International child abduction

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International child abduction or international child abduction is when a parent removes or retains a child in a country other than the country of his or her habitual residence without the consent of the other parent, in violation of the latter’s right of custody. International child abduction is the same as wrongful retention. These cases occur most frequently in families where the parents have different nationalities and/or live in a foreign country, at least with respect to one of the parents. International abduction can occur either when there is no judicial crisis in the couple and the parents have joint custody of their children by law, or in the middle of separation or divorce proceedings, or when there is a separation or divorce decree and one of the parents changes the residence of the child without the other parent’s or the court’s authorisation.

Maximum time limit for return

Judicial return or abduction proceedings are only effective if an international convention applies, and an international return convention only applies between States that are parties to it. Expeditiousness in seeking return is essential in order to achieve return, because one of the grounds for non-return is that the abducted child is “integrated into his or her new environment”. Currently applicable international standards set a time limit of six weeks (one and a half months) for the completion of the return procedure, although it sometimes takes longer.

International standards

A return procedure can only take place if an international convention applies. Similarly, in cases where the abduction takes place between Member States of the European Union, international abduction conventions are reinforced by the rules of the applicable EC Regulation. The most important and widely used convention for the return of a child is the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Among the Member States, the European Regulation in force is 2201/2003 (Brussels II bis) on matrimonial matters and parental responsibility. As of 1 August 2022 this Regulation will be replaced by EU Regulation 2019/1111 (Brussels IIb), which develops the return process between Member States, both in its processing and in the recognition of return orders. Among other things, this Regulation extends the deadline for return to three months.

Return application

The return application has two phases: a preliminary administrative phase and a judicial phase. Whether or not both stages take place depends on whether or not the person or entity requesting the return applies to the Central Authorities of the 1980 Hague Convention Member States for return. If the authorities are approached, the procedure, although free of charge for the person concerned, is usually lengthy. Moreover, the person concerned has no contact with either the Central Authority or the Abogado del Estado, who in Spain is the one who brings return proceedings before the civil courts. The Abogado del Estado can withdraw from the return proceedings at any time, without even having to inform the parent who has applied for return in this way.

The return proceedings, which are regulated by our Civil Procedure Act, are urgent and preferential and the processing time is so short that it is necessary for anyone who wishes to return a child to go to a lawyer who is highly specialised in the matter, because any erroneous action can result in the return not being carried out.

Applying for a change of residence

An application for a change of “legal” residence of the child, also known as “relocation”, has to be made in court if the other parent (or custodial parent) does not authorise it, when these persons have the right to decide the child’s residence. It is essential to have highly specialised legal assistance, both to obtain the relocation permit and to prevent the other parent from obtaining it.

At Winkels Abogados we have a long history of assisting parents, both in obtaining judicial authorisation to legally relocate a child, and in assisting parents whose children have been wrongfully removed and are seeking the return of their children.