In Spain there is an ever growing number of families with an overseas dimension in as much as one or both spouses or partners are not Spanish, albeit that they are EU citizens or from even further afield.
Unfortunately, the correlation of such is that there is an ever growing number of family breakdowns which given rise to incidences of international child abduction.
International child abduction occurs when one parent takes his or her child, who is under 16 years of age, from their place of habitual residence, say Spain, to another country, without the consent of the other parent or without the permission of the courts. Indeed, failing to return a child to his or her place of habitual residence after an agreed period is also regarded as international child abduction.
The reality is that quite a few parents 'abducting' their children are not aware that they are actually committing a criminal offence and can be prosecuted for so doing. Quite often the abducting parent is the primary carer who has simply reached the end of his or her tether and can no longer abide the other parent's bad behaviour, can no longer survive financially or simply misses the regular back up of available family support.
Accordingly, it should be noted that if living in Spain with your child and thinking of heading back to blighty (or where ever 'home' might be), it is essential that you
· Obtain the other parent's written consent or
· If such consent is not forthcoming, obtain a judge's order granting permission.
On the flipside, if the other parent has upped sticks and decamped abroad with your child without your consent, you (or your lawyer) must report the matter to the appropriate national authorities and apply to the courts for the immediate return of your child under the 1980 Hague Convention (or to be more precise, the Convention on the Civil Aspects of International Child Abduction as signed at The Hague on 25 October 1980) – subject to certain exceptions.
Given that the court’s primary interest is the prompt and safe return of the child to his place of habitual residence, upon making the application the matter will come before a judge within a surprisingly short time. Similarly, given that the court’s singular interest, i.e. determining whether permission existed or not, the court will not be sidetracked by potential red herrings such as custody, contact and other parenting arrangements. Accordingly, it is also correct to say that the court hearing will also be surprisingly quick.
In part, the rationale behind such a quick and efficient service is to dissuade parents from embarking resorting to secondary abduction which would take the child yet further out of the grasp and clutches of the other parent as well as the courts.
Further, to encourage parents' first recourse being reliance on the courts and due process, public funding (or Legal Aid) is automatic and not means tested. So be you a Prince or a pauper, you are still entitled to have a solicitor and barrister act for you absolutely free of charge.
As perhaps suggested, the way to avoid 'abducting' your own child or having to rely on the courts to order his or her return is for you to agree written terms with the other parent. Although, I am the first to acknowledge that agreement is easier to say than achieve.
In any family breakdown, such agreement can either be sworn before a notary or by order of a court. The agreement will state who is to have primary custody of the child, when he is to stay with mum, when he is to stay with dad, where he is to stay at Christmas and Easter, are these arrangements to be for alternate years (what we call 'odds and evens'), what holiday arrangements are in place for the long summer holidays, for example, is it to be one block of four weeks or is it to be 4 blocks of seven days, when and where he is to be collected and returned, by whom etc..
However, where the primary care plans to go and live abroad (outside of Spain), it is essential that any such agreement expressly states that the other parent agrees to his child being taken to live in another, best stipulated, country. If the agreement doesn't so state and the primary cares takes the child off to England, say to start life afresh, she\he will have committed the criminal offence of international child abduction which could result in criminal prosecution and will result in the child being summarily returned to Spain – should the other parent (or his lawyer) make a 1985 Hague Convention application to the courts.
Should you, the primary carer, suspect that the other parent is settling themselves to abduct your child off to another country – what can you do? Well, the authorities will not go round and seize the other parent's passport nor bang him up for a night until he or she cools off. Rather the most you can realistically do is first, take some preventative measures and second, prepare for the worst case scenario.
Preventative measures are innumerable but might range from ensuring your child's passport is safe and secure, notifying the Passport office that it is not to issue a 'replacement' passport without a court order, to possibly informing your local police station, family doctor and school as to your concerns, so that any absences or strange enquiries might raise more than just an eyebrow.
And it would also be sensible to prepare an 'information pack' ready for immediate presentation to the police as and when the abduction takes place. The pack should contain recent colour photos (preferably digital) of the child and parent, their physical descriptions, colour of hair, eyes, height, weight, frame, distinguishing scars etc. in addition to your dedicated family lawyer's full contact details so that he\she may swing into action upon being so notified.
De Cotta McKenna y Santafe have a dedicated family team of English lawyers and Spanish Abogados who specialise in Anglo-Hispanic family matters. If you wish more information on this particular topic or would like to discuss any matter raised therein, contact
Reyes Gomez Llorente on 952 527 014. Offices in Mijas Costa, Coín, Nerja, Granada and Tenerife.
De Cotta McKenna y Santafé
Calle Diputación, 6-2º-A
29780 Nerja
Málaga
Spain
Tel.: (+34) 952 52 70 14
Fax: (+34) 952 52 34 28
email: [email protected]
website: www.decottalaw.com
De Cotta McKenna & Santafé, English solicitors, and lawyers, and Spanish Abogados, in Marbella, Andalusia, Spain