News – Child abduction – Brexit – Joint custody

Filed under : Civil Law, Family Law

Hague Convention on Child Abduction.

The list of countries who abide by the Hague Convention on Child Abduction has increased to include Japan, Albania, Kazakhstan, Morocco and the Russian Federation as well as a number of others. This is good news for the many international families where the children’s parents may live, work or have family networks in other countries. The convention allows for the return to the child’s country of habitual residence. The full list of countries can be seen at under Convention 25/10/1980 on the Civil Aspects of International Child Abduction.

Brexit and Children

Of equal importance to British and European families living in Spain and the UK is the call for Brexit negotiators not to use children’s residency status as a bargaining chip. The Children’s Commissioner for England, Anne Longfield, has pointed out that there are some 588,000 children in Britain who are EU nationals, some 260,000 estimated to have been borne there, and there are many thousands of British children living in the EU.

Not pulling any punches the Commissioner said

“The EU said they wanted to make residence rights of EU nationals the first thing to be agreed during the negotiations. Yet their proposal makes residence rights dependent on ECJ jurisdiction, something which won’t be agreed until the end of the negotiations.

If the EU genuinely want to resolve the question of residence rights of EU nationals, they need to separate out the two issues to enable a negotiation in good faith which can give certainty to the hundreds of thousands of children and their families left in limbo. Two more years of uncertainty feels like a long time to a child.”

Spanish rulings on Joint custody

In 2013 a published decision of the Supreme Court in Spain the Judges held that, although each case should be decided on its merits, joint custody should be seen as the preferable alternative where custody was not agreed between the couple. However, this stopped short of saying it should be imposed on parents where they could not agree as the law as set out in the Civil Code does not specifically state this.

This year 2017 has seen the drafting of a new law which would consider that the establishment of shared custody is the normal or habitual regime and is as acceptable and normal as custody with one parent where there has been a separation or divorce between the parents. At present this is only a draft law and it will be interesting to see if the Legislation progresses.

For more information on any of these issues please contact us or arrange a consultation at any our offices on 952 527014 or at [email protected]