Spain: UN consultants denounce custody resolution that ignores proof of intercourse abuse

GENEVA (February 28, 2022) – A Spanish court’s recent decision granting her father custody of a seven-year-old girl despite allegations of sexual abuse against him puts the child at great risk and appears to be a miscarriage of justice, the UN said -experts* today.

“We are deeply concerned that this is not an isolated issue as we continue to receive information about cases in Spain and other countries where mothers are losing custody and sometimes even imprisoned for trying to protect their children from abusive fathers” , as the experts call it.

Children in Spain remain at risk of violence and sexual abuse from a justice system that appears to favor male parents in custody cases, even in cases where there is a history of domestic violence or evidence of abuse by children and their mothers.

The experts expressed concern about the case of Diana García M., who recently lost custody of her child after a decision made by a court of Pozuelo de Alarcón in February 2022 was upheld by a higher court. Despite a history of domestic violence and evidence suggesting that he had sexually abused his daughter for years, the Court of Appeal found that the father posed no danger to the child and awarded him full custody.

“We call for urgent measures to protect Ms. Diana García M.’s daughter from the serious risk of additional harm and more comprehensive measures to prevent the continued misapplication of the law,” the UN experts said.

The Court of Appeal’s decision in Ms. García’s case violates international norms and the jurisprudence of the Committee on the Elimination of Discrimination Against Women (CEDAW) in the 2014 case Ángela González Carreño v. Spain, as well as the resulting 2018 judgment of its own Supreme Court the experts. Legislation in Spain prevents the granting of joint custody in cases of gender-based violence.

“In this case, it is clearly not in the child’s best interest to ignore the evidence of child sexual abuse and gender-based violence against the mother and give custody to the father – a core obligation of the UN Convention on the Rights of the Child,” according to the experts.

The court also argued that retaining custody of the child with the mother would risk risking further damage to the daughter-father relationship, since Ms. García would “induce in the child the belief that her father is evil.”

“Such reasoning clearly stems from the use of the pseudo-theory of parental alienation, although its use was banned in Spain by a 2021 law,” the experts said. Despite the lack of credible scientific support, parental alienation reflects the belief that when a child fears or avoids a parent, it is due to the influence of the other parent rather than the child’s own experiences.

UN experts have previously urged the Spanish government to do more to protect children from domestic violence and sexual abuse, ensure its courts break prejudice against women and adopt a gender-sensitive, child-centred approach.

END

*The Experts: Reem AlsalemSpecial Rapporteur on Violence Against Women, Its Causes and Consequences; Melissa Upreti (Armchair),Dorothy Estrada Tanck (Deputy Chairman), Elizabeth Broderick, Ivana Radacicand Meskerem Geset TechaneWorking group on discrimination against women and girls; Tlaleng MofokengSpecial Rapporteur on the right to physical and mental health; Nils MelzerSpecial Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The experts are part of the so-called special procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN human rights system, is the common name of the Council’s independent investigative and monitoring mechanisms that deal with either specific country situations or thematic issues in any part of the world. Experts for special procedures work on a voluntary basis; they are not UN employees and receive no salary for their work. They are independent of any government or organization and serve in their individual capacity.

For more information and Media Inquiriesplease contact: Renata Preturlan (+41 22 928 92 54/ renata.preturlan@un.org)

Follow updates on the UN’s independent human rights experts on Twitter @UN_SPExperts.

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