If you are an international couple with children and you are separating, you may be thinking about going back to your home country and taking your child with you. It's an understandable instinct. But if you do this without the other parent's consent, or without a court order, you could be breaking the law, even if your intentions are good.
This is what the law calls parental child abduction, and it comes up often for expat families in Spain.
Which court decides
The court in the country where your child normally lived before the move stays in charge of the case until the abduction issue is resolved. This rule exists so that a parent cannot simply move to another country hoping a different court will rule in their favour.
Getting help
Every EU country except Denmark has a Central Authority set up to help parents dealing with a cross-border child abduction. Through this system, a parent can start a procedure asking for the child to be returned.
Once that procedure starts, the court must decide within six weeks. The child should also be given the chance to be heard during the case, unless doing so would be inappropriate given their age or maturity.
When a court can refuse to send the child back
The court in the country the child was taken to can only refuse to return the child if sending them back would put them at serious risk of physical or psychological harm. Even then, if proper arrangements can be made to protect the child, the return usually still goes ahead.
If a court does decide the child should not be returned, it must inform the court in the country the child was taken from. That original court then makes the final decision, taking the other court's findings into account, and it must hear both parents and the child before ruling.
Enforcing the final decision
Once the court in the child's home country issues its final ruling, that ruling is automatically recognised and enforceable in the other EU country. There is no need for a separate declaration confirming it can be enforced, as long as the judge has issued the right certificate.
These cases move fast and the rules are strict, so if you are considering taking your child abroad during a separation, it is worth understanding exactly where you stand before you act.
