The best interests of the minor? Institutional and regulatory aspects

Last month, in the building of the Illustrious Provincial Association of Lawyers of Alicante, was held a seminar of “The best interests of the child. Institutional and regulatory aspects “, organized by the United Lawyer Women’s Group in conjunction withthe Association of women lawyers (THEMIS).

The event was attended by high-level professionals and experts in this field, who talked about protecting of the interests of minors, having considered this topic from different aspects, and, of course, LEX DIXIT employees could not miss this great opportunity to expand their knowledge and be aware of all the features of legal regulation.

We are at a time when we tend to arrive at that peaceful concept of the supreme interest of the minor, said the seminar leader Emilia Caballero Alvarez (Emilia Caballero Álvarez, Lawyer and partner of the Association of Women Lawyers THEMIS), because as we know it is an indeterminate concept and it is not easy to apply, generating in most of the cases a number of doubts that can not be easily resolved.

The seminar began with the explanation about the principles of the functioning of various centers for the protection and the integration of minors, which has the Territorial Office of Alicante, and the relevance of the problem of ensuring the best interests of children, both for public institutions, and for society. “Society must deal with these problems, so that they do not become invisible”,said Enrique Martínez Piera, Head of the Department for Protection and Integration of Minors of Territorial Administration of Alicante).

In view of the foregoing, the problems of vulnerable people require special consideration and, in most cases, they are difficult to resolve. A minor with behavioral disorders as a consequence of a childhood trauma, requires personal care and sensitive communication.

However, at present, despite all the progress, there is a great lack of resources, both material and human, to meet all needs. In many cases there is no way to apply the necessary emergency measures because of a lack of resources, therefore the assistance is provided only in a general form.

It should be noted that the state administration is obliged to compensate all difficulties and unequal position to the current regulatory system, and to consider a number of important problems. As an example, the experts voiced the following tasks: improving coordination among institutions, staff development, increase human and material resources, the development of structural and unified standards protocols … and, above all, to inform under-age children about the existence and the purpose of special centers that most of them do not know about.

From a legal point of view, the speakers identified the following topical issues: the best ensuring the interests of the child in the application of the joint custody, and the importance of these interests in the field of gender violence.

In view of the latest interpretation made by the Supreme Court in Article 92 of the Civil Code of joint custody, it was established that the said regime should not be regarded as exceptional, but on the contrary, it should be considered as normal and logical that the children should have a relationship with both parents.

Despite this, this rule of law is not so easy to adopt, because we have to take into account various factors in its application, such as: age, place of work, material situation, the housing conditions of each parent, the possibility of combining work and family life. To compare these and other indicators of the family environment … therefore, each individual situation requires individual study.

It is interesting to note that jurisprudence on this issue is quite discrepant, since in practice, the courts consider the same cases differently, so Maria Duran Febrer (María Durán Febrer, lawyer and vice-president of the Association of Women Lawyers THEMIS) commented, that:“There are cases when the court makes 5 different decisions on the cases of 5 different children, but what can not be is that 5 different courts decide different decisions on the same case”.

On the other hand, anxiety, which is manifested in relation to minors in cases gender violence is of fundamental importance. In Alicante, until November of this year, there were registered more than 3,500 complaints, and in cases of gender-based violence, we should always remember that perhaps there is more than one victim if the family has children.

In this context, Jorge Rabasa Dolado,Chief Prosecutor of the District Court Alicante) strongly criticizes the victim’s decision not to testify afterwards in court, in most of the cases because of fear, but in this situation the question remains unresolved: “what are we doing with children under such circumstances? “The modification of article 416 of LECrim in these cases would be more than reasonable.

At the same time, from the point of view of forensic clinical psychology, Laura Fatima Asensi Pérez (Laura Fátima Asensi Pérez) and Miguel Diez Jorro (Miguel Diez Jorro) showed examples of existence gender violence in the family by the phrases of several children, among which were:

  • A boy of 8 years old:“I saw my father plunging scissors into my mother’s leg, everything was in blood.”
  • A girl of 12 years: “I’m afraid of him and his eyes.”

Is there a right to visit children or have joint custody in these cases? With these questions experts are asked.

In the court it is very difficult to prove such cases, because the child is in a huge room, in front of the court, with a judge, a prosecutor, lawyers … with their black robes, all attention focused on him and on the words he pronounces … that is, if in adults causes panic and fear of speech in court, it is impossible to imagine what is happening in the head of a child who, perhaps, does not even understand what is happening around him, and about what he is asked.

Therefore, it is necessary that there is a protocol with useful criteria that gives an opportunity to understand the situation of a child, adapt to it, create an atmosphere of trust for conversation with a minor, wherever he feels safe and protected, in order he could, or at least try, tell what happened. In other words, we have to think about each case individually, in particular, because all people have the same rights, but psychologically we are all different.

In conclusion, we would like to say that the seminar was interesting, its participants were able to familiarize with the general principles of the application of the law on the best interests of a child, but at the same time see in some cases a discrepancy between theory and practice, because the legal reality does not always adapt to the social reality and even more so when we come across a concept as ambiguous as the best protection of interests of minors.

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