This is not a simple matter but certainly a very interesting one from the point of view of international family law – an area in which Bennet&Rey are specialists and which definitely interests us. We would like to explain it in some detail, although it is rather complicated!
To summarise and to talk in general terms without going into specifics, – which could alter this, general information – you should go to the courts where the children have their normal home.
How do I know what counts as “their normal home”? That will be understood to be the place where they have lived more than 3 months, with other circumstances possibly relevant such as their being at school – and of course it depends on your not having taken the children illegally from their previous country of residence.
You must bear in mind that this is all about parental responsibility.
Since August 2022 the recent European regulation: EU 2019/1111, Brussels II-TER, from the Council of Europe on the 25th June 2019 (which replaces the regulation EU 2201/2003-03- Brussels II-Bis) is applicable in Spain.
The previous regulation (EU2201/2003) needs to be applied alongside the Hague Convention of 1996. Coordinating these two international measures has turned out to be complicated, in particular with regard to the rules of international judicial competence. But with the new reform in Regulation 2019/1111 and the Hague Convention 1996 for protection of minors, one general rule was formed concerning the international judicial competence with regard to the normal residence of the minor.
As a result, the place of residence of the minor has become a basic tool for deciding on international judicial competence.
If the minor or minors are in Spain, European regulation EU2019/1111, along with what is indicated in Article 97 will apply; but if the minors are in some state which comes under the Hague Convention and which is not a member of the European Union, the Hague Convention will apply, which strengths the protection of such minors.
At Bennet &Rey we welcome this double judicial protection with reference to minors.
Given the complexity of working out judicial competence, we recommend that you get professional advice before taking a decision. We will be pleased to help you in this. We recommend that you get professional advice before taking a decision. At Bennet & Rey, we will be pleased to help you in this.