Request for child relocation under Spanish law
What is the appropriate procedure to request a relocation of a child under Spanish Law?
1. Civil Procedural Scope
In Spanish procedural Act there are two different procedures to request a relocation. In principle this is so, but in practice it is not, as we see below.
On some occasions there is confusion in Spanish civil procedural Act in relation to the procedure that must be adopted to request a relocation. There are two procedures in the procedural system as previously mentioned. On the one hand, that of the Civil Procedure Law (Law 1/2000, of January 7), and on the other hand, that provided for in the “Jurisdicción voluntaria” Act. (Act 15/2015, of July 2).
However, the jurisprudence determined that the request for a relocation must be carried out through a procedure for the modification of final children arrangements or in a divorce or petition on children arrangements or custody , since both cases involve a significant modification in the children’s life.
The voluntary jurisdiction procedure, on the other hand, deals with disputes in parental issues and, therefore, should be limited to resolving specific disputes and not be applied to those cases that involve a genuine modification of the final children arrangements agreed upon in a previous dispute or consent order proceedings or in an initial petition. In this sense, it is established in the Order of the AP Barcelona 384/2020, December 17, 2020 (Chamber 12).
2. Requirements for relocation
In Spanish law there is no legal provision that says what are the requirements that must be taken into account to agree on a child relocation.
The Supreme Court (Civil Chamber, Section 1) in judgement no. 705/2021 of October 19th: art. 2.3 d) of the LOPM establishes as elements to be taken into account to weigh the criteria that determine the interest of the child “the need for stability of the solutions adopted to promote the effective integration and development of the child in society, as well as minimizing the risks that any change in material or emotional situation may cause in their personality and future development”.
Likewise, the ruling of the Superior Court of Justice of Catalonia number 1/2020 of January 13, based on article 39 of the Spanish Constitution, mentions, like the previous ruling number 60/2016, the principles of European family law, principle 3.21:
- age and opinion of the child;
- the right of the child to maintain personal relations with the other holders of parental responsibility;
- the ability and willingness of the holders of parental responsibility to cooperate, the personal situation of the holders of parental responsibility;
- geographic distance and access facilities;
- the free movement of people.
This ruling also mentions “… that the conflict that arises between both parents must be assessed according to criteria of necessity and proportionality, weighing the values and rights at stake so that the measure adopted in the best interest of the child does not further restrict or limit rights than those it protects”.
It must be proven before the corresponding court that the measure is adopted in the interest of the child and that relocation is not intended to remove the children from the leftbehind parent.
Read more about child relocation and child abduction in Spain.