Europe and children: from invisible barriers to melting pot María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

procedure PROSECUTOR (ALWAYS) COURT (WHERE THE CHILD IS) 6 WEEKS NOT ACTION BY THE DEFENDANT 5 DAYS TRIAL  RESOLUTION (2 días) ACCEPT TO RETURN TRIAL ACT  RESOLUTION OPPOSITION TRIAL (5 días) EVIDENCES  3 DAYS RESOLUTION María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

SGS Abogados Derecho de Familia RETURN RESOLUTION RESOLUTION: NO PROVISIONAL EXECUTION (525LEC) APPEAL SUSPENSE EFECTS 3 DAYS TO APPEAL – 3 DAYS TO OPPOSITE THE APPEAL APPEAL RESOLUTION 20 days María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

Suspension of the execution of the decree of return RESOLUTION: NO PROVISIONAL IMPLEMENTATION (525 spanish Procedure codification) APPEAL SUSPENSIVE EFFECTS 3 DAYS AFTER RESOLUTION RESOLUTION APPEAL  20 days resolution. Single effect María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

SGS Abogados Derecho de Familia Hearing the child In family proceedings In general: Children are heard (Judge and Public Prosecutor) when: They have sufficient maturity for it, Procedural Law  minimum of 12 years. In practice: Judges don’t like (as possible)  if the minor does not go to the court, he is being preserved from a traumatic situation. Other mechanisms to listen to the child in less shocking situations: Psicologic technical team In abduction procedures, the child is always listened to. Unless: age and maturity do not advise recorded in the resolution and in a motivated way. María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

SGS Abogados Derecho de Familia 3.      In which ways do the courts of your country hear the child in the international abduction proceedings? and in family proceedings (separation, divorce, regulation of natural filiation) In family proceedings in general, children are heard (Judge and Public Prosecutor) when they have sufficient maturity for it, establishing the Procedural Law that must have a minimum of 12 years. In abduction procedures, the child is always listened to, unless age and maturity do not advise, a situation that must be recorded in the resolution and in a motivated way. In practice, in family proceedings in general, Judges are reluctant to listen to the minor unless they consider it relevant in their interest, since it is considered that if the minor does not go to the court, he is being preserved from a traumatic situation. In these procedures, there are other mechanisms to listen to the child and to know their status by the Judge in less shocking situations, such as interviews with the (psicologic) technical team. Art. 13 §1 and 2 Convention Le Hague 1980: (founded risk of child due to the return and opposition of the child to the return) Cooperation between the Central and Administrative Authorities of the requested State and the requesting State (habitual residence of the minor). Must provide all the follow-up and file that exists about the situation of the child's vulnerability or risk in the event that it occurs. Laws of protection of the state minor Spain: Country-general- Law (Law 1/1996) and autonomic one (for example, Catalunya has its own law in this respect - LDOIA 14 / 2010)). María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

SGS Abogados Derecho de Familia Average duration of the proceedings ex Convention Le Hague 1980 (really six weeks?) The procedure does not last 6 weeks (except in exceptional circumstances). When Spain is a requesting country, the procedures usually take an average of 4 years. (In some cases, 2, and in others, reach 6 and even 8). Spain has only 1 person in charge of the Central Authority, which sometimes does not only have assistants. When Spain is a requested country, excess workload that exists in our Justice Administration (Courts, ) a family procedure in the first instance has an average duration of 9 to 18 months. In cases of urgency as abduction, it is true that the Court prioritizes and advances the agenda but only in the bureaucratic procedures of admission to processing the complaint, and notification / summons to the defendant, 4 to 8 weeks have already been lost. Exceptional cases works mostly out of court, Central Authority and the device that is deployed with the police authorities; locating the abductor, and explaining him/her the situation, giving him/her the option from the beginning to be able to solve this situation in a friendly way, warning him/her of the procedure that has been initiated (order of the Central Authority). MEDIATION. In Spain is not developed as a specialty, and the parties are referred to a general mediation service. Parents sometimes have lawyers who mediate and negotiate the return of the child (through a modification of measures, or waivers of criminal actions for kidnapping by the injured parent). The resolution of mediation in international child abduction procedure can only establish the return of the child (or not return). The rest of the pacts being private between the parties if there is no interposition The corresponding judicial action (we will explain cases). María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

Ways and timing of execution of the repatriation decree. The resolution itself has to explain the form and the execution time of return. It is advisable to request it in the judicial request, to avoid conflicts. Support of police authorities. Measures to avoid new abduction (duanes, airports…). María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

SGS Abogados Derecho de Familia   Case studies of the application of art. 11 §8 Reg. EU 2201/2003: denial of return by the requested State and subsequent decision which orders the return by the Judge of the habitual residence. It does not work properly. Court ruling issued by the Court of habitual residence expressly stating that "the habitual residence of the minor is Spain", and in the requested country has not had probative force to obtain a return resolution María Giráldez de Luis mg@silviagimenezsalinas.com SGS Abogados Derecho de Familia

MUCHAS GRACIAS SGS Silvia Giménez-Salinas Abogados Derecho de Familia C/ Casp 31, Principal 08010 Barcelona c/ Claudio Coello 33, bajo D 28001 Madrid María Giráldez de Luis mg@silviagimenezsalinas.com MUCHAS GRACIAS