Papers of the Private Law of the Philippines and Spain International Scientific Congress

Papers of the Private Law of the Philippines and Spain International Scientific Congress

Coord.: José Manuel de Torres Perea
Universidad de Málaga

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Julieta Moreno- Torres Sánchez
Legal Assessor at Malaga Child Protection Children Service
Doctor in Law

We refer to the Child protection system as the entire set of legal, social, educational, health... measures,  aimed to get the integral development of the minor, respecting principles integrated in Minor Law, in a determinate State and in accordance to its determined cultural parameters, and the system integrated by technicians and material resources to ensure child protection1
In this paper we will do reference only to the legal system of protection in Spain, which evolves measures of prevention and protection against neglect and abuse of children.

Key words
Children at risk of abuse or neglect, care order, child protection system,  foster care, child protection ombudsman, child adoption, paternal responsibility, centre of child protection.

Protection System Domestic Law

Three dates in our recent past registry the situation of child protection legislation in Spain.  The present Spanish child protection system started its most recent in-depth
modification of the Civil Code,  Act 21/1987: child protection system was decentralised in autonomous communities. From that moment decisions about care order or fostering went over from Court to Administration. Ten years later was given an important impulse with the promulgation of Spanish Organic Law 1/1996, Law of Legal Child Protection and partial modification of the Law of Civil Prosecution. This law recognizes children as holders of a series of rights, reaches a legal framework for child protection, considers children as an active, participative and creative subject, with needs and rights that should be guaranteed. 

After several years of work and consensus from all instances, 20 February 2015 has been announced by the Government two projects of Law, which  will reform the current system of protection in Spain: best child interest, treatment of adolescents, adoption,... Both Civil Code and  Law of Legal Child Protection 2, as well as many other regulations in relation with families, gender, civil prosecution, etc. are right now been reviewed. Not only the Convention on the Rights of the Child3 ,  but the  Convention on Disabled People's Rights 4, are the main international instruments used to make a transversal legislation to rework on this new legislation.

Considering where we come from, and where we are going to, will expose in this brief paper the way the protection against neglect is taken under care in the Spanish Protection System.

The changes which are taken place in our legislation, have much to do with not only social influence but also international law, specially the Committee on the Rights of the Child, October 13th 2010, recommendations to  Spain to intensify its efforts to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular for families in crisis situations due to poverty, absence of adequate housing or separation. The proposed regulation about social risk in intensify its efforts to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular for families in crisis situations mentioned, obey to this recommendation, as well as for the new norms and protocols to define the scope and standards of the care given to children with conduct disorders5 . And the government bill about best child interest has been written following the General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration6 .

Juriprudence of Supreme and Constitucional Court of Spain have also had big influence in the new government bill, specially about right to family live  and the respect of child right to be heard7 . Also by the influence of the jurisprudence of the European Court of Human Rights, which has settled at an European level the guidelines of essential and fundamental rights – right of visits, child protection right against neglect and policies of intervention in families...8

Administrative organisation

Child protection is coordinated and centraly legislated from the Ministry of  Equality, Health and Social Services, but has been completely decentralised by the way of establishing that in each Autonomous Government, with an administrative body, is responsible for the protection of all children in every region 9.

Each one of the these Autonomous Administrations assume functions and responsibilities:
To work with preventive measures, with children at risk of abuse or neglect so that children are not separated from their families.
To adopt administrative measures to protect any child and even separate from the family, when it does not appropriately protects them.
To relate with the judges and attorneys when required for cases which need judicial intervention.
To create resources, public and private (centres of child protection, Foster Associations...), available in its territory and to coordinate the protection.

The Committee on the Rights of the Child was generally positive in its 2011 report about Spain, 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 differed 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 10. The new government bill, presented by the  Ministry of  Equality, Health and Social Services and Ministry of Justice pretends this situation to change so that all the Autonomous Communities work on social risk the same way, as will mention below.

Big role in the protection of children and in the changes of legislation, play in Spain this figures:
The State Ombudsman 11 and very specially the Autonomous Communities Child Protection Ombudsman, as an example in Andalusia12 , who have in the past years done several reports about situations such as minor foreigner not accompanied or centres of protection for adolescents13 .
The national and regional Observatories, which work supporting the development of measures and actions to promote the rights and well-being of the child as defined by the United Nations Convention on the Rights of the Child and the other international standards in force 14
The Public Prosecutor, who has to look out both the situation of children at social risk of neglect or abuse – who already live with their families- and the measures adopted by de Administration – care order, foster care, child adoption...15 .

Prevention and  protection

The system of protection has moved from prioritizing the enforce of measures which involve the separation of children from their own families,  to measures to work from and with the family, to avoid the child having to get away from it. In 1987 Act, a formal declaration of social risk of neglect or abuse was not included; Organic Law 1996, article 17, introduced this concept, and in the present Project of modification of this Law, the importance of prevention is remarked with a wide regulation of children at social risk of abuse or neglect: from the moment the Law is approved, even a formal declaration of the situation of social risk will be done by the Administration before the declaration of care order.
If the social, psychological and educational intervention after declaring the social risk of neglect or abuse does not work, when has been proved that the child has to get out of the family to be protected, or when even is not possible to begin it,  the Administrative measures will be:

Declaration of the situation of  “desamparo” or care order. An Administrative Resolution will be served, as mentioned above, in Spain not though a judicial process, but by the Administration of Autonomous Communities. Care order (“desamparo”) means:  when the persons who, by law, should be responsible for the care and custody of a minor is missing or unable to carry them out, when any form of inadequate exercising of the duties of protection is noticed, or when they are lacking the basic elements for their integral development, when children show sings of physical, psychic or sexual abuse, or neglect, the Administration becomes – without any Court interference- tutor of the child. This declaration involves the automatic taking on of guardianship functions over the child and the suspension of the parental responsibility and custody for the time that this measure is applied. The involved parts are informed as well as the Public Prosecutor in order to guarantee the rights of those affected, within 48 hours, and may appeal to Court in case do not agree with the order.

Administrative custody (“guarda”): parents may ask the Administration to keep the custody of the minor, when the defenceless is due to a force major of a transitory nature, without the suspension of the parental responsibility, the Administration takes under the custody and care of the minor, but parents keep on having the paternal responsibility (patria potestad).

Consequence of care order or administrative custody is the decision about who will care the child: a foster or an adoptive family. Autonomous Communities are enable to select the family who will care the child when the parents cannot do it. First of all will be taken in consideration the relatives, and if there are not or are not able to foster or adopt the child, the Administration will search other families to do it. In Andalucia every child under seven will always be in a family. But this does not happen in every Autonomous Community. The government bill terms in three years this age, and proposes children under six not to go to protection centers.


Chiefly have to make difference of the legislation applied to minors who are victims of neglect or abandonment, from criminal responsibilities of minors: from the age of 14, Organic Law 5/2000, Law for the Criminal Responsibility of the Children will be applied if the child is over fourteen years old. Before these age the child protection system will act in case the minor does any criminal action. From fourteen years old the minor can be under Law 5/2000, but the protection measures can also be applied at the same time.

Parents are primarily responsible for ensuring that their child attends school regularly, and they face statutory penalties if they neglect that responsibility. But nowdays we face not only parents who do not make sure their children regularly attend school, but parents who have no way to get their son or daughter adolescent going to classes, adolescents with problems of drugs or conduct disorder. Also truancy is often the first precursor to future juvenile delinquency.

Up to the 2015 Government bil, the State child protection legislation has not done a special mention to adolescents. Specially having both parents going to work, and the way education has got relaxed,  has brought out true problems about this section of the minor population. The new regulation proposes new measures to encourage school absenteeism related or educational neglect and conduct disorder.

According to all this, the Government Bill regulates not only rights for children (as does Organic Law 1/1996), but also educational, social and family duties for children, specially adolescents: they have rights, of course, but also duties.

Individual plan – personal attention

The passing by of time has great influence in children. No terms are established in our present regulations about reports of child who have been declared in social risk or who have already a care order and are placed in a foster family or a Centre of child Protection. The new regulation proposes a intensive monitoring of each personal situation through a individual plan, with terms for professionals to report their situation to the Public Prosecutor.


Spain has a proper legislation to protect children from neglect. And this legislation is even improved. Intervention from prevention, education and  social policies are the key for a welfare children state.
Progressive and proportionality in the measures adopted, and legal certainty are the principles which should guide the new legal system of protection proposed.
Besides the economical crisis,  the Administration has the responsibility to take care of children, which should never be separated from their parents because of poverty or not giving the families the help they need to keep their children with them.

1     La seguridad jurídica en el sistema de protección de menores, Julieta Moreno-Torres Sánchez,       Editorial Aranzadi, 2009. ISBN 978-84-8355-900-0, full text available in






7     TC Sentence 221/2002, november 25th 2002, TC  Sentence 11/2008, january 21st, 2008; TS Sentence  july 31st, 2009 (

8     Sentences such us may 10th,  2001 (TEDH 2001\332), case Z and others against UK, Sentence september 16th, 1999 (TEDH 1999\35), case Bruscemi against Italy (

9     About the Spanish Protection System organisation, DE PALMA DEL TESO, A., «Administraciones públicas y protección de la infancia», Instituto Nacional de Administración Pública, Madrid, 2006



12, «Informe especial sobre Menores Inmigrantes en Andalucía», BOPA núm. 18, de 8 de junio de 2004,  «Informe Especial al Parlamento Andaluz sobre Menores con trastornos de conducta»,  BOPA núm. 778, de 12 de diciembre de 2007

13   Also the nets which work arround Europe, been Spain member, as

14 as well as the European net

15   Artícle 174 Civil Code.