Spanish family lawyers had an important
addition to their summer reading list following the approval of the much anticipated
and desired legislation in respect of Child Abduction cases.
Child Abduction proceedings in
the jurisdiction of Spain are now specifically regulated by
Law 15/2015 de Jurisdicción
of 2 July which entered into forced on 23 July
2015. Law 15/2015 has finally
acknowledged the need of a special procedure to protect children in child
abduction cases. Article 2 of the Convention does not require Signatory States to
The Hague Convention 1980 to specifically legislate about these proceedings. In
paragraph 63 of Professor Pérez-Vera’s explanatory report she states:
last sentence of the article specified one of the particular means envisaged,
while stressing also the importance placed by the Convention on the use of
speedy procedures in matters of custody or access rights. However, this provision
does not impose an obligation upon States to bring new procedures into their
internal law, and the correspondence now existing between the French and
English texts rightly seeks to avoid such an interpretation, which the original
French text made possible. It is therefore limited to requesting Contracting
States, in any question concerning the subject-matter of the Convention, to use
the most expeditious procedures available in their own law.'
But those States that have opted
for legislating and who have adopted a special procedure within their domestic
law, have been shown to be more effective in the implementation of the international
Three of the most significant changes
brought about by the legislation are:
- judicial concentration and
therefore judicial specialism;
- timing; and
- the appeal process.
Prior to 23 July
2015, jurisdiction rested with the First Instance Civil Court where the child
had been located. Such Court could be the Court of a small city within a
province, not necessarily a Family Court and therefore more used to dealing
with cases of a different nature such as insolvency and civil claims. Following
Law 15/2015, child abduction cases will be heard only (in the First Instance at
least), by Family Judges from the Court from the capital city of the province.
For example, if a child is located in
a beautiful city of the
Región of Murcia,
the Court which would have jurisdiction would be the First Instance Court with
Family Competence of the city of Murcia.
Concentration of jurisdiction is
one of the aspects of English/Welsh system most applauded by the Hague
community. The reality is that such concentration has led to judicial
specialism and consequently better protection of children. Those are the hopes
now for the Iberian Peninsula.
Law 15/2015 indicates the urgency
and preferential nature of these proceedings within other family proceedings and
directs the Court to deal with these proceedings, in both instances including
the appeal, within the 6 week period stipulated in the Convention
and Regulation2. Only in exceptional
circumstances will those 6 weeks be extended. The time scale is very severe
and rigorous as we will see from the examination of the procedure. In short,
once the application is lodged, the Judge’s Clerk, within 24 hours, has to
issue or refuse it based on the examination of jurisdiction. If the Judge’s
Clerk has not accepted the application, it will be referred to the Court for
the family Judge to declare whether the Court has jurisdiction within those 24
hours. At the same time, when issuing
the application, the Judge’s clerk will notify the Respondent to appear before
the Court on a specific date which cannot be more than 3 days thereafter and to
bring the subject child. At that appearance the Respondent will need to confirm
if he or she will voluntarily return the child or contest the proceedings. If
the Respondent contests the application, he would need to indicate the defence.
If the Respondent indicates that he
or she will return the child voluntarily, the Judge’s Clerk or the Judge on that
appearance would make an order for the costs of the proceedings and the costs
of the return.
The Respondent can decide to return the child
voluntarily at any stage in the proceedings.
Art. Hague Convention 1980 of the Civil Aspect of Child Abduction
2 Regulation (EC) 2201/2003
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