Family law and the protection of children and adolescents: the precedence of their best interests and legal guarantees for their parents

Throughout a marriage or its equivalent, it is common for us to analyze our partner’s ability to raise and educate our children or future children. However, within the trusting atmosphere established in such relationships, it is not as common to express our doubts or criticisms, unless it is with the intention of convincing our partner that our approach or position is more beneficial for our children.

After a breakup, this tends to change. That is when we begin to openly doubt and even attack our partner’s ability to keep guiding the development of our children. In those cases in which one partner spends less time with the children, these suspicions can become completely unsustainable. As a result, we often find in family proceedings that the main argument of one of the parties consists of accusing the other of a lack of ability to educate the common children.

The parents’ ability to care for their children is one of the aspects that will be examined when determining which custody arrangement most benefits them, but it is not the only one. In addition, sometimes this lack of ability isn’t true, or at least isn’t as serious as the partner making the allegation.

But in other cases, the lack of ability is indeed serious. What happens when one of the parents actually does have serious shortcomings as the caretaker of their children and the other parent can’t protect them from such a situation?

If the children are neglected or at risk, the government may end up intervening through the public authority entrusted with legal jurisdiction over the protection of minors. In the case of Catalonia, basic social services will intervene at a first level of protection, while specialized social services or Child and Adolescent Care Teams (EAIAs in Spanish) will act if the detected situation poses a serious risk by establishing necessary protective measures that avoid the separation of children from their families of origin and minimize the harmful situation detected.

As specialized technical teams, EAIAs are tasked with evaluating the situations of the children and adolescents involved by studying their personal, family and social situations, as well as those of their relatives and household. Once this evaluation has been completed, if the situation of neglect is confirmed, these teams will contact the Directorate General of Children and Adolescent Services (DGAIA in Spanish) to propose the protective measures necessary for the separation of the child from their family of origin which favor the child’s overall development.

If the DGAIA confirms the proposal made by the EAIA, it will initiate an administrative neglect proceeding in order to guarantee the child or adolescent’s best interests, as well as the rights of their parents or guardians. This inquiry will conclude with a reasoned administrative decision that can be challenged in the courts.

The most relevant government regulations in these cases are Organic Law 1/1996 of 15 January on the Legal Protection of Minors, which partially modifies the Civil Code and Civil Procedure Law; and Law 39/2015 of 1 October, on the Common Administrative Procedure for Public Administrations. It is also convenient to have Law 12/2007 of 11 October, on Social Services, at hand. From a regional perspective, in the case of Catalonia, we must consult Law 14/2010 of 27 May, on the rights and opportunities of childhood and adolescence (LDOIA in Spanish). Finally, at the international level, we find the baseline regulatory framework in the 1989 United Nations Convention on the Rights of the Child; General Comment No. 12 (the right of the child to be heard) and No. 14 (the right of the child to have his or her best interests taken as a primary consideration) of the United Nations Committee on the Rights of the Child; and the 1992 European Charter of Rights of the Child.

It is important to note that in Catalonia, government intervention is structured around the best interest of the child or adolescent, as expressly stipulated by article 5 of LDOIA, as well as article 2 of Organic Law 1/1996.

How are children, adolescents and their parents involved in administrative protection proceedings?

The involvement of children and adolescents is governed by article 3 of Law 39/2015, which establishes that they may go before the public authority without the attendance of their parents if so established by the legal system. When we turn to LDOIA, article 117 guarantees the right of children and adolescents to be informed and participate in the study process as well as the preparation of their protection proposal, of course depending on their age and maturity level. Once they are of legal age, they will also have the right to access their protection file through a confidential mediation proceeding. In administrative neglect proceedings, adolescents and children have the right to be heard (the latter if they have sufficient knowledge) in accordance with article 106.4 LDOIA. Likewise, adolescents have the right to challenge the administrative decision issued for their protection in the courts, in accordance with the provisions of article 123.3 LDOIA. Minors over 12 years of age are considered to be adolescents.

As for the involvement of the parents, as parties involved in their children’s administrative protection proceedings, in accordance with article 53 of Law 39/2015, they have the right to know the processing status of the proceedings, to identify those responsible for said processing, and to act with the assistance of legal counsel when they feel it is appropriate in defense of their rights. Article 10.d) of Law 12/2007 establishes that parties involved have the right to access their individual files as long as this does not violate third parties’ right to privacy. It also guarantees the right to obtain copies of these files as established by law, except the annotations that professional personnel have made in the file. Regarding administrative neglect proceedings, article 106 of LDOIA includes the right of parents to appear, to submit reports or other evidence, to be heard whenever possible, and their right to view the file and submit allegations to the DGAIA within a 10-day period.

It should be noted that the government or competent teams will create a single file for each child and adolescent, in accordance with article 101 of LDOIA. This file will include information regarding the minor’s situation, as well as the protective actions and measures developed by the social services involved.

The fact that the government’s actions revolve around the minor and their best interests may entail the parents, whose ability is being verified, having limited access to the content and results of the administrative proceeding.

Thus, during the processing of these proceedings for the minor’s protection, the truth is that parents may encounter some misinformation regarding what is happening and its possible consequences and motivations, due to a lack of knowledge of the administrative proceeding and their rights. Their access to the file related to their children may be limited.

It is recommended that parents have the advice of a lawyer who is an expert on the subject and can accompany them throughout the processing of the administrative proceeding in defense of their interests, and if necessary, challenge the administrative decision in the courts.
Isabel Núñez
Partner at ICN LEGAL

931 060 620