SPAIN Law and Practice Contributed by: Esther Susín, E. Susín International Law Firm
Practical Availability • Legal aid is not automatic; the parent must apply and demonstrate insufficient financial means in accordance with Spanish thresholds. • In urgent Hague return cases, applications for legal aid are usually processed quickly to avoid delaying proceedings. • Even if free legal aid is not granted, the Central Authority can help identify lawyers experienced in Hague Convention cases. Limits • If the applicant’s income exceeds the legal aid threshold, they must cover their own legal expens - es. • The scope of legal aid depends on the applicant’s circumstances and may not always cover all costs (eg, travel expenses). • According to a 2015 national report, Spain was the seventh Central Authority with the highest total number of requests (restitution and visits) and the fifth with the most requests for return. That year, the Spanish Central Authority received 112 requests for return and sent 92 to other states. This report, although dated, seems to be the only spe - cific source with detailed figures. No updated public link with year-to-year statistics from the Spanish Cen - tral Authority has been identified. According to some unofficial sources, around 350 international abduc - tions occur in Spain every year. It can be said that Spain effectively complies with the mandate established by the 1980 Hague Convention on the Civil Aspects of International Child Abduction, both in terms of international co-operation and the implementation of swift domestic procedures for the child’s return. Through its Central Authority – the Subdirectorate- General for International Legal Co-Operation of the Ministry of Justice – Spain has developed mechanisms to receive, process, and enforce return applications, working in co-ordination with the central authorities of other contracting states. It also ensures that applicant parents, whether nationals or foreigners, have equal access to free legal aid as provided for in Articles 7 (g) and 25 of the Convention, provided they meet the
economic eligibility criteria set out in Law 1/1996 on Legal Aid. Furthermore, the Spanish courts apply the Conven - tion’s timelines and principles as a priority, striving for prompt proceedings and adopting precautionary measures where necessary, with the aim of safeguard - ing the best interests of the child and preventing dis - placement-related harm. Possibility of Applying for the Return of the Child If the country from which the child has been removed is not a signatory to the 1980 Hague Convention, the parents can still request the child’s return in Spain. Such applications would be made directly before the Spanish courts, generally through civil proceedings based on parental rights under Spanish law (parental responsibility) and the best interests of the child as per Article 2 of the Organic Law on the Legal Protection of Minors (LO 1/1996) and Article 154 of the CC. The return will not be automatic; the court will assess the circumstances, including the child’s welfare and any risks involved. Procedure, Applicable Principles, Cost and Timescale • Procedure – an application ( demanda ) is filed before the Family Court ( Juzgado de Familia ) of the child’s habitual residence in Spain. The process includes an urgent hearing of both parties, reports from social services, and where appropriate psy - chological evaluations of the child. • Principles – paramount consideration is given to the best interests of the child (Article 2 LO 1/1996) and the right to maintain personal relations and direct contact with both parents (Article 94 CC). The child’s opinion will be heard if they are mature enough, usually from the age of 12. • Costs – the costs vary according to the complex - ity of the case and whether legal aid is granted; private legal representation for such cases may range from EUR3,000 to EUR8,000, plus court fees and expert costs. • Timescale – in non-Hague cases, proceedings often take longer – typically six to 12 months – depending on court workload and whether appeals are lodged. There is no specific “summary return”
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