A Spanish court’s recent decision to grant custody of a seven-year-old girl to her father despite allegations of sexual abuse against him puts the child at great risk and appears to be a miscarriage of justice, UN experts* said 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 action to protect Ms. Diana García M.’s daughter from serious risk of further harm, and more comprehensive action to prevent 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 interests to ignore evidence of sexual abuse against the child and gender-based violence against the mother and to grant 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.”
“This reasoning clearly stems from the use of the pseudo-theory of parental alienation, even though 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.
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