In today’s world, cases of international child abduction have seen a notable increase. This rise is attributed to greater global mobility and the growing number of international marriages.
During divorce or relationship crises, one parent may move a child to another country without the other parent's consent or the required judicial authorization. Such situations can be highly complex, necessitating the expertise of lawyers specialized in criminal and international law.
What is International Child Abduction?
International child abduction refers to the removal or retention of a child in a country other than their habitual residence without the consent of the other parent. This issue is particularly common in families where parents hold different nationalities or reside abroad. However, it can also occur among citizens of the same country with secondary residences overseas.
Legal Aspects of International Child Abduction
In Spain, international child abduction is governed by a complex legal framework that includes various laws and international agreements:
1. The 1980 Hague Convention
- The primary legal instrument addressing international child abduction.
- Aims to ensure the immediate return of the child to their habitual residence, except in exceptional circumstances.
- Establishes an urgent and preferential judicial procedure, limiting the grounds for opposing the return.
2. EU Regulation 2019/1111 (Brussels II ter)
- Complements the Hague Convention within EU member states.
- Strengthens key aspects, such as the child’s right to be heard and limits on non-return grounds.
3. Bilateral Agreements
- Spain has bilateral agreements with several countries to regulate judicial assistance and the return of abducted children.
4. Legal Instruments for Non-Convention Countries
- For countries without agreements with Spain, legal mechanisms include:
Rogatory Commissions: Requests for judicial assistance.
Exequatur: Recognition and enforcement of Spanish judgments.
Domestic Proceedings Legal action in the country where the child is located.
- However, these measures are generally less effective than those established under international conventions.
Preventive Measures and Immediate Actions
When there is a suspicion that a child may be abducted, swift action is essential:
1. Requesting a Travel Ban:
- A court can issue an urgent order to prohibit the child from leaving the country, commonly referred to as a "border closure.
- This measure may include confiscation of the child’s passport and a ban on issuing a new one.
2. Proving Risk of Abduction:
- It is necessary to demonstrate to the court a real risk of abduction.
- The risk is higher if the child may be taken to a country not party to the Hague Convention.
Actions After Abduction
If abduction has already occurred, immediate actions include:
1. Filing a Return Request:
- The request should be made promptly. Under the Hague Convention, if more than one year has passed since the abduction and the child has become integrated into their new environment, return may not be automatic.
2. Considering Objections to Return:
- The abducting parent may oppose the return for various reasons, such as:
The child faces physical or psychological harm.
The child themselves opposes the return.
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