In today’s post we comment on an important amendment to the Civil Code of Catalonia specifically designed to strengthen the protection of minors against vicarious violence: from now on, thanks to this reform, parents with “substantiated evidence” of having committed acts of domestic violence or violence against women will be prohibited from staying, visiting and communicating with their children.
This is important news for the protection of minors in case of suspicion of violence in the domestic sphere.
We comment on the details of this reform and we are at your disposal to help you in any case related to Family Law and custody.
What is vicarious violence?
It is no coincidence that a reform of this type saw the light of day in 2021: the case of Anna and Olivia in Tenerife reveals a form of aggression in which the perpetrator uses the children as instruments to harm the mother, which is called vicarious violence, which can have different forms of manifestation.
Vicarious violence is defined as that which is exercised against someone through an interposed person.
It is also known as surrogate violence.
It can occur in all kinds of settings, but when we talk about domestic or gender-based violence, it usually focuses on the loved ones of the victim, especially their children.
It is one more way in which the abuser places himself in a position of power over his victim, and is part of structural violence.
Although the most frequent collateral victims are usually children, it is also possible that it affects other loved ones of the abused person: their parents, brothers or sisters, close people… It is worth remembering that more than 1.6 million children live in homes where the mother suffers male violence, according to the latest macro-survey of the Ministry of Equality published in 2020.
As for what the laws say, the comprehensive law against gender violence of 2004 refers to this form of violence as that which, with the aim of harming women, “is exercised on their family members or close relatives who are minors“, although without expressly mentioning the term ‘vicarious violence’.
For its part, the 2017 State Pact against gender-based violence makes mention of this term and provides for extending the protection of the law to those who have suffered violence “through an intermediary” as “the most extreme harm that can be exercised by the abuser towards a woman: harming and/or murdering the children”.
In the case of the recently approved reform in Catalonia, the previous regulation required a firm criminal conviction to prohibit stays, visits and communications with the children.
Now, it is enough with the existence of a criminal record, previous complaints, filing of a complaint in police or judicial headquarters, psychological reports, witnesses, statement of the minor children who have sufficient natural capacity or of relatives, etc., as explained by the General Council of Spanish Lawyers in this article.
Reform of the Civil Code of Catalonia to protect minors from vicarious violence.
The new regulation, contained in Decree-Law 26/2021, of November 30, amending the second book of the Civil Code of Catalonia in relation to vicarious violence, allows prohibiting stays, visits and communications with their children to parents with “well-founded indications” of having committed acts of family or gender violence.
In addition, for psychological assistance for minor children, the consent for the psychological care of minor children is modified, so that the consent of the parent against whom criminal proceedings are being followed for having violated the life, physical integrity, sexual freedom and indemnity of the other parent, or of the common minor children, will not be necessary.
This consent will also not be necessary when there is a conviction and as long as the criminal liability is not extinguished.
Even if no prior complaint has been filed, consent will also not be necessary when the mother receives assistance, accredited by the comprehensive care and recovery services for women who suffer gender violence.
As for civil separation and divorce proceedings, a regime of stays or communications may be established on an exceptional basis, in the interest of children and adolescents, provided that they have been heard and have sufficient natural capacity.
These measures are already applied in the Catalan courts and tribunals, so if you find yourself in a situation of this type, we strongly recommend that you contact a lawyer specialized in custody. Please contact our team of family lawyers in Barcelona..
