On March 21st, the Polish newspaper Rzeczpospolita published an analysis of the harm inflicted on children and the dissolution of parental authority caused by Spain’s specialised ‘Women’s Courts’. The article appears here in English translation.
Since the Congress of Deputies in Spain in 2004 adopted by acclamation the Organic Law on Comprehensive Measures for Protection against Gender-based Violence, the presumption of male guilt became effective. The law was intended to be a remedy and a ‘global response’ by the Kingdom of Spain to violence against women by introducing appropriate measures using criminal law as the main fighting tool.
The most controversial provision was the one establishing new specialised bodies: Courts of Violence against Women (Juzgado de Violencia sobre la Mujer). The legislator gave them a special status and competencies hitherto unknown in the structure of the Spanish judiciary. The mere commencement of criminal proceedings by the women’s courts means that decisions of the civil courts of first instance concerning divorce, parental authority, shared custody, or the regulation of parental contact with the child are automatically annulled. The only condition that has to be met is that the perpetrator of the violence is a man and the victim a woman. It is sufficient for a woman to file a complaint about acts of violence for her to be awarded sole custody of the child, regardless of whether the criminal case against the man has been dropped or if he has been acquitted.
One magic word
The adoption of this legislative solution, providing special protection to women whilst denying such protection to men as victims of domestic violence, is a clear example of gender discrimination. It violates the principle of equality and the right to the presumption of innocence and clearly conflicts with Articles 14, as well as 24 of the Spanish Basic Law and with international acts to which Spain is a party. It is worth stressing that the creation of the Women’s Court has created a bad legal precedent, unknown in any other democratic country.
There is also another, by far more negative aspect of the law introduced, and that is the legitimisation of the phenomenon of child abduction within Spain. The eminent Spanish lawyer José Luis Sariego Morillo (specialising in family law), described this practice in detail in his article from 2019, “Spain, a Legal Paradise to Kidnap a Child” (España, paraíso legal para secuestrar a un niño). Analysing in detail the consequences of the law introduced, he draws attention to the alarming increase in parental kidnappings after 2004. He points out—as one of the reasons for this—the favouring of women by the prosecution and courts and educational establishments, headed by the Board of Education, by legitimising false accusations and allegations against men, and failing to establish where there is a dispute over the custody of a minor or whether a child has been unlawfully abducted, which de facto puts women above the law and distorts the meaning of the Hague Convention entirely. “All it takes is for a woman to say the magic word that she is being abused for the law to allow her to abduct a child with impunity.”
Judges do not know how to adjudicate
Time has shown that the new law has not only failed to put an end to gender violence but has complicated the doctrine of jurisprudence by controversially aligning the provisions contained in the law with the constitutional framework of the Kingdom of Spain. Leaving aside the formal-legal side of the law, it should be noted that since its introduction, the slogan ‘zero tolerance’ has acquired yet another overtone: the fight against parental alienation. The first reaction of the extreme feminist circles to this normative act was to refer to the PAS (parental alienation syndrome) as a pseudo-scientific concept that is a tool to “inhibit the enforcement of the right to gender equality.” One of the main reasons for this, cited by this body with strong media support, was said to be the “inability of judges to adjudicate,” especially in family courts. This is brilliantly illustrated by the example of Francisco Serrano Castro, a former judge with more than twenty years’ experience, awarded for his work promoting women’s rights, who was removed from the profession after a complaint from feminist associations for extending a child’s visit to the father by “a day and a half.”
“In Spain, women are favoured by the prosecution and the courts, which completely distorts the meaning of the Hague Convention.“
The remedy for these ‘damages’ was the abolition of the alleged parental alienation syndrome, although it did not formally exist in legal jurisprudence. Although experts, including the Association of Family Lawyers (AEAFA), had for years held in contempt the maintenance of children by one parent, they also recognised that hatred or unjustified fear of the other parent was extremely serious in its effects on children’s mental health. However, the civil and criminal courts, apart from a few rulings, seemed not to notice the problem. They have adopted the most convenient narrative that the syndrome is not recognised by the World Health Organisation.
There was no change in attitude even after Spain was admonished by the European Court of Human Rights, which in 2005 stated, with direct reference to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that when the state contributes to the rupture or obstruction of the relationship between parent and child, this constitutes a clear violation of the law. The situation in jurisprudence did not improve significantly after the ruling of the Civil Chamber of the Supreme Court. That ruling, from 2017, confirmed expressly that this degree of meddling from the state not only further perpetuates the harm to the child, but also violates the fundamental right to effective judicial protection and the best interests of minors enshrined in the Spanish Constitution and the Convention on the Rights of the Child, such as non-discrimination, the right to life, and the development of the child.
Another bad law
One might assume that, three decades after the beginning of this country’s democratic journey, successive governments had finally put an end to the problem of protecting women. However, when 2021 arrived, an increasingly radicalised feminist milieu, with the favour of most of the mainstream media and a majority in parliament, decided to once again ‘pull the corpse out of the wardrobe’ and finally crack down on parental alienation syndrome under the guise of introducing a child and youth protection law. The rhetoric remained the same as in 2004, with the exception of a redefinition of the syndrome, presented this time as a weapon of paedophiles to cover up sexual crimes against minors.
In June 2021, the PSOE and Podemos coalition passed the Organic Law for the Comprehensive Protection of Children and Adolescents from Violence, also known as the Rhodes Law (Ley Rhodes), named after the pianist James Rhodes. Why did Pedro Sánchez’s cabinet decide to affirm the new legal norms with the name of a British-Spanish artist, more or less distinguished in the field of the fight against paedophilia, by erecting a mental monument to him in his lifetime? Leaving aside his social links with Spain’s political elite headed by Pablo Iglesias, are there no victims of paedophilia in Spain?
In the opinion of experts, those in power have created yet another bad law that contradicts the Spanish Constitution and EU law, and on an issue as sensitive as the protection of children. The ban on the use of the term ‘parental alienation syndrome’ PAS under criminal sanctions has condemned minors to a total lack of assistance from state institutions, the automatic enforcement of rulings has eliminated the independence of judges, and the lack of a lower age limit for hearing minors has reduced the law to the point of absurdity.
“The two anti-violence laws did not protect women or children, instead they both distorted the idea of lawmaking.”
Irrationally, the only party that spoke rationally about parental alienation from the outset was VOX. The politicians of this party wanted to include PAS in the legislation governing the court processes in which issues of parental authority and custody of minors are decided, and advocated the allocation of money to support the continuation of syndrome research.
Summarising the discussion so far, it can be concluded that, just as the 2004 Law on Gender-Based Violence did not solve the problem of protecting women, the 2021 Law on Comprehensive Protection of Children and Adolescents against Violence did not solve the problem of protecting minors. Instead, both laws have distorted the basic meaning of lawmaking, leading to many human tragedies, economic abuse, alienating children, reducing divorce to a farce, and violating one of the fundamental values of the European Union, namely respect for the rule of law. The child, as the weakest link in society, has been politicised instead of being protected, has been reduced to the function of an object, and priority has been given to ideology or, in the words of the legislator, “feminist justice.” This is very well illustrated by the moving story of the Polish citizen Mr. Jakub de Chyży, father of two boys Diego (12) and Alek (10), whose story is a perfect script for a film. Mr. de Chyży, who had de facto alternate custody until 8 June 2021, lost it after four years as a result of the actions of his ex-wife, Mrs. Anna Lopez Perez. The mother instrumentally used her children, which led to the father being unlawfully detained by the police as he accompanied the boys to school.
No threats?
What happened to Mr. Francisco Serrano Castro and Mr. Jakub de Chyży can only be accurately described as gender discrimination. It is in this area, i.e. gender discrimination and violations of the right to a fair trial in Spain, that the European Commission has initiated proceedings under Article 7 of the Treaty on European Union. The main allegation made against the Spanish justice system is the failure of the Spanish courts to respect the presumption of innocence and the independence of the Spanish judiciary. Here, it should be noted that independence is a requirement under the principle of effective judicial protection (Article 19 TFEU) and the right to an effective remedy (Article 47 of the Charter of Fundamental Rights). The European Commission regularly and closely monitors the situations of all EU Member States, including Spain. At the same time, it should be mentioned that the European Commission does not have general powers to intervene in day-to-day cases.
Regarding the possibility of initiating proceedings under Article 7 of the Treaty on the European Union against Spain, this article provides for a mechanism that can be triggered in the face of systemic threats to the values set out in Article 2. At present, the evidence gathered by the European Commission from various sources does not show such threats. The Commission has not taken any action in this area.
