During the last 20 years a growing number of English families have settled in Spain. Many children are bilingual having settled into Spanish or international schools. If the parents separate, whether married or not, there can be very difficult decisions about custody, visits and maintenance.
In the most difficult situations, one parent may want to return to the United Kingdom with the children and issues of custody, abduction and consent will need to be dealt with.
If a child is taken from Spain without the consent of both parents, the Hague Convention provides for the child to be returned to Spain if it is their “country of habitual residence”. The Spanish Court will then be the appropriate Court to decide the matter based on the best interests of the child.
A recent case has shown that a family can have 2 different places of habitual residence but it is most likely to be where the children go to school, have their friends and have their family home.
It is clearly better for the parents to seek advice and come to an agreement before this happens. Leaving Spain and taking the child to the United Kingdom without the consent of the other parent can result in lengthy and stressful legal proceedings in both countries.
Maintenance for children is also an important issue. Both parents want to provide for the children but sometime the disparity in earnings makes it difficult to come to an agreed figure. It is often better to try and negotiate a figure rather than have the Court decide the sum but both parents have a duty to disclose their earnings.
In Spain an unmarried father or mother will also have the right to apply under the Hague Convention if they have been exercising regular contact with the child.