International child abduction

Spanish law on custody rights
Re JB (child abduction) (rights of custody: Spain) [2003] EWHC 2130 (Fam), [2004] 1 FLR 796, FD
BFLS 5A[2136]; CHM 2[51.1]
Re JB (child abduction) (rights of custody: Spain) [2003] EWHC 2130 (Fam), [2004] 1 FLR 796, FD concerned a small but important point on the determination of custody rights under Spanish law for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The father, who was not married to the mother, sought an order for the return of his son to Spain. The mother contended that the removal from Spain was not in breach of any rights of custody attributed to the father. The child had been born in Spain, but both parents had been born in England and all three were British nationals. The expert evidence showed that under Spanish law the character and content of affiliation, including parent-child relations, were determined by the personal law of the child concerned. That personal law depended on nationality and as the child was a British national, his father had no rights in respect of him because British law did not grant them to unmarried fathers. Consequently, there had been no breach of the father’s rights of custody when the child was removed from Spain and the father’s application under the Hague Convention failed.

Comment: This case turns on the expert evidence as to Spanish law. There was some confusion over the use of the term ‘filiacion’ in that law, which was found to indicate paternity rather than parental responsibility. The short judgment will provide a useful source of reference for those dealing with Spanish child abduction cases.