What can I do to prevent my child from being taken, or if my child has been taken?

QUESTIONS AND ANSWERS.

What is international child abduction?

International child abduction is the removal or retention of a child under the age of 16, outside their country of habitual residence in breach of another parent or guardian’s custody rights. In other words, without the consent of the other parent or without judicial authorisation.

What can I do to prevent my child from being taken?

Try to negotiate an amicable solution with your partner, always in the child’s best interests.

Contact the authority that issues passports or identity cards, to prevent new travel documents from being issued.

Request from the court responsible under article 158 of the Civil Code, the actions necessary to prevent the abduction of minor children by one of the parents or by third parties, particularly on the following:

  • Prohibition on leaving national territory, except with prior judicial authorisation.
  • Prohibition of the issuance of the minor’s passport or its withdrawal (if it has already been issued).
  • Submitting judicial authorisation prior to any change in the minor’s address.

What can I do if my child has been taken?

  • The 1980 Hague Convention on the civil aspects of international child abduction applies in order to obtain the return of a child who has been wrongfully removed or retained.
  • This Convention has been signed by Spain and a total of 90 countries. It is only applicable between those signatory states.
  • The Hague Convention establishes a system of cooperation between central authorities and an action for the immediate return of the child to the country of their habitual residence.
  • In this context, each signatory state has designated a central authority. In Spain, the central authority is the sub directorate general of international legal cooperation of the Ministry of Justice:

S.D.G. for International Legal Cooperation

C/ San Bernardo, 62

28071 Madrid

E- mail: sustraccionmenores@mjusticia.es

The central authority is responsible for transmitting and receiving applications on behalf of the parents, and submitting them to the competent authorities (usually the courts) of the country to which the child has been removed to or where they are being held (country required).

For the Spanish Ministry of Justice to be able to launch the international return procedure, it is essential that the country to which the child has been transferred to has signed The Hague Convention or is a Member State of the European Union. Signatory countries to The Hague Convention

In addition to the application at the Ministry of Justice, you can also contact the competent judicial authority as to the substance of the matter, in order to obtain a decision specifying that the removal or retention was unlawful. This certification is very useful when sending the return application to the foreign central authority.

If the child has been transferred to a country outside the European Union or a country that does not form part of The Hague Convention, the Ministry of Justice is not competent to process and send the international return application in the absence of a legal instrument regulating this claim.

In this case, the return procedure must be initiated by litigating directly in the country where the child is being held, for which you will require the assistance of a lawyer in that country.

How can an application for the return of a child be made?

The child’s parent must file a return application with the central authority of the state where the child was resident before removal or retention. It should be noted, that both the nationality of the child and that of the parents are irrelevant. The only element to take into account is the child’s habitual residence.

If the child’s habitual residence is in Spain, the application for return must be submitted to the Ministry of Justice, which will check whether the application is complete and conforms with the requirements in the Convention, and if so, will forward it to the competent authorities of the country in which the child is held in.

To file an international return application, the following requirements of The Hague Convention must be met:

  • The child is under 16 years of age
  • The child’s habitual residence prior to the abduction was in Spain, in a EU member state or in one of the signatory states of the 1980 Hague Convention on the civil aspects of international child abduction.
  • The parent filing the application had the right of custody at the time of the abduction and until then exercised that right.
  • It’s been less than a year since the abduction took place.

What documents are required together with the application and other formalities?

The application must include the child’s birth certificate, family book or any other document proving the kinship, as well as documents accrediting the child’s habitual residence in Spain (registration certificate, school certificate, health card, etc.). You must also provide a marriage certificate, in the case that you are married, a divorce decree, measures adopted (if any), complaints (if applicable), photographs of the abductor and of the minor, and any other document that you consider to be useful.

What does the Spanish Central Authority do when a child resident in Spain is abducted?

The central authority carries out the following functions, among others:

  • Receiving the application together with the documentation and sending everything to the central authority of the foreign country where the minor is currently held; taking care of the translation of the documentation (when applicable);
  • Monitoring the progress of the application and providing parents deprived of their children (applicants) with up-to-date information.
  • Providing additional documentation to the competent authority of the foreign country if required.

In any event, it should be taken into account that the conduct and duration of the judicial return process in the foreign country where the child is being held in, depends solely on the domestic rules governing such proceedings.

In this regard, it is noted that the foreign court has the final say on the matter.

The central authorities have no competence, nor influence on the decision taken by the foreign court.

What does the Spanish Central Authority do when a child is abducted to Spain?

The central authority performs the following functions, among others:

  • Receiving applications for international return from foreign central authorities and sending them to the state attorney’s office of the province in which the child is located.
  • When necessary, ask Interpol for the whereabouts of the minor.
  • Once the documentation has been studied and all the necessary requirements have been met, the state attorney’s office will proceed to file a restitution claim before the competent court on behalf of the Spanish central authority.
  • Request information from the foreign State when required.
  • Provide updated information throughout the process.
  • The final decision on whether or not to return the child rests with the Spanish court.

Can the return of a child be refused?

  • It is very important to note that the Spanish central authority does not have the power to take decisions in matters of child abductions/visiting rights. It is entirely up to the court where the child is being held, whether or not the child should return.

Parents wishing to obtain visitation rights for their children

 The Hague Convention also provides an opportunity for parents deprived of their minor children to obtain visitation rights. This is very convenient for parents who do not have custody rights under the terms of The Hague Convention.

  • All parents deprived of their minor children can apply for visitation rights, irrespective of whether they had custody rights under the terms of the Convention. The Convention allows the other parent of their minor children to apply for visitation through the network of central authorities before the courts of the foreign state.
  • For this purpose, they must file an application for visitation rights with the central authority of the state where the child is habitually resident.

 Contact details of the Spanish Central Authority in charge of child abduction

SUBDIRECTORATE GENERAL INTERNATIONAL LEGAL COOPERATION

C/ SAN BERNARDO, 62

28071 MADRID

E- mail: sustraccionmenores@mjusticia.es

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