Protection of minors according to Spanish Law and latest rulings in Spain
Pubblicato da Liuzzi e Liuzzi International law firm in Spanish Law · Martedì 18 Feb 2020 · 3:45
Liuzzi e Liuzzi
Italian and International Law & Tax Firm
Italy-Spain
Spanish Law- Spanish Family Law
Protection of minors according to Spanish Law and latest rulings in Spain
February, 2020
The protection of the minor as leading principle of the Spanish Family Law: “el interés del menor” ruling 211/2019 of april, 5th 2019
The Spanish Supreme Court of Cassation has upheld in April, 2019 the appeal against ruling 123 of 2018 by the Audiencia Provincial de Granada (in Andalusia, Spagna). We refer to the appeal 451/2017 to the Spanish Court of Appeal related to the so called “medidas provisionales”, provisional measures.
Let's sum up the facts this ruling refers to.
The father of a child had required to an Italian Court to modify the interim measures related to custody and parental responsibility the so called “guardia y custodia” requesting to be named as the custodial parental and asking the alimony to be paid by the mother of his child.
The mother appealed the ruling in Spain.
The Prosecutor (Ministerio Fiscal in Spanish) had considered correct to fix an alimony to be paid by the mother.
In this proceeding in Spain the psychologist report showed a higher inclination of the father and of the paternal grandmother to take care of the child, taking care of her basic needs, circumstances that could not be found in the child's mother.
The ruling of the First Instance Court granted the request of modification of the interim measures and the judge considered it was not possible to nominate the mother as custodial parent because of her disease and that the father together with his family could provide a better care to the child.
The mother appealed and the Spanish “Audiencia Provincial de Granada” granted the mother's appeal. The Court considered there had not been important variation in the circumstances.
The father appealed before the Spanish Supreme Court of Cassation (Tribunal Supremo español) basing this appeal just on one reason that is article 90.3 of the Spanish civil Code. This article establishes in Spain that modifications of measures are due when it is recommended because of needs of the child or modification in circumstances related to the parents always having as aim the minor's interest.
The Spanish Supreme Court of Cassation last april (2019) granted the father's appeal also quoting the recent Spanish rulings on this matter for instance ruling 124/2019 of February,26th 2019 which was not exactly the same case but with that ruling the Court had established that modification of circumstances should be more than substantial, sure and directed to the minor's interest.
The Spanish Supreme Court of Cassation had considered that by simply reading the ruling it was evident that the Court not considered the minor's interest and had not analysed the psychologist's relation (report that the Court of First Instance had instead considered)
The Spanish Supreme Court of Cassation to achieve this decision had considered the psychologist report, the mother's state of health (a woman with psychiatric deseas) and agreed with the ruling of the Court of First Instance where the mother was not seen worse than before but simply where the Court took in consideration especially her desease always considering the minor's interest.
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