015 on Jurisdiccion Voluntaria entered into force very recently, it is yet to be seen how proceedings to relocate based on Article 86 are being dealt with. At this stage, an application made through the establishment of parent-child measures may provide more legal security.

The above proceedings are available and applicable to both permanent and temporary relocations.

Duration of procedure

Proceedings to determine relocation disputes take the same amount of time to resolve as standard family proceedings when children are involved. Although Spanish procedural law establishes statutory periods within which a decision is to be made from the moment the hearing takes place, the backlog within the Spanish courts makes it almost impossible to comply with these statutory periods (however, this does not apply to the parties of the proceedings, which must of course comply strictly with the statutory periods given by law).

In addition, since there are no specialised family courts in all territories of Spain (see Question 10), and although child-related cases have priority, the proceedings may take a long time to come to an end and can take even longer if the decision is appealed.

Therefore, the duration of the proceedings can vary depending on the particular court to which the matter is allocated. In our professional experience, proceedings may be resolved in a year. However, in some areas of Spain, proceedings may take up to three years to be resolved. In these cases, the chances of succeeding in the application to relocate are almost nil, as the child will already be settled in his/her current environment.

 
13. What steps can be taken to prevent a parent removing the child from the jurisdiction without the agreement of the other parent or the court's permission?

Preventative measures

The judge (either on its own motion or at the request of the child, a family member or the public prosecutor) can issue all necessary measures to prevent the child from being removed from the jurisdiction. In particular, these measures can involve (Article 158, Civil Code):

  • Prohibition to exit the national territory (unless prior judicial authorisation is given).

  • Prohibition to issue a passport for the child, or for its removal if a passport has already been issued.

  • Submission to prior judicial authorisation for any change to the child's residence.

Schengen Borders Code

On the basis of Regulation (EC) 562/2006 on the rules governing the movement of persons across borders (Schengen Borders Code) it has been established in the official website of the National Police (Guardia Civil) that minors who are travelling on their own will have to justify to the border authorities that they are not leaving the national territory against the will of the persons exercising legitimate parental responsibility. In the same way, minors travelling with adults that are not exercising parental responsibility over them will have to justify to the border authorities that they have not illicitly deprived of custody the persons that have it legitimately.

Parental form

A form has been made available by the National Police to authorise the exit of the child from national territory. This form must be signed prior to leaving the jurisdiction by the parties with parental responsibility for the minor (the parents or tutor/s) at a local police station. Alternatively, the authorisation can be given before a notary public in the form of a deed. The fact that the form requires signature of both parents may imply that even when only one of the parents is travelling with the child, the border authorities at their own discretion, may request the authorisation of the other parent to be able to travel abroad. Although it is not a measure established by law, the use of this form may assist in preventing the illicit removal of a child from the national territory.

 

Alternative dispute resolution (ADR)

14. Are methods of ADR used to help to resolve relocation disputes in your jurisdiction? How effective are these ADR methods in such cases?

Mediation is a voluntary alternative to court proceedings. It is available as a means of resolving relocation disputes by using an impartial and neutral mediator (Law 15/2005 of 8 July). However, it is only in very exceptional circumstances that this method of ADR will be effective at resolving relocation disputes.

 

Factors in relocation cases

15. What significance do the child's wishes and feelings have in a relocation case and how are these ascertained/presented?

The child's wishes and feelings is one of the main factors taken into consideration in a relocation case. In practice, it is a determining factor (especially in the case of adolescents). However, the wishes and feelings should be interpreted taking into account the child's age and maturity.

Article 770.4 of the Spanish Civil Procedural Act 1/2000 of 7 January establishes that a child's wishes and feelings can be heard "when he/she is considered to be mature enough and in any event when he/she is 12 years of age or more". This provision applies to all proceedings relating to a child and ensures that the right of the child to be heard is protected and guaranteed.

The parties have the possibility of filing a report from a qualified specialist as evidence of the child's wishes and feelings, although the court may not give much weight to its contents if requested privately by only one of the parties. The parties can then apply to the court to appoint an independent qualified specialist (generally a psychologist) to ascertain the child's wishes and feelings. The court will also order this measure on its own accord if considered necessary and in any event when the child is 12 years old or more. The appointed psychologist will produce a report and can be then cross-examined by the parties and the court at the hearing.

In addition, the parties can request a "judicial examination" of the child by the court, meaning the judge hearing the case will speak with the child directly. This is carried out in private, without the presence of the parents or their legal representatives. The practical arrangements to do this vary from court-to-court although the court will endeavour to ensure that a third party is present, who may be a specialised psychologist, the public prosecutor or even the judicial secretary.

Whether the outcome of the judge's meeting with the child should be made available to the parties is a controversial issue. Some courts may refer to the wishes expressed by the child in their judgement, however, the majority consider this to be a violation of the child's privacy, especially when taking into account the impact that his/her opinion may have on the parents.

 
16. Are there any differences between geographical regions/areas in your jurisdiction in the way in which relocation disputes are determined by the courts?

As there is little available case law, it is difficult to ascertain whether there are any substantial differences in the way in which relocation disputes are determined across the different regions of Spain, and especially in relation to the areas where these types of applications are uncommon.

The courts located in areas which are more populated or which have a great influx of migratory movements may have more experience in dealing with relocation disputes, although the way in which relocation disputes are determined will mainly depend on the particular court to which the matter is allocated. As the decision is left at the judge's discretion, his/her particular cultural, social and educational circumstances will inevitably influence the decision. It can therefore be said that the geographical area where the case is being heard is not as determining as the judge's own personal background.

 

Offers of security

17. Do offers of security for the return of the child to spend time with the other parent feature in relocation disputes in your jurisdiction? What form do these take?

Offers of security for the return of the child to spend time with the other parent are not contemplated in Spanish legislation. Therefore, there are no precedents in this respect.

 

Rights of appeal

18. If a parent is dissatisfied with the decision made by a court in a relocation case, does the parent have a right to appeal?

The decision made by a court in a relocation case can always be appealed regardless of the procedure used to apply for the child's change of residence (see Question 12).

Appeals are heard by the Court of Appeal of the Autonomous Community (see Question 3, Custody and access) in which the first-instance proceedings took place. Once the order is issued, the parent dissatisfied with the decision has 20 working days to submit their appeal. The application is lodged before the court of first instance who issued the decision, who will then review that the procedural aspects of the appeal have been complied with, and if so, the matter will be transferred to the Court of Appeal.

The application submitted in the appeal proceedings must contain the reasons why the decision of the court of first instance is being appealed. Additional evidence will not be admitted unless it has emerged after the termination of the first-instance proceedings. The other party will then be given a period of ten working days to oppose the application.

If a party applied to the court of first instance for specific evidence to be obtained and this was denied, the party will have the possibility of requesting it again to the higher court.

Generally, the appeal will be considered in writing without a hearing being listed. However, in specific circumstances the court may summon the parties to a hearing.

It is not uncommon in family proceedings for a Court of Appeal to overrule the decision issued by the court of first instance and the parties are therefore usually encouraged by their legal representatives to appeal the decision. However, it is not easier to succeed in a relocation case at the appeal stage, especially if the child's wishes and feelings have already been ascertained.

 

Abduction

Overview/domestic and international law

19. What is the position if a parent removes a child from your jurisdiction to another without the consent of the other parent and/or permission from the court?

If both parents have parental responsibility, the changing of a child's residence is a decision to be made by both parents (see Question 6). Therefore, the removal of the child from the jurisdiction without the other parent's consent or the authorisation of the court is unlawful and is a criminal offence.

The Spanish Criminal Code establishes that a parent who, without justified cause, abducts his/her child who is a minor, will be punished with a sentence of imprisonment of two to four years and special barring from exercise of parental responsibility for a period from four to ten years (Article 225bis). Abduction is deemed to be:

  • The removal of a child from his/her place of residence without the consent of the parent with whom the child habitually lives, or without the consent of the persons or institutions to whom his/her safekeeping or custody is entrusted.

  • Retention of the minor in serious breach of the duty established by a judicial or administrative order.

From a civil law perspective, the left-behind parent can apply for the child to be returned in accordance with the international legislation applicable in Spain.

 
20. Is your jurisdiction a signatory to any relevant treaty or convention concerning child abduction?

Spain is a signatory to both:

  • HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention).

  • Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).

 

Factors

21. Are there any defences which could be raised by a parent to attempt to avoid the child's return?

The defences which can be raised by a parent to attempt to avoid the child's return are those provided in the Hague Child Abduction Convention (particularly Articles 12 and 13) which are the following:

  • A period of more than one year has elapsed from the date of the wrongful removal or retention, and the child is now settled in its new environment (Article 12).

  • The person, institution or other body having the care of the child was not actually exercising the custody rights at the time of removal or retention.

  • The left-behind parent had consented or subsequently acquiesced in the removal or retention.

  • There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise would place the child in an intolerable situation.

  • The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views (Article 13)

In addition, however, the Brussels II Regulation establishes that, if it is established that adequate arrangements have been made to secure the protection of the child after his or her return, a court cannot refuse the return of a child on the basis that there is a grave risk that his or her return would (Article 11.4):

  • Expose the child to physical or psychological harm.

  • Place the child in an intolerable situation.

Furthermore, the Brussels II Regulation also provides that a court cannot refuse to return a child unless the person who requested the child's return is given an opportunity to be heard (Article 11.5).

 
22. How are the child's wishes/feelings ascertained or presented in an abduction case?

The child's wishes and feelings can be ascertained or presented in an abduction case through the same methods explained in Question 15.

 

Reform

23. Are any legal developments in progress or planned in the law which may affect the law or practice in relocation or abduction cases?

Custody

There is a draft bill dated 10 April 2014 that will amend the Civil Code in relation to family law. The bill establishes that shared custody will no longer be an exceptional measure (see Question 3, Custody and access). However, the bill does not establish that shared custody will be a preferable or general measure; just a measure that the judge can adopt if requested by one of the parents or by the judge on its own accord (even if is not requested by any of the parents) where it is considered to be in the child's best interests. The bill is yet to enter into force.

Child abduction

Law 15/2015 on Jurisdiccion Voluntaria entered into force on 23 July 2015. Child Abduction proceedings are now specifically regulated by this law, which provides for a special procedure for these cases. This law is an extremely important step for improving the effective implementation of the Hague Child Abduction Convention and the Brussels II Convention.

The most significant changes are as follows:

  • Child abduction cases can now only be heard by specialised family courts within the court of the capital city of a particular province. Previously, a child abduction case would be heard by the child's local court, which could have been a regular court of first instance that was not necessarily specialised enough to deal with family law issues. The new provisions should assist in the adoption of decisions following the principles of the international treaties.

  • The urgency of child abduction cases is now being acknowledged and recognised by the fact that the proceedings at both first instance and appeal must be dealt with within the six-week period established in the Hague Child Abduction Convention.

  • To be able to resolve the proceedings within six weeks, the appeal process has also been amended for child abduction proceedings. Previously, under the general legal provisions for current family proceedings, the parties had 20 days to submit their appeal. Now, the application must be lodged within three days from the date of service of the order. Moreover, the return order will be stayed pending resolution of the appeal proceedings, whereas before the appeal proceedings did not stay the enforceability of the return order issued at first instance.

  • To achieve the enforcement of the order for return, the collaboration of the Central Authority and the assistance of the police or social services can be sought.

In addition, the Spanish Civil Procedural Act of 1/2000 has been further amended. Article 778.sixth regulates the declaration of unlawful international removal or retention. This Article establishes that, when a child with habitual residence in Spain is internationally removed or retained in accordance with the provisions of applicable international legislation, any person with an interest can make a request to the Spanish competent judicial authority to address the matter with the purpose of obtaining an order specifying that the removal or retention is unlawful. Such a request can be made in addition to any proceedings started for restitution of the child in accordance with international legislation.

Although it is the court of where the child is unlawfully removed or retained that must deal with the application under international conventions for the child's return, the fact of having the child's country of origin issuing an order determining that the removal or retention was unlawful under international law may support the left-behind parent's application for the child return.

 

Online resources

Official State Gazette (Boletin Oficial del Estado) (BOE)

W www.boe.es/legislacion/legislacion.php

Description. Official State Gazette of the Government of Spain. This website is regularly updated with new legislation.

Ministry of Justice

W www.mjusticia.gob.es/cs/Satellite/es/1288774502225/ListaPublicaciones.html

Description. The website of the Spanish Ministry of Justice. Translations of Spanish law is for guidance only and some information may be out-of-date.



Contributor profiles

Alberto Perez Cedillo

Alberto Perez Cedillo Spanish Lawyers and Solicitors

T +44 (0) 20 3077 0000 / +34 91 230 63 93/ +34 951 10 77 72
F +44 (0) 20 7404 7821
E cedillo@apcedillo.com / apcmadrid@apcedillo.com
W www.apcedillo.com

Professional qualifications. Spain, lawyer; England and Wales, solicitor

Areas of practice. International couples; divorce, separation and nullity, civil partnerships, gay marriages; financial and property disputes; pre/post-nuptial and cohabitation agreements; children custody and residence, visitation, relocation, abduction and surrogacy; spousal and child support; litigation and mediation.

Professional associations/memberships. Reunite International (leading UK charity specialising in international parental child abduction); Resolution; International Academy of Matrimonial Lawyers (IAML); Spanish Association of Family Lawyers (Asociación Española de Abogados de Familia) (AEAFA); British Spanish Law Association (BSLA); International Bar Association (IBA).

Languages. English, Spanish

Paula Piquer Ruz

Alberto Perez Cedillo Spanish Lawyers and Solicitors

T +44 (0) 20 3077 0000 / +34 91 230 63 93/ +34 951 10 77 72
F +44 (0) 20 7404 7821
E p.piquer@apcedillo.com/ apcmadrid@apcedillo.com
W www.apcedillo.com

Professional qualifications. Spanish Lawyer and European Registered Lawyer

Areas of practice. International couples; divorce, separation and nullity, civil partnerships, gay marriages; financial and property disputes; pre/post-nuptial and cohabitation agreements; children custody and residence, visitation, relocation, abduction and surrogacy; spousal and child support; litigation and mediation.

Professional associations/memberships. Spanish Association of Family Lawyers (Asociación Española de Abogados de Familia) AEAFA); member of the Family Law commission of the Barcelona Bar Association; British Spanish Law Association (BSLA).

Languages. English, Spanish


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