The minor has been taken to another country
It must be verified whether the displacement infringed existing custody rights in the previous habitual residence State.
International family · RRYP Global
Lawyers specializing in international child abduction in Spain
Urgent international restitution procedures and defense against return requests when a minor has been transferred or retained between different countries and the matter has a connection with Spain.
Restitution
Retention
Habitual residence
Custodial rights
Immediacy
Madrid · Malaga · Cordoba
International affairs with a connection to Spain
International affairs with a connection to Spain
Start point
When can an international child abduction occur?
Not every transfer of a minor between countries legally constitutes an international abduction.
Under the 1980 Hague Convention, the immediately preceding habitual residence, the existence of custody rights under the relevant law, and their effective exercise at the time of transfer or retention must be analyzed.
The trip was authorized, but the minor has not returned.
A situation that was initially lawful can turn into an unlawful retention when the minor remains outside the State to which he was supposed to return.
There is discussion about where the minor actually lived.
The habitual residence immediately prior to the transfer or retention is a central issue in determining whether the restitution regime is activated.
It is necessary to determine what legal rights each parent had.
The relevant rights may result directly from the law, a resolution, or a legally binding agreement.
Restitution is requested, but there is a cause for opposition.
Consent, subsequent acceptance, lack of effective exercise, serious risk or opposition of the minor may be relevant if the requirements of the Convention are met.
The conflict affects two member states of the European Union
In certain intra-EU cases, Regulation (EU) 2019/1111 supplements the 1980 Hague Convention with additional rules.
Private international law
International restitution does not mean deciding on final custody.
The return procedure responds to a specific question: whether it is appropriate to return the minor in accordance with the applicable international regime.
01
Previous usual residence
It is necessary to analyze where the minor had his habitual residence immediately before the transfer or retention that is considered unlawful.
02
Custodial rights
The transfer or retention must have infringed a custody right conferred under the relevant law.
03
Effective exercise
The Convention also requires that this right was effectively exercised or would have been exercised had the transfer or retention not occurred.
04
Restitution or non-restitution
The court analyzes the appropriateness of the return in accordance with the Convention and the grounds for opposition that have been legally raised.
05
Custody of funds
The resolution on restitution does not in itself equate to definitively deciding what custody arrangement should exist between the parents.
Legal framework
Rules that may intervene
The applicable rule depends on the States involved, the age of the minor, the date of the events, their habitual residence and the legal relationship existing between the countries.
Hague Convention of 1980
It regulates, between contracting States for which it is applicable, the return of wrongfully removed or retained children and the international protection of custody and visitation rights.
Consult agreement →Regulation (EU) 2019 / 1111
In the cases covered by its scope, it complements the 1980 Hague Convention on International Child Abduction between Member States.
See regulations →Civil prosecution law
Articles 778 quater, 778 quinquies and 778 sexies regulate procedural issues relating to the restitution or return of minors in cases of international abduction.
Consult LEC →Hague Convention of 1996
It may intervene, within its scope, in matters of competence, applicable law, recognition, enforcement and cooperation on parental responsibility and protection measures.
Consult agreement →The 1980 Hague Convention applies to children until they reach the age of sixteen. In matters covered by Article 22 of Regulation (EU) 2019/1111, Articles 23 to 29 and Chapter VI supplement the Convention. Specific applicability must always be assessed in light of the States, dates, and circumstances of the case.
Time and strategy
Urgency matters, but the one-year deadline doesn't work like an automatic expiration date.
The Convention requires authorities to act with urgency. Furthermore, the time elapsed since the removal or retention may alter the legal analysis of restitution.
Before a year
Article 12 establishes immediate restitution when the procedure is initiated before one year has elapsed, always within the parameters of the Convention.
This does not eliminate the analysis of the grounds for opposition provided for by the Convention itself, but it explains why early reaction can be especially relevant.
- Date of transfer
- Date of retention
- Start of the procedure
- Habitual residence
- Custodial rights
- Documentary evidence
After a year
The fact that a year has passed does not, in itself, mean that restitution ceases to be required.
Article 12 also provides for restitution when the proceedings are initiated after one year, unless it is proven that the minor has integrated into his new environment.
Therefore, the passage of time must be analyzed legally and not as an automatic rule of consolidation of the transfer or retention.
- Integration of the minor
- schooling
- social environment
- Familiar surroundings
- Chronology of the matter
- Discipline
Opposition to restitution
The defense demands that the facts be fitted into the applicable legal grounds.
A conflict cannot be resolved simply by comparing which country would provide a better life for the child. It must be based on the provisions and exceptions established by the applicable legal framework.
Failure to effectively exercise custody rights
It may be relevant to prove that the right invoked was not actually being exercised at the time of the transfer or retention.
Consent to transfer or retention
The existence, scope, and proof of consent must be examined according to the specific circumstances.
Subsequent acceptance of the situation
Any subsequent acceptance of the transfer or retention is a separate matter from prior consent and requires proof.
Serious risk to the child
It must be analyzed whether the restitution would expose the child to physical or psychological danger or place him or her in an intolerable situation, according to the standard of the Convention.
Opposition of the minor himself
It may be relevant when the child has reached an age and level of maturity appropriate to take their opinions into account.
Integration after more than a year
When the procedure is initiated after the deadline provided for in Article 12, integration into the new environment may acquire specific relevance.
Working with RRYP
Handling an international abduction case
01
We reconstructed the chronology
Previous residence, travel, initial authorization, expected return date, communications, resolutions and current situation.
02
We identified the applicable international regime.
We check the States involved, the Hague Convention, European regulations, Spanish procedure and other regulations that may be relevant.
03
We built the evidentiary position
Usual residence, custody rights, effective exercise, consent, acceptance, risk, integration and other relevant facts must be proven in a consistent manner.
04
We manage the performances in Spain
Restitution request, opposition, judicial proceedings, measures, evidence and international coordination are integrated into a single strategy.
Affairs
Representative experience
An anonymized selection of cases related to restitution, international jurisdiction, and parental disputes between Spain and other jurisdictions.
Application for international return of a child retained in Spain
Intervention in a procedure with an international dimension relating to the return of a minor located in Spain.
Defense of the competition of Spanish courts against the United States
International matter concerning jurisdiction and measures relating to minors between both jurisdictions.
Opposition to the jurisdiction of the Portuguese courts
International conflict that required analyzing the competent jurisdiction and the legal status of the minor.
Procedures with simultaneous actions in Spain and another State
Coordination of the legal position in Spain with professionals from other jurisdictions when the matter requires it.
European jurisprudence
Habitual residence cannot be presumed solely based on the intention of the parents.
OL vs PQ: habitual residence of an infant and request for restitution
Case C-111/17 PPU concerned an application for return and the determination of the habitual residence of a minor child born and kept during her first months in a Member State other than that in which the parents had previously resided.
The Court of Justice analyzed habitual residence as a matter that must be determined based on the child's actual situation and not simply by a residence that the parents had projected for the future.
The judgment was issued under the previous Regulation (EC) 2201/2003. Its relevance for practice lies in the interpretation of the concept of habitual residence in a context of international restitution.
Consult case law →
Team
RRYP Global
Legal direction, litigation, client relations and coordinated management of matters with an international dimension.
Knowledge and practice
Private international law applied to urgent conflicts
Professional practice is complemented by university teaching, legal analysis, and public participation in matters related to the firm's work.
Method
How the issue is structured
The scope depends on the countries involved, the current situation of the minor, the path already initiated, the documentation available and the urgency of the necessary actions.
Urgent analysis
Chronology, usual residence, custody rights, resolutions and current situation.
strategy
Restitution, opposition, evidence, measures and coordination with other jurisdictions.
Procedure
Procedural preparation, claim or opposition, documentation, hearing and judicial proceedings.
Subsequent coordination
Implementation, parental responsibility, measures and international coordination where appropriate.
Budget closed per phase
Before starting each phase, RRYP Global defines its scope and the corresponding fees.
In urgent matters, particularly focused initial actions may be necessary. Their scope is identified before taking the corresponding action.
Legal Intelligence
To delve deeper into international child abduction
Analysis of restitution, habitual residence, international jurisdiction and parental conflicts that cross borders.
Explore International Abduction →What does an international restitution procedure analyze?
Usual residence, custody rights, effective exercise and facts related to the transfer or retention.
View analysis →International custody and habitual residence
How residence and international jurisdiction can influence measures relating to children.
See International Custody →Procedures between Spain and other countries
What happens when the conflict requires related actions before authorities of different jurisdictions?
Explore Legal Intelligence →
Before acting
Initial issues
In these matters, chronology, countries, and documentation can substantially modify the legal analysis.
What is considered international child abduction?
Under the 1980 Hague Convention, removal or retention is unlawful when it infringes a right of custody attributed under the law of the immediately preceding State of habitual residence and that right was effectively exercised or would have been exercised had the removal or retention not occurred.
Can failing to return a minor after vacation constitute unlawful retention?
It could be. A movement initially authorized can lead to unlawful retention if the minor subsequently fails to return and the legal requirements of the applicable regime are met.
Does having custody mean I can move the child to another country?
It should not be presumed. It is necessary to analyze what custody rights correspond to each parent according to the applicable law and what decisions regarding residence can be made unilaterally.
Does the restitution procedure determine who will have custody?
No. The immediate objective of the restitution procedure is to determine whether the return is appropriate under the applicable international regime. The custody of the funds is a separate issue.
If a year has passed, can restitution no longer be ordered?
No. Article 12 of the Convention also provides for restitution when the proceedings are initiated after one year, unless it is demonstrated that the child has integrated into his or her new environment.
Can restitution be denied due to serious risk to the child?
Article 13.b allows for the possibility of not ordering the return of a child when there is evidence of a serious risk of physical or psychological harm or of the child being placed in an intolerable situation. Its application requires analyzing and proving the specific circumstances.
Can the child's opinion be taken into account?
Yes. The Convention allows for the child's right to object when they have reached an age and level of maturity where it is appropriate to take their views into account. At the European level, Regulation (EU) 2019/1111 also contains rules on the child's right to express their views.
What happens if the theft occurs between countries of the European Union?
When the conditions of Article 22 of Regulation (EU) 2019/1111 are met, certain provisions of the Regulation supplement the 1980 Hague Convention.
Is there a specific procedure in Spain?
Yes. The Civil Procedure Law contains a specific chapter on measures relating to the restitution or return of minors in cases of international abduction, in articles 778 quater and following.
Do I have to move to Spain to work with RRYP Global?
Not necessarily. The initial assessment and much of the coordination can be done remotely. In-person actions will depend on the specific procedure.
Legal authorship
RRYP Global
Content developed for the International Family practice of RRYP Global.
The information contained on this page is general and does not replace the individualized analysis of habitual residence, custody rights, effective exercise, date of transfer or retention, States involved, regulations temporarily applicable and circumstances of the specific matter.
Reference regulatory framework: Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Regulation (EU) 2019/1111, Hague Convention of 1996, Law 1/2000 on Civil Procedure, especially its articles 778 quater and following, and other rules that may be applicable according to the States, the subject matter and the temporal scope.
First legal meeting
Analyze before you act
350 € VAT includedThe first meeting is an initial legal assessment of the matter. In a potential international abduction, the timeline and documents can be especially relevant from the outset.
- Previous habitual residence of the minor
- Current country of the minor
- Date and circumstances of the transfer
- Expected return date, if any
- Existing resolutions or agreements
- Relevant custody rights
- Procedures already initiated
- Risks and urgent actions
When a conclusion requires reviewing documentation, proving foreign law, studying communications, verifying the regime between States, or carrying out additional evidentiary analysis, it is expressly identified as subsequent work.
The meeting does not imply automatic acceptance of the assignment. If RRYP Global is able to take on the matter, the corresponding phase will be formalized later with a proposal, a fixed price quote, and an engagement letter.
Schedule initial legal meeting
Related matters
Issues that may require their own analysis
The international restitution procedure may coexist with disputes concerning parental responsibility, residence, recognition of measures or international divorce.
In the event of an international transfer or retention of a minor, it is advisable to determine as soon as possible the previous habitual residence, custody rights, chronology and the international regime actually applicable.