SPAIN Trends and Developments Contributed by: Mayte Garcia, MAYTEGARCIA International Family Law, slp
How Spanish Judicial Decisions Regarding the Relocation of Children Are Guided by the Best Interests of Each Child International child relocation has become a significant issue in family law in Spain, particularly in the con - text of international families as Spain is a destination country for many foreign families. This situation arises when one parent, following a separation or divorce, wishes to move to another country with the child, often leading to conflicts between the parents and raising important legal and ethical questions, mainly affecting the child’s rights. This report aims to provide a general guide on inter - national child relocation in Spain. It will address the applicable legal framework, relevant Spanish Supreme Court jurisprudence, and offer a detailed analysis of the “best interests of the child” principle and how it influences judicial decisions regarding relocation. Legal framework in Spain International child relocation in Spain is regulated by a combination of domestic laws and international conventions that seek to protect the child’s rights and ensure that any decision made in this context is guided by the principle of the child’s best interests. Spanish Civil Code Article 154 of the Spanish Civil Code provides that the rights inherent to parental authority include that of “deciding the habitual place of residence of the minor, which may only be modified with the consent of both parents or by judicial authorization.” According to Article 156 Spanish Civil Code, it is understood that the Code refers to decisions on relo - cation and changes of habitual residence of minor children as falling within the scope of the joint exer - cise of parental authority by both parents. For this reason, they must be adopted by common agreement, or by one of them alone with the consent of the other, except in situations of urgent need. In the event of disagreement, they will always be decided by a Span - ish judge.
Law 1/1996, of 15 January, on the legal protection of minors This law establishes that the child has the right to have their best interests considered as a priority in any decision affecting them. Article 9 of this law rein - forces the right of the child to be heard in all judicial proceedings that concern them, provided they have sufficient judgement, and in all cases if they are over 12 years old. International regulation While this report focuses on domestic Spanish issues, it is important to mention that Spain is a party to sev - eral international conventions that can influence cases of international child relocation, such as Hague Con - vention 1996, Council Regulation (EU) 2019/1111, and Hague Convention 1980. These instruments regulate co-operation between states to ensure the protection of children in the case of relocation. Best interests of the child The principle of the “best interests of the child” is the central axis in any judicial decision related to inter - national child relocation. This principle is highlighted both in Spanish law and in numerous international instruments ratified by Spain. Factors to consider When assessing the best interests of the child in a relocation case, Spanish courts usually consider sev - eral factors, including the following. • The child’s relationship with both parents – the court evaluates the emotional bond and the degree of attachment between the child and both parents, as well as with siblings and other close relatives. • The child’s emotional stability – the court analyses how the relocation might affect the child’s emo - tional stability, considering factors such as their adjustment to their current environment, school performance, and social network. • The child’s ability to adapt to the new environment – the court assesses the child’s ability to adapt to the new country, including culture, language, the educational and healthcare systems, and opportu - nities for personal and social development. • Living conditions in the new country – the court considers the material and well-being conditions
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