Question: I’m a British citizen living in Spain with my husband and young children as we came to live here for his work purposes five years ago. He’s left me for someone else so I wish to return to the UK to be with extended family for support. My husband is refusing to let me take our children as he wishes to continue living in Spain. Can I get back to the UK?
Answer: You cannot legally bring your children back to the UK without the consent of your husband. Taking a child from one country into another without the permission of their other parent is child abduction under the law.
The law places great emphasis on the welfare of children in such situations and will endeavour to return them to their “habitual residence” as quickly as possible – that is to say, the country in which they usually live. The most widely used legal mechanism for doing is the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention
Originally drafted in 1980, this international treaty enables the speedy return of children who have been taken abroad by angry or alienated parents. Every country that joins the Convention undertakes to recognise and enforce requests for the return of children issued by other participating nations.
The Hague Convention on the Civil Aspects of International Child Abduction currently has 101 signatory countries and that includes, of course, both Spain and the UK. So, if you did take your children back to the UK against the wishes of your husband, he would be able to make an application for their return to Spain under the Hague Convention and you would be summoned to court his answer his complaint.
The Convention does provide some defences to an application for the return of a child. These include:
- That the child objects to returning (this, of course, only applies to older children).
- That the other parent agreed to the children leaving.
- That the child would be at “grave risk” of harm if they returned.
- That the child, by the time the application is heard, has become so settled in their new home that a return would be disruptive and not in their best interests.
Of course, these defences all need to be established in court, before a judge. But if they are persuaded and believe that you have made your case, your husband’s application would be disregarded. Depending on your personal circumstances, this process may be straightforward – or quite difficult.
Alternatives to the Convention
There are two other options to you, besides taking your chances on a Hague Convention case:
- Negotiating with your husband and trying to reach a direct agreement.
- Applying in a Spanish family court for permission to relocate with your children despite your husband’s objections. You will need to demonstrate that relocation would be in their best interests. In most cases you will also need to demonstrate how they would maintain a relationship with their father – stating when and for how long they would see him. Of course, your husband would be able to argue against you and make his own case.
Court cases take time, can be costly and of course, the outcome is rarely predictable. We therefore recommend doing your very best to reach an agreement with your husband. If that fails, then the next step is to seek legal advice from an expert family lawyer.
Mother and fathers unable to legally leave a country to which they may no longer feel any sense of connection after the breakdown of their marriage are often dubbed ‘stuck’ parents. The charity GlobalARRK offers resources and assistance for parents caught in this diffiuclt dilemma.
Stuck parents in Spain generally require on the ground advice on Spanish family law. We recommend the services of Spanish law firm ALC Abogados, based in Malaga, who can provide advice in both Spanish and English. We have worked closely with Manager Partner José María Del Río Villo and his team on a number of multinational cases. You can reach José at email@example.com.