What needs to be done in order to obtain recognition and implementation in Spain of a decision on parental responsibility pronounced by a court in another European Union country? What is the procedure applicable?
Decisions pronounced in a Member State on the exercise of parental responsibility in matrimonial proceedings concerning a common child, which were implemented in the said Member State and which have been notified, are recognised in Spain at the request of any of the interested parties without the need for proceedings, pursuant to the provisions of Regulation No 2201/2003 of 27 November 2003 of the Council of the European Union on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.
To request enforcement an executive demand must be presented, necessarily by an Attorney and Procurator, (“abogado y procurador” in Spanish) with a copy of the Court decision whose implementation is sought, together with all the requirements for determining its authenticity, in accordance with the standardised form given in Annex V, before the Court in the area, where the minor is located, and implementation is demanded.
For cases not covered by the above Regulation, relating to parental responsibility for extramarital children, whereas the current proposed Council Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (Official Journal of 27 August 2002) is not yet in force and applicable, such decisions are recognised by the general rules of the executive authority and can be implemented once recognised in accordance with Spanish Law.
To which court in Spain should one turn, in order to oppose a decision on parental responsibility pronounced by a court in another European Union country? Which procedure is applicable?
To oppose the recognition of a decision on parental responsibility adopted by another Member State, the interested party must apply to the Court of First Instance to which the request for recognition has been made and plead the existence of any of the reasons for the denial of recognition provided for in Regulation 1347/2000.
The reasons that can be pleaded are: that the decision is manifestly contrary to public order, that no opportunity was given to hear the child, when it was made by default and the application document was not submitted or notified because it was believed that the decision was acceptable, or if it impedes the exercise of parental responsibility and there has not been an opportunity to be heard, or if it is incompatible with another decision pronounced later.
Which law is applicable to the parental responsibility procedure when the minor or the parents do not reside in Spain or are of different nationalities?
The law applicable in parental responsibility is the law applicable to the person of the minor, and if this cannot be determined, the law applicable in the minor’s usual place of residence.