legal advice for UK / Spain cross border dilemma with kids

[theboss]

On the off chance somebody on SP+L has come across a clusterfk like this and/or knows someone who knows someone.... I'm aware this will require qualified advice in the foreign jurisdiction and am researching firms with both UK-Spain expertise and experience of cross-border family issues. I'm doing the research and I'm sure will be having calls on Monday.

My sisters grandchildren (two youngers under 5) were born in Spain to her British daughter (my neice) and her partner who is a foreign national of a 3rd non-EU country. There are no relatives from the fathers family in Spain or in the picture whatsoever.

On the other hand there is a large UK family of grandparents (my sister and her ex-husband) and respective families, many of whom have visited the neice and her family in Spain over the last few years and so there is some familiarity with the children and the situation there.

The neice has spent the last week in police custody pending criminal charges and is looking at doing time, most likely several years minimum. Her partner the kids father has left the scene fearing the same. The kids are currently in the care of a friend.

Naturally first reaction of my sister and other UK relatives is to do whatever is necessary to try and intervene and advocate for the children, but as you might imagine this is likely to be a legal minefield. Both the childrens parents have stated verbally that they want UK family to step in and help otherwise the inevitable outcome is that the children will be taken into social care and that could happen soon.

I'm not sure what the ideal outcome is, but ultimately we want to get them UK passported and able to travel with grandparents / great grandparents and visit with or live in the UK until the situation with their parents is clearer.

Clutching at straws indeed, but on the off chance somebody knows anything.... I don't want to discuss the parental dysfunctionality or alleged criminality, the only thing we are thinking of right now is two young children who have been thrust into total chaos.

[Vanity Projects]

Best of luck, sounds clusterfk indeed.

Disclaimer, IANAL (and nor is Claude/ChatGPT where this comes from).

Given the complexity of it and the fact you've not had any replies yet - I'm just trying to help, I've cross checked the answers between the AI's to rule out any major errors but they are AI, not legal beagles.

I would suggest getting hold of British Consulate and running the below by them if it seems sensible.

Hope it helps in the short term.

Immediate Priorities

Document current situation: Gather all information about the children's current status, citizenship, birth certificates, and any existing legal paperwork.
Establish temporary guardianship: Work to formalize the current friend's care arrangement, even temporarily, to prevent immediate social services intervention.

Consular assistance: Contact the British Embassy/Consulate in Spain immediately. They can:

Provide information about local legal processes
Offer emergency assistance for British nationals
Help with documentation issues
Potentially assist with temporary travel documents


Legal representation in Spain: Seek a firm with UK-Spain expertise. Focus on attorneys specializing in:

International family law
Cross-border custody
Child welfare cases
Immigration/citizenship issues


Key Legal Considerations

Children's citizenship status: Determine if they have British citizenship by descent (usually automatic if mother is British).
Spanish child protection laws: Spanish authorities prioritize keeping children in their country of habitual residence.
Temporary guardianship options: Spain may allow for temporary guardianship arrangements with family members.
Hague Convention: Both UK and Spain are signatories, which governs certain aspects of cross-border child custody matters.

Next Steps

Get written consent: If possible, obtain written statements from both parents designating family members as temporary guardians.
Social services engagement: Proactively engage with Spanish social services rather than waiting for them to intervene.
Legal documentation: Begin preparing documentation showing:

Family relationships
Financial capacity to care for children
Stable home environment in UK
Continued contact plans with parents


This situation requires balancing urgent action with careful legal strategy. While pursuing formal representation, establishing some form of recognized temporary guardianship is likely your most immediate priority to prevent the children from entering the Spanish care system.

Guardianship
Establishing temporary guardianship in Spain requires several specific steps. Here's a more detailed breakdown of how this might work:

Establishing Temporary Guardianship in Spain
1. Immediate Temporary Protection
The most urgent step is formalizing the current arrangement with the friend who has the children:

- Have the friend document when they took custody of the children
- If possible, get a written statement from your niece (while in custody) authorizing the friend's temporary care
- The friend should notify local Spanish social services that they have temporary care of the children to establish transparency (check with consulate first)

2. Legal Formalization Options
Option A: Power of Attorney (Poder Notarial)

If your niece can access a notary while in custody, she could sign a power of attorney granting temporary guardianship to a family member
This document should specifically address child custody and specify the family members who can make decisions
This is typically the fastest option but may be complicated by her detention

Option B: Voluntary Guardianship Application

Family members can apply for voluntary guardianship through Spanish family courts
Requires demonstrating family relationship and presenting a care plan
Parents' consent (even from detention) significantly strengthens this application

3. Emergency Family Court Petition

File an emergency petition with the local Spanish family court requesting temporary guardianship
Emphasize the emergency nature of the situation and risk to the children
Present evidence of family ties and ability to provide proper care
Include any written statements from the parents supporting this arrangement

4. Coordination with Social Services

Be proactive in meeting with local child protection authorities (Servicios Sociales)
Present your family's plan for the children's care
Demonstrate that family members are willing to undergo any necessary assessments
Request their support for a family placement rather than institutional care

5. British Consular Support

The British Consulate can often provide documentation confirming the British citizenship of family members
They may also provide formal letters acknowledging the situation that can help with Spanish authorities

The process can be expedited if a family member can travel to Spain immediately to personally engage with these procedures. Spanish authorities generally prefer keeping children with family members rather than in state care, but they need formal processes to be followed.
A Spanish family law attorney can file the necessary emergency petitions and advise on which local court has jurisdiction based on where the children currently reside

[theboss]

I don’t care if it’s all chatGPT it’s actually an incredibly helpful response, in terms of helping us organise a checklist of things we ought to be doing or thinking about.

My sister is the one currently running around trying to gather info, starting with ordering UK documents such as birth certificates for her own daughter because if she landed up there right now she would have a hard time even proving her relationship to her daughter and the children.

Contact with my niece is incredibly scarce, they had a call earlier on a very poor line for about 2 minutes and about the only communication exchanged was to impress on my niece the importance that she requests consular assistance, without which they can’t get involved. She has now done so and a representative of the consular office is visiting her on Monday at the prison she’s currently held at.

I’m just trying to provide some organisational and logistical backup. Thanks again.

[SydneyBridge]

I use this Spanish Firm a lot and they are excellent

https://www.eja.es/breaking-borders-internacional/

[essayer]

Have a skim through https://www.mjusticia.gob.es/es/AreaTematica/Docum...

Suspect the ‘living with a friend’ situation will not be considered an option by the Spanish courts

If I was the grandparents I’d be getting down there and looking up properties to rent in the interim

Good luck!

[omniflow]

Have you considered that your Niece might be released on bail until the trial?

If that happens then it will have an impact on things regarding the kids - in the short term for definite. Your Niece would then be in a position to help sort out any paperwork, which I assume would make things easier.

[theboss]

omniflow said:

Have you considered that your Niece might be released on bail until the trial?

If that happens then it will have an impact on things regarding the kids - in the short term for definite. Your Niece would then be in a position to help sort out any paperwork, which I assume would make things easier.

Bail has already been considered and refused.

Things are progressing, my sister and a supporting relative are landing there on Tuesday and the father has decided to do the more honourable thing of returning to face the music so he can hopefully handover the children and make any documents accessible to the incoming U.K. relatives who will have to stay there for the foreseeable.

Appreciate the responses above. Fast moving situation.

[zzrman]

I would certainly contact the British Embassy in Madrid. Back in 2015 we were in Spain on a motorcycle tour and one of our group crashed and died. I contacted the British Embassy to see if they could help and they were incredibly good, so highly recommended.

[Racing Newt]

Have a look at this:-

https://www.gov.uk/browse/citizenship/citizenship

You/they were born outside the UK
British citizenship is normally automatically passed down one generation to children born outside the UK.

For example, you might automatically become a citizen if you’re born outside the UK to a British parent. But your children will not automatically be citizens if they’re born outside the UK.

If you’re not automatically a citizen, you may be eligible to apply to ‘register’ as one.

Check your eligibility if you were born:

on or after 1 July 2006
between 1983 and June 2006
before 1983
This is one way to apply for British citizenship. Check if you’re eligible to apply another way - including through the Windrush scheme.

[h0b0]

My kids were born in the US in 2012 and 2013. I applied for passports in 2023. Once the passport agency received the documents the passports were sent out, and received in 5 days. That wasn’t the expedited process. That was normal and sent to America. citizenship comes with the passport.


I had two issues, first was the time it took for my documents to get to the UK was crazy. (That will not be an issue for you) Second, proving my kids existed. I initially used a relative not reading it had to be a friend. This took minutes to resolve.

Point being, getting the kids “official” can be done very quickly and all online.

I don’t know about the complexity of your situation. But, having UK passports should help.

[Mrr T]

Racing Newt said:

Have a look at this:-

https://www.gov.uk/browse/citizenship/citizenship

You/they were born outside the UK
British citizenship is normally automatically passed down one generation to children born outside the UK.

For example, you might automatically become a citizen if you’re born outside the UK to a British parent. But your children will not automatically be citizens if they’re born outside the UK.

If you’re not automatically a citizen, you may be eligible to apply to ‘register’ as one.

Check your eligibility if you were born:

on or after 1 July 2006
between 1983 and June 2006
before 1983
This is one way to apply for British citizenship. Check if you’re eligible to apply another way - including through the Windrush scheme.

To summarise since the sisters daughter is a British citizen the children, while born outside the UK, are British citizens.

[Austin Prefect]

Mrr T said:

Racing Newt said:

Have a look at this:-

https://www.gov.uk/browse/citizenship/citizenship

You/they were born outside the UK
British citizenship is normally automatically passed down one generation to children born outside the UK.

For example, you might automatically become a citizen if you’re born outside the UK to a British parent. But your children will not automatically be citizens if they’re born outside the UK.

If you’re not automatically a citizen, you may be eligible to apply to ‘register’ as one.

Check your eligibility if you were born:

on or after 1 July 2006
between 1983 and June 2006
before 1983
This is one way to apply for British citizenship. Check if you’re eligible to apply another way - including through the Windrush scheme.

To summarise since the sisters daughter is a British citizen the children, while born outside the UK, are British citizens.

Providing the sister's daughter was born in the UK.

[Skodillac]

essayer said:

Have a skim through https://www.mjusticia.gob.es/es/AreaTematica/Docum...

Suspect the ‘living with a friend’ situation will not be considered an option by the Spanish courts

If I was the grandparents I’d be getting down there and looking up properties to rent in the interim

Good luck!

The bold bit has been complicated by, you guessed it, Brexit. Unless the grandparents have EU citizenship/passports, they'll only be able to stay for 90 days in any 180. I idly wonder if they voted for it...

Good luck OP, sounds a dreadful situation. One little piece of admin advice I'd give you from my extensive experience of applying for and holding dual nationality, and having dealings with the bureaucracies and administrative officialdom of 4 foreign countries, is to get apostilled (legalised) versions of everyone involved's life event birth certificates, i.e. birth and marriage. I'm going through this at the moment as I need to register my children's births in their foreign-born mother's native country for reasons of probate, and we need apostilled documentation always - which means getting birth certificate copies from the General Register Office and then sending them to the Foreign Office to be apostilled. It's not very quick...so if you can get things like this rolling and in place it might help grease the wheels.

[Shnozz]

Skodillac said:

The bold bit has been complicated by, you guessed it, Brexit. Unless the grandparents have EU citizenship/passports, they'll only be able to stay for 90 days in any 180. I idly wonder if they voted for it...

Good luck OP, sounds a dreadful situation. One little piece of admin advice I'd give you from my extensive experience of applying for and holding dual nationality, and having dealings with the bureaucracies and administrative officialdom of 4 foreign countries, is to get apostilled (legalised) versions of everyone involved's life event birth certificates, i.e. birth and marriage. I'm going through this at the moment as I need to register my children's births in their foreign-born mother's native country for reasons of probate, and we need apostilled documentation always - which means getting birth certificate copies from the General Register Office and then sending them to the Foreign Office to be apostilled. It's not very quick...so if you can get things like this rolling and in place it might help grease the wheels.

Brexit certainly complicates it but I believe the 90 day rule can be extended in extenuating circumstances such as this. I believe it’s subject to proper application via the consulate.

[Skodillac]

Shnozz said:

Skodillac said:

The bold bit has been complicated by, you guessed it, Brexit. Unless the grandparents have EU citizenship/passports, they'll only be able to stay for 90 days in any 180. I idly wonder if they voted for it...

Good luck OP, sounds a dreadful situation. One little piece of admin advice I'd give you from my extensive experience of applying for and holding dual nationality, and having dealings with the bureaucracies and administrative officialdom of 4 foreign countries, is to get apostilled (legalised) versions of everyone involved's life event birth certificates, i.e. birth and marriage. I'm going through this at the moment as I need to register my children's births in their foreign-born mother's native country for reasons of probate, and we need apostilled documentation always - which means getting birth certificate copies from the General Register Office and then sending them to the Foreign Office to be apostilled. It's not very quick...so if you can get things like this rolling and in place it might help grease the wheels.

Brexit certainly complicates it but I believe the 90 day rule can be extended in extenuating circumstances such as this. I believe it’s subject to proper application via the consulate.

Yes highly likely, just an extra ballache to add to the skip fire which they could probably do without if they do want to go and stay in Spain for an extended period.

Anyway, my main point was to advise the OP to get in front of the game in at least one way, by preparing some legalised life event documents as they will probably be requested at some point.

[Shnozz]

Skodillac said:

Yes highly likely, just an extra ballache to add to the skip fire which they could probably do without if they do want to go and stay in Spain for an extended period.

Anyway, my main point was to advise the OP to get in front of the game in at least one way, by preparing some legalised life event documents as they will probably be requested at some point.

Yes, totally agree.

And yes, I have similar conversations with many older folk who voted for Brexit because ‘bloody foreigners’ whilst they sip a G&T in their expat community in Spain, oblivious to the irony.

[theboss]

Skodillac said:

The bold bit has been complicated by, you guessed it, Brexit. Unless the grandparents have EU citizenship/passports, they'll only be able to stay for 90 days in any 180. I idly wonder if they voted for it...

Good luck OP, sounds a dreadful situation. One little piece of admin advice I'd give you from my extensive experience of applying for and holding dual nationality, and having dealings with the bureaucracies and administrative officialdom of 4 foreign countries, is to get apostilled (legalised) versions of everyone involved's life event birth certificates, i.e. birth and marriage. I'm going through this at the moment as I need to register my children's births in their foreign-born mother's native country for reasons of probate, and we need apostilled documentation always - which means getting birth certificate copies from the General Register Office and then sending them to the Foreign Office to be apostilled. It's not very quick...so if you can get things like this rolling and in place it might help grease the wheels.

I understand the procedural minefield fairly well as I bought a foreign spouse and stepchild into the UK after we married in her country. My wife has now naturalised at the end of a very long administrative and legal journey, and my stepdaughter (now a young adult) has ILR, so I feel like I've been through it all!

It was with this existing experience that I wanted to try and find some legal and administrative help for my sister.

Things have moved quickly in the last few days since I posted.

We've had a constructive legal conversation with UK solicitors I used for my wife's visa, who happen to have a Spanish qualified lawyer and native speaker in their team, although they are only practising in the UK, they can manage the UK process and take that headache away from us whilst also providing support and interpretation with their Spanish counterparts and authorities.

My sister meanwhile has been on the ground with the kids for the last 24 hours. The local consular office are directly involved both in respect of the children and the imprisoned British citizen.

Obviously things are still very much up-in-the-air, but we aren't quite in headless chicken panic mode as when I made the post.

Thanks to all the very helpful suggestions, appreciate it.

Edited by theboss on Wednesday 16th April 10:26

[Skodillac]

Good update, OP, glad to hear things are coming together and appear to be in competent hands. All the best.

[Mrr T]

Austin Prefect said:

Mrr T said:

Racing Newt said:

Have a look at this:-

https://www.gov.uk/browse/citizenship/citizenship

You/they were born outside the UK
British citizenship is normally automatically passed down one generation to children born outside the UK.

For example, you might automatically become a citizen if you’re born outside the UK to a British parent. But your children will not automatically be citizens if they’re born outside the UK.

If you’re not automatically a citizen, you may be eligible to apply to ‘register’ as one.

Check your eligibility if you were born:

on or after 1 July 2006
between 1983 and June 2006
before 1983
This is one way to apply for British citizenship. Check if you’re eligible to apply another way - including through the Windrush scheme.

To summarise since the sisters daughter is a British citizen the children, while born outside the UK, are British citizens.

Providing the sister's daughter was born in the UK.

This was a clue.

theboss said:

British daughter (my neice)

No need for her to be born in the UK so long as she is a British Citizen.