Key facts of the case:
The appeal was lodged by the Provincial Delegation of the Equality and Welfare Ministry of the Andalusia Assembly in Granada in the context of a voluntary jurisdiction procedure. The Delegation asked for the judicial suspension of the parents’s visit with their child (born in 2003), who was under the guardianship of the public child protection entity. Following the best interest of the child, the above-mentioned public authority adopted the suspension as a prevention measure, because the Provincial Commission for Protection Measures had agreed on starting the procedure for the permanent foster care of the child with another family.
Outcome of the case:
In interpreting Article 161 of the Civil Code, the Supreme Court assesses how to balance the basic right of the child to communicate with their parent(s), with the urgent necessity to guarantee the effectiveness of the protection measure adopted (family foster care), in light of the concrete circumstances and the best interest of the child. Moreover, in light of the unclear jurisprudential criteria on the matter and underpinning the public prosecutor’s request, the Supreme Court decided to fix the jurisprudential criteria on the matter. Thus, it affirmed that the public child protection entity has the legal power to decide the suspension of the visits and communications system between a child under its guardianship and in residential foster care with his/her biological parents, with the aim of guaranteeing the effectiveness of the protection measure adopted. The Public Prosecutor’s Office and the competent court are immediately informed about the measure adopted, with the Public Prosecutor being in charge of supervising the decision adopted and the judicial control over the administrative resolution adopted being mandatory. Article 161 of the Spanish Civil Code has recently been modified by Law 26/2015 of 28 July, which reformed the child protection system: the new version entered into force on 18 August 2015.The new version of Article 161 is basically in line with the criteria set by the Court in the present decision. The previous version of Article 161 (in force when the decision was taken) established that, in case of a child in residential foster care, the right of his/her parents, grandparents, brothers/sisters and other relatives to visit and maintain a relationship with him/her may be regulated or suspended by the judge, according to the circumstances and the interests of the child
The Supreme Court upheld the appeal in cassation lodged by the Equality and Welfare Ministry of Andalusia, to which the Public Prosecutor’s Office adhered.
Even though Article 161 has the same legal status as the laws of the Spanish Regions, it is necessary to integrate Spanish legal norms into international legal instruments on child protection – STS 11 February 2011. This determines that the guarantee for the right of the child to communicate with their parent(s) has to be considered as a child’s basic right, unless something else has to be considered, in accordance with their interests. This is established by Articles 3, 9 and 18 of the Convention on the Rights of the Child, adopted by the General Assembly on 20 November 1989 and has been in force since 2 September 1990, which affirms the best interest of the child as a fundamental principle and obliges Member States to respect this right and implement appropriate legislative and administrative measures to guarantee the right of the child to maintain a relationship with both parents. This is also provided for in Article 14 of the European Charter on Child Rights, approved by a Resolution of 18 July 1992 by the European Parliament, and Article 24.3 of the EU Charter on Fundamental Rights.