EUPillar Jorge and Celia (children) (2).Roj: SAP B 11168/2013

Summary

Key facts: Child abduction case transacted in Spain. One parent transfers the children from Portugal to Spain without the consent of the other progenitor. A first instance Spanish court decided that the children must stay in Spain in application of art. 13 of Brussels II a Regulation. Court decision: the court interprets the concept of custody according to art. 2 of Brussels II a Regulation and comes to the conclusion that there has been an illicit transfer of the children to Spain. The exceptions contained in art 13 of that Regulation are not applicable. Pursuant to art. 2 of the Regulation, the term ‘rights of custody' shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence. Following art. 55 e) of Brussels II a Regulation the court decides to initiate a mediation procedure for the restitution of the children to Portugal. The court makes an interpretation of the concept of custody according to the European Regulation on parental responsibility and not according to Spanish law (the Spanish Civil Code does not include a clear definition of the figure of "parental responsibility"). The court applies correctly the provisions of Brussels II a Regulation on cooperation between central authorities in matters of parental responsibility. Appeal history (not available in the database): Court decision: Juzgado de Primera Instancia núm. 7 de Granollers (Spain) (First instance) Date: 07-11-2012