CRIME OF CHILD ABDUCTION
For the purposes of the aforementioned article, abduction is considered to be (i) the removal of a minor person from his/her habitual place of residence without the consent of the other parent -or of the person or institution in charge of his/her guardianship or custody-, as well as (ii) the retention of a minor person in breach of the duty established by means of a judicial or administrative resolution.
In view of the above, the case law is not unanimous and admits different interpretations regarding the objective and subjective elements of the criminal offense. In this sense, doubts arise as to the typicity of the conduct depending on the active subject of the crime, i.e., whether it is the custodial parent or not, as well as on the existence or not of a judicial decision, since in some judgments it is understood to be mandatory.
Well, the Judgment of the Supreme Court of March 8, 2023, resolves the doubts and provides that the best interest of the minor must be given importance and, when actions are carried out outside the legal channel, a risk is being generated for the minor since he/she is being deprived of relations with the other parent, which may cause psychological, emotional or adaptation problems.
The legal right protected should be peace in family relations and the right of minors to relate to both parents, respecting the legal means available to resolve conflicts, avoiding the violation of custody rights.
Therefore, no distinction is made between custodial and non-custodial parents, and it should be considered typical when one parent, in fact, deprives the other of his or her right to the child, inasmuch as he or she should not be deprived of a relationship with the parents.
Likewise, the only thing that is punished is the unilateral removal of the minor from his or her habitual place of residence, that is, without the consent of the other parent, depriving him or her of the right of custody of the child, and therefore it is irrelevant whether or not there is a court order.
Finally, it also does not give relevance to the fact that the other parent knows the whereabouts of the minor and can visit him/her, but rather that the conduct typified as a crime is fulfilled with the mere removal of the minor from the home without the consent of the other parent.
Queralt Cirre Jiménez