About the international child abduction

Today, globalization also affects families, therefore there is a need to inform citizens about the legal concept of international child abduction.

What is an international child abduction?

It is the situation in which a person illegally detains or moves a minor from the country in which he had his habitual residence to another. As can be seen, within this short and simple definition, a key concept is the habitual residence of the minor. Although there is no clear definition assumed by the European legislator, it can be identified taking into account the minor’s integration into the community: socially and from a family point of view. For example, where the minor lives and goes to school, where he is registered in the public health system, etc.

Why is the minor’s habitual residence important?

Because the habitual residence will be the place that determines the competent court to hear the case.

What is the applicable regulation in the matter?

• Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (CH 1980)
• Regulation (EC) no. 2201/2003 on the competence, recognition and execution of court decisions in matrimonial matters and parental responsibility, which repeals Regulation (EC) no. 1347/2000 – (Brussels II bis Regulation)
• Regulation (EC) no. 1111/2019 on jurisdiction, recognition and enforcement of judgments in matrimonial matters and parental responsibility and on international child abduction (Brussels Regulation II ter).
• Spanish Civil Procedure Code

What exactly is it about?

Briefly, we will talk about each of these applicable legal rules.

The Hague Convention of October 25, 1980 aims at the immediate return of the minor to the country of his or her habitual residence. Specifically, this refers to the situation in which a child is abducted from a signatory state of the Hague Convention that is not part of the European Union (third state) and transferred to an EU member state or is abducted from a EU member state to transfer it to a third country signatory to CH 1980.

The term in which action must be taken is 1 (one) year from the displacement or illegal detention. After this period, the minor (up to the age of 16) is considered to be integrated into the community and therefore obtains a new habitual residence.

The Brussels II Bis Regulation is broader than CH 1980 and implicitly complements it: it applies to issues related to parental responsibility, as well as to issues related to the international abduction of children from one EU Member State to another EU Member State. It can be argued that the Brussels II Bis Regulation comprehensively attacks the issue of parental responsibility, including the civil aspects of international child abduction. In addition, the free circulation of court decisions is guaranteed, and exequatur is eliminated. At the same time, the international competence of the courts is regulated (art. 10), the procedure related to the return of the minor (art. 11) and the enforceability of court decisions regarding the exercise of parental authority, the right of visitation, as well as the sentences that order the restitution of the minor (art. 42 et seq.).

The Brussels II Ter Regulation applies from August 1, 2022, in an express complementary manner to CH 1980 (see art. 22). The regulation strengthens the child’s right to express his opinion (recital 39, art. 21 and art. 26); also, the minor’s voice being confirmed in the recognition of the decisions. As regards child abduction, short deadlines are set: in general, the courts will pronounce sentences within six weeks at the most from the date of their referral (art. 24). Mediation can also be used in the process of restitution of the minor (art. 25). The contact of the child with the father or mother who suffered the kidnapping is guaranteed (art. 27.1) At the same time, there is a greater specialization of the system of provisional measures (including insurance) in order to guarantee the best possible protection for minors (article 15). If the aim is to protect the minor from serious risks under art. 13(1)b of CH 1980, such measures may even have extraterritorial effects. When the situation requires it, a provisional execution of the restitution decisions can be obtained during the resolution of the appeal (art. 27.6).

Restitution orders must be executed urgently. If the return is refused in the Member State where the minor is illegally displaced/retained, a new procedure can be used (second mechanism), i.e. the decision refusing the return of a child can be debated a second time by referring the court of the Member State in which the child had his habitual residence immediately before his unlawful removal or detention for this court to examine the merits of the question of custody of the child thus, the prevailing system is maintained: the decision of the Member State where the minor had his habitual residence before the abduction has always priority (art. 29.6).

Art. 778 ind.4 and ind.5 of the Spanish Code of Civil Procedure (CPP) regulates the method by which the restitution or return of the minor can be obtained in cases of international abduction; Art. 778 ind. 6 CPP regulates the declaration of an international movement or detention as illegal as long as the country is part of the European Union or is a signatory to the 1980 Hague Convention. In other words, when the minor has been displaced/detained in Spain or when the minor has habitual residence in Spanish territory.

When the minor has been moved/detained illegally in Spain, the competence is of the Family Courts in the Capital of the province where the minor is located (art. 778. ind. 4 point 2 CPP). Against the pronounced sentence, an appeal can be appealed which has a suspensive effect and which will be judged as a matter of priority within twenty days (art. 778 ind.5, point 11 CPP).

When the minor with habitual residence in Spanish territory is the subject of an international wrongful removal/detention, the competent authority will be the last Spanish court that resolved any process related to the exercise of parental authority regarding the child in question. In the absence of this process, the Court of the minor’s last domicile (art. 778 ind. 6 CPP).

In short, the great mobility of today’s life is a real legal challenge for both lawyers and judges to identify the just solution that protects, on the one hand, the minor and, on the other hand, the parent in a vulnerable situation.