Introduction

International child relocation has become a significant issue in family law in Spain, particularly in the context 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 international 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

The Spanish Civil Code Article 154 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 with Article 156 of the Spanish Civil Code, it is understood that the Code refers to decisions on relocation and changes of habitual residence of minor children as falling within the scope of the joint exercise 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 and, in the event of disagreement, always by the Spanish judge.

Law 1/1996, of January 15, 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 reinforces the right of the child to be heard in all judicial proceedings that concern them, provided they have sufficient judgment, and in any case, 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 several international conventions that can influence cases of international child relocation, such as Hague Convention 1996, Council Regulation (EU) 2019/1111, Hague Convention 1980. These instruments regulate co-operation between states to ensure the protection of children in 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 international child relocation. This principle is highlighted  both in Spanish law and in numerous international instruments ratified by Spain.

Definition and scope

The best interest of the child is an indeterminate legal concept, meaning it does not have a precise or rigid definition. It is a principle that requires all decisions affecting a child to prioritise what is most beneficial for their physical, emotional, and social well-being. The goal is to protect the child and ensure their development is as healthy and balanced as possible, considering their needs and rights.

Factors to consider

When assessing the best interests of the child in a relocation case, Spanish courts usually consider several factors, among others as follows.

• 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 emotional 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 opportunities for personal and social development.
• Living conditions in the new country – The court considers the material and well-being conditions that the child would have in the destination country, 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 and constant communication and stays.
• 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 understand 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 the selfish and capricious acts of one of the parents.

Supreme Court criteria

As a reference, relevant cases in which the Spanish Supreme Court has set out the criteria applicable to the best interests of the child are as follows.

• 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 relocation would benefit the child, who was fully integrated 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 mother’s employment and family situation in Argentina, as well as the child’s relationship with their extended family in that country. The court concluded that, in this case, the relocation was the most appropriate for the child’s welfare, emphasising the need to evaluate each case based on its particular circumstances.
• The Supreme Court denied the relocation to the US, arguing that although the mother had presented legitimate reasons for her relocation, it had not been proven that the change would benefit the child. This ruling highlights the importance of proving 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 highlighted 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 continuous 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 effective, the Supreme Court stating in its judgement 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 certainly come into conflict. 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 relate to their minor children (Articles 90, 91, 94 and 103. 1 of the Spanish Civil Code); and above both the principle recognised 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 L.O 1/96, of 15 January, of the prevalence of the benefit and the best interest of the minor.

The Spanish Supreme Court in the judgment dated 20 October 2014, which established jurisprudential doctrine, highlighted that “the change of residence abroad of the custodial parent may be judicially authorized only for the benefit of the minor children under his custody who move with him”, on the basis that the change of residence affects many things that have to do not only with moving abroad, with a different language, as in this case, but also with habits, schooling, customs, and even with the travel expenses involved in moving to a country far from the child’s environment, as this may prevent or make it difficult for both the child and the left-behind parent to travel in order to maintain contact with the child. It is the interests of the child that are paramount in these cases”.

The problem arises as to the suitability or inadmissibility of moving the child to another place of residence, which may entail a dramatic change in both their social and parental environment, with problems of adaptation; the Spanish Supreme Court specifying in the most recent judgement of 18 January 2017, that in cases of transfers of the custodial parent to a different location from the one in which they had been residing, and to which the child follows them to continue with the custody and guardianship, the respect and protection of the best interests of the child must be taken into account when deciding on this new situation.

In addition, the most relevant is not whether the custodial parent’s freedom to choose residence can be restricted, but whether it is appropriate or inappropriate for the child to move to another country, which may entail a radical change in their social and parental environment, with problems of adaptation.

The concept of the interests of minors, as expressed by the Supreme Court in the judgment of 16 September 2016, has been developed in LO 8/2015, of 22 July, on the Modification of the Child and Adolescent Protection System, in the sense that: “The maintenance of their family relationships shall be preserved”, “the satisfaction of their basic material, physical, educational, emotional and affective needs shall be protected”, “the irreversible effect of the passage of time on their development shall be considered”, “the need for stability in the solutions adopted...”.

Case Law in Spain on International Child Relocation

Spanish jurisprudence has addressed numerous cases of international child relocation, each with its particularities. Below is an analysis of some common situations and the resolutions adopted by the courts.

Relocation for employment reasons

One of the most common reasons for requesting international relocation is a job offer in another country. In these cases, courts evaluate both the professional opportunity and the parent’s ability to provide a better quality of life for the child in the new destination. However, mere economic improvement is not always sufficient to justify relocation if it may destabilise the child emotionally or if their adaptation to the new environment is uncertain.

Relocation for family reasons

In other cases, relocation is justified by the need of a parent to reunite with their extended family in another country or due to a new marriage. Courts consider the stability and emotional support that the extended family can offer the child in the new country. However, it is essential to demonstrate that these new circumstances will not significantly disrupt the child’s relationship with the parent remaining in Spain. This usually applies when the other parent has not attended to their parental duties for a long period of time.

Denial of relocation due to lack of child’s ties to the new destination

In some cases, courts have denied relocation because the child had no prior ties to the destination country, which could hinder their adaptation. If the child does not speak the language, has no family or friends in the new country, and it has not been demonstrated that the change will significantly improve their well-being, the courts may consider that the relocation is not in the child’s best interests.

Practical Considerations for Parents

For parents considering applying for international relocation with a child, it is crucial to take several practical aspects into account.

Preparation of a detailed plan

It is essential to prepare a detailed plan covering all aspects of the relocation, including residence, education, access to healthcare, and the visitation and communication plan with the parent staying in Spain. This plan must demonstrate that the child’s well-being has been carefully considered in all dimensions.

Gather documentary evidence

Gathering all relevant documentation to support the application is crucial. This includes employment contracts, school acceptance letters, medical reports if necessary, and any other evidence that demonstrates that the relocation is in the child’s best interests.

Communication and negotiation

Whenever possible, it is advisable to try to resolve the conflict amicably through negotiation or family mediation. Reaching an agreement between the parents is not only less costly and stressful but can also result in a more flexible solution tailored to the needs of all involved.

Evaluation of the new country’s environment

Before making a final decision, it is important to conduct a thorough evaluation of the environment in the destination country, considering aspects such as the quality of the education system, social opportunities for the child, and ease of access to medical and psychological services.

Consideration of the child’s stability

The court will place great importance on the child’s stability, so any proposed change must be clearly aimed at improving their quality of life without causing significant disruption to their routine or important relationships.

Relocation Cases Involving a Child who is Under the Guardianship of the Competent Authorities of Another Country (HCCH 1996)

The international relocation of minors under the custody of competent authorities, such as child protection services or juvenile courts, is a matter of increasing importance in international family law.

These cases typically involve complex situations where the protection of the child, their well-being, and respect for human rights are of paramount importance. Collaboration between states is essential, as is finding an expert lawyer to ensure that decisions regarding the international relocation of these minors is done in a manner that respects their rights and promotes their welfare and that guarantees the legal status of the child in the state to which the child is to be relocated.

Many aspects have to be considered in these cases, such as the recognition of judgments issued by foreign courts, the adaptation of the child’s custody to the domestic laws of the new jurisdiction, their incorporation into the educational system of the country where they will reside, guaranteeing the child adequate health care, legalising their residence status in the new country, etc.

Cases of International Child Abduction and Wrongful Retention

If one parent relocates the child to another country without the required consent of the other parent or retains the child unlawfully, the situation should be reported as a case of child abduction or wrongful retention.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction establishes mechanisms to ensure the return of the children. Spain in one of the signatory countries of this convention, and the process to be initiated before Spanish Central Authorities and Spanish Courts would be the subject of a further comprehensive report.

Conclusion

International child relocation is a complex issue that requires a careful and considered approach. In Spain, judicial decisions in this area are guided by the principle of the child’s best interests, which involves a detailed assessment of how the relocation will affect their well-being in all aspects. For foreign parents facing this type of situation, it is essential to be well-informed about the applicable legal framework and jurisprudence, and to be prepared to present a solid case demonstrating that the relocation is in the child’s best interests.

It is increasingly difficult to find judicial decisions that allow the relocation of children born and raised in Spain to other countries after the divorce of the parents. A really important relocation decision was the one taken by the parents to leave their country of origin to start a new life in another country, with a family life project, which must be continued if it guarantees the protection and well-being of the children.

Separating young children from one of their parents and taking them to a different country has harmful consequences as they would lose their emotional attachment to their parent, a circumstance that some of the parents do not attach any importance to.

It is also worth remembering the enormous complexity of this type of proceedings, in which the position of the judge is of special consideration, as it is not a matter of resolving a mere legal controversy of private claims, but of adopting a decision in which human interests of a family nature converge; a decision that becomes even more complex when the interests of minor children are at stake.

The change of country is a change of crucial importance for the children, so that what is decisive in deciding on the matter, we insist, is the interest of the minors, which is the primary concern, and not the preferences or wishes of their parents; in short, the interest of the parents, however legitimate it may be, is always subordinate to the interest of their minor children.

Finally, if the change of country would mean removing the children from their parent’s life, from their usual family environment, school, etc, and exposing them to a new and different educational system and a new social and family environment – far from the one in which they have grown up – even if the destination is the country of origin of one of the parents, this change could negatively impact the children, especially if it is due to their parents’ breakup. If it cannot be shown that the relocation is convenient and beneficial for the children themselves, and especially if it would harm their relationship with the left-behind parent, such a move would be contrary to the best interests of the children themselves.