Do Spanish child protection offices and lawyers apply international conventions on cross-border child guardianship?
The power of Spanish social services to remove children from their families without a court order makes their decisions more questionable every day; not only by nationals, but also by foreigners. This is the case of another foreign child that the administration has decided to take into care, when it should be his country of origin that should take such a transcendental decision.
Text and research: Leonor Pérez-Durand, Journalist
"To appreciate on 24 June 2022, the legal situation of abandonment of the minor and on the basis of this situation, to assume, as a Public Entity for the protection of minors, the urgent ex lege guardianship of the said minor as a precautionary measure". A week later, police officers and a technical team from the Spanish social services, under the protection of an entry order granted by a court of first instance, separated a 10-year-old Dutch boy from his family.
"Eight cars of civil guards, between 15 and 20 fully armed and with body armour, guns and batons. Another 8 cars with a lot of civilians. Nobody identified themselves, they were all talking at the same time, shouting, trying to upset us, without success. One of the policemen tried to take my phone several times. They shouted at me not to be aggressive, but I wasn't aggressive. I was just asking them to speak in English: "what's going on, I don't understand, and that's what I kept repeating".
On 12 July, police and social service workers in Zaragoza, a province in the autonomous community of Aragon, Spain, entered Linda and Louis' home at 9 a.m. and took away Lucca, their son, a 10-year-old boy; all three are Dutch citizens. Since that day, the boy has been in a guardianship centre, the administration considers that with his family he is in danger, because he did not go to school in the village, nor to the doctor and "they had him isolated".
This is stated in the "Auto de entrada en domicilios y Lugares restantes para la ejecución forzosa de la medidas de protección de menores", issued by the Juzgado de Primera Instancia Nro 5 de Zaragoza: "[...] a report of 27 June, as well as the precautionary guardianship highlight the vulnerability of the minor, the social isolation of the family, chronic school absenteeism and non-attendance at the health centre for regular check-ups. The parents are prioritising their own interests over those of their child".
According to his parents, Lucca was studying at home, he is a child with dyslexia and could not keep up with the classes, they say that no matter how hard they tried to find a solution, the school did not help him, "Lucca is a very sweet and polite child, that added to his dyslexia made him a victim of bullying and the school did not take measures to protect him, that is why we preferred him to study at home with materials from Dutch school programmes, as we had decided to return home to Holland".
This Dutch family owns "La Solución", a 10-hectare rural estate located in Maella, a village in Zaragoza with just over two thousand inhabitants; there Linda, Louis and Lucca made a living from rural tourism, rented caravans and camping space, it was "a place of peace and love with a lovely family", say some of the reviews on Google. As the couple explained to teleoLeo.com, they lived a lifestyle respectful of nature and the environment, "and that's how we raised Lucca".
The warrant originally stated that Lucca and his family lived in a caravan, but was later corrected to "yellow brick house", as it seems that social services were unclear where the child was living, and this is reflected in the details they sent to the court to obtain the warrant. "In the finca we have our house with an outside shower and toilet, as recommended by feng shui. Lucca has his bedroom and we have a family caravan, which is my office and his classroom".
Louis says they live a life in connection with nature and under the precepts of the Universal Declaration of Human Rights, respecting everyone and everything. "We had many people of different nationalities who always visited us and felt safe with us. We lived on our savings and donations from our visitors, but because of the long confinement due to the pandemic, our farm did not receive anyone and we tried to sell it to go back to our country.
Lucca has a 17-year-old brother who lives in the Netherlands with his father and was about to visit them. "Lucca's brother and his girlfriend were going to come to our farm to stay with us for 5 weeks, but we had to cancel everything because he is still a minor and we were afraid they might do something to him. We couldn't bear to have two kids in the same situation. When we told him what happened with his brother and told him he couldn't come because he would be in danger, he was traumatised," says Linda.
Louis and Linda chose Maella because they wanted to live in a place far from the big cities and build a home that would welcome others who also wanted to reconnect with the simplicity of life, disconnecting from the networks, taking care of nature. They never believed what some people told them: "they will never be from Maella", in spite of that, 4 times a year, Linda, who is also a singer, gave concerts with her band, "for the benefit of an NGO for Universal Freedom", with her band, the Windmillfree Bajo Aragón. The intervention of the Social Services on her son could be the tomb of the concerts.
"Lucca has a special tree house, he went to guitar lessons for a couple of months, he took swimming lessons for 3 years in the village and every summer we have a subscription to the pool, so we swam every day for him to get in contact with the other children. Every week we went to the cinema before the pandemic and we had a special family evening, he loves the cinema, so going to see a film is very special for us," Linda and Louis explain to teleoLeo.com.
Danger - what danger?
According to the social services, Lucca's family has put him in a vulnerable position because he is not socialised and this has meant that he does not recognise dangerous situations and does not know how to act if they occur: "The child has suffered an anomalous interaction (sexual) with a minor from which he has been protected by removing the other child from the centre", this is what the director of the place where Lucca is staying told the intermediary appointed by the family to help them with his case.
Lucca's parents say that he does not know how to recognise such situations, because "he is only 10 years old and has never been through anything like this, and now that he is being taken away from us to "protect" him, this is unheard of". Louis and Linda have already returned to Holland, they are there preparing everything for when they can get Lucca back, the Spanish adventure turned into a nightmare and the only thing they want is to get their son back and return to their normal life, taking care of the child and "creating happy moments", as they say.
Moreover, Lucca's parents deny the claims of Zaragoza's social services that the boy does not interact with people his own age and that he lives in isolation. "In Maella Lucca is very loved, he has friends who come to our house or he goes to theirs for sleepovers, or to play, they are Dutch friends, but he also has a Spanish friend who used to go to our finca. His best friend is a 32 year old boy who has Down syndrome, they are very connected to each other".
Process
Lucca is another cross-border child who is treated by the Spanish administration as if he were a Spanish child and, once again, does not take into account the applicable treaties and conventions when it comes to the guardianship of a foreign minor. teleoLeo.com has already reported similar cases and the formula is the same:
If it is a child from an EU country, the social services must be governed by the Brussels IIa Regulation.
In the case of a child from a non-EU country, the procedure to be followed is the Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.
And this is established in the preamble of Law 26/2015, of 28 July, on the modification of the system for the protection of children and adolescents, which states that any action for the protection of non-national children must be carried out under the supranational agreements ratified by Spain and therefore of obligatory compliance.
"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.
And among these international agreements and instruments, the preamble of Law 26/2015 mentions both the Brussels II bis Regulation and the Hague Convention 1996.
Law 26/2015, of 28 July, on the modification of the system for the protection of children and adolescents.
In Lucca's case, as her country, the Netherlands, is a member of the EU, the instrument to be applied is the Brussels II bis Regulation and if the child was in real danger, the child protection services of Zaragoza should have acted according to article 20 of the Regulation, which stipulates the provisional and precautionary measures to be taken with minors not habitually resident in its territory, if any type of risk is detected.
And this was the case of Lucca, who ceased to be habitually resident more than two years ago, since the pandemic began, and did not return to school because his parents decided to sell their property and return to the Netherlands in search of an educational centre where the child's dyslexia would be properly cared for and where he would not be exposed to bullying from his classmates and the lack of protection that they claim he suffered from the school.
Article 20 of Brussels 2a: Provisional and precautionary measures
1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or property in that Member State as may be available under its own law, even if, under this Regulation, a court of another Member State has jurisdiction as to the substance of the matter.
They then had to contact the Dutch central authority, which as in other countries is the Ministry of Justice, to communicate the child's situation of risk and this being their primary jurisdiction to acquire the vital information to deal with the case in the best interests of the child. However, the social services of Zaragoza have not proceeded in this way, just as no Spanish administration does on the basis of the local law which states that all children in Spanish territory are protected by the State.
This declaration of protection is perfect, but the supranational conventions to which Spain is a signatory, say that this should only be done in case of imminent danger, for a permanent decision they should refer the case to the primary jurisdiction of the minor, because it may be true that his parents are a danger to him, but before guardianship and placement in a centre or foster family it should be verified in his country if there is no extended family willing to take care of him.
Achievements of the mediator
In conversation with teleoLeo.com she assured that, although she has informed the social services in Zaragoza that the procedure initiated for this child is not being carried out correctly, "they insist that we are in Spain and Spanish law applies".
One of the irregularities she notes is that the social services, in breach of the Vienna Convention, articles 6 and 8, never notified this family in their language, not even in English, as requested by Linda and Louis. As they explained to the intermediary, they, as the administration, are not obliged to communicate in any language other than Spanish. "Besides, Lucca told us that her father teaches her in Spanish and everything is in Spanish in her networks.
However, colloquial language is one thing and convoluted legal language is another, which requires a thorough knowledge of the language in which the documents are written, especially when it comes to the guardianship of a minor, which is why, according to human rights legislation, we all have the right to be notified in our mother tongue in order to be able to swallow every word and concept.
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 [...].
(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 shall have 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 or public security.
However, placing this case in the correct legal framework, that of Brussels II bis because it concerns a child whose country belongs to the EU, gives Lucca's family a lot of hope, which is why it is necessary for lawyers to deepen their knowledge of the supranational laws governing the guardianship of cross-border children.
International Child Abduction
The mediator also affirms that the Sub-Directorate of Child Protection and Guardianship of Zaragoza has told her that if they do not return the child to his parents, they will be denounced for International Child Abduction under the Hague Convention of 1980 and that for this reason and because of their disappointment with Spain, Lucca's parents are already in The Hague. "They have told me that we should proceed as we see fit and that they only want the address where the child will live and the registration certificate that certifies that Lucca will be schooled in Holland".
On Thursday 11 August, Lucca's family sent the child's school registration through the mediator and took the opportunity to say that they wanted to pick him up on Saturday. All day they were waiting for the reply and when it arrived it was disappointing, as they will not be able to collect the child this weekend and will have to wait a few days because the social services want to translate the document and send it to Holland to verify its origin and then they will decide. And the decision will be taken next week.
"From the Sub-Directorate of Child Protection and Guardianship of Zaragoza it is considered necessary to assess that the documentation provided is an official document, for this we are in contact with the consulate of the Netherlands, as with the international social services of the Red Cross in order that they respond to the request for information that we have asked them. Next week we hope to be able to make a decision once the documentation has been assessed.
From Tuesday 16 August, Monday is a holiday in Spain, we will see what the decision of the Subdirección de Protección de la Infancia y Tutela de Zaragoza will be and according to that Lucca's family will decide how to proceed with regard to the complaint of international abduction of their son. "He was taken into care because he was in danger with us and now he has been almost sexually abused by another child, we cannot understand, we are very indignant and sad", Linda and Louis conclude.
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