A judge takes to the Constitutional the reform that forces the suspension of visits to children

• Justice The new Child Protection Law multiplies the cases of suspension of the visitation regime

• Courts A legal reform blocks visits to the children of parents investigated for abuse

A judge has brought before the Constitutional Court (TC) her doubts about the reform introduced in the Child Protection Law that has triggered the suspensions of the child visitation regime.

According to data recently offered by the

the CGPJ, the reform caused that in the last quarter of last year the withdrawals from the visitation regime quadrupled those of the same period of the previous year.

The doubts affect the new wording that since last July 1 the legal reform gives to article 94 of

.

According to the judge, the "automatism" in the withdrawal of visits in certain circumstances collides with half a dozen articles of the

.

It thus coincides with the doubts raised from the legal world.

Vox also included this reform in its unconstitutionality appeal against various aspects of the new children's law.

The head of the

,

, has presented an issue of unconstitutionality, foreseen for cases in which a judge "considers that a norm with the rank of Law applicable to the case and whose validity depends on The ruling may be contrary to the Constitution.

The questioned article establishes that "the establishment of a visit or stay regime will not proceed, and if it exists, it will be suspended, with respect to the parent who is involved in a criminal proceeding initiated for attempting against life, physical integrity, freedom, integrity moral or sexual freedom and indemnity of the other spouse or their children".

It closes by indicating that, "however, the judicial authority may establish a visit, communication or stay regime in a resolution based on the best interests of the minor or on the will, wishes and preferences of the elderly person with a disability in need of support and prior evaluation of the situation of the parent-child relationship.

prosecution against

The

's Office has not supported the decision to take the matter to the TC.

It maintains that, in reality, the law does not inexorably impose the withdrawal of the visits, because the judge in the case is still allowed to maintain the same regime, motivating his decision.

Nor does he see it as necessary in the specific case studied.

Although the vast majority of alleged visits to the father are withdrawn, the case presented to the TC corresponds to the request of a father to withdraw visits to the mother as a result of an alleged assault on the son.

The father's complaint led to the opening of a criminal case.

The court that processed it did not see it necessary to impose precautionary measures against the mother, but according to the legal reform, the civil court to which the father also applied would be obliged to block the visits.

The judge of first instance to which it corresponded to do it is the one that has estimated that article 94.4 that could violate six articles of the Constitution.

"This judge considers that the application precept violates the right of minors to the free development of their personality as the foundation of political order and social peace.", he affirms, referring to the right included in article 10.1 of the Constitution, when which adds references to

on the Rights of the Child and resolutions of the Strasbourg Court.

Nor would it comply with the article that enshrines the principle of the best interests of the minor that must guide all judicial action.

"With the wording of the article applicable to the case, the protection of the family and the right of children to relate to their parents are excluded, institutionalizing an automatism in the judicial decision objectively contrary to the best interests of the minor, which cannot be valued. By law, effective judicial control is eluded, since little discretion is left to the judge, who must motivate the maintenance of the right of the members of the family to relate to each other instead of forcing them to motivate their deprivation.

"Obviously, when dealing with a parent can be harmful to the minor, the best interest of the minor makes him cede the right recognized in international treaties and in the constitution itself to relate to his parent. The application precept would not be - in the opinion of this judge - unconstitutional if it did not impose on the judge the obligation to suspend communications", adds the letter addressed to the TC.

law range

He also considers the article that establishes non-discrimination between Spaniards to be flouted.

"The application precept violates the right to equality of minors, who see their right to enjoy the company of their parents curtailed without any justification and excluding or limiting judicial control to the extreme. Minors have the right to relate in conditions of equality with each of their parents, unless their best interest advises the limitation of this right with one of their parents, which must be examined by the judge with full freedom of decision.

It would also infringe "the right to the presumption of innocence, by automatically establishing a civil sanction for the investigation of a crime. [...] The civil judge, regardless of what has been done in the criminal investigation, is obliged to adopt an automatic legal consequence of a punitive nature".

The latter is related to another problem: since it is a sanction, the judge considers that it should have been approved in the Courts as an organic law, which requires an absolute majority.

However, it was approved by a simple majority.

"It makes no sense that it be modified by ordinary law instead of by organic law if it were not because the legislator did not have a sufficient majority to modify the precept, which does not justify the circumvention of the constitutional mandate," says the judge.

insufficient output

The questioned article leaves an open door to maintain the visitation regime, which, unlike the Prosecutor's Office, the judge does not consider sufficient.

"It establishes as exceptional the maintenance of a right recognized by the Constitution. That is to say, instead of reserving to the judge the power to deprive the investigated of a constitutional right, the reservation is held by the legislator. Instead of forcing the judge to motivate the deprivation of the right, forces him to reason the reason for its maintenance.

"In other words," he continues, "the judge can automatically deprive the person under investigation of the right to have communications and stay with the child [...] without the need for more motivation than the reference to the applied precept, which thus However, if what it is about is maintaining the right that, by the mere fact of being a father/mother and son/daughter, is recognized by the Constitution, the precept obliges to reasonably motivate the cause of such decision. ".

The judge points out that other precepts of the reform of the legal reform raise doubts of unconstitutionality, although they do not affect the case and she cannot take them before the TC.

"For legal reasons, the unconstitutionality of any other paragraph or precept cannot be considered, given the limited nature of the question of unconstitutionality."

Now, the task of the TC now will be to study if it admits the question of unconstitutionality for processing and if after studying the matter it validates the reform, eliminates the questioned section or indicates to the judges how they should interpret it so that it fits into the Constitution.

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