We comment on a new judgment which, due to its importance, deserves a place in this blog.
Although it is a somewhat technical case, its consequences are clear: the Constitutional Court determines that the best interest of the minor is of such importance in Family Law proceedings that the flexibility in these trials should be maximum, in the sense that new claims that did not exist at the beginning of the judicial proceedings may be admitted in certain cases.
The result is a greater adaptation of the process to the reality of Family Law, which is changeable by nature.
Family proceedings: flexibility is the rule when minors are involved
It is usual that in any judicial proceeding the times are lengthened and there are novelties that we want to introduce in the process.
However, in practice this is complicated, since the procedural moment to mark the lines of what we are requesting is the initial demand, without being able, in principle, to add requests throughout these phases freely.
In Family Law cases, the situation is more flexible, but promises to be more so thanks to a recent ruling handed down by the Constitutional Court. The ruling, dated December 2020, appeared in the media for upholding the amparo appeal filed by a woman who considered that her right to effective judicial protection in relation to the right to her own image and to the integral protection of her children had been violated in a case involving a change in the order of her minor daughter’s surnames.
Specifically, the TC considers that the challenged resolutions (both that of the Provincial Court of Madrid and that of the Civil Chamber of the Supreme Court) “should have resolved the substantive issue raised regarding the order of the surnames of the minor and especially weighed her greater benefit, taking into account that the right to a name integrates her personality”. Beyond the specific case, what is most interesting is the Constitutional Court’s argument regarding the obligation of both courts to rule on this point, despite the fact that this petition was introduced at an inappropriate procedural moment.
Thus, for the Constitutional Court, any family proceedings in which issues affecting property or rights of minors are examined are rules of public order, so that. “the claims of the parents should not prevail, but exclusively the real benefit of the minor child”. These are the main arguments of the Court:
In attention to the role entrusted to the principle constitutionally imposed on all public authorities to provide for the protection of minors, there is no doubt that its application prevails over that of any procedural rule relating to a possible preclusion or untimeliness of the claims. Therefore, the Civil Chamber of the Supreme Court should have disregarded the procedural obstacle observed and heard the merits of the case in order to determine whether the decision that had been appealed had observed said principle and reasoned in accordance with it the reasons for the decision to change the surnames of the minor.
In view of this, we must conclude that the absence of a reasoned analysis ex art. 39.4 CE on the merits of the issue raised regarding the surnames that the minor should have after the determination of her paternal filiation, infringed the right to effective judicial protection (art. 24.1 CE) of the appellant, who is acting on behalf of her minor daughter. For the foregoing reasons, we must affirm that from a constitutional perspective, in the resolutions challenged in this amparo appeal, the substantive issue raised regarding the order of the minor’s surnames should have been resolved and the greater benefit of the minor should have been given special consideration, taking into account that the right to a name is an integral part of his or her personality.
Details of the case
The case is as follows: The plaintiff in amparo filed a lawsuit for determination of non-marital paternal filiation of her daughter, a minor, against her partner requesting proof of paternity and that the surnames of the child be first that of the father and second that of the mother.
It was also requested that the Civil Registry be rectified in the above sense.
The defendant agreed to the requested claims.
However, on the day of the hearing before a court of first instance in Móstoles, the plaintiff changed her request and asked that the surnames of the minor be firstly those of the mother and then those of the father.
This request was opposed by the father, who considered it to be out of time. The Madrid court declared the child’s biological father and upheld the mother’s claim in the sense stated in the oral hearing.
This decision was appe aled by the father alleging that the change of the order of the surnames should not have been granted.
The Provincial Court of Madrid upheld the father’s appeal and proceeded to change the surnames of the daughter, because the court had not given reasons for the decision and, in addition, the decision did not comply with the current legislation contained in the Regulations of the Civil Registry Law and in the Civil Code.
The mother appealed in cassation to the Supreme Court.
The First Chamber dismissed the appeal on the grounds that the best interests of the minor had not been violated, among other reasons.
An appeal for amparo is filed against this decision.
For more information on this case, you can find the complete judgment here.
If you need legal assistance in a case related to minors, consult our team of lawyers in Barcelona.
