FUNDANEED.es
The TC’s position is of the utmost importance, as most courts had opted for a restrictive interpretation of the rule.
- The TC’s position is of the utmost importance, as most of the courts had opted for a restrictive interpretation of the rule.
- Following the reform of Article 94 of the Civil Code, several judges have raised questions of unconstitutionality.
13 September 2022. Article 94 of the Civil Code “does not automatically deprive” a parent involved in criminal proceedings for violence against the other spouse or their children of visitation or stay arrangements, the Plenary of the Constitutional Court decided today. The ruling, for which the judge Santiago Martínez-Vares García was the rapporteur, indicates that it is obligatory to carry out a reading, “which, far from restricting itself to the first two paragraphs of the fourth paragraph of art. 94 CC, examines the contested precept as a whole and systematically”.
The Constitutional Court’s position is extremely important, given that the majority of courts were interpreting the aforementioned article 94 in a mechanical manner and, consequently, suspending visits and stays for parents involved in criminal proceedings since the entry into force of Law 8/2021, of 2 June, reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity.
According to the TC’s interpretation, “decisions must be based on full information on the facts, thus encouraging the judge’s enquiries in this area. Except in extreme cases, what is indicative should not consist of a simple presence report or disregard the version of the affected parent”, says the AEAFA member, José Luis Cembrano.
“The motivation has to be very demanding, without prejudging but without leaving shadows on the necessity, suitability and proportionality of the restrictive measure that is adopted in each case. The judge also has the last word on the type and scope of the measure,” insists Cembrano.
“In a cause-effect weighing, the decision must explain the appropriateness of the measure. For this, family judges must have a good team to help them form their criteria and have demanding reports that are never the result of routine. Even the length of the criminal proceedings is essential when it comes to taking into account the decision in order to avoid causing serious harm to the child”, the AEAFA member analyses.
As for article 156.2 of the Civil Code, the ruling also rejects that the regulation is unconstitutional, as it will be necessary to read the ruling. In short, “all that is needed now is to have the means and avoid automatisms of any kind and, perhaps also, some good comparative statistics on this type of ruling”, adds Cembrano.
IN THE JUDGE’S HANDS
The Constitutional Court affirms that the precept does not automatically deprive the parent of the visiting or stay regime as the Vox Parliamentary Group of the Congress of Deputies claims in its appeal of unconstitutionality against the regulation given to articles 94.4 and 156-2 of the Civil Code by Law 8/2021, of 2 June.
For the TC, the reform attributes to the judicial authority the decision on the establishment or not of a visiting or stay regime or its suspension, even in cases in which a parent is involved in criminal proceedings. “This is clear if the reading of the fourth paragraph of art. 94 CC does not omit its third clause, which attributes in any case the decision regarding the establishment or not of a visiting and communication regime to the judicial authority, which must give reasons for it in the interests of the minor”, indicates the Constitutional Court in a press release.
Therefore, it can be concluded that the fourth paragraph of Art. 94 of the Civil Code lacks automatism and does not legally predetermine the deprivation of visitation or stay for either parent. The judgment argues that the contested provision does not limit the possibility for the judicial body to assess the seriousness, nature and scope of the offence attributed to a parent, nor its impact on the paternal or maternal-filial relationship, its intentional or reckless nature, the person or persons directly affected by it, as well as the specific circumstances of the case.
“The contested provision empowers the judicial authority to weigh up, among other things, the irremediable consequences that the passage of time during the investigation may have for the relationship between the child and the parents who do not live with him or her, as well as the provisional nature of the status of a person under investigation in criminal proceedings, but also the duty to adopt efficient and reasonable measures to protect children from acts of violence or attacks on their personal integrity”, the TC points out.
The TC recalls that the nature of the measures restricting rights contained in the rule in question and their systematic interpretation allow it to be pointed out that, if the judicial authority decides to suspend the visiting or stay arrangements with regard to the parent who has been formally charged with any of the offences referred to in the fourth paragraph of art. 94 of the Civil Code, it will have to take the necessary measures to ensure the protection of the child’s rights. 94 of the Civil Code, it will have to do so by means of a reasoned decision, in which it will have to assess the indirect relationship of the parent with the criminal acts that have given rise to the criminal proceedings, as well as the necessity, suitability and proportionality of the measures adopted. Finally, the judgement also rejects that the regulation of art.156 .2 of the Civil Code is unconstitutional, as neither is it noted, nor is it argued in the appeal, that the attribution to one of the parents of the decision that the minor be psychologically assisted and cared for, previously informing the other, in the cases that the precept establishes -characterised by a clear confrontation and hostility between both parents-, and therefore, given the difficulty of reaching an agreement, is unreasonable, disproportionate, arbitrary, or contravenes the interests of the minor (art. 39 CE).
UNCONSTITUTIONALITY ISSUES
It should be noted that Article 94 of the Civil Code has given rise to several questions of unconstitutionality by different judges in the country, as in the following cases:
ARAGON. The wife had been convicted of a crime of domestic violence and injuries, so that in application of the aforementioned article of the Aragonese Code of Foral Law, with a wording similar to article 94, she could not be awarded guardianship and custody, either individual or shared.
MADRID: In a 158 CC procedure, the father requests, in a shared custody regime, that the mother’s custody of the common child be suspended. This is based on the fact that the son has allegedly been the victim of mistreatment by the mother, which has caused a contusion on his cheekbone. There is no final judgement of conviction.
ANDALUSIA, Jerez de la Frontera. The father is involved in criminal proceedings and is charged, among others, with an offence against the sexual freedom of the mother. In this case, both parties agree that the system of custody of their minor children that best suits them is that of shared custody. Even the Public Prosecutor’s Office, which reported unfavourably on this system, admits that the only reason for this lies in the prohibition established in art. 92.7 CC.
Source: AEAFA (Spanish Association of Family Lawyers)
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