Government of Castilla y León declares 77 Ukrainian minors unattended and assumes legal guardianship

The regional government of Castilla y León declares 77 Ukrainian minors unattended and assumes legal guardianship without being authorized to do so.

Original: https://teleoleo.com/2022/07/20/la-junta-de-castilla-y-leon-declara-en-desamparo-y-asume-la-tutela-legal-de-77-menores-de-edad-ucranianos-sin-estar-legitimada-para-hacerlo/

They arrived in Spain accompanied by their legal guardian and the Godmother Foundation. They were fleeing the war. Now they are in the middle of another battle, the one initiated by the Social Services of Salamanca, which would have taken over their guardianship, ignoring international conventions on the protection of minors outside the country where they have their habitual residence.

Text and research: Leonor Pérez-Durand, journalist

Seventy-seven of the eighty-seven Ukrainian children and adolescents who arrived in Castilla y León in April 2022 have been declared unaccompanied minors, seventy-seven minors who have been placed under the guardianship of the government of this autonomous community since July 11, 2022.

These children and adolescents arrived in Spain in a plane of the Spanish Military Emergency Unit (UME) at the end of March 2022. They were taken out of Ukraine by the president of the Madrina Foundation, Conrado Giménez Agrela, in response to an invitation sent by the Coprodeli Foundation to that country to take in 100 children in school homes in the Pastrana municipality in Guadalajara.

Once in Madrid it was not possible to place the minors in Pastrana, so the Godmother Foundation found another place to house them, this was the school house La Inmaculada located in Armenteros, Salamanca; there the foundation carried out adaptation works for the stay of the children and adolescents, almost half of them have some kind of disability.

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And it is precisely the issue of the school facilities the reason used by the Social Services of Salamanca to declare the abandonment of these minors and to arrogate their guardianship and parental authority without having the power to do so. According to sources consulted by teleoLeo.com the abandonment has not yet been notified officially, only via email.

"[...] commitments for improvement have been made by their guardians, but they have not materialized". Therefore: "the technical team of the Child Protection Section considers that the minors are currently in a situation of helplessness that requires the assumption of the Legal Guardianship by this Public Entity, especially taking into account their special vulnerability".

However, this unilateral decision signed by the Territorial Manager of Social Services of the Junta de Castilla y León in Salamanca, Isabel Fernández Cambón, would be totally irregular. According to the 1996 Hague Convention on the Protection of Minors, only the authorities of the country of habitual residence of a minor are competent to decide on his or her guardianship and parental authority.

Thus, only the Ministry of Justice of Ukraine can decide on the change of status of these children and adolescents, especially since they are orphaned minors and are already under the direct guardianship of their government. In most countries that are signatories to the 1996 Hague Convention, the "central authority" or the competent authority appointed for these purposes is the Ministry of Justice.

Also read: More than 50,000 children under guardianship in Spain. The EC gives 68 thousand euros for the care of each one: Protection or business?

Helplessness

"Having studied the situation by the Assessment Commission of the Child Protection Section held on July 08, 2022 [...] it is proposed to the Territorial Manager of Social Services of Salamanca the appreciation of the situation of helplessness and the declaration of the assumption of his legal guardianship by the ministry of the Law," says the resolution signed by Fernández Cambón.

The guardianship

The resolution of abandonment casts doubt on the legal guardianship of these minors: "The Ukrainian authorities have been asked to accredit the condition of legal guardian of Mrs. Olena Surina, but so far there is no official document to prove it"; however, Olena Surinova Oleksiivna, "the director", has the official document issued by her country according to which she is the legal guardian of the 87 children.

Translated excerpt from the guardianship document delivered to Olena Surinova Oleksiivna

18.01.2022

with. Hyaraskoviivka, Bajmut district

Donetsk region

NO. 75-01

Gro E Performance of duties of the pupil tutor of the Mykolaiv branch.

"[...] The head of the regional military-civil administration dated 23.09.2021 No. 990/5-21 "On reorganization of the MYKOLAIV SPECIAL INTEGRAL MYKOLAIV REGIONAL BOARD No. 7 of the Donetsk REGIONAL COUNCIL", guided by the order of the Ministry of Education and Science, Youth and Sports of Ukraine, Ministry of Social Policy of Ukraine dated 10. 09.2012 No. 995/557 "Approval of Regulations on orphanages and general education boarding schools for orphans and children deprived of parental care" with the aim of providing games for orphans and children deprived of parental care.

ORDERED:

To assign the director of the Mykolaiv branch of the Paraskoviiv special school no. 40 of the Donetsk regional council, Surina Olena Oleksiivna the functions of tutor (guardian) of orphans and children deprived of parental care, who

come to live in the branch".

Another yes I say

According to a note on the fostering of minors in Armenteros, published by the newspaper El Pais on April 24 this year it is stated that "according to sources from the Ministry of the Interior, the children of this orphanage, although technically they are with their legal guardians, have also been registered in Spain as "unaccompanied foreign minors", just as is done with the thousands of single children who arrive in patera and whose guardianship is in charge of the autonomous communities".

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The "sources of the Ministry of Interior" explained to the newspaper that registering these minors as ""unaccompanied foreign minors" is a greater guarantee and ensures that the reception and attention is adequate and there is communication with the country of origin to check their identities". However, this would not offer a greater guarantee to a minor, on the contrary, it exposes him/her to the autonomous community making arbitrary decisions about his/her guardianship.

This information given to El País ratifies that since these Ukrainian minors entered Spain, it is known that they were accompanied by "their legal guardians", which in this case is Olena Surinova, as evidenced by the guardianship document issued by her government. In another note from the newspaper La Gaceta published on April 5, the Family Department of the Junta de Castilla y León states that it does not know the legal situation of these minors.

The note of La Gaceta states that the Regional Ministry of the Family was not informed of the transfer of the orphans to Salamanca nor of who had guardianship of them and points out that, as far as the newspaper could learn, "4 days later, it was the Regional Ministry that had to contact the Ministry of Inclusion to clarify the situation of this unprecedented case in Spain of a Ukrainian orphanage completely transferred to an autonomous community".

Then, according to La Gaceta, the Family Council of the Junta made the consultation on the legal situation of these minors in April, however, three months later, in the resolution of abandonment, the social services of Salamanca say that they have "requested" official information from Ukraine on the guardianship of the minors. Is it that the Ministry of Inclusion still does not answer the Family Council of the Junta de Castilla y León on such a serious issue?

The guardianship

"In the present case, the type of care that is considered appropriate for the satisfaction of the best interests of the minors is residential foster care," the resolution states and says that it delegates the care of the minors to the ACCEM Organization and that this will be exercised in the San Viator School, in Valladolid.

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In the page of the web portal of the Junta de Castilla y León, on aid to Ukraine, ACCEM is the "Entidad de la Red Estatal de Acogida". to which people displaced by the conflict are referred for shelter. According to ACCEM's web page, it is present in 13 autonomous communities and a total of 39 municipalities throughout Spain, and it also reports that more than 70% of its financing comes from state funds and more than 10% from autonomous community funds.

The aforementioned change of location of the Ukrainian minors would respond to the alleged lack of improvements in the facilities of the school La Inmaculada, to which, according to the social services of Salamanca, the foundation Madrina committed itself and did not comply; however, after more than a week of declared abandonment, the minors continue in the school La Inmaculada de Armenteros.

The parental authority

In its operative part, the decision also states that "according to article 172.1 of the Civil Code, the assumption of the guardianship attributed to the Public Entity entails the suspension of the parental authority or the ordinary guardianship". The resolution orders that the decision be notified to "Ms. Olena Surina and to the Public Prosecutor's Office, ACCEM, La Inmaculada School, the Godmother Foundation, the Civil Guard and the Ukrainian Consulate in Spain".

In short, the Junta de Castilla y León, without consultation and without legal authority, disregards the provisional guardianship of Olena Surina granted by her country and, in addition, withdraws from Ukraine the guardianship and parental authority of 77 of its children and adolescents, many of them disabled and accustomed to dealing with their guardian whom they call "mommy".

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TeleoLeo.com has consulted the Ukrainian consulate in Madrid, about the measures they will take, we are waiting for their official response, however, we understand that they are in disagreement with the removal dictated by the social services of Salamanca and that they will enforce the rights of their country, legal guardian of these orphaned minors.

Legislation

The determination of the Junta de Castilla y León to take into custody 77 Ukrainian minors who remain in Armenteros is in breach of the 1996 Hague Convention "On Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children", to which Spain and Ukraine are signatory countries.

The Convention in its first article states that: "Its purpose is 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".

According to Article 2, the Convention "applies to children from birth until they reach the age of 18 years". And to know which State is competent in the protection of a minor who is outside his or her country of habitual residence, Article 16 states:

1. The attribution or extinction as of right of parental responsibility, 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. Parental responsibility existing under the law of the State of the child's habitual residence subsists after the change of this habitual residence to another State.

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

For all of these reasons, the removal from care decreed by the Social Services of Salamanca would not be appropriate and aggravates the situation of emotional insecurity of children who were beginning to enjoy their days without the terrifying sounds of bombs and bullets that destroy their country.

As of August 1 of this year and by amendment of the Brussels IIa Regulation, which will be replaced by the Brussels IIb Regulation, Ukraine will have the rights and obligations of any EU state with respect to the protection of minors. Brussels IIa regulates all forms of placement of a minor in a home, with one or more people, or in an institution (orphanage or a children's home) in another EU country.

"Minors from Ukraine - judicial cooperation in civil matters" is the document published by the European justice in which it points out that the new Brussels IIb Regulation has been created to protect children and adolescents deprived of their family environment due to Russia's military aggression against Ukraine and for this purpose it has amended Article 8 of the Brussels IIa Regulation.

Article 8: "The courts of a Member State have jurisdiction in matters of parental responsibility over a child habitually resident in that Member State at the time the court is seized. However, Ukrainian courts continue to have jurisdiction if the child was habitually resident in Ukraine before the removal".

Children and adolescents displaced by the war in Ukraine are leaving their country alone or accompanied mainly by their mothers or legal guardians, EU countries are offering them refuge, but they must respect the condition in which they enter their territories.

If minors enter a country with a legal guardian, that country does not have the competence to remove that guardianship, it could only act in a provisional or precautionary manner in case that child or adolescent is in real danger and before taking any final decision on their status, their country of habitual residence must be consulted, in this case it is Ukraine.