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Carolina Marín Pedreño, Spanish abogada, cross qualified as a Solicitor in England and Wales. Partner of Dawson Cornwell Solicitors, London.
Carolina is a Fellow of the International Academy of Matrimonial Lawyers, a member of AEAFA (Asociación Española Abogados de Familia) and founder member of FASIM, an International Association based in Spain for assistance and prevention of child abduction.
The number of applications in Spain seeking to remove children to a different jurisdiction has increased considerably in recent years for a number of reasons. Socially the global economic crisis has affected Spain dramatically. The Spain that one can visit these days is one in which mass emigration is a sad reality.
Those who immigrated to Spain from South America in the last two decades, in particular from Ecuador and Peru are returning home having been offered financial assistance from their countries of origin to ease such a return. We also have young Spanish professionals who are leaving Spain looking for employment opportunities in other countries, European residents who are deciding to return to their country of origin (frequently Britain and Germany) and citizens from Eastern Europe and Russia moving to the Mediterranean coast where the property market is attractively priced.
But the increases in applications to remove are not just down to migration; the number of mixed marriages continues to increase. In the graphic below one can observe the number of mixed marriages in the majority of EU member States [Source: Eurostat (Statistics in focus), 29/2012 - Population and social conditions, Giampaolo LANZIERI. (See: http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-12-029/EN/KS-SF-12-029-EN.PDF.]
Unfortunately we do not have the statistics showing the number of children born to mixed, but unmarried, relationships or from parents from the same country of origin but born in a different State.
However, such amounts of migration and the increase in mixed marriages involves the movement of part of a family and it is this reality that is reflected before the Spanish judges by numerous applications for leave to remove children to other countries and an increase in applications to the Spanish Central Authority under The Hague 1980 seeking the summary return of children to Spain [Spain is a signatory country of The Hague 1980 since 1988].
The lack of uniformity in family law around the Iberian Peninsula is not something that assists in this respect, in particular to the applicability of International Law. The treatment of shared residence is one example of lack of uniformity [The writer analysed shared residence in Spain in the article published in the newsletter of the Family Commission of IBA for their annual conference in Dublin, Ireland in 2012]. Regions such as Aragon, Catalonia and Valencia legislated about shared residence long before it was introduced to the rest of the Peninsula [The First project of Law regulating shared residence as exceptional and allowing Judges to grant shared residence without the need for the parties to request it, is approved by the Government in July 2013].
The judicial treatment of applications to relocate children outside of Spain was suffering from this different treatment depending on the region of Spain where they were made. The interpretation of the Law and its application differs greatly from region to region and as a result the applicability and the principles of international instruments such as The Hague 1980 vary depending where in Spain the case is determined.
A recent Supreme Court decision has finally created the much wanted and needed doctrine acknowledging the existence of contradictory jurisprudence in the State and seeking to remedy it.
Before going into the ruling of the Supreme Court, one can travel around Spain examining the treatment of these kind of cases in the different Courts.
Málaga is one of the cities of Spain where a leave to remove application seems to be almost a done deal. The parent who wants to relocate is advised to issue an application seeking a variation of the contact between the child and the non-resident parent, proposing a different contact regime as the child will be living in a different country. These applications for a variation of contact on the grounds that the residence parent was relocating were issued implying that consent to relocate was granted or even more misleadingly, not needed. Therefore it was implied that the residence parent was entitled to relocate with the child of the parties outside the jurisdiction without any requirement, hence, the rights of a parent who holds parental responsibility in respect of a child does not include the right to determine where that child should live. The result in Málaga is that if a parent has a residence order in respect of a child, he or she can unilaterally remove the child to a different jurisdiction without the consent from the other parent who holds parental responsibility (or its equal in Spain, ‘patria potestad').
One example is a decision of Section 6ª Málaga Court of Appeal in 2008 [AP Málaga, Sec. 6.a, 245/2008, of 22 Aril 2008. Appeal 834/2007]. In this case it was established that the holder of custody rights, regardless who was the holder of patria potestad, was the only person who had the power to determine the child´s place of residence as a reflection of residence, domicile and freedom of movement enshrined by the Spanish Constitution.
The Appeal Court in Málaga interpreted Custody Rights without taking into consideration Article 3 of The Hague 1980 of the civil aspect of child abduction [Art 3 of The Hague Convention 1980 The removal or the retention of a child is to be considered wrongful where -a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State]. According to the ruling, rights of custody are not a right shared by the parents who hold parental responsibility of the child, but belong exclusively to the parent who is the resident parent or what is known in the continent as the custody parent. The ruling allows resident parents to determine the country where their child should live permitting unilateral relocation without the need to have the consent of the other parent who holds parental responsibility. Worryingly the resident parent who removes the child to a different jurisdiction without the consent of the other parent is not wrongfully removing the child so there are no grounds for the left behind parent to make an application seeking the return of the child to his or her country of habitual residence pursuant to The Hague 1980. Since 2008 in Málaga, there are likely to have been numerous families who have found themselves powerless when their children have been taken to live to a different country.
However, in another part of Spain, as tropical as Málaga, but in the Canary Islands, Santa Cruz de Tenerife Court of Appeal's ruling [Audiencia Provincial de Tenerife, Sec. 1ª, 2nd July 2007] established that the decision to determine the child's place of residence was a matter under patria potestad authority to be agreed by both parents; this decision clearly being in conjunction with the interpretation of rights of custody of The Hague Convention 1980 of the civil aspect of child abduction.
The Audiencia Provincial of Barcelona, judgment 581/2012, dated 2 October 2012, heard an appeal from Juzgado of 1a Instancia No 16 of Barcelona. In this case a mother wrongfully removed a child to Germany in May 2010. There were Hague 1980 proceedings in Germany which concluded with a return order to Spain. The Mother returned to Spain in December 2010 and in February 2011 she was granted permission to relocate to Germany. Father appealed the permission arguing that a residence order was granted to the mother based on a status quo which has been created based on a wrongful removal.
The Audiencia Provincial in the appeal hearing determined that on some occasions family reorganization is necessary following a breakdown, but most importantly ruled ‘it cannot be imposed on the Mother a decision that is against her freedom of movement, based on the reasoning that it is best for the child to continue residing with both parents equally'.
Just 22 days after the appeal judgment from Audiencia Provincial of Barcelona, El Tribunal Supremo of Spain, in a judgment given on 26 October 2012, ref 1238/2011 finally issued authority in respect of these applications. In this particular case it was based on an application from a Mother to relocate the child of the parties from Spain to New York.
In First Instance in the Valladolid Court, the Judge ordered that the mother would have residence of the child if she resides in Valladolid, Spain, but the residence would be granted to the father if Mother resides in New York. This order was appealed by the Mother before the Audiencia Provincial. The Appeal Court determined that if the Mother has a residence order in respect of the child, she has the right to determine where the child should live. This decision was again another decision clearly controversial in respect of the meaning of rights of custody under Article 3 of Hague Convention 1980.
The Father unsurprisingly appealed such the order to El Tribunal Supremo.
I would highlight from the ruling from El Tribunal Supremo, the following:-
i. Within the functions of parental responsibility is included the right to determine the residency of the children;
ii. The decision of the Audiencia Provincial left to the Mother the decision to determine where the child should live in prejudice of the rights that the Father has as he holds parental responsibility and without examining whether the relocation to New York is in the child's best interest.
El Tribunal Supremo ordered the Court below to review their decision taking into consideration the convenience of the removal and taking into account the principles of necessity and proportionality of the measures dictated.
Clearly The Supreme Court is confirming that to remove a child from the jurisdiction the consent of the other parent or a Court order is needed. If Court order is required, the Court cannot give more weight to the right of free movement of one the parents, but must instead focus on the rights of the child and whether such relocation is in their best interests.
This judgment has given more judicial uniformity to applications for leave to remove and most importantly confirmed that within parental responsibility rights is the right to decide where your child should reside.
The Spanish International Liaison Judge, Francisco Javier Forcada Miranda, is assisting with judicial formation around the Iberian Peninsula of International treaties such as The Hague 1980 and the meaning of rights of custody. His role has and is making a significant improvement to the implementation of international instruments in Spain and to the uniformity of these cases around the State, but in any event the Supreme Court judgment is of significant importance and is extremely welcomed by child abduction practitioners.
The Red Book is the acknowledged authority on practice and procedure