Can we get an order to have the children here in England with their father?

Can we get an order to have the children here in England with their father?

My husband and I live in U.K., but his children were taken to live in Spain by their mother 5 years ago without his permission. They were not married, so he had less rights to do anything about that. The children are aged 10 and 13. They have said a few times about their mother having a problem with alcohol and even driving drunk. Can we get an order to have the children here with their father? They can have a much better life with us. Thank you.

Regarding your questions, I send you my comments based of my best knowledge as follows.

First, I will assume the following applies:

  1. Your husband has never been married with the mother of the two children.
  2. This non-marital relationship has never been ruled by a judicial convention/agreement nor by an extra-judicial one signed by the parties.
  3. Your husband has sufficient Spanish documentation showing he is the father of his two children (in case they were born in Spain, their birth certificate or, alternatively, the official Family’s book, whichever one properly translated into English by a sworn official translator) or U.K. documentation (In case they were born in U.K.).

Assuming these facts are applicable, there will be nothing that prevents the father having the children with him for the time he considers necessary, since there is yet no official rule about parents custody. At the same time and in order to achieve the referenced forceful convention/agreement either the father or the mother will need to submit as soon as possible a claim to the Spanish Courts (in case the children were born in Spain, or even if they were not, in case they have been registered and residing here until this moment, or also if the non-marital couple had their last mutual domicile here).

For this claim to be successfully won, I understand that the unnatural or odd behaviour of the mother will need to be proved by means of witnesses (I would also recommend a private investigator’s report) and you also must be prepared to face that the Judge will like to hear the children’s opinions (separately –i.e. not at a public court’s hearing- and with the help of a judicial psychologist).

In case your husband decides to act judicially, and assuming the Spanish jurisdiction is applicable, we will be able to assist professionally, and for this we will need that the father grants a power of attorney at the Notary, giving us powers to represent him at the Court and also –in my opinion- we will need to have an interview. Subject to your confirmation, we can prepare the text and guidelines for such Power of attorney.

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