SUMMER AND other holiday times always bring an increased risk that children may be taken out of their home countries against the wishes of one or the other parent, especially if a marriage or other relationship is breaking down. If this has happened or you are afraid that it might happen, what can you do?
Both Spain and the UK are signatories to the Hague Convention and Luxembourg Convention, both of 1980 designed to reduce the number of disputes and shorten the procedures for returning children to the countries where they are normally resident and to the care of the parent legally entitled to custody. The conventions also provide a mechanism for arranging visits under judicial supervision by children to the parent who does not have custody.
The conventions apply only to children under the age of 16. The principle is that a child should not be wrongfully removed from the country where they are normally resident. The technical term is ‘Habitual Residence’ which is not the same as nationality: a child of British nationality will be returned to Spain after being wrongfully taken to the UK if the child’s normal home is in Spain.
If you believe that your child is in danger of being abducted from Spain you should keep the following information ready:
The child’s full name, place and date of birth, passport or identity document number, date and place of issue, a photograph of the child and a physical description
The full name, aliases, place and date of birth, passport details, photograph, occupation, connections to particular places, and likely departure details of the person who you believe may attempt to take the child
Copies of any agreements or Court Orders concerning custody, and the child’s birth certificate, and in Spain the ‘libro de familia’
Time is of the essence in these cases. Under the conventions a child may not be returned to their original country of habitual residence if more than one year has passed and a Court is satisfied that the child has settled down in the country to which they have been taken.
Under Article 225 of the Spanish Criminal Code child abduction to another country is punishable by up to 10 years imprisonment unless the abductor advises the parent or guardian in Spain of the whereabouts of the child within 24 hours and agrees to return the child immediately.
In England & Wales under the Child Abduction Act 1984 it is a criminal offence for a parent or guardian or any person who has a custody or residence Court Order relating to the child to take the child out of the United Kingdom without the consent of any other person having rights to the child.
If a child has been unlawfully taken out of Spain a standard form, which is available from the Ministry of Justice website (www.mju.es), requesting the return of the child must be completed and sent to the Ministry of Justice by fax together with the following documents:
• a copy of the birth certificate
• any Court Order for the custody of the child that may exist
• A photo of the child
• A photo of the person who is believed to have carried out the abduction
• All documents which show that the child is normally resident in Spain
In the UK, the parallel procedure is to contact the International Child Abduction and Contact Unit via the office of the Official Solicitor (www.officialsolicitor.gov.uk) with similar information but which shows that the child is normally resident in the UK. If you do not know where your child has been taken it is best to contact the local police who will issue a ‘Port Alert’ to circulate your child’s name and details to all UK points of departure.
If the child has actually left the country, the police in the country where the child is believed to have been taken will be alerted and once the child is found, proceedings will be started for their return to their home country. However the search for the child and the proceedings can take time, especially in the face of determined efforts by the abductor to hide themselves and the child.
Where there is no international convention between countries, proceedings for the return of children can be very much more difficult.
In these situations it is vital to be prepared and to act quickly if the worst happens. We at Link Point can help you prepare an emergency file ready for use if your child is taken without your consent, or to help deal with the authorities in an emergency.
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