When a family crisis has an international component, one phrase can completely alter the strategy: "my son says he doesn't want to come back."
At that point, many parents believe that the child's wishes automatically prevent their return. But international family law doesn't work that way.
The question cannot be resolved simply by considering what the child wants today, but requires a much more precise analysis of their age, maturity, the context of that opposition, and, above all, what their... habitual residence before the transfer or retention.
That is the decisive technical concept, although in common language people still talk about the "country of origin".
It's not a marginal issue. It appears in separations involving professional careers in different countries, in poorly planned cross-border custody arrangements, and also in some international divorces in Spain in which the conflict is no longer the breakup, but who decides the country from which parental responsibility will continue to be exercised.
In this area, improvisation is often costly, because a hasty decision can affect the relationship with the child for years.
When a child says they don't want to return: what does the judge really decide?
The first thing to clarify is that the international restitution procedure is not a general judgment about which parent educates better or about which country "will have a better life".
El Hague Convention of 1980 It was designed for something else: to quickly restore the situation prior to an unlawful removal or retention and to return the substantive issue to the child's habitual residence State, which is where custody, visitation arrangements and structural decisions about their life should be discussed.
The Convention itself indicates that the decision on restitution does not affect the substantive issue of custody rights.
Therefore, when the minor states that he does not want to returnThe court simply fits it into a system of limited exceptions.
The general rule remains the immediate restitution when the removal or retention violated a custody right effectively exercised in the State where the child had his or her habitual residence immediately before the breakdown of the status quo.
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The general rule remains return, not permanence.
El Article 12 The Convention is very clear: if there has been unlawful transfer or retention and it has not yet passed more than a year From the moment they occurred, the competent authority will order the immediate return of the minor.
Even when More time has passedReturn remains the rule, unless it can be demonstrated that the child has become integrated into their new environment. In other words, the international system operates on the principle that unilaterally moving a child from one country to another harms both the child and the legal balance of the case, and therefore seeks to prevent the time gained through a unilateral decision from ultimately benefiting the parent who acted first.
Spain This scheme is applied through the specific civil procedure for international restitution and, in addition, through the Central Authority of the Ministry of Justice when the case enters the Hague Convention or within the European framework.
El Ministry It expressly explains that the procedure seeks the return of the minor to the country of his habitual residence and that the final decision on whether or not the return is appropriate corresponds to the competent court.
Does the child's refusal prevent the return? Not on its own.
Here is the core of the answer.
El Article 13 of the Convention allows the judicial authority I can refuse to order restitution if it finds that the child himself opposes it and has reached an age and level of maturity where it is appropriate to take his opinions into account.
This means that the child's objection is a possible exception. It is not enough for them to say "I don't want to go back"; that objection must have real legal standing.
Spanish law reinforces this idea from the perspective of the Children's rights.
La Organic Law 1 / 1996 acknowledges that the minor has right to be heard and listened to in any proceeding that affects him and that their Opinions should be taken into account according to their age and maturity.
Furthermore, the same rule establishes that, in any case, a person is considered to have sufficient maturity when they have met twelve yearsThat doesn't make twelve years a magical boundary, but it does make it a very relevant reference point for the judge.
In other words: the child's wishes matter, a great deal, but they do not in themselves replace judicial analysis. The judge must assess whether that opinion is freely given, consistent, and sufficiently mature, and then explain in the ruling why a certain weight is given to it. LOPJM It specifically requires that the decision explain the criteria used, the balancing of interests, and the procedural guarantees respected.
How does the court assess whether that opposition is genuine or conditional?
A minor may reject the return because they fear another emotional breakup, because they have adapted to their current environment, because there is an influential discourse from one of the parents, or simply because they do not yet understand the real consequences of changing countries.
That is why the Spanish law insists that the Maturity should be assessed by specialized personnel taking into account the child's developmental stage and their specific ability to understand the matter.
This is especially important in international contexts of high asset or professional complexity, where parents often think in terms of jurisdiction, school, tax residence or future stability.
Un international divorce of foreigners This may open up parallel debates about where to study, what language to grow up with, or which country offers more continuity, but none of these debates alone transforms the child's wish into a veto clause against their return. First, it must be determined whether or not there was an unlawful removal or retention, and if a sufficient legal exception exists.
When the child's opposition can change the outcome
That doesn't mean the opposition is irrelevant. It can be decisive when it reveals a deeper problem.
Own Article 13 of the Convention It also contemplates the exception of serious riskThat is, that the restitution exposes the minor to a physical danger o psychic or place it in a intolerable situation.
If the child's refusal is linked to a serious, persistent, and verifiable fear, the court should not dismiss it as a mere temporary preference. It will have to analyze whether that opposition constitutes a genuine exception to the return.
In the field of European UnionFurthermore, the Regulation (EU) 2019 / 1111Applicable from August 1, 2022, it strengthens the speed of the procedure, improves restitution in cases of abduction and emphasizes that children must have the opportunity to be heard in the processes that affect them.
El best interests of the child This remains the fundamental consideration, but it is articulated within a mechanism designed to resolve quickly and prevent time from consolidating accomplished facts.
What to do before the conflict becomes irreversible
For a parent with an international lifestyle, the problem begins when it is not specified in writing who can decide:
- Travels.
- School changes.
- Removals.
- Passport renewals.
In a International divorce of foreigners in SpainThis omission can become critical if one of the parents tries to present as "normal" what was actually a unilateral decision.
Therefore, in scenarios preventiveA well-designed international family law strategy is usually more useful than an improvised reaction once the action has already been taken.
That's where professionals who don't just see the case as a marital breakdown, but as a cross-border parental responsibility issue, make sense.
In some cases, that coordination also requires the vision of International divorce lawyers in SpainBut if the risk is already one of displacement or no return, the approach should be much closer to that of Lawyers specializing in international child abduction in Spain.
Conclusion: The child's voice matters, but it doesn't decide alone.
If the minor says they don't want to return, the judge cannot ignore it. They must listen to them, assess their maturity, analyze whether that opposition is genuine, and rigorously justify their decision. But neither can they turn that refusal into a kind of plebiscite on the country in which the minor wishes to live at that moment.
Current legal architecture continues to defend that restitution is the rule and that exceptions must be proven on a case-by-case basis.
The key, therefore, is not only to ask what the minor wants today, but to identify which forum was competent, where his habitual residence was, whether the transfer was unlawful and whether that opposition, read together with the rest of the circumstances, justifies a legal exception to the return.
That is the difference between an emotional reaction and a serious legal strategy: understanding that, in an international family, a bad decision today can condition the future relationship with the child for many years.
FAQS
Yes. The child's objection does not, in itself, prevent the return of the child. The Hague Convention allows it to be taken into account when the child is of sufficient age and maturity.
In Spain, the LOPJM (Organic Law on the Protection of Minors) presumes sufficient maturity, in any case, from the age of twelve. Before that age, their opinion can also be considered, but it will normally require a more careful examination of their actual maturity.
The issue may then extend beyond simple opposition and connect with the grave risk exception under Article 13 of the Convention. The court must analyze whether that fear is serious, substantiated, and legally relevant.
Yes. When more than a year has passed, the Convention allows for an assessment of whether the child has become integrated into their new environment. Even so, return remains the rule unless such integration is demonstrated.
No. The return procedure does not resolve the underlying custody issue. Its purpose is to decide whether the child should return to the State of their habitual residence so that the substantive issue of parental responsibility can be addressed there, if applicable.
RRYP Global, lawyers specializing in international custody.
