The most sensitive family law cases for a lawyer are those involving minors. The protection of the minor and, in particular, the concept of “best interests of the minor“), is a priority in these processes, although in some cases situations are generated that affect the child negatively, often related to the waiting time to know the solution to the conflict.
Therefore, in this article we approach the concept of protection of minors when they are separated from their families for various reasons related to an inadequate exercise of parental authority to place them in a foster care center. We approach it from a positive point of view, trying to point out what can and should be improved to make the system work in the best possible way.
Who is responsible for the protection of minors?
The protection of minors due to inadequate exercise of authority is exercised by the Public Administration through different autonomous bodies, which can make decisions on their own, and whose review, in the event that the family is not in agreement, is carried out through the courts, by the family judges.
In the event that a child may be at risk or in distress, the legal priority is the speed of decision making to ensure their safety.
In this way, a technician, through administrative channels, can remove a minor when there is a suspicion of a situation of risk or neglect, with the validation of his legal department, without this decision having to go through a judge . Thus, this speed may cause that, in some cases, the Administration generates guardianships and declarations of abandonment of minors (placing them in shelters and separating them from their parents) in a preventive way.
This decision by the Administration takes about six months to be issued and, during the whole previous time, the minor may be placed in a foster care center, awaiting this decision. This generates a prolonged period of time in which the child is separated from his or her parents on a preventive basis until the Administration resolves the case, allowing only sporadic visits by the parents at a meeting point.
If the Administration finally considers that there is indeed lack of protection or neglect, the next step for the parents is to go to the Family Courts, so that the process can be prolonged for a year during which the child will remain in a foster care center.
In practice, there are many voices denouncing cases of improper declarations of risk or abandonment, i.e., not based on objective data that justify the separation of the child from his or her family.
The problem is the long period of separation that occurs in practice until a favorable judicial resolution is obtained.
Situation of risk and situation of helplessness: What are the differences?
To better understand these cases, it is important to point out the differences between a resolution of risk and a resolution of abandonment.
The finding that a minor is in a situation of risk or neglect justifies the intervention of the public authorities, since in both cases it is considered that the minor is in a situation of lack of protection that must be alleviated.
However, risk and neglect are different situations.
– Risk situation
A situation of risk is considered to be that in which, due to personal or family circumstances of the minor, or due to the influence of the environment, his or her personal or social development is impaired in such a way that, without reaching the entity, intensity or persistence that would justify the declaration of abandonment, the intervention of the public administration is necessary.
These are cases of risk, for example, the lack of physical or psychological care of the minor that entails a slight damage to his physical or emotional health, the difficulty to provide adequate physical and psychological care to the minor, or the use of physical or emotional punishment on the minor that, without being serious, harms his development.
Also the lacks that cannot be compensated or promoted in the family environment that can entail the marginalization, the maladjustment or the abandonment of the minor, as well as the lack of schooling in obligatory age, the absenteeism or the school abandonment, the open and chronic conflict between the parents, the inability or impossibility to control the child’s behavior that causes a clear danger of harming oneself or others, discriminatory practices against girls (including the risk of female genital mutilation/cutting and violence) and any other circumstance that may result in the child’s abandonment.
– Homelessness
In the case of neglect, the situation is even more serious: it refers to minors who lack the basic elements for the integral development of their personality.
For example, abandonment, physical or psychological mistreatment, sexual abuse, exploitation or situations of analogous nature, prenatal mistreatment, or the inadequate exercise of guardianship functions that entails a serious danger to the minor are considered as cases of neglect.
Also the disorder, the psychic alteration or the drug dependence of the parents or holders of the guardianship or guardianship that seriously affects the development of the minor; the supply to the minor of drugs, narcotics or any other psychotropic or toxic substance; the inducement to begging, delinquency or prostitution, or the exercise of these activities by the persons in charge of the guardianship; serious and chronic physical, psychological or emotional neglect; or male violence or the existence of circumstances in the socio-family environment that seriously harm the development of the minor.
This category includes the obstruction by the parents or guardians of the investigation or verification actions, or their lack of collaboration, when this behavior endangers the safety of the minor, as well as their refusal to participate in the execution of the measures adopted in situations of risk if this entails the persistence, chronification or aggravation of these.
Should the child protection system change?
There are critical views on this way of proceeding which point out that the child should remain in their families as long as there is no objective evidence and procedural guarantees to decide to deprive the parents of their guardianship, the child should be in their family and with the due supervision of the administration, but not the other way around . Another problem that is pointed out is that, in a judicial process, the families do not have evidence of the minors because they do not have access to them during the process.
Thereis also talk of a broad and even abusive interpretation of the principle of “best interests of the minor” in certain cases, or at least the possibility of this happening, given the broad powers of the Administration in this type of process, as well as many cases of complaints, serious errors and unjust decisions, which would recommend a profound rethinking of the child protection system. Added to this is a key problem: the social stigma that situations involving the removal of a child produce in affected families. Society tends to judge, thinking that it is possible that “something has been done wrong” by the family, either because of the separation or because of the separation.
The inability to denounce the problem due to lack of resources or information is also a problem that must be addressed so that there is a more equal balance of power between families and the Administration.
In short, it is the administration that must prove that the family has indeed done something wrong, and not the other way around, thus avoiding a reversal of the burden of proof.
The British system: an alternative view
An alternative to the Spanish model is found in the British system, where the parents’ lawyer is involved from the beginning, so that if the Administration considers that it should withdraw guardianship from the parents, this decision must be made by a judge . In addition, care plans are adopted prior to the child’s admission, in a quest for maximum prevention.
Taking into account this model, it is possible (and it would be positive) to review the procedure as it is designed in our country to give a greater voice to the families from the beginning of the process, bearing in mind that, when in doubt, it will always be better for the Administration to protect the minor from his or her own home than separating him or her from his or her family in a preventive manner.
Finally, it should be noted that it would be important to be able to prove to the Administration from the beginning of the process their economic, personal, professional situation… even to carry out relevant expert or psychological reports, in order to prove the non-existence of a risk or lack of protection from the very first moment . In this way, cases of separation of minors from their families based on criteria that could be considered arbitrary could be avoided, resolving -when this should be done- favorably to the families at the beginning of the process, and not at the end, avoiding separating them from their family environment. If you need help in a case related to Family Law, please contact us and we will help you.
