By using the term ‘ international abduction of minors’, we refer to the unlawful relocation of a child to a country different from the one in which they normally are resident, violating the right of custody attributed to another individual or institution, including those cases where either of the parents moves with the child to another country and impedes the exercise of the other parent’s visitation rights.
Unfortunately, examples of this type of activity can be found all too frequently, whereby one of the parents, searching for work, or indeed, fleeing the country, deprives the other parent of the right to custody or visitation of the child they have in common. There are however judicial procedures to deal with these types of situation – both to prevent them from occurring in the first place and to restore matters to how they were previously, if a child has already been abducted.
As we know, prevention is always better than cure, and the Spanish Civil Code allows a series of measures to be taken in order to avoid children in danger from being abducted. In particular, Article 103.1 allows for measures to be taken that:
- Prohibit a child from exiting the country, without prior judicial approval;
- Prohibit the issuing of a passport to a child or the removal of same if it has already been issued;
- Require judicial approval before any change in the child’s home address
If the abduction has already taken place, the matter is obviously much more complicated, though a number of options exist: in the first place, it is necessary to check if the State to which the child has been illegally taken is a signatory to the Hague Convention of the 25th of October, 1980. If this is the case, proceedings can be initiated via the ‘Central Authority’, which is the tribunal that monitors compliance with the Convention and which coordinates directly with the relevant authorities in each country (each country that is a signatory to the Convention must establish their own Central Authority).
If the country to which the children have been taken is not a signatory to the Hague Convention, then it would remain for diplomatic solutions to be attempted via the embassy of the relevant country or by taking legal action directly in the country concerned. Of course, to contemplate such action would require legal advice in that State.
Within the member states of the European Union, instead of the Hague Convention, it is mandatory to make an application under Regulation 2201/2003 which regulates the competencies, recognition and enforcement of judicial decisions related to matrimonial matters and issues relating to parental responsibility and makes the competent judicial authority, the court of first instance.