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Spain and the Hague Abduction Convention: Some Notes

The Central Authority in Spain provides a state lawyer at no cost to a left-behind parent to pursue a Hague Abduction Convention case in that country. However legal aid is not available if the parent wants to retain a private lawyer

Spain has no concentrated jurisdiction to hear cases concerning international child abductions.  Article 1902 of the Spanish Rules on Civil Procedure states that these cases are heard by “first instance judges” in the location where the minor has been found. However, there are approximately 900 first instance judges in Spain, with few having proper training in family law matters typically at issue in Hague cases.  Thus, it is difficult for Spain to maintain a proper level of experience and training for such a high number of judges. 

Spain asserts that it has recently experienced difficulty in achieving successful cooperation with Germany, the Netherlands, Brazil, Mexico, and Austria regarding matters related to both the 1980 and 1996 Conventions.  The Spanish Ministry of Justice also reports circumstances involving the Netherlands and Brazil where there has been “avoidance” of either Convention, though no details of these accusations were released in the questionnaire. 

Article 13(b) of the Hague Convention on International Child Abductions contains the “grave risk” exception/defense.  Courts in many different jurisdictions have had difficulty interpreting the contents of Article 13(b). On its face, the “grave risk of harm” exception appears to be in direct contradiction with the main objectives of the Convention. As one of the exceptions to the prompt return mechanism, Article 13(b) protects the best interests of the abducted child by giving priority to protection of the abducted child’s safety and health over its repatriation to its place of habitual residence.  Spain notes that domestic violence allegations are often raised in connection with this defense. 

When a taking parent asserts the “grave risk of harm” defense under Article 13(b)(1) of the Convention , the Spanish courts rely on evidence in the form of, “expert psychological evidence issued by social workers (required), as well as exploration of the minors in those cases which are legally appropriate, medical reports, police records, judicial decisions and the statement of victim and children.”

The Spanish Ministry of Justice notes that claims of domestic violence have been made too freely and without sufficient corroborative evidence and must be evaluated with great care.

There are existing regulations in Spain that allow for the opinion of minors to be heard in the Spanish courts. A new provision has been added to rule 4 of Article 770 of the Rules of Civil Procedure, to provide that “…when examining minors in civil proceedings the judge shall guarantee that the minor (sic) are heard in suitable conditions in order to safeguard their interests, without interference from other persons and asking for help from specialists when considered necessary.”  A judge handling a Hague case in which it is claimed that a child objects to being returned and is sufficiently mature should assess the maturity of the child (with a mandatory presumption that one who has reached the age of 12 has reached the necessary level of maturity to be heard) and can refuse to return a child on the basis of the child’s wishes alone. 

A parent requires the permission of the other parent to relocate internationally with a child. Spanish laws establish a preference for the joint exercise of parental authority.  The Civil Code provides that a parent who has a mere right of visitation still retains enough of a right of custody to deny permission for a international relocation.  If there is no agreement, judicial authorization is always necessary.  A change of residence has serious consequences for all involved parties, thus, a change of this nature is a matter of parental authority rather than mere custody.  Spanish law has recently been tilted toward joint custody as the general rule, in opposition to individual custody, based on the combination of two basic rights; the right of the child to have balanced and continuing relations with both parents and the right and duty of both parents to be involved with the upbringing of their child.       

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