The defense of the child in Spanish return proceedings

by | Oct 17, 2022

By Adriana de Ruiter – Spain – 

In the Spanish legal system, the guardian ad litem is not used in abduction cases nor in any other family conflicts, as parental responsibility orders. This doesn’t mean the child is not protected nor defended at Court. In all cases in which children are involved, the Public Prosecutor will defend the interests of the child, regardless the age of the children.

Public prosecutor

The task of the Public Prosecutor during return proceedings is to guarantee the best interest of the children is respected. He or she will have an active role during the hearing, interrogating the parents, evaluating the evidence, and concluding the best interest of the child whether this means the return or the denial of the restitution.

The public prosecutor will receive the file with the application, defense and written evidence, but he/she will not have private interviews with the parents or with the child(ren). The public prosecutor will be called by Court. No direct contact is established between the public prosecutor or the implied parties.

Child interview

In case the child is over 12 or mature enough to be heard, both the judge as the public prosecutor will interview the child. Nor the parents, nor the lawyers of the parents are present during this interview, though they will receive a copy or transcription of what was said during this interview. In other cases, the children are heard by psychologists. All parties, including the Public Prosecutor, receive the psychological report and are allowed to interview the psychologist during the hearing.

After the hearing and once all evidence has been provided, the Public Prosecutor will recommend the judge which decision to take, but he/she will not have any contact afterwards with the child, nor with the parents or the lawyers.

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