Article 223 Spanish Criminal Code: Failure to hand over a minor in custody

Article 223 punishes whoever, having the custody of a minor or of a person with a disability in need of special protection, fails without justification to present that person to the parents or guardians when required by them to do so.

Wording of Article 223 of the Spanish Criminal Code

Elements of the offence

1. A situation of custody in fact or in law over a minor or over a person with a disability in need of special protection.
2. A requirement addressed by the parents or guardians for the person concerned to be presented to them.
3. The failure to present that person, which is the typical conduct.
4. The absence of any justification for that failure, an element whose presence excludes the offence.

Defence strategy

Justification for the failure. The offence itself excludes conduct which is justified. Illness of the minor, a judicial decision on custody, a well founded risk to the minor or the impossibility of effecting the handover on the day required are grounds which must be documented at the time and not reconstructed afterwards.

Existence and terms of the requirement. The provision requires a requirement addressed by the parents or guardians. Where no such requirement is established, or where it did not identify a determinate place and time, the objective element is not satisfied and the matter belongs to the civil jurisdiction.

Title of custody. Liability presupposes a person having charge of the custody. Where the person concerned held no such position, or where the position had already ceased, the provision does not apply, and the situation is habitually resolved by the family court file.

Distinction from the abduction of a minor. Where the conduct extends over time and involves removing the minor from the person holding custody, Articles 225 bis and following apply, with a substantially different penalty frame. Delimiting the two is the first step in any defence.

• Article 226 CP: breach of family duties
• Article 227 CP: failure to pay maintenance
• Family and child abandonment offences
• Parental child abduction in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.