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International Child Abduction

Nowadays, cases of international child abduction or kidnapping have increased exponentially. This is due to the increased mobility of people around the world and the fact that there are more and more marriages or partnerships where the parents do not have the same nationality.

In these cases, in the event of divorce or a couple’s crisis, it happens quite frequently that one of the parents takes the children out of the country where they live, without the consent of the other parent or judicial authorisation, and settles with them in another country, normally the country of their nationality. Solving these cases is not simple and requires the intervention of specialised lawyers.

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International child abduction

What is international child abduction?

International child abduction refers to cases in which one parent moves the child to a country other than the country of habitual residence, or retains the child in that country, without the consent of the other parent. Such cases occur most frequently in families where the parents have different nationalities and/or live in a foreign country, but also with respect to nationals of the same country who reside in another country or who own a second home there.

In the past, child abductions were typically carried out by the non-custodial parent with access rights in a divorce. However, nowadays, it is more common for the custodial parent to be the one who abducts the child. In fact, it happens with some frequency that one of the parents obtains custody of the children in divorce or parental custody proceedings and immediately moves illegally to another country so as not to return to the country where the child was habitually resident.

It is also not uncommon for a parent to take advantage of a short visit to their country of origin to retain the child, even without ongoing divorce proceedings. They may fail to return the child to their place of residence, register the child in a new school, and fraudulently file for divorce or custody in the new location, seeking sole custody of the abducted child.

In Spain, cases of abduction where the child resided in a Member State of a convention on international child abduction are regulated through an urgent and preferential judicial procedure. In this procedure, the grounds for non-return that lawyers can allege are limited and specific, as the system aims to ensure the child’s return to the State in which he or she resided prior to the wrongful removal or retention.

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International child abduction

Lawyers specialised in international child abduction

In these proceedings, it is absolutely essential to have specialised lawyers who combine in-depth theoretical knowledge with extensive forensic practice in court.

At Winkels Abogados we have a team that meets the characteristics described above. Thus, our litigation lawyers are permanently advised by our academic consultants, professors of International Private Law at the Universidad Rey Juan Carlos de Madrid. These two professors, experts in international family law, are familiar with all the EU conventions and regulations applicable to abductions, as well as the specific domestic rules that allow these rules to be applied.

The approach to each case of international child abduction is unique, and the problems that arise and their treatment are different. Knowing the international rules and their correct application is essential to be able to successfully handle a case of this nature and at Winkels Abogados we have the professionals that distinguish us from other law firms and that increase the chances of success in the legal proceedings we undertake.

The precision of lawyers in bringing the appropriate proceedings and providing a convincing and technical basis for them is essential in order to secure the return of children, because the passage of time is inexorable with the claimant parent.

In Spain there are two ways to adress these abductions under existing conventions and instruments, the application to the Spanish Central Authority and the direct application with the representation by a lawyer and a legal representative (procurador) and to the courts of the provincial capital corresponding to the place where the child is located.

Practice has shown that recourse to the Central Authority is often ineffective, as it delays the procedure by several months, if the application is finally lodged by the Central Authority. Direct application to the courts by our lawyers can make the difference between the return or non-return of abducted children.

International child abduction

What laws or regulations govern international child abduction?

There are a number of international standards dealing with international child abduction. The most relevant of these standards is the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which also deals to a lesser extent with respect for rights of access.

In cases where the abduction takes place between Member States of the European Union, the rules contained in Regulation 2019/1111 (Brussels IIb) on jurisdiction, recognition and enforcement in matrimonial matters and in matters of parental responsibility (custody and visiting rights) and international child abduction in force as of 1 August 2022 also apply to the Brussels IIa Regulation.

This Regulation does not replace the Convention, but reinforces and modifies its application among the Member States of the European Union, limiting the grounds for non-return and reinforcing essential aspects such as the hearing of the child.

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Abduction between non-Convention countries

If the abduction has taken place with a country that does not have a cooperation agreement with Spain, there are three legal instruments of very little effectiveness: letters rogatory; exequatur of the Spanish judgment abroad; and, finally, initiation of domestic proceedings in the country where the child is located after having been abducted.

These avenues have proved ineffective in obtaining the return of the child, but the Ministry of foreign affairs, European Union and Cooperation (Ministerio de Asuntos Exteriores y de Cooperación AAEE)  offers, in these cases, support to non-abducting parents at all times through the consular offices located in the place where the children have been taken.

Abduction between Convention countries

The existing Conventions are:

  • 1980 Hague Convention on the Civil Aspects of International Child Abduction (BOE no. 202 of 24 August 1987, corr. errors BOE no. 155 of 30 June 1989 and no. 21 of 24 January 1996).
  • European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and the Restoration of Custody of Children, done at Luxembourg on 20 May 1980 (BOE no. 210 of 1 September 1984).
  • Convention between the Kingdom of Spain and the Kingdom of Morocco on judicial assistance, recognition and enforcement of judgments on custody, visiting rights and the return of minors, done at Madrid on 30 May 1997 (BOE no. 150 of 24 June 1997).

More than 60 States are party to the first and most important Hague Convention on Civil Aspects of 1980, ratified by Spain in 1987.

It concerns the previously defined cases of abduction of children under the age of 16 (Art. 4) occurring between Member States and where borders are crossed (Art. 1). It works, essentially but not exclusively, through Central Authorities (CA) that must collaborate with each other to achieve the immediate return of wrongfully abducted children. In Spain, the CA designated by RD 1474/2000 of 4 August 2000, which develops the organisational structure of the Ministry of Justice, is the Directorate General of Legislative Policy and International Legal Co-operation of the Ministry of Justice.

International child abduction

What steps should be taken before an unlawful removal of the child takes place?

In cases of international child abduction, prevention is essential. If there is a suspicion that a child may be abducted by one parent, the other parent should act quickly and, through lawyers, file urgent legal proceedings requesting a prohibition to leave the national territory (commonly known as “closure of borders”), the withdrawal of the child’s passport and the prohibition to issue a new one.

In order for the border closure application to be granted, it is necessary to show the judge that there is a real risk of abduction, which will be greater if the child is likely to be removed to a State which is  not a party to the 1980 Hague Convention so it will be easier to obtain a prohibition of departure in such cases than in those where the other parent is likely to wrongfully remove the child within the European Union, for example.

In the latter case, it must always be borne in mind that the exit ban must not be limited to the national territory, but must also include a ban on leaving the Schengen area.

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International child abduction

What measures should be taken after an unlawful removal of a child?

It is essential to apply for the child’s return as soon as possible. It should be noted that the 1980 Hague Convention addresses time-sensitive issues. If one year has elapsed since the abduction and no application for return has been made within that period, the return will not be automatic. This is particularly relevant if the child has already integrated into their new environment, which is often the case.

A parent whose children have been abducted should request their return from the Spanish Central Authority and carefully measure the time taken if the authority does not respond within a reasonable period. This is crucial because if the process exceeds one year, the return may not be ordered, even out of consideration for the child’s best interests. In such cases, the parent may only be granted right of access.

Additionally, the abducting parent may oppose the return on other grounds, as outlined in Article 13(b) of the 1980 Hague Convention. These include situations where a child of sufficient maturity objects to the return, or where the return would pose a physical or psychological risk to the child or place them in an intolerable situation.

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Frequently asked questions about unlawful child abduction

International child abduction or wrongful retention occurs when one parent, during divorce proceedings or a marital crisis, relocates the child to another country without the authorization of the other parent or a court order. For it to be considered abduction, it must violate custody rights granted by a court judgment or applicable law. Under Spanish law, even a custodial parent can commit abduction, as the right of custody does not include unilateral decisions about the child’s residence.

In Spain, international child abduction is a criminal offense under Article 225 bis of the Penal Code, punishable by up to 4 years imprisonment. However, courts only convict the abducting parent if they have violated a judgment granting the other parent either sole custody (where the abducting parent only has visitation rights) or shared custody. If the abducting parent is the sole custodial parent, it may constitute a civil wrong but not a criminal offense.

There are two ways: either go to the Central Authority of the country in which the child was residing before the wrongful removal or retention, by directly filing an action with the court in the Spanish provincial capital where the child is located. Current practice shows that the Central Authority process is often slower and less effective, sometimes failing to initiate return proceedings properly.

The hearing of the child is essential in such proceedings. In Spanish law, a judicial examination is mandatory when children are at least 12 years old, but it is recommended that they be heard by the judge, even if they are younger if they have sufficient judgement, in all proceedings affecting them. Both domestic and international regulations reinforce the need to give the child a hearing. This is the case in EU Regulation 2019/1111 and in Article 778 quinquies of the Civil Procedure Act which regulates return proceedings.

The instruments applicable to the return of a child depend on the country to which the child is wrongfully removed. Thus, if the child is transferred to a country that is a member of the 1980 Hague Convention, the 1980 Hague Convention will apply, and if the child is transferred to a member country of the European Union, Regulation 2019/1111 will also apply in addition to the 1980 Hague Convention. If the child has been removed to a country that is not a party to any international convention, it will be necessary to litigate in that country for custody in order to legally return the child.

There is no maximum time limit set by the applicable law, but there is a time limit of one year which, if exceeded, will in most cases prevent the return from taking place. Parents who apply for the return of a child and do not do so immediately, but one year after the abduction, show little interest in recovering their children, and will therefore generally not obtain a return if the children are already integrated in their new environment.

The Hague Convention applies when there has been a wrongful removal as defined in Article 3. This occurs when the removal breaches custody rights attributed to a person or institution under the law of the state where the child habitually resided immediately before the removal or retention. These custody rights may stem from a judicial or administrative decision, or from an agreement valid under the law of that state.

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