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Article 225 bis of the Spanish Criminal Code criminalises child abduction, defining the circumstances in which the removal of a child from his or her environment of residence is considered unlawful.
According to the judgment analysed, the question of territorial jurisdiction is fundamental, given that it determines the jurisdictional sphere in which an act of this nature must be tried. In this sense, the Second Chamber of the Supreme Court interprets that: ‘Territorial jurisdiction is determined by the place where the offence was committed, this being the place from where the father allegedly took the minor or where he should have returned her, which is none other than the domicile or residence of the minor’.
Thus, the Court establishes a clear criterion, jurisdiction is defined according to the place of habitual residence of the child prior to the commission of the act of abduction, which ensures a congruent and accessible judicial framework for the affected party.
The judgment reinforces its legal basis by citing Regulation 2201/2003, known as ‘Brussels IIa’, which governs jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility within the Member States of the European Union. The Second Chamber emphasises in particular that this regulation assigns jurisdiction on the basis of the habitual residence of the child before the wrongful removal or retention: ‘it confers jurisdiction on the courts of the Member State in which the child was habitually resident immediately before the wrongful removal or retention, until the child has acquired a habitual residence in another Member State’.
This principle implies that, even if the child has been removed to another Member State, jurisdiction will remain with the State of the child's previous habitual residence, unless the child has established a long-term residence relationship in the new State.
The Second Chamber further emphasises the importance of the habitual residence of the child as an element determining jurisdiction. To define this concept, the judgment establishes that the habitual residence of the child corresponds to the place where the family resides on a stable basis or where they have mutually decided to settle, taking into account factors such as:
This criterion seeks to protect the child by ensuring that judicial decisions in abduction cases are taken in the environment that is closest to the child's nucleus of life.
In this case, complex circumstances arose due to mobility restrictions imposed by the COVID-19 pandemic. These measures restricted movement both locally and internationally, which impacted on the movements of the offender and the child concerned. Child abduction in this context raises a specific issue as to when and where the offence can be considered completed, as the restrictions hindered or directly prevented the mobility of the person intending to abduct the child.
The court considered that, due to the mobility restrictions, the offender was limited to keeping the child in a specific locality and that this prolonged situation does not imply a continuous consummation of the offence in different territories, but an initial consummation in a specific place, even if the subsequent restrictions retained the child in the place of abduction.
The Supreme Court's judgment concludes that, in the case of international abduction, the courts with jurisdiction to hear the investigation and prosecution of the offence will be those located in the child's place of residence. This approach supports the principle of ‘favor minoris’, i.e. the best interests of the child, by ensuring that court proceedings are conducted in a familiar and close context for the child concerned.
This interpretation has significant practical effects for cross-border cases, as it establishes a clear and stable criterion, avoiding duplication of jurisdictions and ensuring consistency with the principles of European law.
In short, the judgment of the Second Chamber of the Supreme Court provides a clear and practical interpretation on how to deal with territorial jurisdiction in international child abduction cases. The decision establishes that, in these cases, jurisdiction should be based on the child's habitual place of residence, thus protecting the child's stability and well-being in such a delicate situation.
This ruling reflects the sensitivity of the Supreme Court when dealing with child abduction issues, as it prioritises the child's proximity to his or her environment and guarantees his or her protection, while aligning Spanish law with the European standards of the Brussels II bis Regulation. With this approach, the Court offers guidance that balances national law with the commitment to protect children in the international arena
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