SPAIN: National Laws

Summary: General overview of Spain's national legal provisions on children's rights, including guidance on how to conduct further research.

Español

National laws on children's rights

Status of the CRC in national law
The Spanish Constitution (S. 39(4)) establishes that children shall enjoy the protections provided for in international human rights conventions. In general, following official publication of a ratified treaty, such as the CRC, that treaty becomes part of domestic law, and the courts give precedence to the application of a treaty over domestic law. More specifically, in instances in which there may be a conflict between constitutional rights pertaining to children and domestic law, the Spanish Government suggests that the Convention may be used to help interpret those rights and determine the constitutionality of the law in question. The CRC can also be invoked directly before Spanish Courts, as can be seen in a review of Spanish case law (see below). It should also be noted that although civil and criminal law are largely subject to national jurisdiction, in certain matters the Autonomous Communities of Spain are able to legislate and, as such, provisions in relation to children can vary within those communities.

Constitution:There are a small number of provisions within the Spanish Constitution which specifically address the rights of children:

• S. 39(2) provides for the full protection of children and their equality before the law regardless of their parentage and of their parents' marital status;

• S. 39(3) requires that the parents of children, whether the child was born in or out of wedlock, provide every kind of assistance while they are still under age and in other circumstances in which the law so establishes;

• S. 27(3) guarantees the rights of parents to ensure that their children receive religious and moral instruction in accordance with the parents convictions; and

• S. 20(4) recognises the protection of children as a limit to the freedom of expression and its corollary rights within that section.

Legislation:
Spain does not have a consolidated children's act, but rather provisions appear throughout the Civil Code, the Code of Civil Procedure, the Criminal Code and other laws, decrees, and regulations. Relevant national legislation includes, but is by no means limited to:

• Organisation Act No. 1/1996 of 15^th Jan. on the legal protection of minors and partial amendment of the Civil Code and the Civil Proceedings Act

• L.O. No. 15/2003 of 25^th Nov. reforming the Criminal Code on domestic violence, removal of children for their protection, the crime of corruption of minors, child pornography, breach of obligations arising from decisions of the courts on maintenance and paternity, and offences that threaten the physical and psychological integrity of children

• L.O. No. 9/2002 of 10^th Dec. on the abduction of children by family members

• L.O. No. 5/2000 of 12th Jan. which governs criminal responsibility of minors

• L.O. No. 2/2005 of 8^th Jul. on the prosecution of extra-territorial genital mutilation

• Royal Decree No. 2393/2004 of 30^th Dec. on the rights and freedoms of foreigners in Spain (Title VIII refers to minors)

• L.O. No. 2/2006 of 3^rd May on education

• Act No. 15/2005 of 8^th Jul. amending the Civil Code and Civil Proceedings Act regarding separation and divorce

Legal research:
The Spanish Congress (Congreso de los Diputados) maintains a website that offers national legislation (http://www.congreso.es/portal/page/portal/Congreso/Congreso/Iniciativas/LeyesAprob?selectLey=tituloListadoTodasLeyes) and an English translation of the Spanish constitution (www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf); the Senate (Señado de España) also maintains a website in Spanish (http://www.senado.es/).  A comprehensive legal research guide to Spain is also available on GlobaLex (http://www.nyulawglobal.org/Globalex/Spain.htm), and the U.S. Library of Congress (http://www.loc.gov/law/help/guide/nations/spain.php) and World Legal Information Institute (http://www.worldlii.org/es/) both offer portals to a number of legal research and government links.

Case law
CRC Jurisprudence
In Decision 67/1998 of 18 March 1998 with regards to non-payment of maintenance and non-discrimination against children by reason of birth status, the Constitutional Court cited the Convention among the grounds for its decision.

Compliance with the CRC
The Committee on the Rights of the Child was generally positive in its 2011 Concluding Observations with regards to the harmonisation of domestic law with the principles of the Convention. The Committee noted, however, that "laws and regulations applied in autonomous communities differ[ed]" and that they were "not always consistent with the Convention in important areas". Particular attention was drawn to matters pertaining to the protection of children at risk, those in foster care and the treatment of unaccompanied foreign children. The Committee also encouraged more explicit recognition of the Convention as positive law, and its more frequent citation in legal proceedings.

In detail analysis:
Of those areas where the Committee noted shortcomings in Spanish law, asylum and the treatment of unaccompanied children were perhaps the foremost areas of concern. The Committee was welcoming of the new Asylum Law (Ley 12/2009), but expressed concern that its scope is limited to non-EU nationals and unaccompanied children, but does not permit EU citizens to seek asylum in Spain. Furthermore, while welcoming the falling numbers of repatriations, the Committee has expressed continuing concern about reports of ill-treatment of children by police during forced or involuntary repatriations, and at reports that legal protections such as access to lawyers and interpretation services have not bee respected during deportation proceedings.

The issue of centres for children with conduct disorders was raised in the Committee's 2010 Concluding Observations, with the Committee expressing concern that such centres might constitute a deprivation of liberty in certain circumstances, and as such ought to be brought within a system of norms, protocols and standards. Specifically, the Committee recommended that children should only be placed in these centres as a measure of last resort, that placement should only be permitted upon the authorisation of a court, and that and independent monitoring body ought to be established to monitor conditions in centres.

One area of national law where the Committee has made specific recommendations in relation to amending national law is in relation to marriage. Currently, the minimum age for marriage is 18 years, but a judge may authorise marriage for children as young as 14 years in exceptional circumstances. The Committee recommended that the law be amended in this area to permit marriage for persons no younger than 16 years with the permission of a judge.

Current legal reform projects
Reforms are currently under way to L.O. No. 1/1996 of 15th January on the legal protection of the minor and a partial modification of the Civil Code and Code of Civil Procedure.