Parental child abduction cases often raise complex jurisdictional issues. In Spain, criminal proceedings for parental child abduction may not be tried by Spanish courts when the child’s habitual residence is located in another country. Understanding how jurisdiction is determined is essential in cross-border family disputes.
1. Parental Child Abduction: the Spanish Criminal Code
Section 225 bis of the Spanish Criminal Code punishes with two to four years prison the parent who, without a justified reason, abducts their underaged child. For the purposes of the precept, abduction is considered to be:
1. The removal of a child from his or her habitual place of residence without the consent of the other parent, or of the persons or institutions entrusted with his or her custody or guardianship.
2. The retention of a child in serious breach of a judicial or administrative decision.
2. Jurisdiction on Parental Child Abduction
Ruling 805/2024 of 26 September, of the Second Chamber of the Spanish Supreme Court confirms the dismissal of criminal proceedings against a father for the alleged crime of child abduction, on the grounds that the Spanish courts lack jurisdiction. It so happens that their territorial jurisdiction to hear the said offence is determined by the place where the offence was committed (forum delicti commissi), this being the place from which the father allegedly took the child, or the place where he should have returned him. In this context, this place corresponds to the domicile or residence of the child at the time of the alleged offences; and this domicile or residence was in Italy, where the mother lived and where the child was attending school.
None of the criteria for jurisdiction under Section 23.2 of the Spanish Organic Law of the Judiciary (Ley Orgánica del Poder Judicial) to extend Spanish jurisdiction to crimes committed abroad are met in this case, since the crime in question, parental child abduction, does not fall within any of the cases listed in numbers 3 and 4 of the aforementioned section, nor does the person under investigation have Spanish nationality, but rather Austrian nationality.
Therefore, the Supreme Court declared that the Spanish courts lacked jurisdiction on this particular case of parental child abduction reported by the mother.
3. Practical Implications in Cross-Border Parental Child Abduction Cases
Jurisdiction plays a decisive role in parental child abduction cases involving more than one country. As confirmed by the recent case law of the Spanish Supreme Court, criminal proceedings in Spain may be dismissed when the child’s habitual residence is located abroad, even if one of the parents has strong ties to Spain. This highlights the importance of analysing jurisdiction at an early stage, as pursuing criminal action before an incompetent court may lead to delays, dismissal of proceedings, and unnecessary emotional and financial costs for the parties involved.
In parental child abduction matters, early legal advice is essential to determine the appropriate jurisdiction.
4. Legal Advice on International Parental Child Abduction Cases
If you are facing a parental child abduction case with international elements, and need legal advice on criminal jurisdiction or the appropriate legal strategy in Spain, I can assess your specific situation and guide you through the available legal options.
I have successfully handled numerous cases of parental child abduction both within Spain and across the European Union, including Germany, Austria, and other countries. In each case, I have secured the return of the child to the place where they have their established residence and rightful care, ensuring that their legal and emotional best interests are fully protected.
My experience combines a deep understanding of both Spanish and EU law, allowing me to navigate complex cross-border procedures effectively.
Contact me for personalised legal advice.
