Another Ukrainian child separated from his family by Spanish social services

Aug 9, 202212 min read

He is 7 years old, arrived in Spain with his family, displaced by the war. On 20 July, he was separated from his mother and stepfather and placed in a foster family without taking into account the procedure regulated by the 1996 Hague Convention, to which Spain and Ukraine are signatories. And this is not the only case

Text and research: Leonor Pérez-Durand, journalist

"The language barrier makes it difficult to know the exact content of the mother's message, but the impact it has on the child is perceptible, as the child is in a permanent state of alert". If "the language barrier" does not make it possible to understand what the mother is saying, how can it be known that she has uttered a threat and, above all, how can this be used as one of the grounds for withdrawing guardianship and parental authority over a child?

And if the "language barrier" of which the social services are aware, as they state in the decision of abandonment, does not make it possible to understand the alleged threats made by the mother to her child, how is it that, given that the withdrawal of parental guardianship is such a serious matter, the mother has not been notified in her own language? Especially when we are talking about a refugee who has been in Spain for less than 6 months and who has obviously learned very little in this time, in a language completely different from her own, which is insufficient to understand a legal document.

Yuri, as we shall call him, is 7 years old, a Ukrainian boy who arrived in Spain shortly after the war broke out in his country. Together with his mother and stepfather, he was placed in the seminary and former school "Amor Misericordioso". This school is one of the places chosen by the Diocese of Astorga and the NGO Diaconía to provide refuge for those displaced by the conflict. It is located in Nora del Río, in the town of Alija del Infantado, which belongs to the Autonomous Community of Castilla y León and has between 60 and 70 inhabitants.

Physical punishment, threats and lack of food are some of the reasons for the abandonment.

On 20 July, Yuri was removed from his family by an order of abandonment from the social services of the territorial management of León. In the resolution signed by the manager, María Beatriz Gónzales Barrio, it is stated that Yuri has been separated from his family because of the "frequent and recurrent use of punishment by the mother using the belt, as well as disproportionate physical restraint. Likewise, the mother makes verbal threats and intimidating gestures [...]", which they confess is difficult to understand due to the "language barrier".

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The resolution also states: "[...] it has been observed in the child absence of body hygiene to hygiene of the child", "[...] he has a very strong body odour", "[...] it is not known if the child has any food since he does not appear in the dining room, observing that sometimes he eats with great anxiety, a reflection of not having been fed every day". Among other reasons, the document also justifies the neglect by stating that Yuri does not interact with the other children and that he walks only in the vicinity of the centre near the road, which "is a danger".

"For all the above reasons, the Assessment Commission in an extraordinary meeting of 20 July 2022, in view of the breach of the duties inherent to parental authority, agreed to propose to the Territorial Manager of Social Services, in relation to the minor, the opening of a protection file, declaring him in a situation of abandonment and assuming his legal guardianship, and formalising temporary foster care in another family".

"Everything is a lie".

A person from Alija del Infantado who has befriended Yuri's family assures that the allegations of neglect and mistreatment towards the child are false, he affirms that he always saw how Yuri walked accompanied by the mother and her partner, how they looked after him, that he was not untidy or smelly and that the mother treated the child well, that she never observed any type of mistreatment or abuse of him: "If the report says these things it is a lie, I have treated them and I have always seen them looking after and caring for the child", he affirms.

The document also states: "Regarding the visiting regime, when requested by the child's mother, the appropriate decision will be taken in the child's interest". The social services in conversation with Yuri's mother have told her that the abuses and neglect reported in the decision of abandonment were denounced by the centre's workers. However, this abandonment, like that of the 77 Ukrainian orphaned children, reported by teleoLeo.com a few days ago, has not respected the 1996 Hague Convention either.

Also read: The Castilla y León regional government declares 77 Ukrainian minors to be unaccompanied and assumes legal guardianship without being entitled to do so.

Protection and Parental Responsibility of Foreign Children under the 1996 Hague Convention

The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, to which Spain and Ukraine are signatories, clearly states in its first article that it was created to "determine the State whose authorities are competent to take measures for the protection of the person or property of the child"; pointing out "the law applicable by these authorities in the exercise of their jurisdiction".

In other words, as soon as a foreign minor at risk is detected, the social services, in accordance with the 1996 Hague Convention and in application of the "forum convinience", must provisionally protect him or her, but cannot declare him or her in distress, much less withdraw guardianship or parental authority; they must first go to the country where the child or adolescent has his or her "habitual residence" or "domicile", as the authorities of those territories are competent to decide about them.

Clarifying terms

Forum Convinience: The authorities of the habitual residence of the children is the "forum" where provisional measures can be taken to safeguard them from imminent danger, however, says the 1996 Hague Convention, "it would be particularly inappropriate for the authority of the State of the child's presence to propose to the State of the child's nationality to take charge of the child's protection".

Habitual residence: According to Article 7 of the 1996 Hague Convention: "[...] a child acquires habitual residence in a territory when he or she has been there for at least one year".

Domicile: According to Private International Law, "Domicile differs from nationality or residence. Domicile is the strongest connection a person has with his or her country and is acquired at birth. The domicile of a child is that of its father if the parents are married, otherwise it is that of its mother".

Article 2 of the Convention expressly states who is under its umbrella of protection: "[...] it applies to children from birth until they reach the age of 18 years". And reaffirming what has already been said, in order to know which State is competent to protect a minor who is outside his or her country of habitual residence, Article 16 states:

1. The attribution or termination of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child.

3. Existing parental responsibility under the law of the State of the child's habitual residence subsists after the change of this habitual residence to another State.

Therefore, to declare Yuri unaccompanied without taking into account this supranational body of law would be irregular, because Spain is not his country of habitual residence, he has arrived as a refugee under the legal guardianship of his mother and because the very preamble of Law 26/2015, of 28 July, amending the system of protection for children and adolescents recognises that minors must be protected in accordance with the international agreements ratified by the State.

"Article 39 of the Spanish Constitution establishes the obligation of the public authorities to ensure the social, economic and legal protection of the family, and especially of minors, in accordance with international agreements that safeguard their rights".

Law 26/2015, of 28 July, on the modification of the system for the protection of children and adolescents.

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And among these international agreements and instruments, Law 26/2015 mentions: "[...] the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children of 28 May 2010, ratified on 6 September 2010", which is nothing less than: the 1996 Hague Convention on Jurisdiction, Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children.

Grants

On Wednesday 20 July, on the very day that the social services of León took Yuri away from his family, the Spanish Ministry of Inclusion and Social Security and Migration published in the Official State Gazette (BOE), Provision 12016 regulating the direct granting of subsidies to certain entities for the financing of the International Protection Reception System, aimed at implementing Directive 2001/55/EC.

Directive 2001/55/EC, of the Council of the European Community of 20 July 2001, "on the granting of temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof", states that it is necessary to establish minimum standards among EU countries for granting temporary protection to displaced persons.

It should be noted that although this directive has been approved 21 years ago, it is the first time that it has been applied. However, it is not the first time since 2001 that the European Union has been the destination of thousands of people displaced by armed conflict, but it is the first time that the displaced persons have been white, blond, blue-eyed and Christian.

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The subsidies granted by the Spanish state to "entities that have accredited and proven experience in the management of the state's reception network and that know how to operate the

The subsidies granted by the Spanish state to "entities which have accredited and proven experience in the management of the state shelter network and which know how it works", according to the BOE, amount to a little more than 391 million euros. Among those receiving the most money are: Red Cross with 183,991,347.92; CEAR with 70,188,223.92 and ACCEM with 69,090,000.00. It is worth mentioning DIACONÍA which, although it only receives 5,250,000.00, is the entity in charge of the refugee centre where Yuri and his family were staying.

The Red Cross and ACCEM receive more money and this could be due to the fact that according to "El Consistorio", an official publication of the Junta de Castilla y León, "both ACCEM and Red Cross are the only two organisations that are authorised by the administration to regularise the situation of people fleeing the invasion of Ukraine". However, those displaced by the war conflict already have refugee status and as such have rights and prerogatives already established in international law, so the foundations or NGOs should focus above all on sheltering them and guiding them to enjoy their rights.

More cases with an "international element

Yuri is not the only foreign child under the guardianship of Spanish social services. In addition, this blog has published the case of the 77 children from the Ukrainian orphanage who arrived in Spain - accompanied by their legal guardian and the Madrina foundation - due to an official invitation from the Coprodeli foundation; and that of a Polish mother in the Canary Islands who has had the guardianship and parental authority of her two children, a 2-year-old boy and a 15-day-old baby girl, withdrawn. teleoLeo.com knows of more foreign families affected, about which it will publish notes shortly.

In addition, it is worth mentioning the case that has been reported in the Spanish press these days: two Russian-Swiss girls, sisters aged 6 and 9, whose parents have been removed from their guardianship by the Directorate General for Child and Adolescent Care of Barcelona (DGAIA), following a complaint from the elite school they attended in Barcelona. The resolution of abandonment, among other things, states that there are doubts about the filiation of the girls, and also warns of the exposure to unknown men and the Instagram account of the eldest daughter.

These girls, although it is true that they had their habitual residence in Spain, have been living in Barcelona since January 2021, they have their domicile in Switzerland due to the nationality of their father and the Spanish social services, after receiving such serious complaints from the school, should have confirmed who their parents were, informed the mother of the complaint and in case of imminent danger, provisionally take the girls into care and inform the Central Authority of the Hague Convention 1996 in Switzerland so that it could take the most appropriate decision.

In this case, the DGAIA, like the social services of Castilla y León, or those of the Canary Islands, would not have respected the 1996 Hague Convention which is the relevant one for cases of guardianship of minors with an "international element". In matters of parental guardianship, Spain should not treat foreign children residing in its territory as if they were Spanish children, because there is always a jurisdiction that exceeds the jurisdiction of habitual residence and because it is also recognised as such in the preamble of its own Law 26/2015, of 28 July, on the modification of the child and adolescent protection system.

With the procedure applied to Yuri, the Ukrainian orphans, the two Polish children, the Swiss Russian girls and the other cases of foreign children on which Spain is working, in addition to failing to comply with the Hague Convention 1996, the Spanish social services would be in breach of articles 6 and 8 of the ECHR; Suffice it to say that in none of the cases have the foreign nationals been notified in their own language, and even in many telephone calls with their children they are told to speak Spanish when they should have a translator present.

European Convention on Human Rights (ECHR)

Article 6 Right to a fair trial

6.1: Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law [...] 6.2: Everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law [...].

(a) to be informed promptly, in a language which he understands and in detail of the nature and cause of the accusation against him.

Article 8 Right to respect for private and family life

8.1: Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2:There shall be no interference by a public authority with the

8.2: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety and public security. Furthermore, it is worth mentioning the case which has recently been reported in the Spanish press: two Russian-Swiss girls, sisters aged 6 and 9, whose parents have been removed from the guardianship of their parents by the Directorate General for Child and Adolescent Care of Barcelona (DGAIA) following a complaint from the elite school they attended in Barcelona. The resolution of abandonment, among other things, states that there are doubts about the filiation of the girls, and also warns of the exposure to unknown men and the Instagram account of the eldest daughter.

These girls, although it is true that they had their habitual residence in Spain, have been living in Barcelona since January 2021, they have their domicile in Switzerland due to the nationality of their father and the Spanish social services, after receiving such serious complaints from the school, should have confirmed who their parents were, informed the mother of the complaint and in the case of imminent danger provisionally take the girls into care and inform the Central Authority of the Hague Convention 1996 in Switzerland so that it could take the most appropriate decision.

In this case, the DGAIA, like the social services of Castilla y León, or those of the Canary Islands, would not have respected the 1996 Hague Convention, which is the relevant one for cases of guardianship of minors with an "international element". In matters of parental guardianship, Spain should not treat foreign children residing in its territory as if they were Spanish children, because there is always a jurisdiction that exceeds the jurisdiction of habitual residence and also because this is recognised in the preamble of its own Law 26/2015, of 28 July, on the modification of the system of protection for children and adolescents.