Not without my children

To paraphrase the title of a famous book that was adapted into film, and after a holiday period such as the one we’ve recently experienced, it is normal to receive inquiries from distressed parents when one of them has not brought back the children after the period of time rightfully allotted to them. We are then faced with the reality of an abducting parent. The mother or father who “kidnaps” his or her own children.

Faced with this situation, we have to provide some reassurance to our client, as legal instruments are in our favor. Nevertheless, we must not let this parent enter a period of inactivity because, unfortunately, as will be seen, time runs in favor of the abductor.

As lawyers, we have to quickly deploy our legal mindset about international agreements and European regulations that will be used later. The most important are: Convention No. XVIII of the Conference of The Hague on the Civil Aspects of International Child Abduction, dated October 25, 1980 (known as the “Convention of The Hague”), the European Convention on the recognition and enforcement of decisions concerning child custody, as well as reinstatement of custody, prepared in Luxembourg on May 20, 1980 (the so-called “Luxembourg Convention”) and Regulation (EC) no. 2201/03 of the Council of November 27, 2003, concerning jurisdiction and the recognition and enforcement of judgments in marital matters and parental responsibility. As far as our country is concerned and given our geographical proximity to Morocco, we should mention the Bilateral Agreement between the Kingdom of Spain and the Kingdom of Morocco on judicial assistance, recognition and enforcement of judgments on rights of custody, visitation rights, and return of minors, signed in Madrid on May 30, 1997.

These instruments are mainly intended to ensure the return of the child that has been wrongfully removed or retained, as it occurs in instances where the parent returns the child to us in due time as well as when the children leave with an abducting mother or father who take advantage of an opportunity.

Given the complexity of the matter, we will focus primarily on the Hague Convention, which is usually the one that applies due to the multiple states that uphold the agreement, of which Spain is, of course, a member.

When this situation arises, and following the Hague Convention, the parent may claim the return directly from the country where the child is located, which could mean, in addition to the language difficulty, high legal costs. The parent may also request the return of the child trough administrative authorities designated for that purpose. In Spain, the organization that functions as the central authority in these cases is the Ministry of Justice, General Directorate for International Legal Cooperation, located in the capital.

In all these cases we must keep in mind that the main goal is to protect the interests of the child. In this regard, the Convention considers that any sudden change in environment harms a child. Hence, as previously mentioned, time is of the essence in these situations, as it can be a cause of refusal of return of the child to their country of origin. That is, the competent authority of the country where the child has been taken to may refuse to return the child to his or her country of origin if the last record was initiated after a year from the incident, provided there is evidence that the child has already been integrated into the new environment (speaks the new language, has been assimilated into school, etc.). In these instances, it is common for the child’s opinion to be taken into account, when they have a sufficient degree of maturity for expressing their own opinions, and to be heard by the authorities after reaching a certain age.
If a parent finds himself in this position, it is important to act quickly because time is of the
essence. Although in most cases the parents do not have to be represented by an attorney, the complexity of the matter coupled with the involvement of international elements in these matters, require a lawyer who specializes in international law.

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