Article 225 bis Spanish Criminal Code: Parental Child Abduction

Article 225 bis of the Spanish Criminal Code punishes the parent who without justified cause abducts his or her minor child, with imprisonment of two to four years and disqualification from parental authority of four to ten years, imposed in the upper half where the child is taken out of Spain or where a condition is demanded for the return. The article contains two escape routes that are decisive in practice: complete exemption where the whereabouts are communicated within twenty-four hours with an undertaking of immediate return that is actually performed, and a reduced penalty where the child is returned within fifteen days. For international families resident on the Costa Blanca this is the provision that governs a unilateral return to the country of origin with the children.

Wording of Article 225 bis of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a parent, an ascendant of the minor, or a relative of the parent up to the second degree.
2. Removal of the minor from the place of habitual residence without the consent of the other holder of custody, or retention in serious breach of a judicial or administrative decision.
3. Absence of justified cause. This is where the substance of most defences lies.
4. For the aggravated form, removal outside Spain or the demand of a condition for the return.

Defence strategy

Justified cause. The article punishes abduction without justified cause. A departure prompted by a documented risk to the child or to the parent, by an episode of violence reported at the time, or by a decision of the child protection services is not without cause. The defence assembles the medical reports, the reports made to the police and the records of the social services contemporaneous with the departure, because a justification advanced for the first time in the criminal proceedings carries little weight.

Consent and the place of habitual residence. The offence requires the absence of consent and a removal from the place of habitual residence. Where the other parent agreed to the trip, whether in writing or by conduct such as attending the airport or continuing to communicate normally, or where the habitual residence of the child was in fact in the other country, the elements are not made out. Messages, boarding passes, school enrolments and the residence history are the material that resolves this, and they must be preserved at once.

The exemption and the reduction in paragraph 4. These provisions are frequently overlooked in the indictment. Complete exemption applies where the whereabouts were communicated within twenty-four hours of the report with an undertaking of immediate return that was performed. Where the return took place within fifteen days, the penalty falls to six months to two years, which is capable of suspension. The precise hours of the communication and of the return, and the date on which the report was actually made, are therefore established with documentary precision.

Coordination with the civil return proceedings. The criminal case ordinarily runs alongside proceedings for the return of the child under the Hague Convention or the corresponding European Union instrument. The positions taken in each must be consistent, and a voluntary return agreed in the civil proceedings materially improves the criminal position. Conversely, an admission made in the civil forum may be used in the criminal case, so the two must be conducted as a single strategy.

• Article 163: unlawful detention
• Article 227: non-payment of maintenance
• Spanish Criminal Code by article
• Spanish-language entry

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.