SPAIN Trends and Developments Contributed by: Mayte Garcia, MAYTEGARCIA International Family Law, slp
that the child would have in the destination coun - try, including housing, access to education, and healthcare. • Proposed contact with the left-behind parent – it is crucial to present a detailed plan that allows for the continued and meaningful relationship between the child and the left-behind parent, including regular visits, consistent communication and periods of stay. • The child’s opinion – depending on the child’s age and maturity, their opinion will be taken into account, especially if they are over 12 years old. The child’s capacity to express their will and under - stand the implications of the relocation are key elements in the evaluation when the children have enough maturity. Spanish Supreme Court jurisprudence on the best interests of the child The Spanish Supreme Court has developed extensive jurisprudence regarding international child relocation, establishing clear criteria on how the principle of the best interests of the child should be applied in each case. The relocation must be based on objective and necessary circumstances and will never be admissible if the relocation is based on selfish and capricious motives of one of the parents. As a reference, examples of relevant cases in which Spanish Supreme Court has outlined the criteria for applying the child’s best interests are set out here. • The Supreme Court denied the mother’s request to relocate the child to Germany. The Court argued that it had not been demonstrated that the reloca - tion would benefit the child, who was fully integrat - ed into their environment in Spain and maintained a meaningful relationship with both parents. This case underscores the importance of the child’s emotional stability and the need to maintain their relationship with both parents. • The Supreme Court authorised the relocation of a child to Argentina, requested by the mother. The judgment highlighted the importance of the moth - er’s employment and family situation in Argentina, as well as the child’s relationship with their extend - ed family in that country. The Court concluded that, in this case, the relocation was the most appropri -
ate for the child’s welfare, emphasising the need to evaluate each case based on its particular circum - stances. • The Supreme Court denied the relocation to the USA, arguing that although the mother had pre - sented legitimate reasons for her relocation, it had not been proven that the change would benefit the child. This ruling highlights the importance of prov - ing that the relocation will positively contribute to the child’s well-being. • The Supreme Court permitted the relocation of a child to France with their mother, who had found employment in that country. The judgment high - lighted the improved educational opportunities and quality of life that the relocation would provide for the child. Additionally, the measures proposed to ensure that the child maintained a close and con - tinuous relationship with their father, who remained in Spain, were viewed positively. The decision adopted by the judge must make the protection of the best interests of the minor effec - tive. The Supreme Court stated in its judgment of 28 September 2009 that “the regulations relating to the interests of minors have the characteristics of public order, and therefore must necessarily be observed by judges and courts in the decisions taken in relation to minors…” In this matter, different rights clearly come into con - flict. On the one hand the right of one parent to freely choose their place of residence, and on the other hand the right of the other parent to maintain a relationship with their minor children (Articles 90, 91, 94 and 103.1 of the Spanish Civil Code). Above all, the principle established in Article 39 of the Spanish Constitution, in the Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations on 20 November 1989, ratified by Spain and in the Law 1/1996, of 15 January, recognises prevalence of the welfare and the best interests of the minor. The Spanish Supreme Court, in the judgment dated 20 October 2014, which established jurisprudential doc - trine, highlighted that “the change of residence abroad of the custodial parent may be judicially authorised only for the benefit of the minor children who move with that parent”, on the following basis: “The change
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