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Your child has been taken abroad without your consent

Last updated 2026-09-22 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

If the other parent took your child to another country or failed to return them, you can apply for the child's immediate return under the 1980 Hague Convention. It is decided by the Tribunal de Instancia where the child is, in urgent six-week proceedings. The clock that matters is the year from the removal, not from the day you found out.

They went on holiday to the grandparents' house and the return flight was on Sunday. They never boarded it. Now you are told the child is staying there, that they are already enrolled at a school, that you will talk once things calm down. You have signed nothing, you do not know whether anything you can do from Spain will make a difference and, above all, you do not know how long you have before the situation becomes irreversible.

The case, in five lines

What is brought: Application for the child's immediate return under the 1980 Hague Convention, through the urgent procedure of articles 778 quater to 778 sexies of the Spanish Civil Procedure Act. It is not a custody claim: the court only decides whether the removal or retention was wrongful and whether the child goes back to the place of habitual residence. Who the child lives with is argued later, and there.
Before which court: If the child is in Spain, the Tribunal de Instancia of the provincial capital in whose district the child is found, sitting in its Family, Childhood and Capacity section (article 84 of the Judiciary Act as worded by Organic Law 1/2025). The court examines its own jurisdiction of its own motion. Appeals are decided by the Audiencia Provincial. If the child has left Spain, the court of the destination country decides and the Spanish Central Authority forwards the application there.
Deadline: The action does not lapse, but there are three clocks and the first one decides your case. One: one year from the removal, or from the day the child should have come back, not from the day you found out. If the application is filed within that year, the authority orders the immediate return. After that year, whoever is keeping the child may argue that the child is now settled in the new environment (article 12 of the Hague Convention). Two, within the European Union only: if you let a year pass from the moment you knew or should have known where the child is without filing a return application, the courts of the country of origin may lose jurisdiction over the merits (article 9 of the Brussels II ter Regulation). Three: the Convention ceases to apply on the day the child turns sixteen, even with proceedings under way (article 4).
Who can bring it: Anyone holding custody or a right of contact, stay, visits or communication with the child, whether an individual, an institution or a body, and also the Spanish Central Authority or the person it designates (article 778 quater.3 of the Civil Procedure Act). What gives you standing is not a Spanish document but the right of custody under the law of the State where the child was habitually resident immediately before the removal, and the fact that you were actually exercising it or would have exercised it but for the removal (article 3 of the Convention). In many legal systems joint parental responsibility is already enough to bar a unilateral removal, even if the other parent had day-to-day care.
Financial risk: If the court orders the return, it orders whoever removed or retained the child to pay the costs of the proceedings, the travel expenses and the cost of the journey back to the State of habitual residence (article 778 quinquies.10 of the Civil Procedure Act). If it refuses, each side bears its own costs: you do not pay the other party's, but you do pay yours and your travel. Where the application comes through the Central Authority, the State Legal Service may file the claim, and its involvement ends only when you appear with your own legal team (article 778 quater.4). The real risk is not financial: a final refusal on grounds other than grave risk can shift jurisdiction over custody to the country where the child is, and from then on the fight happens there, under their law and in their language.

What turns a trip into a wrongful removal

Article 3 of the 1980 Hague Convention requires two things at once. First, that the removal or retention breaches a right of custody attributed to you, alone or jointly, under the law of the State where the child was habitually resident immediately beforehand. Second, that this right was actually being exercised at that moment, or would have been but for the removal. If either is missing there is no case: the person opposing the return knows it, and that is exactly where they will attack.

Habitual residence is a matter of fact, not of registration. It is proved by the school, the paediatrician, the language the child lives in, the friends and the routine, not by a standalone certificate of residence. And the right of custody is read in the foreign law, not in Spanish law: across much of Europe and Latin America, joint parental responsibility is enough to make taking the child out of the country without the other parent's consent wrongful, even where the parent who left had day-to-day care.

Wrongful retention also has a date of its own, and it is the one almost nobody writes down: the day the child was due back. That day, not the day of departure, starts the clock when the trip began lawfully. The Convention applies to children habitually resident in a Contracting State and ceases to apply once they reach the age of sixteen (article 4).

The year that decides everything, and the other two clocks

Article 12 of the Convention splits the problem in two. If, when the proceedings begin, less than a year has passed since the removal or retention, the competent authority orders the immediate return, full stop. If more than a year has passed, it must still order the return, unless it is demonstrated that the child is now settled in the new environment. That word, settled, is the one door that time hands to whoever took the child.

The year runs from the removal, or from the day of the missed return, not from the day you learned of it. That is harsh and it is deliberate: the Convention wants people to act fast. Once the year has passed nothing is automatically lost, because article 18 allows a return to be ordered at any time and article 12 itself requires the point to be weighed, but your case moves from near-automatic to evidential, and you must show that the child's life there is provisional, dependent on the retaining parent, and not genuine integration.

Within the European Union a second clock runs that catches many people out. Article 9 of the Brussels II ter Regulation keeps jurisdiction over the merits with the courts of the country of origin, but they lose it if the child acquires a new habitual residence, becomes integrated and, among other conditions, a year has passed since you knew or should have known where the child was without filing a return application, or you withdrew the one you had filed. And there is a third, silent clock: the child's sixteenth birthday, which switches the Convention off even with proceedings open.

Two routes to ask for it, and both are worth opening

The administrative route is the Spanish Central Authority, the Sub-Directorate General for International Legal Cooperation of the Ministry of Justice. If the child left Spain, it receives your application and forwards it to the Central Authority of the destination country. If the child has arrived in Spain, it receives the foreign application, can ask Interpol for information on the child's whereabouts and, once the file has been examined, the State Legal Service files the return claim before the competent court. None of this is charged to the applicant: article 26 of the Convention expressly forbids central authorities and public services from charging.

The direct judicial route is open from day one. Article 29 of the Convention allows anyone claiming a breach of custody rights to apply directly to the judicial authorities of the Contracting State, whether or not under the Convention. Within the European Union, article 23(2) of the Brussels II ter Regulation also obliges the requested central authority to acknowledge receipt within five working days and to report on the initial steps taken. Opening both routes at once duplicates nothing: it gives you an administrative file that records dates and court proceedings that are actually moving.

One detail that saves weeks: you do not have to attempt any prior negotiation or mediation for your claim to be admitted. Article 5(2)(g) of Organic Law 1/2025 expressly excludes the return of children in international abduction cases from the pre-action requirement that applies to almost every other civil claim. You go straight to court. And there is a limit worth knowing: article 778 quater.1 of the Civil Procedure Act excludes cases where the child comes from a State that is neither in the European Union nor party to any convention, where the path runs through Law 29/2015 on international legal cooperation and through the courts of the destination country.

How the Spanish proceedings unfold, day by day

Article 778 quater.5 of the Civil Procedure Act imposes a strict overall limit of six weeks for both instances, counted from the filing of the application, save in exceptional circumstances. Within that frame the deadlines are measured in hours and days: the court clerk rules on admission within twenty-four hours; in the same decision the person holding the child is summoned to appear with the child within no more than three days; if they oppose in writing, the hearing is held within the following five days; evidence is taken within six non-extendable days and judgment is given within three days of the hearing.

The judgment rules only on whether the removal or retention was wrongful and whether the return should be ordered, and it must set out in detail the manner and the deadline for enforcement, and may adopt measures to prevent a further removal. Before deciding, the judge hears the child separately and in the presence of the public prosecutor, unless the child's age or maturity make it inadvisable, and that hearing may take place by videoconference. The parties act through a lawyer and a court representative: at Managora we take on the legal direction and coordinate the representation, including with correspondent counsel in the country involved.

Two features that change the strategy. First, article 778 quater.6 forbids staying the civil proceedings because of pending criminal proceedings for child abduction, so a criminal complaint neither halts nor speeds up the return. Second, the judgment can only be appealed, with suspensive effect, with three days to lodge the appeal and twenty non-extendable days to decide it; within the European Union, however, article 27(6) of the Brussels II ter Regulation allows a return order to be declared provisionally enforceable notwithstanding the appeal, if the child's best interests so require. That declaration has to be asked for, because it does not happen by itself.

The article 13 exceptions, and why they rarely succeed

Article 13 of the Convention is an exhaustive list and the burden of proof falls on whoever opposes the return, not on you. There are three doors. Subparagraph (a): that the applicant was not actually exercising custody rights, or consented to the removal, or acquiesced in it afterwards. Subparagraph (b): that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. And the second paragraph: that the child objects, having attained an age and degree of maturity at which it is appropriate to take account of their views.

Subparagraph (b) is the most invoked and the most misunderstood. It is not enough to argue that life was worse there, or that the other parent is a bad one: that is a custody question, decided in the State of origin. Within the European Union, article 27(3) of the Brussels II ter Regulation almost closes the door, because the court cannot refuse the return on that ground alone if the applicant shows, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after the return. Those protective arrangements must be evidenced, and article 27(4) lets the court communicate directly with the authorities of the country of origin to confirm them.

The child's objection is not a veto either. The court hears the child and assesses whether the view is their own or prompted by the parent they live with, and a general refusal to go back, with no reasons of the child's own, does not sustain a refusal. The same goes for settlement under article 12: the Constitutional Court has held that it is an indispensable element to weigh once the year has passed, but weighing it is not the same as accepting that being enrolled at a school amounts to putting down roots. And while all this is decided, article 16 of the Convention bars the authorities of the country where the child is from ruling on the merits of custody.

If the return is refused, the court of origin can override it

Within the European Union there is an overriding mechanism that many people do not know about and that turns a defeat into a second chance. It is triggered where the refusal of return is based solely on article 13, first paragraph, point (b), or article 13, second paragraph, of the Convention (article 29(1) of the Brussels II ter Regulation). The refusing court must issue a certificate of its own motion using the form in Annex I, in the language of the decision.

From then on a deadline runs that leaves no room for slips. If proceedings on the merits of custody were already pending in the State of the child's habitual residence, the refusing court transmits the decision and the certificate within one month. If there were none, either party has three months from notification of the refusal to bring the matter before the court of the State where the child was habitually resident, enclosing the decision, the certificate and, where applicable, the record or summary of the hearing.

The prize lies in article 29(6): notwithstanding the non-return decision, any decision on the merits of custody given in those proceedings which entails the return of the child is enforceable in the other Member State. And under article 42(1)(b), once certified in accordance with article 47, it is enforced without any declaration of enforceability. Outside the European Union this mechanism does not exist: there the whole game is played in the appeal and on the merits before the courts of the destination country, which is why the first instance must be prepared as though it were the only one.

How we run the case, step by step

1
Pin down the exact date and the right that was breached
Before a single line is drafted, three facts must be fixed: the day of the removal or the day the child was due back, where the child was habitually resident immediately beforehand, and what right of custody the law of that State gave you. Whether there is a case, and how much time is left, depends on those three facts. If the removal began as an authorised trip, the key document is the authorisation with its return date, or the return ticket.
2
Activate the Central Authority and prepare the claim in parallel
The application to the Spanish Central Authority is filed with the identity of the child and of the person who took them, the whereabouts information, proof of the right of custody and the documents required by the applicable convention. In the European Union, the requested authority acknowledges receipt within five working days. While the administrative file advances, we prepare the court claim, which can be filed directly under article 29 of the Convention without waiting for anyone.
3
Secure the child and the contact while the case runs
At any stage of the proceedings, of its own motion or on application, the court may adopt the protective measures for the child under article 773 of the Civil Procedure Act and those of article 158 of the Civil Code, including a ban on leaving the country and the withdrawal of the passport. It may also secure your stay, contact and communication with the child while the case runs, including on a supervised basis. Asking for this in the very first submission stops time from working against you.
4
Obtain the declaration that the removal was wrongful
Where the child was habitually resident in Spain and has left the country, article 778 sexies of the Civil Procedure Act allows you to obtain here a decision declaring that the removal or retention was wrongful, separately from the return proceedings taking place abroad. This is the article 15 Convention certification, issued by the last Spanish court that dealt with parental responsibility proceedings concerning the child or, failing that, by the Tribunal de Instancia of the child's last domicile in Spain. That document carries real weight before the foreign court.
5
Dismantle article 13 before the hearing arrives
The opposition is known days, not weeks, in advance, so the protective arrangements for after the return are prepared beforehand: separate accommodation, an undertaking not to pursue criminal proceedings, a protection order where one exists, a school place, social services follow-up in the State of origin. Article 27(3) of the Brussels II ter Regulation bars a refusal on grave-risk grounds when those arrangements are on the record, and article 27(4) lets the court confirm them by communicating with the authorities of the country of origin.
6
If it is refused, appeal within three days and open the other board
The appeal is lodged within three days of notification and must be decided within twenty non-extendable days. In parallel, if the refusal was based solely on grave risk or on the child's objection and the case is an intra-EU one, there are three months from notification to take the merits of custody to the court of the State of habitual residence. A decision obtained there which entails the return is enforced in the other Member State without any declaration of enforceability.

The evidence that decides the case

The child's habitual residence before the removal, proved by facts and dates: school enrolment and reports, the paediatrician's records, the tenancy agreement or title deed, medical insurance, after-school activities, dated photographs of daily life. A certificate of residence alone is not enough, because it proves a registration and not a life.
The actual exercise of custody rights, which is what article 13(1)(a) attacks. Routine counts for more than paperwork here: school pick-ups, coordination messages and calls, receipts for payments and purchases, attendance at medical appointments and school meetings. If you were not living with the child day to day, what matters is showing that you were exercising your right, or would have exercised it but for the removal.
The document that fixes the exact day the year starts running: the signed travel authorisation with its return date, the unused return ticket, the court order or parenting agreement setting the period of stay. Without that date, the argument about the year becomes one person's word against the other's.
Your own messages, which can sink the case. A voice note or a message saying that as far as you are concerned the child can stay another month, or that you will talk about it next year, reads as consent or subsequent acquiescence under article 13(1)(a). The full conversation history must be reviewed before anything is filed, and nothing new should be written without knowing how it will be read.
The specific protective arrangements for the return, which are the answer to grave risk: accommodation separate from the other parent's, a written undertaking not to bring or pursue criminal proceedings, a protection order in force where one exists, a reserved school place, a report or follow-up by social services in the State of origin. Generic promises do not work: they must be on the court record and verifiable.
What sustains or destroys the settlement argument once the year has passed: how precarious or stable the child's situation there is, whether the schooling is real or nominal, whether the child keeps the language and the ties to the place of origin, whether the home belongs to the family or is borrowed. The judge hears the child directly, and you need to arrive at that hearing with the right report and the right question prepared.

What closes the door

Waiting for things to calm down. The article 12 year runs from the removal or from the day of the missed return, not from when you found out or when talks broke down. Every month of waiting brings the case closer to the one exception that time hands to the other side: the child's settlement in the new environment.
Putting your agreement in writing. A message accepting that the child finishes the school year there, or a transfer to pay for the new school, becomes the consent or acquiescence of article 13(1)(a) of the Convention. This is not a detail: it is the easiest of the three exceptions to prove, and the one that defeats most return applications.
Filing for custody in the country where the child is. Beyond contradicting article 16 of the Convention, which bars those authorities from deciding the merits until the return question is settled, it is a step of your own that will be read as accepting the new situation and can consolidate jurisdiction there. The return comes first, always.
Starting with a criminal complaint. Article 225 bis of the Criminal Code punishes abduction by a parent, but criminal proceedings do not bring the child back, do not stay the civil case (article 778 quater.6 of the Civil Procedure Act), and a pending arrest warrant against the retaining parent feeds the grave-risk exception precisely, because it allows the argument that the return would separate the child from their carer. It is weighed afterwards, and with judgement.
Withdrawing the return application in order to negotiate. Within the European Union, article 9 of the Brussels II ter Regulation expressly lists withdrawal without a fresh application in time among the circumstances that cause the courts of the State of origin to lose jurisdiction over the merits. You negotiate with live proceedings, not by dropping them.
Treating a refusal as the end of the case. If the return was refused solely on grave-risk grounds or because of the child's objection, and the case is an intra-EU one, there are three months from notification to take the merits to the court of the State of habitual residence (article 29(5) of the Regulation). Once those three months pass unused, you lose the mechanism that allowed the return to be imposed from the country of origin.

The law that applies

Art. 3 Convenio de La Haya de 1980. Defines when a removal or retention is wrongful: breach of a right of custody attributed under the law of the State of the child's habitual residence immediately beforehand, and actual exercise of that right at that time, or exercise that would have occurred but for the removal. BOE-A-1987-19691
Art. 4 Convenio de La Haya de 1980. The Convention applies to a child habitually resident in a Contracting State and ceases to apply once the child reaches the age of sixteen, even where proceedings are already under way. BOE-A-1987-19691
Art. 12 Convenio de La Haya de 1980. If less than a year has elapsed between the wrongful removal or retention and the commencement of proceedings, the authority orders the immediate return. If more than a year has passed, it must still order the return unless it is demonstrated that the child is now settled in the new environment. BOE-A-1987-19691
Art. 13 Convenio de La Haya de 1980. An exhaustive list of exceptions, with the burden of proof on the party opposing return: no actual exercise of custody, consent or subsequent acquiescence, grave risk of physical or psychological harm or an intolerable situation, and the objection of a child of sufficient age and maturity. BOE-A-1987-19691
Art. 16 Convenio de La Haya de 1980. Once informed of the wrongful removal or retention, the authorities of the State where the child is cannot decide the merits of custody until it is determined that the child is not to be returned, or a reasonable time passes without an application being made. BOE-A-1987-19691
Arts. 778 quáter y 778 quinquies LEC. Urgent and priority proceedings, with an overall six-week limit for both instances, rules on standing, compulsory legal representation, a bar on staying the case for pending criminal proceedings, interim measures, the hearing of the child, costs borne by the person who removed or retained the child, and an appeal with suspensive effect decided within twenty days. BOE-A-2000-323
Art. 778 sexies LEC. Allows a decision to be obtained in Spain, separately from the return proceedings, declaring the removal or retention of a child habitually resident in Spain to be wrongful, and designates the authority competent to issue the article 15 Convention certification. BOE-A-2000-323
Art. 9 Reglamento Bruselas II ter. The courts of the Member State of former habitual residence keep jurisdiction over the merits until the child acquires a new habitual residence and the listed conditions are met, among them letting a year pass from knowledge, actual or imputable, of the child's whereabouts without a return application, or withdrawing one. 32019R1111
Arts. 23 y 24 Reglamento Bruselas II ter. The requested central authority acknowledges receipt of the application within five working days. The first-instance court must rule no later than six weeks after the proceedings begin, and the higher court within the same period from the moment it is able to examine the appeal. 32019R1111
Art. 27 Reglamento Bruselas II ter. A return cannot be refused without hearing the applicant, nor refused on the sole basis of the grave risk in article 13(1)(b) of the Convention where it is established that adequate arrangements have been made to protect the child after the return. It allows provisional measures and the provisional enforceability of the return order notwithstanding any appeal. 32019R1111
Arts. 29 y 42 Reglamento Bruselas II ter. The overriding mechanism where the refusal rests solely on article 13(1)(b) or 13(2) of the Convention: a certificate issued of the court's own motion, transmission within one month or a three-month window to bring the merits before the State of habitual residence, and enforceability of a decision entailing the child's return without any declaration of enforceability. 32019R1111
Art. 5.2.g) LO 1/2025 y art. 84 LOPJ en su redacción. It expressly excludes the return of children in international abduction cases from the requirement to attempt an alternative dispute resolution method first, so the claim is filed directly. The same law replaces the former courts with Tribunales de Instancia, which may include a Family, Childhood and Capacity section. BOE-A-2025-76
Ley 29/2015 de cooperación jurídica internacional. The residual framework for cooperation with foreign authorities where no convention or European Union instrument applies, which is precisely the scenario excluded from the procedure by article 778 quater.1 of the Civil Procedure Act. BOE-A-2015-8564

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

Should I go to the police first?

If you do not know where the child is, yes, the child must be located, and the Central Authority can ask Interpol for information. But a criminal complaint under article 225 bis of the Criminal Code does not bring the child back: it does not stay the civil return proceedings, and a pending arrest warrant hands the other side the argument that the return would separate the child from their carer, which is the grave-risk exception. The return comes first; the criminal side is decided afterwards and with judgement.

More than a year has gone by. Is it too late?

You can. Article 12 of the Convention requires the return to be ordered after the year as well, unless it is demonstrated that the child is now settled in the new environment, and article 18 allows a return to be ordered at any time. What changes is the work: settlement has to be rebutted with facts, showing that the child's situation there is precarious or dependent and that the ties with the place of origin remain. And if the case is within the European Union, it is urgent to check whether the country of origin still has jurisdiction.

My child says they want to stay there. Is that the end of it?

No. The second paragraph of article 13 of the Convention allows a court to refuse the return if the child objects and has attained an age and degree of maturity at which it is appropriate to take their views into account, but it is not a veto. The judge hears the child separately and in the presence of the public prosecutor, and assesses whether the view is the child's own or prompted by the parent they live with. A refusal with no reasons of the child's own, or built on what the child has heard at home, does not sustain a rejection.

The country where my child is has not signed the Convention. What is left?

The procedure in articles 778 quater and following does not apply where the child comes from a State that is neither in the European Union nor party to any convention, as article 778 quater.1 itself states. Three tracks remain and they are worked in parallel: the Spanish declaration of wrongfulness under article 778 sexies, cooperation through Law 29/2015 and diplomatic channels, and an action before the courts of the destination country with correspondent counsel. It is slower and less certain, but it is not a dead end.

Do I have to attempt mediation first for my claim to be admitted?

No. Since Organic Law 1/2025 almost every civil claim requires proof of a prior attempt at negotiated settlement, but its article 5(2)(g) expressly excludes the return of children in international abduction cases. The claim is filed directly. It is a different matter that, once proceedings are under way, the judge may propose mediation or the parties may ask for it: that is possible, with a stay, but never for a period that would break the six-week limit.

Can I apply for custody in the country where the child is in the meantime?

It is a bad idea, and the Convention bars it anyway. Article 16 prevents the authorities of the State to which the child has been taken from deciding the merits of custody until it is determined that the child is not to be returned or a reasonable time passes without an application. Applying for custody there is a step of your own that reads as acceptance of the new situation and may end up consolidating jurisdiction in the destination country, which is precisely what you want to avoid.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.