It is far from unusual for British nationals to meet and marry their spouse in Spain and set up home in the UK.  If the relationship fails and there is a divorce often the Spanish spouse, regardless of being a foreign national, remains in the UK despite the divorce, particularly if there are children of the marriage in education.  Over time the Spanish parent feels that they wish to return to Spain with their children. 

Not unnaturally, this causes upset and often anger. The law governing child custody following divorce can be complex and there are a number of considerations.  The instances of parental child abduction are increasing.  Giambrone & Partners family law team strenuously urges any parent who finds themselves in this position to take legal advice from expert cross-border family lawyers. Our family lawyers work together across our European offices to advise and guide our clients on the complexities of cross-border family law.

Relocation Application

Family courts in England and Wales prioritise the best interests of minor children of a marriage and both parents retain parental responsibility for the child.  A parent is not permitted to relocate a child to a foreign country without written permission from the other parent or a court order pursuant to The Children Act 1989. 

If a parent wishes to permanently relocate with their children to another country they can either obtain the other parent’s authorisation and consent or they can apply to the court for a Relocation or Leave to Remove Order.  The court’s considerations were consolidated in the landmark case TC and JC (Children Relocation) 2013 as follows:

  • The welfare of the child is paramount outweighing any other consideration
  • Previous case law may be reviewed and could be of assistance
  • Guidance can be applied to all parties and not just the primary carer

Questions to be answered are:

  1. Is the application motivated by the desire to exclude the other parent or is it genuine?
  2. Is the application based on practicality, has it been well researched and properly investigated?
  3. What would be the probable impact on the applicant if a reasonable proposal was declined?
  4. Is there a sound reason for the “left behind” parent’s opposition or is the objection based on an ulterior motive?
  5. What would be the impact on the relationship between the “left behind” parent and the child or children’s relationship?
  6. Would any detrimental impact on the child due to separation from the “left behind” parent be offset by the closer contact with their overseas family?

Graziano Cecchetti a partner, remarked “increasingly the courts are considering the impact of reduced contact with the “left behind” parent and the consequences on the child.  Other considerations that influence the decision are, whether the child generally has frequent overnight time with both parents.  The more time spent with both parents the less likely an application will be granted” Graziano further commented  “ the greater the distance that the new location is from the “left behind” parent means it is possible that the application will be rejected.   However, should the applicant be in a solid relationship, the application has a greater chance of success”

Each case is unique and each case is reviewed on the basis of its merits.

Parental Child Abduction

As summer advances and the school holidays get closer, separated or divorced parents of differing nationalities frequently find that the parent who harbours the desire to return to their home country,  travels to Spain with their children as a holiday and then does not return to the UK.

Child abduction is taken extremely seriously in the courts of England and Wales and therefore any parent considering such a step should consider their actions very carefully.

Giambrone & Partners experienced family law teams have considerable proficiency in dealing with the highly sensitive aspects of the risks and consequences of child abduction and can assist parents in this challenging area of children law.

Graziano Cecchetti is a partner and an Abogado (Spanish lawyer).at the Barcelona Office. Prior to joining Giambrone he worked in Italy and Spain where he was employed in a significant law firm and a well-known company where he gained invaluable commercial law experience.

Graziano brings unparalleled knowledge of the residential real estate market in Spain to his clients enabling him to guide them through the intricacies of the market. His comprehensive knowledge and meticulous attention to detail together with his capacity to resolve issues and find satisfactory solutions where necessary have earned him an impressive reputation in this field. Combined with his innovative investment and wealth management solutions his clients regard him as the first port of call as a trusted adviser for guidance with a wide range of issues.

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