COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 44 OF THE CONVENTION
Periodic reports of States parties due in 1999
[1 June 1999]
INTRODUCTION 1 – 162 5
I. GENERAL MEASURES OF IMPLEMENTATION 163 – 416 25
II. DEFINITION OF THE CHILD 417 – 472 66
III. GENERAL PRINCIPLES 473 – 706 76
A. Non-discrimination (art. 2) 473 – 586 76
* For the initial report submitted by Spain, see document CRC/C/8/Add.6; for its consideration by the Committee on 6 and 7 October 1994, see documents CRC/C/SR.171, 172 and 173 and document CRC/C/15/Add.28. The annexes to the present report may be consulted in the secretariat of the Committee.
B. Best interests of the child (art. 3) 587 – 619 91
C. The right to life, survival and development
(art. 6) 620 – 649 95
D. Respect for the views of the child (art. 12) 650 – 706 99
IV. CIVIL RIGHTS AND FREEDOMS 707 – 825 106
A. Name and nationality (art. 7) 709 – 739 107
B. Preservation of identity (art. 8) 740 – 744 111
C. Freedom of expression (art. 13) 745 – 755 112
D. Freedom of thought, conscience and religion
(art. 14) 756 – 771 113
E. Freedom of association and peaceful assembly
(art. 15) 772 – 784 115
F. Protection of privacy (art. 16) 785 – 797 117
G. Access to appropriate information (art. 17) 798 – 816 119
H. The right not to be subjected to torture or
other cruel, inhuman or degrading treatment
(art. 37 (a)) 817 – 825 123
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE 826 – 1090 124
A. Parental guidance (art. 5) and Parental
responsibilities (art. 18, paras. 1-2) 826 – 846 124
B. Separation from parents (art. 9) 847 – 883 128
C. Family reunification (art. 10) 884 – 916 134
D. Illicit transfer and non-return (art. 11) 917 – 933 139
E. Recovery of maintenance (art. 27, para. 4) 934 – 949 141
F. Children deprived of their family environment
(art. 20) 950 – 987 143
G. Adoption (art. 21) 988 – 1040 148
H. Periodic review of placement (art. 25) 1041 - 1047 157
I. Abuse and neglect (art. 19) and physical and
psychological recovery and social
reintegration (art. 39) 1048 – 1090 158
VI. BASIC HEALTH AND WELFARE 1091 – 1201 164
A. Disabled children (art. 23) 1091 – 1113 164
B. Health and health services (art. 24) 1114 – 1154 168
C. Social security and child care services and
facilities (arts. 26 and 18, para. 3) 1155 – 1198 175
D. Standard of living (art. 27, paras. 1-3) 1199 – 1201 182
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES 1202 – 1376 183
A. Education, including vocational training
and guidance (art. 28) 1202 – 1333 183
B. Aims of education (art. 29) 1334 – 1349 206
C. Leisure, recreation and cultural activities
(art. 31) 1350 – 1376 209
VIII. SPECIAL PROTECTION MEASURES 1377 – 1877 214
A. Children in situations of emergency 1377 – 1420 214
1. Refugee children (art. 22) 1377 – 1409 214
2. Children in armed conflicts (art. 38), including physical
and psychological recovery and social reintegration
(art. 39) 1410 – 1420 219
B. Children involved with the system of
administration of juvenile justice (art. 39) 1421 – 1482 220
C. Children in situations of exploitation,
including physical and psychological recovery
and social reintegration 1483 – 1573 228
1. Economic exploitation of children, including
child labour (art. 32) 1483 – 1497 228
2. Drug abuse (art. 33) 1498 – 1519 230
3. Sexual exploitation and sexual abuse
(art. 34) 1520 – 1562 234
4. Sale, trafficking and abduction (art. 35) 1563 – 1567 240
5. Other forms of exploitation (art. 36) 1568 – 1573 241
D. Children belonging to a minority or an
indigenous group (art. 30) 1574 – 1577 242
A. The regulatory and institutional framework of the second report
1. The regulatory framework
1. Pursuant to article 44, paragraph 1, of the 1989 Convention on the Rights of the Child, Spain submitted in 1993 its initial report on the implementation of the Convention, which had entered into force on 6 January 1991.
2.The Committee on the Rights of the Child considered this initial report (CRC/C/8/Add.6) during its seventh session at its 171st, 172nd and 173rd meetings, held on 6 and 7 October 1994, and made some concluding observations (CRC/C/15/Add.28). These observations included some suggestions and recommendations. Spain responded to the recommendations in a document produced in April 1996.
3. Both the initial report and the Committee's recommendations were published in 1996 by the Ministry of Labour and Social Affairs.
4. In accordance with its commitment under article 44, paragraph 1, of the Convention, Spain now presents, five years later, its second report.
5. In the preparation and drafting of the second report Spain followed the general guidelines (CRC/C/58) adopted by the Committee on the Rights of the Child at its 343rd meeting.
2. The institutions responsible for preparing the second report
6. The responsibility for drafting the second report was assigned to the Office for Social Action, Children and the Family of the Secretariat for Social Affairs of the Ministry of Labour and Social Affairs.
7. Pursuant to Royal Decree 1888/1996 of 2 August 1996, which established the fundamental structure of the Ministry of Labour and Social Affairs, the functions of this Office include the analysis, preparation, coordination and monitoring of action programmes for the protection and advancement of children and the family and for the prevention of the social problems which may affect them, as well as the analysis and monitoring of the application of the legislation on the protection and advancement of children and the family.
8. The Office planned the preparation process, established appropriate coordination arrangements for collecting information from the sources, created a database for organizing the information, and drafted the report.
B. The second report in the context of Spain's policies for children
in the 1980s and 1990s
9. Although the second report does indeed describe the situation of children over the past five years, from 1993 to 1997 inclusively, it is set in the context of the policies for children which began to be systematically organized and developed in the 1980s, policies already described in the initial report.
10. Material for the second report was accepted up to February 1999, so that it includes information on changes made in the regulations and on political and administrative measures introduced in 1998.
Thus, the information provided jointly by the initial and second reports offers a fairly complete picture of the evolution of Spain's policies for children in the 1980s and 1990s.
1. Policies for children in the 1990s
11. The main features of these policies, at least as far as the period 1990-1996 is concerned, were set out in Spain's National Programme of Action for Children in the 1990s submitted to UNICEF in 1996 in compliance with the commitment undertaken at the World Summit for Children held on 29 and 30 December 1990.
12. The Summit endorsed the Convention on the Rights of the Child, adopted by the General Assembly on 20 November 1990, thus becoming the first world assembly to advocate the Convention's ratification and implementation.
13. For the year 2000 and beyond and with a view to securing the maximum priority for children and their welfare, the Summit adopted a World Declaration and Plan of Action which Spain signed and thus committed itself to this cause.
14. In paragraph 34 (i) of this Plan of Action all Governments are urged to prepare national programmes of action to implement the commitments undertaken. An advance copy of Spain's National Programme of Action for Children had already been submitted to the United Nations in 1992.
15. Features of this Programme of Action related to the situation of children and to the policies, strategies and measures covered by the second report are described below.
(a) Changed attitudes to children
16. As already mentioned in the initial report, in the latter part of the 1970s, in the 1980s and in the early years of the 1990s Spain underwent profound political and socio-cultural changes which caused a substantial transformation of life in society and in the way institutions were structured and functioned.
17. The role and place of children in Spanish society and their relations with adults were also transformed during this period.
18. At the same time, similar changes have been transforming adults' experience of children, the nature of their parental and educational functions and responsibilities in the socialization process, the interactions inherent in the common spaces of shared family life, the position of institutions with regard to the rights and needs of children, and the social representations of the role, position, needs and rights of children in society.
(b) Children as holders of rights
19. In this climate of change the role of children in Spanish society has taken on new dimensions, and children have become an object of attention and study as never before. This greater social visibility has prompted discussion of children and has enhanced awareness of them among the public at large and among professionals, institutions, the communication media and social organizations.
20. In their social representations children have become accepted as a social category with specific needs and as members of society with the capacity to intervene actively in their own development and environment and to alter them. There is also a growing consensus to regard children as holders of human and other rights ranging from protection to independence which they are competent to exercise, save only
for the limitations imposed by their age. There is no great difference between the requirements of protection and the requirements of independence, and in fact the best way of ensuring the social and legal protection of children is to promote their independence as holders of rights.
(c) Children as a political priority
21.Awareness itself is an insufficient condition for changing the existing situation and attitudes and ways of communicating with children or the adverse conditions, risk factors, needs and problems that affect them. It is also necessary to spell out the existing policies for children, recognize the impact on children of the various sectoral policies, encourage the coordination of these policies, speed up the policies and strategies under preparation, and promote other new ones which respond to the needs and rights of children and enhance their welfare and quality of life.
22. As will be seen throughout this second report, children have in fact occupied an important place in the development of the policies of the General Administration of the State and of the Autonomous Communities, in the development of law and in the strategies and programmes of social organizations, especially with respect to children in situations of social difficulty and children lacking protection.
(d) The intersectoral approach in policies for children
23. This approach derives from an awareness that children's growth and development and their relations with adults in the socialization process take place within a context of interaction with the social environment and that the scenarios which affect children's socialization and development are many and varied but have broad areas in common.
24. It is important to adopt an intersectoral approach in order to be able to mobilize the resources, opportunities and means of protection existing in the different contexts and to reduce the defects and the adverse and risk factors which impair children's growth, development and learning.
25. Although it cannot be said that a general intersectoral framework for policies for children has existed within the Administration over the past two decades, in certain areas separate sectors have come together to carry out specific measures.
26. The problems of maltreatment of children have been tackled in many of the Autonomous Communities and municipal administrations, and there has often been coordinated action by the social, education and health services.
27. NGOs and professional associations have played and continue to play a key role through their work for children under programmes addressing issues common to several social sectors at the same time.
28. The institutions providing social protection for children and the judicial authorities have also made considerable progress in the formulation of joint measures. The health and education departments of many of the Autonomous Communities have established joint working plans to provide assistance and preventive measures and treatment for children suffering from AIDS and to encourage healthy behaviour and life styles by means of health-education programmes.
29. Several NGOs, as will be seen later in the report, run combined health and education programmes for children confined to hospital by long-term illnesses.
30. Obviously, introducing an intersectoral approach is not the same thing as achieving intersectoral action. Such action is not something given in advance but a continuous commitment and task. The second report highlights the efforts made and the difficulties encountered in trying to secure authentically intersectoral policies and measures for children.
(e) The areas covered in the National Programme of Action for Children
31. The policies for children set out in Spain's National Programme have several axes or areas which are delineated in one way or another in the second report:
(a) The protection and promotion of the rights of the child as an institutional commitment:
(i)The initial report described at length the influence of Spain's 1978 Constitution in the emergence of a new concept of the rights of the child and their protection;
(ii)There is no doubt that the ratification of the Convention provided a stimulus for society at large and for institutions in the protection of children's rights;
(iii)In its ruling of 14 February 1991 in favour of legal guarantees in proceedings involving juvenile offenders the Constitutional Court based its arguments on the guarantees established in the Convention;
(iv)Organizational Act 4/1992 of 5 June amending the Act on the jurisdiction and procedures of the juvenile courts, Organizational Act 1/1996 of 15 January on the legal protection of minors and partial amendment of the Civil Code and the Civil Proceedings Act (hereinafter referred to as "the Protection of Minors Act"), and the consideration by Parliament of the draft organizational act on the criminal responsibility of minors are also connected with the protection and promotion of the rights of the child;
(v)The children's acts promulgated by the Autonomous Communities over the past decade make constant references to the principles of the Convention;
(vi)The right to participate established in several articles of the Convention has received special attention. One important mark of this interest was the conference which the Ministry of Social Affairs held in Madrid in December 1994 in collaboration with the Council of Europe precisely on "Evolution of the role of children in family life: participation and negotiation".
(i)As pointed out in the initial report, the General Education (Organization) Act (1/1990 of 3 October) included among its stated objectives the extension of basic education up to age 16 on a free and compulsory basis, as well as the reorganization of the education system itself, including the establishment in the general scheme of the stages of education: infant (0-6 years); primary (6-12); and compulsory secondary (12-16);
(ii)Other areas in which progress has been made towards guaranteeing equal opportunities and quality include the education of children with special needs in accordance with the principles of integration, educational guidance, and correction of the inequalities caused by socio-economic, geographical and ethnic factors;
(iii)Cross-curricular teaching and education in values are found in all subjects and are taken into account in timetabling, the teaching work itself, and extra-curricular activities.
(i)Article 43 of the Constitution establishes the right of all citizens to have their health protected and it recognizes, from an intersectoral standpoint, the need to create certain socio-economic conditions to make it possible for citizens to exercise this right. This is also the approach taken in the General Health Act (14/1986). The health plan produced by the Ministry of Health and Consumer Affairs addresses public health matters and contains objectives and strategies having an impact on the quality of life of children and their families;
(ii)The maternal and child health programme, approved by a plenary meeting of the Inter-territorial Health Council in June 1990, is based on the principles mentioned above and on the guarantee of equity. The measures which it introduces have a clear impact on the comprehensive and universal care of children, for they range from the conditions of childbirth as part of pregnancy, delivery and puerperium care to the conditions of children's development as part of their supervision and monitoring up to age 14, which entails the extension of paediatric care up to that age. The programme also addresses the control of deaths and diseases by preventing defects and disabilities and accidents and by tackling transmissible diseases under the vaccinations schedule applicable to the whole child population.
(d) Social services for children with social problems:
(i)Spain's System of Social Care for Children, described later in this Introduction, has evolved over the past two decades from an approach based on charity and shelter, which survived until the 1970s, to the creation of the modern system of social protection of children under Act 21/1987, which amended parts of the Civil Code and the Civil Proceedings Act;
(ii)The 1966 Protection of Minors Act, which will be discussed in section B of this Introduction and in several other places in the report, has led to significant progress in this area and will have a leading role to play in the development of policies for children in the immediate future.
(e) Family life and relations:
(i)The family is regarded as a space for socialization and happy coexistence which has to be converted, in the words of the motto of the International Year of the Family held in 1994, into "the smallest democracy at the heart of society", a place where children learn values and behaviour that enable them to assert their rights and live together in a society based on tolerance and respect for the rights of others;
(ii)Studies of the Spanish family produced in recent years emphasize that this institution has undergone a remarkable change both in its structure and in its internal dynamics. The new role of women in society, the democratization of relations within the family, and the enhanced advocacy for children and adolescents have been decisive factors in this change. There are now new models for fathers and mothers, new approaches to raising children, and new values of gender equality affecting the distribution of responsibilities within and outside the family.
(f) Socialization in leisure time: The Programme of Action gives specific attention to children's relations with the environment, urban spaces and streets, consumption and the communication media.
(g) International cooperation:
(i)Spain has been furnishing development assistance for little more than 10 years. Up to 1977 it was a recipient of development aid. By 1981, although already carrying out assistance activities, Spain still appeared in World Bank statistics as a developing country;
(ii)Over this very short period Spain succeeded in increasing its official development assistance (ODA) from 0.04 per cent of GNP in 1983 to 0.26 per cent in 1994. As a result of an additional extraordinary effort, in 1995 its ODA will have been between 0.35 and 0.50 per cent of GNP, depending on the quality of the projects to be implemented. In monetary terms, 0.50 per cent means over 300,000 million pesetas.
2. The System of Social Care for Children
32. The policies for children in Spain in the present decade, the general framework of which was described in the preceding section, are carried out, in the sector concerned with the social protection of children, through the System of Social Care for Children (SASI), which began to take shape in the 1980s by coordinating the responsibilities which the Autonomous Communities were starting to exercise in the design and introduction of child-protection policies.
(a) A brief historical note
33. Spain has a long history of addressing the protection of children by means of isolated initiatives. In the nineteenth century there was already genuine State legislation on this question. In 1876, for example, a Royal Decree was issued on the creation of kindergartens. In 1878 the appearance of children aged under 16 years in public performances constituting a physical risk was made an offence. A 1900 act regulated working conditions for women and children and a further act, in 1903, prohibited begging.
34. However, the protection of children was first institutionalized in an act of 12 August 1904. This legislation was extended, with some amendments, by a decree of 2 July 1948 approving a revised text of the legislation on the protection of minors and by a decree of 11 June 1948 approving a revised text of the legislation on juvenile guardianship courts. The protection of children was entrusted in these 1948 decrees to the Office for the Protection of Children ( Obra de Protección de Menores ), which had legal personality and an independent operating budget.
35. This system was based on a philosophy of charitable assistance and combined protection with the correction of juvenile offenders without making a proper distinction between situations in which children lacked protection and those in which they had committed unlawful acts.
36. The criteria governing the work of protecting children in this regulatory and institutional framework encouraged recourse to placement in institutions in preference to other measures. This led to the establishment of big facilities where children requiring protection sometimes lived side by side with children requiring correction; these facilities were not always located in the places where they were needed by the target population. Children receiving protection were regarded as persons isolated from their families and society, with the result that the measures taken for each individual child did not take any great account of the possible repercussions on his home environment.
(b) The Spanish Constitution and Act 21/1987
37. As discussed in the initial report, the establishment of a State based on the rule of law and the promulgation of the 1978 Constitution meant the introduction of new approaches, including a new conception of the rights of the child, the structure of the family, and people's various responsibilities towards children.
38. Following the adoption of the 1978 Constitution the organization and structure of Spain's Administration underwent a series of major changes which also affected the protection of children.
39. In addition, the Constitution recognized the right of citizens to access to social services when necessary and their consequent right to improved charitable and social assistance services; this led to the recognition of public responsibility for the safeguard of this right.
40. The publication of Act 21/1987 of 11 November, which amended certain articles of the Civil Code and the Civil Proceedings Act, as already discussed at length in the initial report, entailed, rather than merely a change in family law, the beginning of a modern system for the protection of children.
41. A fundamental feature of this reform was the termination of the involvement of the courts in the first stages of the protection process: in other words, the protection of children was brought within the jurisdiction of the public social services in the Autonomous Communities, which made a tremendous effort to adapt to the requirements of exclusive competence in juvenile matters which until then had been the responsibility of the General Administration of the State.
42. The new legislation introduced in the Autonomous Communities to regulate the protection of children in their territory, broadly based on Act 21/1987, emphasized the new conception of children as holders of rights who sometimes required special protection in their most immediate environment - the family.
(c) Stages of the system of social protection
43. There have been three stages in the most recent development of the system:
44. The first stage was charitable assistance: up to the end of the 1970s the social protection of children, as we have seen, took an approach based on charity and shelter which originated in the Office for the Protection of Minors.
45. The political changes at the end of the 1970s laid the foundations for the stage. In 1979 the first democratic municipal elections since the Civil War were decisive in adapting the political and
administrative institutions to the needs of the citizens. The 1980s saw the big changes which prefigured the present system for the social care of children in social difficulties. These changes affected both values and regulatory systems and the service facilities and networks.
46. The powerful impetus created by Act 21/1987, described in detail in the initial report, contributed to the creation of the first modern system for the social protection of children. From the early days the improvement of the new arrangements introduced in the system was a constant and shared concern of the Autonomous Communities and the then Ministry of Social Affairs in their everyday political and technical contacts; that remains the case today.
47. In accordance with their individual Statutes of Autonomy, the Communities have regulated the care of children in situations of social difficulty in their respective social services acts and in other specific legislation on children, as will be seen in chapter I and throughout this report. These acts state and regulate, with greater or lesser length and detail, the premises of the protection of children and the family, the establishment, organization and functions of the institutions and establishments for the protection and guardianship of children, and in some cases the express protection of the specific rights of children within the respective geographical jurisdictions.
48. Within this regulatory framework each Autonomous Community has established its own System of Social Care for Children (SASI) with an administrative structure suited to the territory in question. Each autonomous SASI consists of a coordinated structure of social services with two levels corresponding to the two levels of the Public System of Social Services (to be discussed later):
(a) First level: social services providing primary or local care;
(b)Second level: regional services for the care of children in social difficulties, specialized individual, community, day or residential care services, including diagnosis, treatment, support and rehabilitation, together with the bodies which, in some cases, exist for the purpose of official guardianship.
49. The third stage, which was fully established in the early 1990s, is concerned with projects to secure the improvement of the system introduced in the 1980s by means of permanent technical cooperation between the General Administration of the State and the Autonomous Communities.
50. In this third stage the 1996 Protection of Minors Act, to which extensive reference will be made throughout this report, completes the process of consolidating the SASI and responds to the new needs revealed by the application of Act 21/1987.
(d) The SASI and the question of maltreatment
51. In step with the development of the SASI the risk factors in general and maltreatment in particular have also been acquiring an increasing and decisive relevance in social policies for children. Apart from some approaches to the subject by paediatricians and the social services, this phenomenon was not recognized to be a social problem until very recently, but at the end of the 1980s the acknowledgement and study of maltreatment as such a problem became more widespread and manifest, coinciding with the social and political changes referred to earlier. The establishment of a working group linked to the Interministerial Commission on Youth led to the publication of the findings of Spain's first extensive study of the maltreatment of children. The first professional associations for its prevention appeared at the same time.
52. In the framework of policies for children which provides the context of this second report the consideration of maltreatment as an attack on the rights that the Convention accords to children is based on the following premises:
(a) The maltreatment of children is regarded as a cultural and psycho-social problem;
(b)Children's status as citizens entails the full attention of the political, technical and professional officials responsible for safeguarding the rights of the child;
(c)Either directly or indirectly maltreatment is an issue for the public at large, the social welfare and protection systems, and the professionals;
(d)It is necessary to have sufficient resources and knowledge to be able to offer the measures which institutions and professionals may require for preventing and dealing with maltreatment;
(e)It is necessary to promote the dissemination and acceptance of the rights set out in the Convention in the areas closest to children and to facilitate their recognition and exercise;
(f)It is necessary to encourage professionals to intervene in ways that rely more heavily on educational and psycho-social measures in order to re-establish family relations and bonds, when this is possible, rather than on other kinds of measure of a punitive nature involving the separation of the maltreated child from his biological family;
(g)The social services can be an important resource for intervention in cases of maltreatment, but their main role may lie in the implementation of prevention policies. Although the situation of many families requires recourse to intervention measures, there is no doubt that prevention must play a bigger part;
(h)Three levels of action must be considered in the prevention of maltreatment: individual or family; social services; and cultural beliefs and values. The best preventive measure without any doubt is acceptance of the rights of the child as an individual in all areas of social life.
3. The protection of children under the Public System of Social Services
53. The System of Social Care for Children (SASI), which is one of the key components of the general policies for the protection and promotion of the rights of the child, may be regarded as integrated in the Public System of Social Services. This Public System consists of an array of services and benefits provided by the General Administration of the State, the Autonomous Communities and the local corporations which are intended to secure the advancement and development of individuals and groups with a view to enhancing their social well-being and their quality of life, meeting their social needs in full, ensuring the exercise of their rights and guaranteeing equality, as well as preventing and eliminating the causes of social exclusion and marginalization.
54. The System's regulatory framework is contained in:
(a) The Constitution, articles 41, 139.1 and 149.1 of which guarantee a public social security scheme for all citizens providing sufficient social assistance and benefits in situations of need;
(b) Pursuant to article 148.1.20 of the Constitution and the Statute of Autonomy of each Autonomous Community, the autonomous social services acts establish an entitlement to social services for all Spaniards residing in the territory in question, set out the principles, measures and social benefits,
and establish a network of facilities and services with primary and secondary levels of care which constitute the social services throughout the national territory. Children and young people are mentioned in the acts as recipients of these social services. The primary level of care includes four basic services: information and counselling; assistance in the home; alternative housing; and prevention and social integration activities;
(c) Act 7/1985 of 2 April, which sets out the basic principles of the local systems, provides that the municipalities have competence to provide the basic social service benefits; this provision is binding on municipalities with more that 20,000 inhabitants.
55. The Concerted Plan for the Development of Basic Social Services of Local Corporations, referred to in paragraph 39 of the initial report, finances the development of basic services by the corporations under agreements between the Ministry of Labour and Social Affairs and the Autonomous Communities; the recipients of the benefits include children and families in situations of difficulty or risk.
4. The second report in the context of systems of information on children
56. Obviously, the drafting of the report depended on the information available, in more or less organized form, about the policies, strategies and activities affecting children. At the same time this exercise provided an opportunity for both the agencies of the General Administration of the State and the autonomous administrations and NGOs to restate the evidence of the need for a coordinated system of information on the situation of children in Spain.
57. One of the recommendations made to the Spanish Government by the Committee on the Rights of the Child in connection with its consideration of the initial report was that it should "gather all the necessary information in order to have an overall view of the situation in the country and to ensure a comprehensive and multidisciplinary evaluation of progress and difficulties in implementing the Convention".
58. To this end Spain began to develop at the beginning of the 1990s an information system consisting of two components, which at present are independent of each other and at unequal stages of advancement, although in the medium term they are to form a single system of information about children in Spain. In addition to these two mechanisms for collecting specific information about children, the community social services gather information at the municipal level about the users of the services, who obviously include children and their families.
(a) The Data Bank on the Protection of Children
59. The Data Bank on the Protection of Children is an information system which currently gathers systematic and periodic secondary data on the protection measures for children for the whole country, broken down for the 17 Autonomous Communities and the autonomous cities of Ceuta and Melilla, in accordance with the protection measures established initially in Act 21/1987 and subsequently in the Protection of Minors Act.
60. The sources of the information are the competent authorities of the 17 Communities and Ceuta and Melilla. The information is collected every six months for analysis before being presented and disseminated in an annual statistical bulletin.
61. The information categories used in the bulletin were established by consensus among the Autonomous Communities, so that the content of the information collected is now standardized.
62. The information contained in this Data Bank is discussed in chapter V, and annex A includes the corresponding tables and graphs.
(b) The Children's Watch
63. The drafting of the initial report, the gradual development of the Data Bank on the Protection of Children, and the information needs arising during the drafting of the second report highlighted the necessity of establishing a coordinated, integrated, centralized and common system of information about children for the whole country in order to facilitate the monitoring of the situation of children and their needs and problems, the public policies for children, and the implementation of the Convention. This system is to provide guidance for policy design and make it possible for reliable information to be shared by the various administrations and social organizations.
64. The Children's Watch project now taking shape in the Ministry of Labour and Social Affairs is an attempt to create such a system; it is justified amongst other grounds by the commitments undertaken by the State when it ratified the Convention and by the recommendations made by the Committee following the initial report.
65. The Children's Watch is defined therefore as a centralized and shared system of information capable of supervising and monitoring children's well-being and quality of life and the public policies affecting their development, as well as monitoring the introduction of these policies and their effects on children.
66. The system is centralized in that it organizes the information on children at a central point, and it is shared in that the information is contributed jointly by the various public administrations and agencies concerned with the well-being of children.
67. The Watch has the following aims:
(a) To determine the situation and quality of life of children and the changes occurring therein;
(b) To monitor social policies affecting children;
(c) To make recommendations on public policies affecting children;
(d) To stimulate research and studies on children;
(e) To produce periodic reports contributing to knowledge about children.
68. The Watch is to be established in stages over the longer term and will be subject to continuous evaluation.
69. At present, work is still proceeding on the initial stage of setting up the project: an operational logistical group is being created; the Watch will be provided with a suitable regulatory framework; the scope and sources of the information will be identified; basic protocols for the collection of the information will be agreed by consensus; a centralized common database will be designed and set up; agreements on the provision of information will be made with the sources; and a start will be made on the gathering of basic data and on the conduct of research and studies on children.
70. The database on children has now been established and will be described later; information from the sources which have taken part in the preparation of this report has been entered in the database.
(c) System of information on users of the social services
71. Within the framework of the Concerted Plan for the Development of Basic Social Services of Local Corporations, mentioned above, a system of information on users is being set up in the community social services of the municipalities of the Autonomous Communities. This is a computerized programme for development of the Social Card. This Card is a documentary aid for the collection of basic data on users of the social services, which is needed for the purposes of professional responses to social demands. The Card is based on family records and helps local social workers to manage these records.
72. The system has the following aims:
(a) To produce information on users of the social services which is common to the whole State and employs standard criteria and indicators for all the Autonomous Communities;
(b) To develop mechanisms for evaluating the social services.
73. The system provides information about the profile of users of the social services and social data on families, as well as information about housing and social measures (demand, appraisal, suitable measures, measures taken), for use in social diagnoses, the evaluation of the social services system, and the conduct of statistical operations for specific purposes, with respect in particular to the population aged 8-16 years.
74. The system's production process begins in the social work units, which collect the information from the Social Card, and continues in the social services centres, which receive the data from the units, in the Autonomous Communities, which receive the data from the centres, and in the Office for Social Action, Children and the Family of the Ministry of Labour and Social Affairs, which receives the data from all the Autonomous Communities and proceeds to organize the information and statistics for the whole country.
C. The future of policies for children in Spain
75.The preparation of this report in collaboration with the Autonomous Communities and children's organizations provided an opportunity for initiating a process of analysis and a debate on the progress made in the development of the social protection of children in Spain over the past two decades and on past and continuing difficulties, as well as an opportunity for adjustment and re-adjustment of the aims for the future.
1. The progress made
76. The second report contains comprehensive information about the measures taken by the General Administration of the State, the autonomous and local authorities, and social organizations to promote policies for the protection and advancement of the rights of the child over the past five years and for the whole of the 1990s, on the foundations laid in the 1980s.
77. The balance sheet of the past 20 years shows a long road travelled and important changes in public policies and social organizations in education, health, the social care of children, and the development of law.
(a) Implementation of the Convention through legislation
78. The establishment of a State governed by the rule of law by the promulgation of the 1978 Constitution opened the way for a series of major changes which affected the protection of children, especially with respect to civil and criminal law.
79. There now exists a large body of law constituting the juridical foundation of the regulation of the rights of the child and the protection of children in accordance with the Convention.
80. The right to education was recognised in legislation predating the ratification of the Convention: the 1985 Right to Education (Organization) Act and the 1990 General Education (Organization) Act. The right to health was recognized in the General Health Act of 1986.
81. Organizational Act 4/1992 of 5 June amending the Act on the jurisdiction and procedures of the juvenile courts contains the safeguards of the rights which the Convention accords to juvenile offenders.
82. The 1996 Protection of Minors Act supplements and updates the reform of the legislation on children initiated by Act 21/1987.
83. According to the explanatory introduction to the Projection of Minors Act, the new approach to children's rights reorganizes the structure of the protection accorded to minors and entails full recognition of them as holders of rights and of their effective capacity to exercise their rights.
84. Article 3 provides that minors enjoy the rights accorded to them under the international treaties to which Spain is a party and in particular the Convention on the Rights of the Child, which provides the framework for the interpretation of the Act.
85. Chapter II of the Act refers explicitly to the right to respect, privacy and one's own self-image, the right to education, the right to freedom of belief, the right to freedom of expression, and the right to be heard, all of which are rights confirmed in the Convention.
86. The Act accords the right to education to foreign children living in Spain. It likewise accords the right to health care to children at risk or in need of protection.
87. Since the Convention forms part of Spanish law, as pointed out earlier, individuals may invoke the rights contained in the Convention directly before Spanish courts.
88. Policies for children have received special attention in the Autonomous Communities. One example of this attention is the extensive development of law to take into account recent social, institutional and professional experience in caring for children and attending to their needs and rights.
89. The first stage, in which all the Autonomous Communities acquired their own social services acts, which are generally limited to administrative matters connected with children in need of protection (guardianship bodies, regulations on residential institutions, etc.), was followed by a second stage in which various specific rules having the status of legislative acts were promulgated; these rules bring all minors within their scope and focus the actions of public authorities on promoting the free development of children's personalities.
90. Some of this legislation states explicitly the obligation to respect and ensure the exercise of the rights established in the Convention.
(b) Implementation of the Convention in social policies
91. The drafting of the National Programme of Action for Children, referred to earlier, and the consolidation of the System of Social Care for Children (SASI), which had begun to take shape in the 1980s and spelled out the responsibilities of the Autonomous Communities in the design and introduction of policies for the protection of children, were conducted in accordance with the new conception of children as members of society and holders of the rights set out in the Convention.
92. Several of the Autonomous Communities have produced and are carrying out their own programmes for children, which are integrated programmes at least in their formulation.
93. Many local corporations, in addition to providing community social services, have also produced municipal programmes for children. Many corporations have established municipal councils on children, in which children themselves can be involved, and children's advice centres have been set up.
94. Large amounts of public money are provided for programmes for the promotion of children's rights and leisure activities, as well as for the formation of children's and youth associations.
95. The annual celebration of Universal Children's Day on 20 November has become an occasion for renewing the commitment to the rights of the child.
96. Institutions for the protection and promotion of rights have been established. At the State level, the Protection of Minors Act provides in connection with measures to facilitate the exercise of the rights of the child that an Assistant Ombudsman should be permanently responsible for children's affairs and that children may submit to him any complaints concerning the defence and safeguarding of their rights. In the Autonomous Communities, similar specific institutional arrangements have been made for the protection of minors.
97. Progress has been made towards a system of information on children. The creation of the Data Bank on the Protection of Children, the database on children, and the Children's Watch, together with the specific systems created by the Autonomous Communities, constitute significant progress.
98. Children's organizations are playing a very active part in the implementation of the programmes funded the public administrations, many of which are integrated (health, education), in the promotion of participation, in the support of public measures connected with open spaces and free time, in the creation of facilities such as children's hotlines, which children can use to report infringements of their rights, and in the defence of rights at the European level.
99. Recent years have seen the emergence of networks of professionals concerned with the promotion and protection of the rights of the child and the prevention of maltreatment and with the care of maltreated children.
100. During the 1990s several universities have been carrying out research and teaching programmes on the rights of the child and encouraging the creation of networks of professionals interested in the study of children. Plans for the training of professionals working with children have been formulated and are being implemented at both State and autonomous levels.
2. The difficulties encountered and the ground still to be covered
101. The analyses made in connection with the preparation of the second report and the meetings and discussions over recent years among administrators and social and professional organizations identified the persisting difficulties in the application of the Convention and the legislation and in policy implementation. The aims yet to be achieved were also identified, together with the challenges for the future set by institutions and social organizations.
(a) The promotion and enactment of legislation
102. It may probably be assumed that sufficient legislation has been enacted for the formal recognition and establishment of children's rights, for the most recent legislation now includes references to the Convention.
103. Future progress will therefore have to lie in the area of real guarantees of the exercise of the rights enunciated in the legal instruments, including more explicit recognition of the Convention as a part of positive law and more widespread citation of the Convention in legal proceedings.
104. Since girls victims of sexual abuse are sometimes subjected to cross-examination by their alleged attackers during the deposition of personal testimony, it is important for the civil and criminal procedures in which children participate to be adapted to take account of their degree of maturity and protect their right to privacy. Several experts and professionals are proposing in this connection that the Criminal Proceedings Act should contain express provisions on the necessary special arrangements for and specific nature of statements made in court by a child victim with respect to an adult. Proposals are being formulated to render the procedural safeguards of the accused compatible with the psychological integrity of minors.
(b) The promotion of knowledge of the Convention and awareness on the part of society
and institutions of the exercise of the rights of the child
105. Eight years have passed since Spain's ratification of the Convention but it is still not sufficiently well known or invoked by the public at large, many of the professionals working with children, many public institutions and even the courts. In some circles it remains the norm to refer to the 1959 Declaration.
106. Even in circles in which the Convention is already familiar it is still regarded by some people as a mere declaration of intent instead of as a binding rule of law. It will therefore be useful to continue to publicize the Convention in society at large in order to safeguard the rights of children and their status as citizens.
107. It will certainly be no easy task to secure a prevailing social and institutional attitude focused on the needs of children and their protection and on the human rights of children, as well as on their status as citizens, which enjoys less widespread cultural recognition.
108. Increased awareness of the exercise of human rights by children, in particular their civil rights, at school, in the family and in the places where they spend their leisure time will no doubt require the due harmonization of such exercise with the responsibilities of children towards society, an understanding of the potential conflicts of rights and interests in these contexts, and due reconciliation of the dependence associated with the civil status of minor and the independence accorded by the possession of rights, as well as a learning process for children and adults to develop relations based on dialogue and negotiation.
(c) Educational issues
109. There are still many immigrant or minority families living in very poor conditions in settlements in several big cities. Hundreds of children from these families suffer from the typical illnesses generated by these conditions, and they do not attend school either.
110. In addition to the proposed solutions to the social/health problem and the resettlement plans it is important to deliver the right to education for the children of immigrants, and it must also be borne in mind that the precarious socio-economic and labour conditions of the immigrant families in these settlements make school attendance by the children very difficult.
111. The high truancy and drop-out rates found among the gypsy population and in socio-economically deprived areas must also be tackled.
112. In all cases there must be effective application, where the right to participation is concerned, of Royal Decree 732/1995 of 5 May on the rights and duties of schoolchildren and standards of behaviour. The committees on social behaviour envisaged in the Decree may prove a means of negotiated conflict resolution and teaching negotiating skills to adolescents.
113. The extension of compulsory school attendance to age 16 was a big step forward with respect to equality of opportunities, but at the same time it has created new problems which must be addressed: adaptation to the requirements of educating adolescents with histories of drop-out; curriculum changes to respond to the needs of this group; and support for teachers in making these adjustments and dealing with the lack of motivation of many adolescents and the conflicts that arise in some schools.
114. An effort must be made to tackle the isolated cases of peer violence or violence against the institution which occasionally occur in schools, even in the classroom, or are organized by groups from outside the school community.
115. Cross-curricular teaching must be developed.
116. It is important to guarantee the right to study and use the languages of the Autonomous Communities, while still protecting the rights of Spanish-speaking children.
117. Sufficient human and material resources must be provided for the equalization of standards in schools.
118. There is a need to draft curriculum components which make express reference to the principles set out in the Universal Declaration of Human Rights and in the Convention.
(d) Health issues
119. In 1998 several social organizations drew attention to the administrative difficulties encountered by many illegal immigrant children in obtaining the health care to which they are entitled in Spain; this will be discussed in other parts of the report.
120. As a result of these reports and the action taken by a number of public prosecutors, both the National Health Institute and the Ministry of Labour and Social Affairs and the Autonomous Communities to which responsibility for health matters has been transferred had already taken, at the time of closure of this second report, appropriate action to safeguard this right, when necessary, in primary care facilities and
in hospitals for all immigrant children, and to guarantee their parents confidentiality of the data collected in the administrative process.
121. Social organizations of the Platform of Children's Organizations have called upon certain administrations to introduce adequate safeguards of the proper mental health care of children, to provide sufficient assistance services and resources for this population, and to establish adequate social/health coordination.
(e) Improvement of the system of social care for children
122. At the present stage of consolidation of this system in all the Autonomous Communities further progress is needed in the improvement of the quality of the care services.
123. The training of professionals must be a priority in the strategies to enhance the quality of the system's primary and secondary services.
124. Special attention will have to be given to the training of professionals working in residential care facilities for adolescents with serious behavioural problems.
125. In the provision of care for minors subject to administrative guardianship who reach the age of majority but continue to live in a public institution it is important to follow the policy already initiated by one Autonomous Community of designing and implementing programmes to prepare them for personal independence, including guidance on how to find accommodation and work, especially in the case of disabled persons.
126. It is important to provide an adequate network of residential facilities for juvenile offenders and to find sufficient human and financial resources to be able to give priority to and implement effectively in all the Autonomous Communities suitable alternatives to confinement in an institution.
127. The frequent arrival in some Spanish towns of unaccompanied adolescents from the Maghreb without documents causes particular protection problems for the autonomous authorities, especially as the minors themselves often reject or abandon the residential care offered.
(f) Intersectoral and coordinated policies for children and prevention programmes
128. The exercise of the rights recognized in the Convention requires the formulation of intersectoral policies for children either under the Programme of Action for Children mentioned earlier or by other means. Intersectoral planning will facilitate the implementation of prevention programmes having an impact on children.
129. The implementation of intersectoral policies requires the improvement of the existing coordination in order to secure integrated action by the different care sectors and the other sectors working with children at both primary and secondary levels, especially the education, health and social services.
130. It is important for the Autonomous Communities to improve the coordination among the various departments (Education, Health, Social Services).
131. Consideration will have to be given in urban development plans and in the design of leisure facilities to children's needs with respect to leisure and play areas and facilities and to the provision of sufficient safety measures.
132. Intersectoral efforts to reduce and prevent discrimination against and exclusion of the gypsy and immigrant minorities will have to be intensified.
(g) Development of an information system
133. When it comes to information systems, the variety of the arrangements in the Autonomous Communities and the fragmentation of the information on children among different agencies, in the absence of mechanisms to ensure a smooth flow of information between them, make it difficult to obtain comprehensive information about the situation of children to provide proper guidance for policy-making.
134. Although the Data Bank on the Protection of Children and the database on children have been established, it is important to ensure that they are kept up and developed so that sufficiently representative data will be available for any situation report on children required anywhere in the country, as well as for disaggregation exercises for the autonomous territories.
135. In any event, there is still a long way to go before Spain has a national coordinated and standardized information system to allow constant monitoring of the situation of children and improved management of the day and residential care services and of the care itself.
136. The Children's Watch project implemented with the technical support of the database on children may prove to be a suitable instrument for this purpose.
D. The preparation and drafting of the second report
137. This process included the following stages and activities:
1. Preparation of protocols and questionnaires
138. Beginning in February 1997 as part of the regular technical work with the Autonomous Communities, an analysis was made of the structure and content of the guidelines document provided by the Committee (CRC/C/58).
139.This analysis determined the feasibility of obtaining the various kinds of information to be included in the second report and identified the information needs and sources for the whole country. Criteria were also established for the structuring and coding of the questions and for their formal placement in the questionnaire. This process resulted in the production of a questionnaire with 166 questions taken from the Committee's guidelines.
140. This general questionnaire was used as the basis for the specific questionnaires for each information source; the selection was made on an assumption as to which questions each source would be able to answer.
2. Communication with the information sources
(a) The sources of information
141. The report was prepared from data supplied by the following sources:
(a)Projects and programmes promoted and financed by the Office for Social Action, Children and the Family of the Ministry of Labour and Social Affairs;
(b)Governmental agencies: Ministry of Education and Culture; Ministry of Health and Consumer Affairs; Ministry of the Interior; Ministry of Justice; Government Prosecutor's Office; General Council of the Judiciary; National Institute of Statistics; National Drugs Plan; Institute for Migration and Social Services; Spanish International Cooperation Agency; Sociological Research Centre; Institute for Youth; Institute for Women;
(c)Autonomous Communities: offices responsible for policies for children;
(d)NGOs and other social organizations:
(i) Platform of Children's Organizations;
(ii) Spanish Confederation of Parents' Associations;
(iii)At the request of the Ministry of Labour and Social Affairs, the Matrimony and the Family Institute of the Pontifical University of Comillas produced a comprehensive legal report on the children's legislation of the State and the Autonomous Communities which proved very important for the drafting of this second report.
(b) Procedure for the collection of information
142. Each of the sources was sent a specific questionnaire for the collection of information, with instructions on how to complete the questionnaire and with computer support.
143. In the Autonomous Communities the offices responsible for the protection of children, which were the principal sources, had to request specific information from other agencies, such as Health and Education in the Communities which had taken over responsibility from the State in those sectors. In the other Communities the information was requested directly from the Ministry of Health and Consumer Affairs and the Ministry of Education and Culture.
144. The sources returned the completed questionnaires in hard copy and in computerized form, together with supplementary documentation to support the information given.
(c) The communication process
145. Throughout the preparation process the Office for Social Action, Children and the Family used mailings and policy and technical meetings to communicate the purposes of the report to the institutions and social organizations involved.
146. Each source designated one person with whom the Office maintained constant bilateral contacts during the data-gathering process in order to provide computer and other technical support.
3. Storage and organization of the information
147. For the purposes of storing, organizing, processing and retrieving all the data supplied by the sources the Office created a database (the database on children) structured in accordance with the general
questionnaire referred to in paragraphs 139-140; all the data for the drafting of the report was entered in this database.
4. Production of the first draft of the report
148. A first draft of the report was produced from the information supplied by the sources and submitted to them for review.
5. Comments on the first draft
149. The sources commented on the first draft and submitted further information by post and telephone and at working meetings.
6. Production of the final version
150. The final version of the report was completed in February 1999 on the basis of the first draft and the comments made by the institutions and organizations.
E. Assessment of the preparation process
1. Comments on the process and the methodology used
151. The preparation of the second report opened the way to a fruitful analysis of policies for children in Spain. Many departments of the General Administration of the State and the Autonomous Communities and the social organizations which design and implement these policies took part in the process.
152. The preparation process also offered an opportunity to identify the difficulties still encountered in collecting systematic data on the situation of children and organizing these data into information systems both in the Autonomous Communities and in the General Administration. The need for data for the preparation of the report highlighted the difficulties.
153. These difficulties also pointed to the need to work in the future on the development of an information system like the one referred to in paragraphs 128-132.
2. Comments on the Committee's guidelines document
154. The guidelines document (CRC/C/58) was the permanent reference framework for the preparation of the second report.
155. It formed the basis for the general questionnaire from which the specific questionnaires sent to the information sources were drafted. For the purposes of this questionnaire the United Nations translation of the original English text of the guidelines was revised: linguistic changes were made to the form and some minor inaccuracies were corrected.
156. The paragraphs of each section of the guidelines were numbered in order to make it easier for the sources to answer and to improve the structuring of the information sent back. In some cases paragraphs were deleted or merged for reasons of redundancy.
157. Many comments were also received on the document as a working tool:
(a) It is an exhaustive guide for seeking information and makes manifest the scale and thematic scope of the approach which can and should be taken in policies for children;
(b) It offers guidance in the search for information and the construction of systems of information on children;
(c) It helps to identify the strong points in the existing information systems as well as the many gaps;
(d) However, the document is also excessively long and under-edited, and the same information is often requested in different paragraphs;
(e) Many of the administrations thought it out of proportion to countries' actual information systems, which are often not firmly established and do not usually collect specific information on children;
(f) The huge amount of information requested may have some instructional value in that it indicates the parameters for systems of information on children, but its volume and lack of proportion and the degree of disaggregation requested may at the same time prove discouraging for the continuation of the work rather than an incentive.
F. The structure of the report
158. The report was structured in accordance with the guidelines document and its sequence of chapters, sections and paragraphs.
159. Information on the measures taken by the State is usually given first, followed by information on the ones taken by the Autonomous Communities and by social organizations.
160. Information corresponding to several sections or parts of the same section is sometimes grouped together when the sources have not separated it out or when the questions overlap or duplicate each other. In any event, the sections and paragraphs have the same numbering as in the questionnaires sent to the sources.
161. In order to make the report easier to read, the tables and charts are presented in annex A rather than in the text itself.
162. Annex B contains a listing of the legal instruments ratified by Spain referred to in several sections of the report.
I. GENERAL MEASURES OF IMPLEMENTATION
A. Reservations (CRC/C/58, para. 11)
163. The Spanish Parliament ratified the Convention on 6 December 1990, and it entered into force on 5 January 1991.
164. Spain did not enter any reservations in the instrument of ratification ( Boletín Oficial del Estado , 31 December 1990) but did make the following declarations:
"Spain understands that article 21, paragraph (d), of the Convention may never be construed to permit financial benefits other than those needed to cover strictly necessary expenditure which may have arisen from the adoption of children residing in another country."
"Spain, wishing to make common cause with those States and humanitarian organizations which have manifested their disagreement with the contents of article 38, paragraphs 2 and 3, of the Convention also wishes to express its disagreement with the age limit fixed therein and to declare that the said age limit appears insufficient, by permitting the recruitment and participation in armed conflict of children having attained the age of 15 years."
165. Spain maintains the positions stated in these reservations.
B. Measures adopted to bring national legislation and practice into conformity
with the provisions of the Convention (CRC/C/58, para. 12)
1. Measures adopted by the State
166. As already stated in the Introduction to this report, the legal framework created by the promulgation of the 1978 Constitution led to substantial changes in the conception of the civil rights of children along the lines established by the Convention some years later. Both the Introduction and the initial report (paras. 176-183) drew attention to the historic milestone marked by Act 21/1987 of 11 November, which amended the Civil Code and the Civil Proceedings Act with respect to adoption and gave birth to a modern system for the protection of children consistent with the spirit and letter of the Convention adopted two years later.
167. These and other amendments obviated the need for a general revision of domestic legislation to bring it into line with the Convention. However, the following paragraphs in this section and other parts of the report contain an analysis of the development of law both by the State and by the Autonomous Communities, which made and continue to make ever more finely tuned changes in order to render legislation consistent with the spirit and letter of the Convention.
168. In addition, as pointed out in section B.2 of the Introduction, there is no doubt that the policies for children in the 1990s bear the imprint of Spain's ratification of the Convention in 1990.
(a) The Spanish Constitution
169. Several paragraphs of the initial report and the Introduction to the second report refer to the 1978 Constitution. While it is true that the text of the Constitution itself makes very few references to the rights of the child, great importance attaches to article 39 on the protection of the family, to article 20, which establishes the freedom of expression and stipulates the protection of children as a limit to the exercise of this right, and to article 27 on the right to education.
170. Paragraph 4 of article 39 is of particular importance, for it states: "Children shall enjoy the protection provided for in the international agreements which safeguard their rights"; it thus underlines the importance of this protection. This principle of the Constitution has guided and must continue to guide Spain's policies for children both with respect to the incorporation of the international texts on the rights of the child and in the development of domestic law.
171. This paragraph also means that, as a result of Spain's ratification of the Convention, the Convention automatically becomes a law which must be applied to the fundamental rights of the child.
(b) Organizational Act 1/1996 of 15 January on the legal protection of
minors and partial amendment of the Civil Code and the Civil
Proceedings Act (the Protection of Minors Act)
172. The application of Act 21/1987 and the institutional and professional practice in the care of children had been drawing attention to the opportunities and to the situations in which the Act was not working satisfactorily.
173. The analysis of these situations and the many exchanges between agencies of the General Administration of the State, officials of the Autonomous Communities, professionals and social organizations had been preparing the ground for the promulgation in 1996 of the Protection of Minors Act, which supplemented and updated the reform of the legislation on the social protection of children initiated by Act 21/1987.
174. The Protection of Minors Act is a fundamental legal instrument drafted pursuant the Constitution, which, as we have just seen, deals with the protection of children in article 39. The Act proclaims in its preamble the need to fill the gaps in Spanish legislation with regard to the protection of children and it therefore seeks "to construct a broad legal framework of protection binding on all public authorities, on institutions dealing with children, on parents and families, and on the population at large".
175. Furthermore, the Act is fully consistent with the changes affecting children initiated in the 1980s and with the principles of the Convention.
176. According to the explanatory preface to the Act, the new approach to children's rights reorganizes the protection accorded to minors by the State and entails their full recognition as holders of rights and their effective capacity to exercise them.
177. The new Act addresses three specific needs:
(a) To fill the gaps in Act 21/1987 both in the general configuration of the system of protection and in the harmonization of the judicial and administrative procedures, and to supplement, clarify or modify certain aspects of the regulation of this protection;
(b) To incorporate the requests and suggestions of public bodies and professionals and experts involved in the protection of children, as well as the recommendations of the Ombudsman, the Government Prosecutor's Office, the Autonomous Communities, and groups of parliamentarians;
(c) To incorporate in the legislation on children the spirit and letter of the Convention, which calls for greater participation and advocacy of children in society at large and in procedures and decisions affecting children.
178. Owing to the separation of powers under the Constitution, the Act limits itself to setting the general framework and establishing the structure and basic functions of the institutions for the protection of children so that the Autonomous Communities may later develop the principles and take responsibility for implementation. Moreover, the Act's substance lies in the amendment of the Civil Code and the Civil Proceedings Act.
179. With regard to the Act's harmonization with the Convention, article 3 states that children shall enjoy the rights accorded to them under the international treaties to which Spain is a party, in particular the Convention on the Rights of the Child, in accordance with which the Act must be interpreted.
180. Chapter II of the Act restates many of the rights set out in the Convention: the rights to respect of reputation and to personal and family privacy, the inviolability of the home and correspondence (art.4 of the Act and art. 13 of the Convention); the right to freedom of thought, conscience and religion (art. 4 of the Act and art. 14 of the Convention); the freedoms of association and assembly (art. 7 of the Act and art. 15 of the Convention); the right to freedom of expression (art. 8 of the Act and art. 12 of the Convention); and the right to be heard (art. 9 of the Act and art. 12 of the Convention). The Act also includes among the guiding principles of the activities of the public authorities "the primacy of the best interests of the child" (art. 11 of the Act and art. 3.1 of the Convention). In addition, articles 12 to 25 of the Act and some of its additional and final provisions deal at length and in detail with the rights of children at risk or in need of protection, as well as regulating adoption procedures, matters covered in articles 20 and 21 of the Convention.
181. As far as its scope is concerned, the Act applies "to all persons aged under 18 years within Spanish territory" (art. 1), thus coinciding with the age scope of the Convention.
182. This means that:
"Foreign children living in Spain have the right to education. Foreign children who are in a situation of risk or under the supervision or guardianship of the competent public administration, even when not legally resident in Spain, are entitled to health care and the other public services" (art. 10.3).
183. The Act describes the system of care and protection of children established in the Civil Code. It follows the sequential order of the measures in question, beginning at the moment when it is realized that a minor is in need of protection and ending with an analysis of the various institutional options.
184. Thus the Act first regulates the actions which must be taken in such situations by public bodies and professionals and by the citizenry and then goes on to describe the various levels of protection which can be ordered in the light of the seriousness of the circumstances:
(a) The first level consists of the monitoring of the development of the risk situation;
(b) The second level consists of the declaration of desamparo ("lack of protection": see paras. 958-962 below) and the assumption of custody by a public body when the case is more serious;
(c) In the light of this second situation, the third level consists of the various protection options: guardianship, placement in an institution or foster family, and adoption as the definitive solution.
185. The following are the principles underlying these measures referred to throughout the Act:
(a) All measures must take into account the best interests of the child and not obstruct his social, school or work life;
(b) Whenever possible, an attempt must be made to secure the collaboration of the child and his family in the protection measure;
(c) Whenever possible, efforts must be made to allow the child to remain in his family environment;
(d) Lastly, efforts must be made to integrate the child in the family taking the place of his natural one.
186. The following are the Act's most significant innovations:
(a) It defines the nature, content and effects of guardianship ex lege or "by operation of the law". Here the main innovation is the express statement that the assumption of guardianship by a public body entails the suspension of parental authority or ordinary guardianship;
(b) The Act specifies stronger safeguards in the procedure for assumption of guardianship in order to avoid situations of lack of protection:
(i) It establishes the obligation of the public body to inform the parents, guardians or foster parents of the declaration of desamparo within 48 hours, if possible in person;
(ii) It removes the existing vagueness about the system of remedies by establishing that appeals may be lodged against declarations of desamparo in the civil jurisdiction under the procedure of non-contentious jurisdiction, with no need for a prior administrative application;
(c) With regard to situations involving lack of protection, a distinction is made between:
(i) Situations of risk not requiring the separation of the child from his family;
(ii) Situations of desamparo , which entail the removal of the child from his family owing to their greater seriousness;
(i)The possibility of permanent placement is created for those situations in which it is inappropriate for the child to return to his family but adoption is not deemed suitable;
(ii)For the first time, the Act provides a classification of the different types of placement. There are two main categories: placement in an institution and placement in a family. Placement in a family may take three forms: simple, permanent, and pre-adoptive. No such distinctions were made in the past because placement was regarded as a temporary measure;
(iii)Provisional placement in a family is available when the biological parents oppose the placement measure or to avoid the need for the child to be placed in an institution during the legal proceedings;
(iv)The parameters of the document setting out the formalities of the placement measure are defined;
(e) Express judicial authorization is required for the confinement of a minor in a psychiatric facility; this represents a break from the previous practice, which was denounced by the Ombudsman and the Government Prosecutor's Office;
(f) Where adoption is concerned, the Act introduces the requirement of the suitability of the adoptive parents, which must always be assessed by the public body concerned;
(g) International adoption is regulated for the first time:
(i)The Act regulates the functions of the public bodies (issue of certificates of suitability, obligation to monitor the adoption, and accreditation of agencies) and the functions of duly accredited collaborating international adoption agencies (information and counselling, processing of applications);
(ii)It also regulates the basic accreditation requirements for such agencies, stressing that they must not operate for profit and that one of their statutory purposes must be the protection of children;
(h) Throughout the Act there is a constant concern to make it clear that the protection of children is a matter for society at large. Hence the clear definition of the obligations in situations of lack of protection not only of the competent public bodies but also of the professionals and of the whole populace (art. 13, on civic obligations).
(c) The new Criminal Code
187. The new Criminal Code was introduced by Organizational Act 10/1995 of 23 November. The previous text had originally been adopted in the nineteenth century, although it subsequently underwent many partial amendments. The new Code simplifies the types of crime and the system of penalties, adapting them to the realities of Spain's present society.
188. The following are some of the points most relevant to the protection of minors:
(a) Criminal responsibility is extinguished in certain cases by a pardon given by the victim. However, in the case of offences or misdemeanours committed against a child or a disabled person the courts, having heard the representative of the Government Prosecutor's Office, may declare invalid a pardon given by the representatives of a victim and order the continuation of the proceedings or the enforcement of the sentence;
(b) Consent given by a minor to organ transplants, sterilization or sex-change surgery is void, and these procedures are treated as crimes if applied to children;
(c) However, the sterilization of a child with a serious mental defect is not an offence when authorized by a court in the child's best interests;
(d) There are new rules on offences against personal sexual integrity. The basic types of offence are sexual attack (with violence or intimidation) and sexual abuse (no violence or intimidation but without the victim's consent). Offences against sexual integrity are discussed at length later in the report. A bill on reform of the Criminal Code is currently before Parliament; it deals with offences against sexual integrity and is also discussed later;
(e) A chapter is devoted to offences against privacy: invasion of privacy without consent is treated as an offence. The offence is aggravated if committed against a minor. A complaint by the minor or his representative is not required: an action may be brought on the basis of a report of the Government Prosecutor's Office. In addition, the legal force of a pardon given by a minor victim or his representatives may be declared invalid, as in the case of offences against sexual integrity, in order to prevent such
invasion of privacy going unpunished when it is concealed or encouraged by the persons responsible for the minor;
(f) A title is devoted to offences against family relations. It contains a chapter establishing the falsification of a minor's birth particulars or alteration of his paternity or civil status as offences. This chapter makes innovations with respect to the earlier rules on, for example, the offence of trafficking in children for purpose of adoption. Penalties are prescribed for the surrender of a child to another person in contravention of the legal procedures for guardianship, fostering and adoption and with financial compensation in order to establish a relationship analogous to filiation; penalties are likewise prescribed for intermediaries and the persons receiving the child even when the surrender takes place in a foreign country. Another chapter in the same title deals with offences against the rights and duties of the family, organizing and simplifying a number of offences already envisaged in the earlier legislation and facilitating their identification and, when necessary, prosecution: dereliction of the duties of guardianship, incitement of minors to leave their homes, abandonment of family or children, use of minors for begging, etc.;
(g) The age of majority is raised to 18 years from age 16 under the earlier legislation. However, the application of this rule will depend on the adoption of the bill on the criminal responsibility of minors currently before Parliament. At present, although the Criminal Code applies to minors who have reached the age of 16, there is a transitional scheme in operation which applies some aspects of the current legislation to children aged under 16, including the option of placement in a closed facility for juvenile offenders instead of imprisonment.
(d) Other points
189. Procedures are under way for the early ratification of the European Convention on the Exercise of Children's Rights (Council of Europe).
2. Measures adopted by the Autonomous Communities
190. Following the adoption of the 1978 Constitution Spain's administrative organization and structures underwent a series of big changes which also affected the protection of children.
191. Under article 148.1.20 of the Constitution, which states that they may assume jurisdiction in respect of social assistance, the Autonomous Communities have taken over jurisdiction for functions previously exercised by the General Administration of the State, although the Constitution reserves to the State jurisdiction in matters of civil law (art. 149.1.8) and criminal law (art. 149.1.6).
192. The Constitution also accords to certain Autonomous Communities the right to amend their civil law when it recognizes their legislative power with respect to substantive and procedural matters, adding to the reservation of jurisdiction to the State in matters of civil law an exception in the case of the "preservation, modification and development...of their civil rights, "fueros" or special rights, whenever these exist".
193. In fact, at the end of the 1980s, in the 1990s, and in particular over the five years covered by this report policies for children received special attention in the Autonomous Communities. One example of this attention is the extensive development of law, which takes account of recent social, institutional and professional experience of the care of children and their needs and rights and in many cases brings changes, progress and new opportunities to such care.
194. The law has been developed in two stages:
(a) In the first stage autonomous legislation was confined to the administrative aspects of the care of children lacking protection, such as the organs competent to make declarations of guardianship, the regulations governing children's homes, etc., which were necessary for the initial application of Act 21/1987;
(b) The second stage saw the promulgation of a number of rules with the status of law, rules which brought in all minors as holders of rights and founded the activities of the public administrations on the function of promoting the free personal development of children and adolescents.
195. There is no doubt that Spain's ratification of the Convention gave a definite boost to children's rights in domestic legislation.
196. In addition to the Protection of Minors Act, several autonomous acts have been adopted; within the jurisdiction of each Autonomous Community they constitute the development of the law on the protection of many of the rights set out in the Convention and establish channels for the fulfilment of the commitments entered into by Spain, in particular the commitment to secure the highest possible degree of well-being for children by ensuring the integrated development of their personalities.
197. In several of the laws mentioned below the public administrations also commit themselves to adopting the necessary measures for publicizing the rights of the child in the territory within their jurisdiction.
198.A list is given below of the autonomous legislation affecting children. Some of this legislation states expressly the obligation to respect and the duty to safeguard the exercise of the rights of the child contained in the Convention. Such references to the Convention are found in some cases in the text of the law itself, in other cases in the explanatory introduction or preamble.
199. Further references to these autonomous laws will be made elsewhere in the report in connection with the specific functions dealt with in each section.
200. Pursuant to the jurisdiction assumed for "social assistance and services" under article 13.22 of its Statute of Autonomy, Andalusia adopted Act 1/1998 of 20 April on the rights and care of children, which makes express reference to the Convention and devotes its first title to children's rights.
201. Article 2 contains a commitment to ensuring that children enjoy "all the rights and freedoms recognized in the Constitution and in the Convention on the Rights of the Child and other international agreements...".
202. Chapter II deals with the protection of children's rights and appropriate procedures for ensuring their exercise.
203. Aragón adopted Act 10/1989 of 14 December on the protection of minors
pursuant to article 35.1.19 of its Statute of Autonomy, which confers jurisdiction over "social assistance and welfare, community development" and "young people, promoting the conditions for their free and effective participation in political, social, economic and cultural development".
204. The whole of title I of this Act is devoted to children's rights. Although the Act was promulgated before the ratification of the Convention, its content is consistent with the Convention, especially with respect to the listing of rights.
205. There is a bill on children and adolescents which covers all the rights established in the Convention.
206. Asturias adopted Act 1/1995 of 25 January on the protection of minors pursuant to article 10.1 (p) of its Statute of Autonomy, which deals with jurisdiction "in matters of social assistance and welfare, including policies for children".
207. In addition to mentioning the Convention in its preamble, where it recognizes that minors "hold authentic subjective rights", the Act enumerates the rights of the child in title I, chapter II, and all are consistent with the provisions of the Convention.
208. Article 7 states:
"Minors shall be guaranteed in all measures of protection the exercise of the personal and collective rights recognized in the Constitution, in other laws, and in the international agreements, treaties and covenants incorporated in domestic legislation, in particular the United Nations Convention on the Rights of the Child of 1989".
(d) Balearic Islands
209. Pursuant to article 5.1 of Organizational Act 9/1992 of 23 December on the transfer of jurisdiction, which accords jurisdiction over "institutions for the protection and guardianship of minors", the Balearic Islands adopted Act 7/1995 of 21 March on the guardianship and protection of neglected minors.
210. This Act states in its explanatory introduction that it derives from the commitment of the States parties to the Convention to "to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her" and to take to this end all appropriate legislative and administrative measures.
211. The Balearic Islands also adopted Act 6/1995 of 22 March on the application of judicial measures to juvenile offenders and Act 8/1997 of 18 December on the attribution of jurisdiction over the guardianship, placement and adoption of minors to the Islands Council.
212. A bill on the comprehensive protection of the rights of the child (the children's statute) is being prepared; it establishes a general framework for quality safeguards and public monitoring of services and benefits for children and guarantees the exercise of their rights. This draft statute provides that special attention must be given to children in the formulation of policies having an affect on them in other sectors, and it states the principle of non-discrimination and equity in the provision of services.
(e) Canary Islands
213. Pursuant to the jurisdiction in matters of "social assistance and social services and over public institutions for the protection and guardianship of minors" assigned in articles 30.13 and 30.14 of the
Statute of Autonomy, the Canary Islands adopted Act 1/1997 of 7 February on the integrated care of minors, the purpose of which is to establish the distribution of functions and responsibility for the care of minors among the public administrations of the Islands, regulate administrative measures of prevention for children in situations of risk, to protect and ensure the social integration of such children, and to fix the arrangements for collaboration and participation in these activities by society.
214. Article 3.1 of the Act states expressly:
"Minors shall enjoy the personal and collective rights accorded to them in the Constitution, in the treaties, agreements and covenants ratified by the Spanish State, in particular the Convention on the Rights of the Child of 20 November 1989, and in other legislation".
215. Under article 22.18 of its Statute of Autonomy Cantabria has jurisdiction over "assistance and social welfare, including youth policy"; this provision formed the basis for the adoption of the Social Action Act of 27 May 1992. No specific legislation on children has been drafted.
216. Regulations on administrative measures in matters of adoption, foster care, guardianship, custody and placement of minors were approved by a decree of 7 September 1992.
(g) Castile-La Mancha
217. Article 31.1 (p) of the Statute of Autonomy accords jurisdiction over "social assistance and social services, advancement of and assistance for minors, young people, the elderly...", but no specific legislation on the protection of children has been drafted.
218. Article 9 of the Solidarity Act (5/1995 of 23 March) states as a fundamental principle of policies for the care of children "the safeguard of the individual and collective rights of all minors, as stipulated in the Spanish Constitution, the Convention on the Rights of the Child, and the recommendations on children of the Council of Europe".
219. Another relevant instrument is Decree 143/1990 of 18 December on procedure in matters of the protection of minors.
220. A preliminary version of a draft children's act is being prepared and will be submitted to the Regional Parliament in the first half of 1999.
(h) Castile and León
221. Article 26.18 of the Statute of Autonomy accords jurisdiction over "social assistance and social services", but no specific legislation on the protection of children has been drafted.
222. In exercise of this jurisdiction the Community adopted its Social Action and Social Services Act of 28 December 1988, under which the autonomous administration assumes responsibility for the protection and guardianship of minors.
223. The Community has also issued several sets of regulations on adoption procedures and the operation of children's homes and services.
224. Pursuant to the jurisdiction in social assistance matters accorded by its Statute of Autonomy Catalonia has enacted extensive legislation on the protection of children and has established an appropriate system of protection.
225. Article 2 of Act 11/1985 of 13 June on the protection of minors limits the sphere of action to: "(a) treatment of juvenile delinquency; (b) prevention of juvenile delinquency; (c) guardianship of minors in the event of defective or inappropriate exercise of parental authority or the right of custody or upbringing".
226.Act 37/1991 of 30 December, on the protection of minors and on adoption, Act 8/1995 of 27 July, on the care and protection of children and adolescents, and the amendments to Act 37/1991 all emphasize that minors must enjoy all the rights accorded in "the international treaties, agreements and resolutions, in particular the United Nations Convention on the Rights of the Child...".
227. These Acts were recently combined into the Family Code adopted by the Catalonian Parliament as Act 9/1998 of 15 July.
228. Catalonia has also issued several sets of regulations on the procedures for national and international adoption and the operation of children's homes and services.
229. Pursuant to the jurisdiction in matters of "social assistance and protection" accorded in article 7.20 of its Statute of Autonomy Extremadura promulgated Act 4/1994 of 10 November on the protection and care of minors. The preamble stresses that "the best interests of children and respect for their freedom and dignity must prevail at all times over any other competing interest".
230. Pursuant to the jurisdiction in matters of "social assistance" accorded in article 27.23 of its Statute of Autonomy Galicia adopted Act 3/1997 of 9 June on the family, children and adolescents, which provides that "children and adolescents shall enjoy the rights proclaimed in the Convention on the Rights of the Child without any discrimination or differential treatment by reason of personal, family or social circumstances".
(l) La Rioja
231. Pursuant to the jurisdiction in matters of "social assistance and social welfare, including youth policy" accorded in article 8.1.18 of the Statute of Autonomy La Rioja promulgated its Children's Act (No. 4/1998 of 19 March).
232. Article 8 states:
"Minors shall be guaranteed in any measure of protection the exercise of the individual and collective rights recognized in the Constitution and other legislation and in the international agreements, treaties and covenants incorporated in domestic legislation, in particular the Convention on the Rights of the Child".
233. Pursuant to the jurisdiction in matters of "social assistance" accorded in article 26.18 of its Statute of Autonomy Madrid adopted Act 6/1995 of 28 March on safeguards of the rights of children and adolescents.
234. The preamble to this Act refers to the advocacy of children's rights which led to the ratification of the Convention, and article 1 states the express aim of "ensuring within the jurisdiction of the Community of Madrid the necessary safeguards for the exercise of the rights accorded to minors in the Constitution, the Convention on the Rights of the Child, and all other legislation".
235. The Act stipulates as a principle of the activities of autonomous and local administrations "...priority attention to the best interests of the child over any other legitimate competing interest on the terms established in the Civil Code and the Convention on the Rights of the Child".
236. A bill on councils on the care of children and adolescents is currently being drafted.
237. Pursuant to the jurisdiction in matters of "social welfare and services" accorded in article 10.1.18 of the Statute of Autonomy Murcia adopted its Children's Act (3/1995 of 21 March 1995).
238. The preamble to the Act cites the Convention among its antecedents. Title I lists the fundamental rights of the child, and article 4 (a) stipulates as a guiding principle of the activities of the Autonomous Community "respect for the individual and collective rights recognized in the Constitution or the international treaties and agreements signed by the Spanish State, and for any other rights recognized in the legislation in force".
239. Under article 44 of its Statute of Autonomy Navarra has jurisdiction over "social assistance and policies for children and young people", but no specific legislation on children has been adopted.
240. Pursuant to this jurisdiction Navarra adopted the Social Services Act of 30 May 1983. Children are specified as one of the groups benefitting from these services, with emphasis on measures to mitigate unsatisfactory family circumstances and on the establishment of systems of guardianship and protection, on which regulations have been introduced.
241. The Act of 16 May 1991 on the prevention and restriction of the consumption of alcoholic beverages by minors is particularly relevant.
(p) Basque Country
242. Articles 10, 12 and 39 of the Statute of Autonomy accord jurisdiction over inter alia "social assistance and policies for children and young people", but no specific children's legislation has been adopted. The Social Services Act of 20 May 1982 includes the protection of children among its priorities.
243. Draft legislation exists on the care and protection of children and adolescents with regard to the exercise of their rights and responsibilities.
244. Valencia adopted its Children's Act (7/1994 of 5 December) pursuant to the jurisdiction in matters of "social assistance" accorded in article 31.24 of the Statute of Autonomy.
245. The preamble to the Act declares the incorporation of "the individual and collective rights of the child recognized in the Constitution, international instruments and the civil legislation of the State, which constitute the framework of legal safeguards, in particular the United Nations Convention of 1989...".
246. Article 3 stipulates as a fundamental principle of the activities of the public authorities "the comprehensive protection of children, the prevention of risks, and the defence and guarantee of the rights accorded to children in the Constitution and the international agreements under which the exercise of these rights is monitored..."
247. There are regulations on the procedures for the application of protection measures and the operation of children's homes and services, both those run by the Autonomous Community and those operated under agreements with private agencies.
C. The status of the Convention in domestic law (CRC/C/58, para. 13)
1. Measures adopted by the State
248. As already pointed out in the Introduction and in section B of this chapter, children's rights are mentioned in a number of articles of the Spanish Constitution.
249. For example, the intrinsic right to life stated in article 6 of the Convention is recognized in article 15 of the Constitution; the right to liberty and security referred to in article 37 of the Convention is found in article 17 of the Constitution; children's right to express their opinions freely in all matters affecting them - when they are capable of forming their own views - (art. 12 of the Convention) is covered by article 20 of the Constitution (which sets as a limit to the freedom expression "the protection of young people and children"); the freedom of conscience and religion of article 14 of the Convention appears in article 16 of the Constitution; the freedoms of association and peaceful assembly of article 15 of the Convention are dealt with in articles 21 and 22 of the Constitution; the right to privacy and family life and not to be subjected to arbitrary interference in one's home or correspondence (art. 16 of the Convention) is referred to in article 18 of the Constitution; children's right not to be subjected to physical or mental violence , maltreatment, exploitation or sexual abuse (arts. 19, 32, 33, 34, 35, 36 and 37 of the Convention) is included in article 15 of the Constitution, which prohibits torture and inhuman or degrading punishment or treatment; the right to education of article 28 of the Convention is regulated in article 27 of the Constitution; the right to effective legal protection and qualified assistance, the right not to give testimony against oneself or to confess guilt, the right to be presumed innocent and not to be punished for acts or omissions not prohibited by national or international law at the time of commission (art. 40 of the Convention) are covered by articles 24 and 25 of the Constitution. And the right to health of article 24 of the Convention is recognized in article 43 of the Constitution.
250. Furthermore, almost all the rights common to the Convention and the Constitution are, according to the Constitution, fundamental rights of the individual. These rights are addressed in chapter II, section I, of the Constitution, concerning fundamental rights and public liberties. This also applies to: the right to life and physical integrity; the right not to be subjected to torture or inhumane or degrading punishment or treatment; the freedom of thought, conscience and religion; the right to liberty and security; the right to honour, privacy and family life and the inviolability of the home and of correspondence; the freedom of
expression; the right of association and peaceful assembly; the right to effective legal protection and qualified legal assistance; the right not to give testimony against oneself or to confess guilt and the right to be presumed innocent; the right not to be punished for acts or omissions not prohibited by national or international law at the time of commission; and the right to education. Obviously, exceptions have to be made: for example, in order to exercise the right to hold public office or the right to vote a person must have reached the age of majority.
251. This convergence of the Convention and the Constitution is of capital importance for the legal status of the Convention. Article 10.2 of the Constitution states:
"Legislation on the fundamental rights and the freedoms accorded by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international human rights treaties and agreements ratified by Spain".
252. Following its official publication every validly ratified treaty becomes part of Spain's domestic law. However, these treaties have a higher status than domestic law, as several decisions of the Constitutional Court have demonstrated. Moreover, the courts give precedence to the application of a treaty over a domestic law, and of course in no case may a treaty be amended or revoked by a merely domestic law.
253. In this connection, article 10.2 seeks to establish an interpretative criterion in favour of international law in matters of fundamental human rights. This means that, in the event of a hypothetical conflict between the treatment of a fundamental right in domestic law and its treatment in an international treaty ratified by Spain, all the rights contained in title I, chapter II, of the Constitution, where their application to children is concerned, are subject to the Convention as the interpretative model for their legal treatment in Spain.
254. For this reason, article 3 of the Protection of Minors Act, discussed above, states:
"This Act and its regulations and other legal provisions concerning minors shall be interpreted in conformity with the international treaties to which Spain is a party, in particular the United Nations Convention on the Rights of the Child of 20 November 1989".
255. With regard to the possibility of invoking the Convention before the courts, pursuant to article 96.1 of the Constitution, under which all the provisions of validly ratified treaties are automatically incorporated in domestic law, the rights contained in the Convention form part of that law. This means that individuals may invoke such rights directly before Spanish courts and that the national authorities must know and apply the Convention. Article 39.4 reinforces this position by referring to the possibility of children enjoying the rights accorded to them in the treaties.
256. In decision 67/1998 of 18 March 1998, referred to in other sections of the report, which was handed down under amparo application 109/95 in respect of non-payment of maintenance and established the principle of non-discrimination against children by reason of birth, the Constitutional Court cited the Convention among the grounds for its decision, thus reflecting the additional protection afforded to children by the Convention (legal ground No. 5). The amparo application lodged by the mother was based precisely on the infringement of the fundamental right of her daughter, born out of wedlock, not to suffer discrimination by reason of her birth.
257. What was said earlier about the legal status of the Convention and the precedence given to the application of treaties over domestic law should be borne in mind with regard to the direct application of the provisions of the Convention.
258. In any event, this primacy of treaties and the impossibility of the amendment or revocation of a treaty by a domestic law is more a question of procedure than of ranking.
259.Treaties are drafted differently from laws, for several sovereign States take part in the process; they must therefore be amended in this ad hoc manner - according to rules contained in the treaty itself or, if there are none, according to the general rules of international law.
2. Measures adopted by the Autonomous Communities
260. Section B of this chapter lists the many specific laws on children adopted by the Autonomous Communities in the 1990s which expressly recognize the rights set out in the Convention.
D. Provisions of national legislation more conducive to the realization
of the rights of the child (CRC/C/58, para. 14)
261. See section B above.
262. In addition to adopting national legislation Spain has ratified or adhered to international conventions which directly or indirectly affect the rights of the child (see ch. VII, section A.1).
E. Judicial decisions applying the principles and provisions recognized
by the Convention (CRC/C/58, para. 15)
263. The initial report referred in paragraph 8 to the judgment of the Constitutional Court of 14 February 1991 declaring unconstitutional the procedure followed up to that time by the juvenile courts.
264. Reference has been made above to judgment 67/1998 of the Constitutional Court of 18 March 1998.
265. In a ruling of 31 March 1998 the Constitutional Court declared admissible a question of unconstitutionality submitted by juvenile court No. 1 in Valencia concerning the language of article 2.2 of Organizational Act 4/1992 of 5 June and the possibility of its violating article 24.2 of the Constitution and article 40, paragraph 2 (b) (i), of the Convention.
266. Some judicial decisions in the Autonomous Communities refer expressly to the provisions and principles of the Convention. For example, a decision of 16 July 1996 of the Provincial High Court of Las Palmas refers expressly to the Convention in its explanation of grounds, stating that the children in question were clearly in a situation of desamparo and that it was impossible for them to rejoin their own family; it rejected the appeal lodged by the biological mother and confirmed the pre-adoption care order to which the children were subject. Other decisions of this Provincial High Court are based on the same argument.
F. Remedies available in cases of violation of the rights recognized
by the Convention (CRC/C/58, para. 16)
1. Measures adopted by the State
267. Since the Spanish Constitution contains a broad range of fundamental rights which of course are accorded to everyone, the safeguards of those rights apply equally to children.
268. The fundamental rights and the principle of equality are guaranteed by the preferential and summary procedure referred to expressly in article 53.2 of the Constitution and embodied in Act 62/1978 of 26 December on the jurisdictional protection of the fundamental rights of the person.
269. There is also the possibility of submitting an amparo application to the Constitutional Court pursuant to articles 42, 43 and 44 of the Constitutional Court (Organization) Act (2/1979 of 3 October) when the violation of the fundamental right arises from an act or omission of a public authority, be it legislative, executive or judicial.
270. Article 10 of the Protection of Minors Act establishes the measures for facilitating the exercise of minors' rights. In defending and safeguarding these rights a minor may:
(a) Request the protection and guardianship of the competent public body;
(b) Report to the Government Prosecutor's Office situations which he considers to be infringing his rights in order that appropriate action may be taken;
(c) Submit his complaints to the Ombudsman;
(d) Request social assistance from the public authorities.
Article 13 includes among the duties and obligations of citizens the duty of reporting to the authorities any situation of desamparo so that the authorities can take the necessary corrective action.
271. Aside from the remedies available in domestic law in the event of violation of the rights recognized in the Convention, it is also important to draw attention to the remedies available under international public law.
272. Some of the international agreements provide the possibility for an individual to submit a complaint against his State to an ad hoc committee set up for this purpose if he thinks that the State has infringed the rights accorded to him under an international agreement to which it is a party.
273. This applies in Spain to the Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966 and to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, of 15 December 1989. The same situation has arisen with respect to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, because at the time of its ratification Spain declared its acceptance of article 22.1, with the result that the Committee against Torture may receive and consider communications from persons subject to Spanish jurisdiction, or on their behalf, alleging that they are victims of a violation by the Spanish State of the provisions of the Convention.
274. However, communications from individuals to the Human Rights Committee or the Committee against Torture definitely do not constitute individual applications to an international court, with the guarantee of human rights that such applications would entail.
275. The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on 4 November 1950, envisages in article 25 the possibility of petitions being submitted by any person, group of persons or non-governmental organization reporting a violation of the protected rights by one of the States parties.
276. The ratification by Italy on 1 October 1997 completed the ratification process of Additional Protocol No. 11 to the European Convention. In accordance with its provisions this Protocol entered into force generally and for Spain on 1 November 1998. The Protocol replaces the former arrangement with a new judicial system in the shape of the European Court of Human Rights, which functions on a permanent basis with mandatory jurisdiction.
277. This means that if the Spanish State is considered to have violated any of the children's rights protected in the European Convention with respect to any child (Spanish, foreign or stateless, provided that the child is under Spanish jurisdiction), from November 1998 a petition may be submitted, once all domestic remedies have been exhausted, directly to the European Court of Human Rights.
2. Measures adopted by the Autonomous Communities
278. In addition to the remedies available at the State level, the Autonomous Communities have created independent agencies and organs, which will be discussed later, to which application may be made in the event of violation of the rights recognized in the Convention or in the Communities' own legislation.
G. Steps taken or envisaged to adopt a comprehensive national strategy for children
in the framework of the Convention and the goals established
(CRC/C/58, para. 17)
1. Measures adopted by the State
279. It was pointed out in section B.1 of the Introduction to this report (Policies for children in the 1990s) that the main features of the situation of children in Spain and policies for children in the 1990s had been set out in the National Programme of Action for Children in Spain in the 1990s in fulfilment of the commitment made at the World Summit for Children.
280. The main features of this Programme of Action are described in section B.1 of the Introduction.
2. Measures adopted by the Autonomous Communities
281. The extensive development of law in the Autonomous Communities over the past two decades, described in section I.B above, has had and continues to have a political effect on their programmes of action for children.
282. In addition to the social action plans which ensure access for all citizens to the benefits of the (national) Public System of Social Services, several of the Communities included a programme of action in their specific legislation on children. Some of these programmes are already in operation, while others are at the drafting stage or awaiting implementation.
283. These programmes give effect to the measures which have been or will be adopted by the autonomous administrations to ensure the effective exercise of the rights of the child contained in State and autonomous legislation, with special emphasis on children with social problems.
284. In general terms the programmes seek:
(a) To improve the quality of the system of social protection of children and the protection measures, as well the institutions and services of the Public System of Social Services;
(b) To boost the development of coordinated networks of institutions and services. Special attention is given to coordination with the health agencies in order to deliver, for example, health care for foreign children, hospital care in conformity with the European Charter for Children in Hospital, suitable treatment for child drug addicts, special treatment for children with AIDS, appropriate mental health care, and appropriate measures for the detection and handling of cases of maltreatment. The coordination with the education system seeks to ensure sufficient coverage of primary education, incorporate education for health, combat discrimination, monitor truancy, and ensure effective detection of maltreatment. Many of the programmes address the technical and organizational arrangements for coordination of the care provided by the health and education systems, the social services, the justice system and the police in cases of maltreatment;
(c) To ensure the prevention, early detection and correct handling of situations of risk, maltreatment and desamparo ;
(d) To prevent and deal with cases of conflict with the justice system by establishing a sufficient network of resources for effective social reintegration and alternatives to placement in an institution;
(e) To promote children's integrated development and quality of life in all social circumstances;
(f) To encourage and support families and the reintegration of children in their families as the first option;
(g) To help children aged 16 to 18 to find jobs;
(h) To encourage the participation of social organizations in the formulation and implementation of policies for children;
(i) To develop systems of information and research on children and the family.
285. Attention may be drawn to:
The integrated programme for children which Andalusia plans to adopt;
Aragón's integrated programme for children (1994-1997);
The Asturias regional programme for children (1996-1999);
The integrated programme of action for children at risk of the Balearic Islands;
The integrated programme for children of the Canaries, which is part of the general social affairs plan and awaiting adoption;
The regional social action plan of Castile-La Mancha, which seeks, among other aims, to make the social services more accessible in rural areas;
The integrated programme of action for children (1999-2002) of Castile-La Mancha, currently at the drafting stage;
The regional plan for the protection and care of children (1995-1998) of Castile and León;
Catalonia's third social action plan (1997-2001). This interdepartmental children's plan will be initiated shortly;
The integrated action programme for children and the family of Extremadura, yet to be drafted;
Galicia's integrated plan for support of the family, which includes programmes on the protection of children (0-3 years), on children in need of social protection, and on children with social problems;
The sectoral children's plan of La Rioja, which is under preparation;
Madrid's programme of action for children, initiated in 1994;
The regional social welfare plan introduced in Murcia in 1995, which set the goal of providing comprehensive care for children in 1995-1997. The plan for 1998-2001 is under preparation.
The plan for social and educational work with children, young people and families of the fuero office of Vizcaya, Basque Country;
Valencia's autonomous programme for the protection of minors, produced in 1996.
3. Measures adopted by social organizations
286. A number of social organizations, which have been working hard in Spain for some years for the defence and promotion of children's rights and had already participated in the preparation of the initial report, established themselves legally as the Platform of Children's Organizations to mark Universal Children's Day on 20 November 1997.
287. The Platform's purpose is to formulate and sponsor a global strategy for the promotion and protection of the rights of the child which will be distinct from the independent strategy of each NGO. The constitution of the Platform itself is part of this strategy.
288.The following are the Platform's specific goals: to support the general and sectoral policies for enhancing the well-being of children, especially children in situations of personal or social risk; to report and follow up all infringements of children's rights by public or private institutions or by individuals; to increase society's awareness of the need to know and respect the rights of the child; to develop dialogue, collaboration and participation in all public and private bodies which have or may have an influence on the well-being of children or on the exercise their rights; to encourage participation and the formation of children's associations in all organizations committed to improving the exercise of children's rights and the quality of their lives.
289. The Platform also seeks to maintain a permanent and constructive dialogue with the Administration with a view to monitoring public policies and making proposals thereon.
290. In this connection the Platform has stressed at numerous meetings with the Administration the need to create a national framework and global strategy setting out a policy and a comprehensive programme for children - which the Platform believes not to exist at present. This comprehensive programme is one which might ensure the proper implementation of the Convention.
291. The following organizations are currently members of the Platform:
Association of Children's Villages S.O.S. of Spain
Association for Democratic Education (AEDE)
Association of Messengers of Peace
Spanish Committee for UNICEF
Youth Red Cross
Federation of Scouts Associations of Spain (ASDE)
Federation of Associations for the Prevention of Child Abuse (FAPMI)
ANAR Foundation (Care for children and adolescents at risk)
Cooperation and Education Foundation (FUNCOE)
Foundation for Family Culture, Leisure and Nature (FONAT)
Spanish League for Popular Education and Culture
Junior Movement for Catholic Action
PRODENI (for children's rights), Madrid
292. Membership of the Platform is open to other Spanish organizations working with children.
293. Within the general framework of its strategy the Platform has carried out a number of activities connected with the promotion of the rights of the child:
(a) Activities connected with the right to participate and to form associations:
(i) Creation of a working group on participation by children;
(ii) Participation in the conference on "Evolution of children's role in family life: participation and negotiation" organized by the Council of Europe and Spain's Ministry of Social Affairs in December 1994;
(iii) Participation in the seminars organized by the European Consortium and sponsored by the International Catholic Child Bureau (ICCB) in Madrid (1996) and Vienna (1997) on the topic "Education for communication between children and adults: participation, rights and responsibilities";
(iv) Participation in the first children's forum at the European Parliament, organized by ICCB;
(b) Active participation in and support of the European Children's Network (EURONET), a network of European organizations advocating that the Treaty of the European Union should expressly recognize the rights of children and young people;
(c) Implementation of measures to combat unlawful interference in the private lives of children, including a proposal that the Government Prosecutor's Office should issue the necessary instructions for the protection of children's rights to privacy and their own self-image;
(d) Conduct since 1997, in four working groups, of a study on the extent of the application of Spain's legislation and the possible existence of gaps in the law affecting the principles and provisions of the Convention. The Platform organized meetings in June 1998 to discuss the conditions and difficulties of fulfilling the obligations deriving from the Convention;
(e) Collaboration with the Ministry of Labour and Social Affairs to organize a Child Labour Day in Madrid in April 1998 to mark the World March against the Exploitation of Child Labour.
294. The organizations members of the Platform which run children's centres produce their own periodic work plans.
295. On the occasion of various general, autonomous and municipal elections some of the Platform's organizations have urged the political parties to take children's interests and rights into account in their election programmes.
H. Existing or planned mechanisms at the national, regional and local levels for ensuring
implementation of the Convention, for coordinating policies relevant to children
and for monitoring progress achieved
(CRC/C/58, para. 18)
1. Measures adopted by the State
296. The information given in earlier paragraphs should be borne in mind with respect to the mechanisms for ensuring implementation of the Convention and for coordinating policies relevant to children.
297. Other specific measures adopted for this purpose are described below.
298. Agreement on principles for the self-regulation of television networks : this Agreement regulates certain programme content with an eye to the protection of children and young people and was drawn up in March 1993 by the Ministry of Education and Science, the education departments of the Autonomous Communities, and the television networks. It illustrates the role which Spanish society assigns to television in the socialization of children and the importance of promoting values consistent with children's needs and rights.
299. Proposals of the Special Senate Committee on Television Programming : this Committee was set up in 1993 to examine the content of television programmes in several respects: compliance with the fundamental legislation, protection of children's privacy and rights, respect for ethical values, responsibility for programmes intended for children or broadcast during what is regarded as children's viewing hours, and television as a medium for promoting life styles and behaviour. The Committee examined from the legislative, educational and cultural standpoints such matters as the protection of children against specific programme content, children's programmes, the right to privacy, and educational television; it then made proposals in these areas. Specifically, it submitted to the Senate a proposal for the creation of a higher council on the audiovisual media, indicating that its functions should include verification of compliance with the law, ethical codes and current regulations, provision of advice on controversial issues, production of reports and studies, definition of programmes suitable for classification
as acceptable, promotion of the notion of public service, setting limits to advertising, and educational work to contribute to the formation of standards and opinions.
300. Spain is following closely the European Strategy for Children of the Council of Europe. This Strategy originated in resolution 1011 (1993), in which the Parliamentary Assembly of the Council of Europe urged member States to subscribe to the principle of "first call for children", to show their clear recognition of the rights set out in the Convention on the Rights of the Child and of their universality and indivisibility, and to provide for the essential needs of children both in Europe and in the rest of the world.
301. A first outline of the Strategy was contained in the Joint Declaration of the Social, Health and Family Affairs Committee of the Council of Europe and UNICEF in June 1994. The Declaration assigned to the Convention a central role in policy formulation and implementation and called for political priority to be given to children. The joint work done by the Committee and UNICEF on the basis of the Declaration, together with the contributions of a number of European experts on children's rights, led to a report on a European strategy for children, which the Committee submitted to the Parliamentary Assembly in December 1995.
302. This joint work culminated in January 1996 when the Parliamentary Assembly adopted recommendation 1286 (1996) on a European strategy for children. In this recommendation the Assembly noted that the rights of the child were still far from being a reality in Europe and that children were often the first victims of armed conflicts, economic recession, poverty and in particular budgetary constraints. The Assembly recommended that the Committee of Ministers should urge the member States to ratify the Convention on the Rights of the Child and the Council of Europe conventions on the rights of the child and to make children's rights a political priority. One of the strategies of this priority would be to appoint a commissioner for children or a similar post. The Assembly also suggested that recommendation 1286 should be transmitted to the closing conference of the Multidisciplinary Project on Childhood Policies.
303. In the collaboration agreement signed at the time by the Ministry of Social Affairs and the Spanish Committee for UNICEF the two institutions committed themselves to work together on the development of initiatives for the implementation of the Strategy for Children.
304. Follow-up of the Multidisciplinary Project on Childhood Policies of the Council of Europe : up to 1996 Spain monitored and actively participated in the Project on Childhood Policies adopted by the Committee of Ministers of the Council of Europe in its intergovernmental programme of activities for 1992, thus bringing policies for children clearly within the scope of the Council of Europe as one of the challenges facing European society on the road to a common social space. Spain attended the Project's closing conference, held in Leipzig, Germany, in 1996, which focused on the topic of children's rights and policies for children in Europe.
305. The international conference on "Evolution of children's role in family life: participation and negotiation" : the Ministry of Social Affairs, in collaboration with the Council of Europe, held this conference in Madrid in December 1994 as part of the International Year of the Family. The conference discussed in depth the various aspects of children's participation in the family and of negotiation as a means of tackling and resolving conflicts. The active part played in the conference by many groups of children and adolescents underlined their capacity to participate with adults in various areas and confronted the adults with the challenge of incorporating in their dealings and relations with children the right to participation recognized in the Convention. The conference also made a contribution to the Project on Childhood Policies of the Council of Europe. The findings of this conference were taken into
account in the preparation by the Council of Europe of a draft recommendation on children's participation in the family and in social life.
306. In December 1995 the Ministry of Social Affairs organized in Madrid a seminar on policies for children in Europe. The Madrid Declaration produced as the final document of the seminar followed the lines of the recommendations included in the European Strategy for Children and called upon the Committee of Ministers itself to play an active part in the promotion of the rights of the child and in monitoring the progress made.
307. Collaboration with the European Consortium on Education for Communication between Adults and Children. Participation: rights and responsibilities . This project is an initiative of the International Catholic Child Bureau (ICCB) in collaboration with the European Commission and the Council of Europe as part of the promotion of policies for children in Europe based on the Convention on the Rights of the Child. Spain was regularly represented at the meetings held by the Consortium, and in 1996 the Ministry of Social Affairs provided technical and economic support for the convening in Madrid of the first annual European seminar on "Education for communication between adults and children".
308. As far as departmental jurisdiction is concerned, Royal Decree 1888/1996 of 2 August established the basic structure of the Ministry of Labour and Social Affairs, including the Office for Social Action, Children and the Family, which is responsible within the Secretariat for Social Affairs for inter alia the analysis, preparation, coordination and monitoring of programmes of action for the promotion and protection of children and the family and the prevention of social problems affecting them, as well as for the analysis and monitoring of the application of the legislation on the protection and advancement of children and the family.
309. Coordination between the General Administration of the State and the autonomous administrations is conducted under the following arrangements:
(a) Sectoral conferences: these meetings are attended by the Ministry and the social affairs departments of the Autonomous Communities;
(b) Meetings of directors-general: these periodic meetings are attended by the Director-General for Social Action, Children and the Family and the directors-general responsible for children's affairs in the Autonomous Communities;
(c) Autonomous Community technical committees: periodic technical meetings convened by the Office for Social Action are attended by technical officials from the Autonomous Communities. They deal with matters on which decisions have been taken or are to be taken by the directors-general and produce technical analyses of the various issues arising in connection with the care and protection of children;
(d) Technical consultation: regular contacts between technical officials of the departments concerned.
310.The General Administration of the State, specifically the Office for Social Action, maintains regular contacts with the Platform of Children's Organizations and with the NGOs which respond to the annual invitation to apply for grants. The Platform took part in the preparation of this report.
311. Article 54 of the Constitution establishes the office of Ombudsman ( Defensor del Pueblo ) as an institution responsible for the defence and promotion of rights. The office of Ombudsman was the subject of Organizational Act 3/1981 of 6 April.
312. The Ombudsman is a Parliamentary Commissioner; he is elected by Parliament for a five-year term. His legal status means that he does not have to take orders from any other agency and that he also enjoys immunity, inviolability and other privileges. He is empowered to investigate, either of his own accord or on request, any activity of the Administration and its agents having an effect on the people. He may suggest in this connection the modification of the criteria used in the production of acts and resolutions of the Administration or to suggest to the Legislature or the Administration the modification of a specific regulation whose strict application may entail injustice or harm to the people. The Ombudsman must give an account of his activities in a report to Parliament in ordinary session.
313. Article 10.2 (c) of the Protection of Minors Act, which deals with measures to facilitate the exercise of the rights of the child, stipulates that an Assistant Ombudsman shall be permanently responsible for children's affairs and that children may submit their complaints to him in defence of their rights.
314. The Ombudsman has so far played an important role in the submission of recommendations to the various public administrations on measures which directly or indirectly protect children's rights. Attention must be drawn to the important work done in the award of scholarships and education grants, the establishment of common criteria for the whole country for the admission of pupils to schools, the protection of minors at frontier crossings, the amendment of the Criminal Code with respect to crimes committed against minors, the award of large-family status to families with two or more dependent disabled children, the waiting period in adoption proceedings, the extension of the age limit for paediatric care to 14 years, etc.
315. With regard to systems of information about children, section B.3 of the Introduction describes the Data Bank on the Protection of Children, the Children's Watch, and the system of information on users of the social services, which are mechanisms for the systematic collection of data on children.
316. The Office for Social Action, Children and the Family is also operating a studies and research project to provide this kind of information.
317. The purpose of this project is to determine, collect and produce indicators and information on the situation and needs of children and the family and on the position of the community social services, NGOs and foundations, as well as on the care provided for vulnerable social groups. This information may be useful for decision-making and the planning of programmes and services and thus for the matching of resources to the real needs of the population at social risk.
318. The project has several goals: to encourage research on children; to establish links between social service professionals and the scientific community in the area of applied research for purposes of the continuous study, monitoring, evaluation and modification of the programmes for children with social problems; to examine and assess the studies and research carried out both nationally and internationally; to offer advice and technical support to professionals working with children and in the social services; to maintain a network of social service researchers; and to maintain relations with national research centres and networks, thus providing a linkage to the national institutions.
319. The following areas of research on children and the family are being supported:
(a) Children's needs and rights: studies on children's needs with a view to ensuring their proper development and the promotion and protection of their rights as active members of society. Research is being undertaken in the following fields: people's attitudes and knowledge, the perceptions and knowledge of children themselves, patterns of upbringing and parent-child relations, and children and the communication media;
(b) The family in Spain: studies on the socio-demographic and psycho-social changes in the structure and dynamics of the family in Spain and in comparison with the rest of Europe. The current research is focusing on social changes in the family and in its needs;
(c) Children and families with social problems: studies of risk factors and protection measures in connection with risk situations in general and domestic violence in particular. Consolidated research is currently being conducted on the maltreatment of children, covering the epidemiological aspects, prevention programmes, and the protection system.
320. Table 1.1 in annex A lists the research on children carried out in recent years, some of which has been published.
321. The preparation of Spain's initial and second reports on its application of the Convention has constituted the most systematic procedure for evaluation of the progress made.
2. Measures adopted by the Autonomous Communities
322. As pointed out earlier, pursuant to article 148.1.20 of the Constitution, which states that they "may assume jurisdiction in matters of social assistance", the Autonomous Communities have been performing functions in the area of the social protection of children previously the responsibility of the General Administration of the State.
323. In fact, as mentioned in the Introduction to this report and in accordance with their respective statutes of autonomy, the Communities have been regulating the care provided for children with social problems in their own social services acts and other legislation. They have established a network of standardized and specialized facilities in specific departments of various administrative agencies, and this network provides a set of protection measures. The Communities which cover several provinces have provincial offices in the agencies concerned.
324. These offices deal with and regulate, with varying degrees of detail and precision, matters connected with the protection of children and families, the management, systems and operation of the institutions and establishments for the protection and guardianship of minors, and in some cases the protection of the rights of the child.
325. The municipalities play an essential role in the establishment of measures for the protection of children, especially in the case of children experiencing social problems. The provision of social services in the municipalities, within the framework of the Concerted Plan for the Development of Basic Social Services and in conjunction with the corresponding participating organizations, is fundamental to the protection of children.
326. The autonomous legislation establishes the arrangements for coordination in each Community between the governmental agencies having responsibility for policies for children and the municipalities and their social services, specifically between the social services specializing in children's affairs, which answer to the autonomous authorities, and the basic social services, which answer to the municipality.
The children's programmes which some of the communities are carrying out or preparing also establish arrangements for proper coordination.
327. When it comes to the promotion and monitoring of the application of the Convention, the governmental agencies of the Autonomous Communities responsible for children's affairs obviously contribute to the promotion of the rights of the child when they provide resources and services for the protection of children with social problems.
328. However, aside from the basic structure established in all the Autonomous Communities, some of them have created institutions or services with more concrete and specific functions in the promotion of children's rights and in the coordination and guidance of the various agencies having responsibility for children. Attention may be drawn to:
(a) Andalusia's Council on Children's Affairs, a consultative and advisory body, and its regional and provincial councils, which are functional and coordination bodies;
(b) The proposed children's institute in Aragón;
(c) The official Children's Ombudsman of the Social Welfare Council of Asturias;
(d) The Office for the Defence of the Rights of the Child of the Balearic Islands, which was set up in 1997 and numbers among its functions interdepartmental coordination and the production of an annual report to the Council of Government and the Autonomous Parliament, and the Inter-Island Committee on the Protection of Minors, which also has coordination functions;
(e) The Inter-Administration Committee on Minors of the Canary Islands, made up of representatives of the autonomous administration and the local municipal corporations, and the Committee on Minors created by the General Social Services Council, which performs training, study and advisory functions and is made up of representatives of public administrations and social and professional organizations;
(f) The provincial coordination committees for the care of children in Castile-La Mancha, made up of representatives of the social, health, local government and education services and local councils and corporations;
(g) The Provincial Committee on Minors of Castile and León;
(h) Galicia's Interinstitutional Committee on Minors and the provincial interinstitutional technical committees;
(i) The Sectoral Council on Children and Adolescents of La Rioja, which was set up in February 1998 to promote the social integration of children and operates as a mechanism for participation by society in matters connected with the social services;
(j) Madrid's Institute for Children and the Family;
(k) Article 96 of the Basque Country's bill on the care and protection of children and adolescents to safeguard the exercise of their rights and responsibilities, which provides for the creation of an inter-administration committee on the care of children and adolescents;
(l) The governmental Commissioner for the Protection of Minors of Valencia.
329. In the autonomous administrations cooperation with NGOs and other social organizations and projects is achieved by means of the annual invitation to apply for funds for programme implementation, and through collaboration agreements on project management and implementation within the jurisdiction of the Autonomous Communities (social work with families, sheltered accommodation, family-centre programmes, programmes for the prevention of maltreatment, etc.), committees to monitor plans and programmes, coordination with the collaborating international adoption agencies and with collaborating family integration institutions (which work as mediators in adoption and fostering procedures), cooperation and participation in the formulation of training and awareness plans and programmes to educate the population at large about the rights of the child, membership of governmental organs, and provision of technical support.
330. Children may submit their complaints, either in person or through representatives, to the following independent organs for the protection and promotion of the rights of the child:
(a) Andalusia's Children's Ombudsman, who is an Assistant Ombudsman of Andalusia;
(b) The Judiciary of Aragón;
(c) The Ombudsman ( Diputado del Común ), a high commissioner of the Canaries Parliament responsible for the defence of the fundamental rights and freedoms of the people, who deals with cases involving children and has already submitted to the regional Parliament two reports on the situation of children;
(d) The Madrid Ombudsman, a high commissioner of the Madrid Assembly;
(e) The Assistant Ombudsman for Children ( Sindic de Greuges ) of Catalonia, who submits an annual report to the regional Parliament;
(f) The Ombudsman ( Valedor do Pobo ) of Galicia, who assigns responsibility for defence of the rights of children and adolescents to one of his deputies;
(g) Article 87 of the Basque Country's bill on the care and protection of children to safeguard the exercise of their rights and responsibilities contains a specific section on the protection of children's rights by the Ombudsman ( Ararteko ), who submitted to the Basque Parliament in 1997 a special report on the care of children in need of protection.
331. As explained in section B.2 of the Introduction, the Autonomous Communities are taking an active part in the establishment of the Data Bank on the Protection of Children and the Children's Watch of the Office for Social Action, Children and the Family, as well as in the introduction of the Social Card and the system of information on users of the social services.
332. In addition, some of the Autonomous Communities are developing their own centralized databases, information systems and specific registers (for example, on protection measures and adoption waiting lists); in some cases this has led to the creation of a children's watch, as in Andalusia and the Balearic islands, or a family watch, as in Galicia.
333. The autonomous public institutions responsible for statistics also collect data on children.
334. Some of the Autonomous Communities have produced maps of the territorial distribution of children's problems and needs resulting from family poverty, with an indication of the existing and the
needed resources, as well as diagnoses of the situation of children in the region in question, analyses of the risk factors affecting the exercise of their rights and studies of the care which they receive in the protection services. Some of this research has been promoted by independent human rights organizations, as mentioned earlier, and some by autonomous institutions responsible for children's affairs. In many case these maps and studies have constituted the database and technical underpinning for the formulation and introduction of programmes for children. Many of the measures for children are assessed as part of the overall assessment of their social services programmes by the Autonomous Communities.
3. Measures adopted by local corporations
335. Many of Spain's local corporations and town councils are very much in favour of publicizing the Convention and the rights of the child and of carrying out measures for the protection and promotion of these rights.
336. They are responsible for providing all citizens with the primary services and benefits under the Public System of Social Services referred to in section B.3 of the Introduction.
337. Several of them have formulated and implemented municipal children's programmes. Several have set up municipal councils on children as organs in which children themselves can participate. Others have created children's offices.
(a) World initiative of mayors for children's rights
338. In September 1991 mayors from all over the world came together at a meeting in Rome to learn about the experience of Italian mayors as defenders of children's rights under a project initiated in 1990; the meeting produced the Rome Declaration.
339. The mayors met again at an international colloquium in Dakar in January 1992 and produced the Dakar Declaration, in which they designated themselves protectors of children's rights, approved the Declaration and Plan of Action of the World Summit for Children held by the United Nations on 30 September 1990, and undertook to contribute to the fulfilment in their respective jurisdictions of the promise made to the world's children at the Summit and embodied in the Convention on the Rights of the Child. The mayors' project on the protection of children was officially launched at this colloquium in Dakar.
340. In October 1993, within the framework of this movement, the mayors of several Spanish municipalities met in Pamplona and produced the Pamplona Manifesto, in which they undertook to work for the well-being of children on the basis of the principles of the Convention and of comprehensive programmes of action in whose formulation and implementation NGOs and children themselves would participate. The Manifesto contains a commitment to publicize the Convention in compliance with the undertaking to do so given by Spain at the World Summit.
341. In 1995 the executive committee of the Spanish Federation of Municipalities and Provinces (FEMP) adopted an agreement endorsing the Dakar Declaration and undertaking to publicize its contents and propose its endorsement by local corporations.
342. Both the Dakar Declaration and the FEMP agreement underline the importance of local involvement in the formulation and implementation of integrated policies for children.
(b) Network of municipalities for children's rights
343. In January 1996 representatives of the General Administration of the State, together with mayors and other holders of public office, launched a project for the creation of a network of municipalities as a means of reciprocal support and reinforcement based on the exchange of experience of preventive measures and integrated policies for children. The project gives close attention to the local context as the most suitable space for formulating and executing such measures and policies. The town councils involved undertook to promote and protect children's rights and to produce integrated plans giving priority to preventive and care measures for children with social problems. They gave an explicit commitment to involve children in the decision-making process.
4. Measures adopted by social organizations
344. One of the functions of the Platform of Children's Organizations, already mentioned in section G of this chapter, is cooperation and the conclusion of collaboration agreements with the public authorities on the implementation of programmes funded by them for the defence and promotion of rights, the conduct of training activities, and the production of technical reports on various topics (impact of the application of the General Education (Organization) Act, child labour, quality standards in the residential care of maltreated children, juvenile justice bill).
345. The Platform seeks to gather information on the situation of children in Spain in addition to the information, research and documents produced by each of its member organizations. In this connection some of the Platform's members have reiterated to the Administration the need to start-up the planned Children's Watch as an agency for monitoring observance of the rights of the child.
346. Some of the organizations have already been promoting the introduction of programmes for children and young people by town councils and the Autonomous Communities, as well as taking part in such programmes as already exist.
347. Some of the universities of Andalusia, Catalonia, Madrid, the Basque Country, Castile and León, and Valencia have departments which have been conducting research and teaching in recent years on topics connected with children and their rights. Over the past five years the Ministry of Labour and Social Affairs has been carrying out a policy of technical and financial collaboration with these departments on the development of several projects:
(a) Production of materials for the identification, notification, investigation and evaluation of maltreated children. These materials are used by the technical personnel for child protection of the Autonomous Communities;
(b) Formulation of a plan for the training of trainers, together with the teaching modules and the corresponding materials to be used in the training of the technical personnel of the Autonomous Communities;
(c) Several studies on the maltreatment of children;
(d) National research on sexual abuse;
(e) Research on the tasks and critical situations confronting professionals working in the System of Social Care for Children (SASI);
(f) Study on the social situation of the family;
(g) Research on the psychological, social and biological development of children living in prison with their mothers.
348. A number of research teams from five Catalonian universities have created an interdisciplinary network to encourage the production and exchange of information about children's rights and their quality of life.
I. Initiatives taken in cooperation with civil society and mechanisms to evaluate
the progress made (CRC/C/58, para. 19)
349. See sections G, H and M of this chapter.
J. Measures to ensure the implementation of the economic, social and cultural rights of children
at the national, regional and local levels (CRC/C/58, para. 20)
1. Measures adopted by the State
350. The tables in annex A include data on public expenditure on children.
(a) The National Programme of Action
351. Spain's National Programme of Action for Children in the 1990s, referred to in section B.1 of the Introduction and in section G of this chapter, refers in all its subject areas to the principal strategies and measures having an impact on children's lives in the various sectors of social policy and sets out the corresponding arrangements for coordination of economic and social policies.
(b) The System of Social Care for Children
352. The System of Social Care for Children (SASI), described in section B.2 of the Introduction, is made up of a coordinated network of services designed to guarantee the economic, social and cultural rights of children with social problems.
(c) The Public System of Social Services
353. Children and families with social problems constitute one of the target groups of the services and benefits provided the Public System of Social Services, mentioned in section B.3 of the Introduction. This System is funded, as already mentioned, under the Concerted Plan for the Development of Basic Social Services of Local Corporations.
354. In 1996, the latest year for which information is available, 15 Autonomous Communities signed agreements, action was taken in 6,166 municipalities (82 per cent of the total), and the credits committed by the three administrations amounted to 63,835,295,787 pesetas.
(d) Grants to NGOs for social programmes
355. Royal Decree 825/1988 set out the mandatory social purposes of the allocation of revenue from personal income tax. On this basis, every year the Ministry of Labour and Social Affairs invites applications for assistance and grants from these tax funds for the implementation of cooperative and voluntary social programmes designed to tackle situations of need and/or marginalization.
356. The programmes supported include a number for children and families:
(a) Programmes designed to facilitate the harmonization of family and working life;
(b) Programmes to enhance children's quality of life;
(c) Programmes on residential facilities for children in situations of social difficulty or conflict and experimental programmes on the use of alternatives to placement for such children;
(d) Programmes to encourage the fostering of children in official guardianship;
(e) Programmes on the prevention of maltreatment and on the care of maltreated children;
(f) Programmes on the prevention and eradication of child labour;
(g) Programmes on intervention in families with social problems or at risk of social exclusion;
(h) Programmes on intervention in families victims of violence.
357. The Ministry also provides grants from budgetary funds under its general grants schedule.
358. Where children are concerned, these funds are allocated to:
(a) Programmes to promote the formation of children's associations and children's participation;
(b) Maintenance and investment programmes for organizations working specifically for children;
(c) Programmes to encourage the personal independence of adolescents released from residential facilities and help them to take their place in society and find jobs.
(e) Other programmes
359. Other programmes having an impact on children are carried out under cooperation and co-financing agreements between the Ministry and the Autonomous Communities; these programmes are monitored by committees made up of representatives of the Ministry, the Autonomous Communities, and the Spanish Federation of Municipalities and Provinces.
360. The programme on social exclusion has the general aim of tackling a number of problems (economic, social, cultural, educational, health, etc.) exhibited by persons suffering social exclusion and of facilitating their social integration. It operates in vulnerable urban areas and areas experiencing serious problems of social integration by means of comprehensive measures in the spheres of education, vocational training and jobs creation, health, social work, housing and shelter. It requires the cooperation and coordination of the institutions involved in the programmes and the participation of the target population. The Ministry contributes 50 per cent of the funding: 218 million pesetas in 1997 and 300 million in 1998. The credits committed by the administrations in 1997 totalled 642,566,956 pesetas.
361. Spain's gypsy community is its biggest ethnic and cultural minority; some members of this minority, and therefore some children, suffer unequal treatment and social marginalization with regard to the rest of the population and are sometimes subjected to acts of intolerance and rejection. This situation is manifested in their poor living conditions and unequal access to social resources, mainly housing, education, work, health, and social services.
362. A bill on an action plan was brought before Parliament in 1985 with a view to the formulation of policies to improve the situation of the gypsy minority. A credit of 500 million pesetas for implementation of this gypsy development plan has been included since 1989 in the general State budget. This credit is intended for the joint funding with the Autonomous Communities of integrated projects for the gypsy communities designed to improve their living conditions, facilitate their access to social facilities and services, establish channels for their participation in public affairs, prevent racist attitudes, and preserve and encourage respect for gypsy culture.
363. The projects coordinated by the social services include support for and monitoring of school attendance, education for health, training for work, social assistance, and rehousing in accommodation of acceptable standard. The projects may be managed by the Autonomous Communities themselves or by town councils. The communities and councils contribute at least 40 per cent and the Ministry 60 per cent of the projects' total cost.
364. A total of 108 projects involving 95 municipalities and about 15,000 persons was carried out in 1997; and the credits provided by the participating administrations amounted to 882,736,610 pesetas. In addition to this funding, grants totalling 492,600,000 pesetas were made to support the activities of NGOs and other social organizations.
365. Other chapters of the report describe other programmes on coordination of economic and social policies and provision of equal access for children to the benefits and services: programmes of assistance to disadvantaged families and families at social risk (ch. V.A); experimental programmes on maltreatment (ch. V.J); and programmes for the creation of social and educational services for children aged 0-3 years (ch. VI.C).
(f) International cooperation
(i) Framework and scope
366. Up to 1980 and 1981 respectively the International Monetary Fund and the World Bank regarded Spain as a recipient of development assistance. It was in the mid-1980s that Spain became a donor country and began to play an increasingly active role in international aid bodies.
367. The Secretariat of State for International Cooperation and Ibero-America (SECIPI) was established in 1985. The Interministerial Committee on International Cooperation began to operate in 1986 with the basic purpose of preparing an annual international cooperation plan; the original function of this interministerial planning exercise was to formulate a single policy (Royal Decree 451/1986). The first policy guidelines on international cooperation for development, approved in 1987, established Ibero-America as the priority area.
368. The Spanish International Cooperation Agency (AECI) was set up in 1988 as an independent body operating under SECIPI with the specific function of implementing a type of assistance - non-reimbursable - for all the geographical areas of the world receiving official development assistance (ODA).
369. Royal Decree 1141/1996 modified the structure of AECI and expanded development cooperation as a basic tool of Spain's foreign policy. Under this new structure, assistance for children is divided among the several areas and levels of AECI activity in all parts of the world, but the priority remains Ibero-America:
(a) Multilateral cooperation (with international agencies of the United Nations system, the European Union, DAC-OECD, regional and subregional organizations, etc.);
(b) Bilateral cooperation (governmental, non-reimbursable, agreements signed in joint committees, general treaties of cooperation and friendship, basic general agreements on scientific, technical and cultural cooperation, other agreements with specific scope and content, protocols and annexes establishing the legal framework for this cooperation);
(c) Support for development NGOs (through annual invitations to apply for funding: special financing from funds obtained from the 20 per cent of allocations from personal income tax revenues earmarked for social purposes, and regular financing, which was provided under the budget of the Ministry of Foreign Affairs up to 1997 but transferred to the AECI budget from the 1998 financial year);
(d) Activities funded through invitations to apply for non-specific permanent assistance;
(e) Specialized courses;
(f) Humanitarian, food and emergency aid;
(g) Invitation to apply for scholarships for students from Ibero-America, from countries of Asia, Africa and Oceania, and from Arab and Mediterranean countries; scholarships for Spanish students under the work experience programme, and for Spanish and Ibero-American students under the inter-university programme; short courses in collaboration with other ministries, etc.);
(h) One-off and ad hoc assistance;
(i) Collaboration agreements with other national and international bodies (on child labour policy, for example); the most important of these agreements is the annual one signed by the Ministry of Labour and Social Affairs, which links several European Union programmes under an additional protocol.
370. AECI also has a large network abroad: 29 technical cooperation offices, 12 cultural centres, three training centres, a special programme in Equatorial Guinea, and cooperation funds managed by 15 embassies in Arab countries.
371. The reference framework for priorities for children is established in a number of documents:
(a) Paragraph 31 of the report on the general aims of Spanish cooperation and development assistance policy approved by the Congress of Deputies on 26 November 1992 sets as one of the priority aims "assistance in situations of extreme poverty and especially for marginalized groups, such as women, children, ethnic minorities and displaced communities";
(b) Paragraph 3.9 of the report on Spanish cooperation and development policy approved by the Senate on 22 November 1994 stresses "the importance in development cooperation of the defence of the rights of the most disadvantaged and vulnerable people, especially women and children". At its
meeting on 20 December 1994 the Judiciary and Interior Affairs Committee of the Congress of Deputies approved a bill on the protection of children which urged the Government to "promote programmes and finance projects for the protection of children in countries where they suffer violence and maltreatment" and to "work within the Ibero-American community of nations and at the annual Ibero-American summit meetings to promote concrete programmes of assistance for children affected by problems of marginalization, poverty and violence" in the region in question;
(c) Spain's development assistance and cooperation also takes into consideration the provisions of the Declaration of the World Summit for Children (New York, 1990), which states the commitment of the international community to protect working children and eradicate illegal work by children;
(d) Lastly, Act 23/1998 on international cooperation for development includes among its principles "recognition of the individual and collective dimensions of the human being as advocate and ultimate target of development cooperation policy" and "fulfilment of the commitments made in international bodies". Article 7 of the Act refers expressly among its sectoral priorities to "protection of and respect for human rights, equality of opportunities, the participation and integration of women in society, and the protection of the most vulnerable population groups (children, with special emphasis on the elimination of the exploitation of child labour, refugees, displaced persons, returnees, and members of indigenous and minority groups)".
(ii) AECI activities and the elimination of child labour
372. As part of its regular work AECI addresses the problem of child labour, both in its most extreme and aberrant manifestations and in its "socially tolerated" forms, as a complex phenomenon involving economic interests, political issues and cultural traditions. It advocates a multilateral reciprocal approach, in which the international community has a special responsibility for formulating policy and monitoring the implementation of resolutions, as well as for concrete development activities.
373. AECI has approached the problem of eliminating child labour in two ways.
374.Firstly, in the context of children's problems in general it approaches child labour as a cross-cutting issue which is gradually being taken up in all AECI activities (health, nutrition, infant mortality, and rates of school attendance and access to drinking water figure large in these activities). And in so doing it attends both to the priorities of ODA as an instrument of Spain's foreign policy and to its commitments to the United Nations system and DAC-OECD and as a member of the European Union (see table 1.10 in annex A).
375. Secondly, in support of the ILO International Programme on the Elimination of Child Labour (IPEC), initiated in 1992, on 22 March 1995 Spain signed a memorandum of understanding with ILO under which it undertook to contribute 12.5 million dollars over five years (2.5 million a year) to build up IPEC in Ibero-America.
376. IPEC encourages effective collaboration between State services, employers' organizations, trade unions, development NGOs and other sectors of civil society (universities, communication media, etc.) focused primarily on three priority groups: children subjected to forced labour, slavery or serfdom, children working in hazardous occupations or conditions, and children aged under 12 years, with account taken of the particular vulnerability of girls to sexual exploitation and abuse.
377. IPEC began operations in the region in March 1996 with the establishment of its technical support structure.
378. As far as possible it uses the AECI training centres for its training work and it has the services of associate experts, young professionals and United Nations volunteers funded by AECI, and of Spain's young aid workers programme. It enjoys the technical and administrative support of the 19 technical cooperation offices which AECI maintains in Ibero-America and also has a Spanish associate expert in San José, Costa Rica.
379. After one and half years in operation IPEC has a presence in all the countries of Ibero-America and has initiated some 200 activities, almost half of which are action programmes in individual countries. The working method is to set up national committees on the elimination of child labour (public and private sectors), to carry out awareness measures for the public at large, trade unions and businesses, to improve the information systems (national analyses and studies, standardization and organization of a regional information system), and to carry out active investigations, specific censuses and direct interventions. In November 1997 there were 80 programmes in operation for under-12s and children in very hazardous situations (slavery, forced labour, trapped in illegal activities connected with prostitution, drug trafficking, child pornography, etc.).
(iii) The operational tools
380. AECI has been carrying out the specific programmes and projects for children listed in table 1.10 in annex A.
2. Measures adopted in the Autonomous Communities
381. As already reported in paragraph 54 (b) of the Introduction, the social services acts of the Autonomous Communities, adopted pursuant to article 148.1.20 of the Constitution, and the Statutes of Autonomy themselves accord the right to social services to all Spanish residents in the territory in question; they also establish the arrangements for coordination of social and economic policies, lay down principles, and specify social protection measures and benefits and the network of facilities and services that make up the social services system for the whole country, with its primary and secondary levels of care, financed under the Concerted Plan described earlier.
382. Children and young people are mentioned in these acts as target groups for the social services.
383. In addition, the specific autonomous legislation on children, referred to in section B above, takes the best interests of the child as the basis for the formulation and implementation of protection policy. Some of the legislation assigns express budgetary priority to matters connected with the care, training, advancement, reintegration, protection, and leisure time of children and adolescents.
384. These acts establish all the necessary measures for ensuring the proper protection of all minors in the jurisdiction of the Community in question by means of the provision of social services and resources without discrimination with a view to the elimination of disparities.
385. One of the means of eliminating disparities used by some of the Autonomous Communities is the equitable geographical distribution of care facilities for children, which as specialized services are located on the basis of population numbers and density and of the needs.
386. Programmes on children are given priority in the annual allocation of economic assistance in some Communities.
387. The programmes on children and the social action plans referred to in section G above contain measures designed to secure equity in the delivery of social services for children and families, making provision in the budgets of the Autonomous Communities and elsewhere for economic benefits to mitigate deficits and difficulties or lack of financial resources to maintain and bring up children.
388. Some of the Autonomous Communities do not produce disaggregated data on children in their economic budgets. Obviously, the Communities which have not taken over responsibility for health and education from the State do not have the corresponding statistics.
389. Some Communities report increased budgeting for children in the period 1993-1997.
390. In other cases the upward trend in expenditure on children and families with children seen up to 1995 was reversed from that year, coinciding with the restructuring of the Public System of Social Services and the introduction of new benefits which do not have a direct effect on children but rather on the population groups in which the most seriously disadvantaged people are found.
K. Measures adopted as a follow-up to the Declaration and Programme of Action of
the World Summit for Social Development and measures taken or foreseen
to make the principles and provisions of the Convention widely known
(CRC/C/58, paras. 21 and 22)
1. Measures adopted by the State
391. Although, as pointed out in section C.2 (b) of the Introduction, renewed progress is needed with regard to awareness of and recourse to the Convention, several measures have been adopted since ratification to publicize the Convention in society at large and to make the institutions themselves more aware of it.
392. Other more specific action has been taken in addition to the measures mentioned in section G above:
(a) The "Get to know children" campaign, referred to in paragraphs 22-26 of the initial report;
(b) The "Colour in your rights" campaign, initiated by the Ministry of Labour and Social Affairs in 1997 to mark the eighth anniversary of the Convention and carried out in collaboration with the Ministry of Education and Culture and the Platform of Children's Organizations, was aimed at 700,000 children and their teachers. Booklets and a teaching guide on children's rights were produced during the campaign to support the teachers' efforts and the children's artwork in the classroom;
(c) The travelling exhibition on the rights of the child, mentioned in paragraphs 52 and 53 of the initial report, is still operating and the materials produced to support it are still available;
(d) The annual celebration on 20 November of Universal Children's Day has been regarded as an opportunity to make people aware of the rights of the child and for the active involvement of children and children's organizations in commemorative activities. This annual commemoration is consistent with the commitment assumed by ratification of the Convention and at the World Summit for Children to give political priority to measures to promote and protect children's rights. Furthermore, both the General Assembly of the United Nations and UNICEF recommended that States should mark this Day, suggesting 20 November as the most suitable date as it is the anniversary of the adoption of the Declaration on the Rights of the Child in 1959 and of the adoption of the Convention;
(e) The seminar organized by the Ministry in 1998 in the Congress of Deputies in collaboration with the Congress and the Platform of Children's Organizations;
(f) The research and publications produced in recent years have played an important part in the dissemination of the principles of the Convention (see annex A, tables 1.1 and 1.2);
(g) Training activities:
(i)A seminar was held in 1994 in collaboration with the Ministry of Education and Culture with the basic objective of producing materials to make teachers more aware of the rights of the child and give them training in this subject;
(ii)For some years now the training plans produced by the Office for Social Action, Children and the Family for professionals in the Autonomous Communities have contained specific teaching modules on the various subjects covered by the Convention: civil rights, adoption and foster care, maltreatment, leisure time, juvenile offenders, and health (see annex A, table 1.12);
(iii)The Ministry of Labour and Social Affairs is providing financial and technical support to the Autonomous University of Madrid, the Community of Madrid, and the Spanish Committee for UNICEF for the development of a master's course in the needs and rights of the child. This course takes its objectives from the principles of the Convention in accordance with the provisions of article 42.
2. Measures adopted by the Autonomous Communities
393. In recent years the Autonomous Communities have undertaken many activities to publicize the Convention and its provisions, sometimes in collaboration with NGOs. The public promulgation of legislation on children in the Communities has often provided an occasion for publicizing the Convention itself.
394. Several of the autonomous children's acts, mentioned in section B above, expressly state the commitment of the authorities to take action to publicize the rights recognized in the Convention.
395. The Convention has been translated and distributed in bilingual Autonomous Communities: the Balearic Islands, Catalonia, Galicia, the Basque Country, and Valencia.
396. Several of the Communities have held days and other public events on the rights of the child, often in collaboration with their health and education departments, social organizations and university institutions, and in some cases with the participation of large numbers of children. Some have held special plenary sittings of Parliament, attended by children, to debate the rights established in the Convention.
397. As an expression of their concern about the role played by the communication media in society and in the development and education of children, some of the autonomous authorities have taken measures to address the potential opportunities and risks represented by the media and their role in the dissemination of the rights of the child.
398. In this connection the autonomous education authorities signed an agreement on the principles of the self-regulation of television networks, referred to earlier. The Journalists' Association of Catalonia adopted a code of ethics which addresses specifically the role of the media with regard to children.
399. Catalonia has an Audiovisual Council, an advisory body on the content of television programmes, which stresses television's impact on the behaviour of children and young people and monitors the objectivity and transparency of audiovisual programming.
400. There are television programmes dealing specifically with matters affecting children, such as the fortnightly "First Age" programme broadcast by Canaries Television.
401. The radio and the daily press also deal from time to time with children's issues.
402. The Autonomous Communities celebrate Universal Children's Day every 20 November. In some cases this Day is expressly established as such in the children's acts: for example, Children's Day in Andalusia and Children's Rights Day in Madrid.
403. In addition to participating in the training activities organized by the Office for Social Action, many Communities run their own training activities, which cover the State and autonomous legislation on children, the application of protection measures, and the conduct of public or closed judicial proceedings for juvenile offenders, as well as specific subjects such as maltreatment, foster care, etc.
404. These training activities have been attended by teachers from children's centres, professionals from municipal social services and the specialized services of the Autonomous Communities, education, health and justice professionals, police officers and foster parents.
405. Some of the communities have run courses on juveniles in the police training schools and seminars in university faculties of education, law and social work.
406. The primary and secondary school curricula in Valencia include under the subject "Social and environmental studies" a component on the rights of the child, a topic which is studied in all schools on Universal Children's Day through special activities, including pupils' participation in the drafting of a report on their rights.
407. The communities have also introduced a publications policy for the Convention and the rights of the child:
(a) Publication of the Convention in several of the communities;
(b) Production of posters commemorating Universal Children's Day for distribution in children's and cultural centres and in schools;
(c) Production of pamphlets on the rights of the child, sometimes including the text of the Convention;
(d) Publication of books on the rights of the child.
3. Measures adopted by local corporations
408. In addition to the measures mentioned in section H above, some local corporations engage in publicity in the form of special days and similar events in collaboration with NGOs; children are usually involved.
4. Measures adopted by social organizations
409. As already explained, social organizations working with children have played an extremely active role in recent years in the protection and promotion of children's rights and the publicizing of the Convention.
410. The organizations members of the Platform of Children's Organizations are involved in many of the measures taken by the authorities, as well as running other activities themselves:
(a) Publicity and awareness
(i)Participation in the preparations for and celebration of Universal Children's Day;
(ii) Stands at several of the locations used by the travelling exhibition on the rights of the child, referred to above, during the 1993-94, 1994-95 and 1995-96 school years in support of the competitions for schools organized by one of the Platform organizations under the programmes of education for development with a view to enhancing awareness and advertising the value of solidarity. In these competitions pupils do work connected with study of their rights and other learning activities; guidelines are provided for the teachers. The materials supplied to schools for the programmes of education for development include copies of the Convention and other materials referring to it. In order to achieve the greatest possible participation in visits to the exhibition, detailed information is supplied to the communication media and invitations issued to all schools, regardless of whether they are taking part in the programmes of education for development;
(iii) Celebration of the first European Children and Youth Week in Barcelona from 25 to 31 July 1994. The purpose of this event was to bring together European associations working directly with children and young people to debate topics affecting them and study the European Charter of Children's Rights and the Convention on the Rights of the Child;
(iv) Convening every two years of a national congress on maltreatment of children. The one held in Barcelona in October 1997 was a European event;
(v) One of the organizations has been submitting to the communication media reports on physical chastisement, armed conflicts, education, safety in kindergartens, and other subjects. These reports have always included many references to the provisions and principles of the Convention, together with an explanation of its legal importance;
(vi) As pointed out in section G, several of the Platform organizations have been taking part in Spain in the EURONET campaign to incorporate express recognition of the rights of children and young people in the Treaty of the European Union. During the campaign, children and young people wrote postcards with the inscription "You should be the first person to respect and get respect for your rights", and collected signatures and sent them off to members of parliament;
(vii) The "Barbie, UNICEF and you supporting children" campaign in collaboration with a commercial company;
(viii) The "Values at the cinema" programme carried out jointly by one of the Platform organizations and the Assistance to Fight Drug Addiction foundation;
(ix) The "America Wave" radio programme;
(x) The "Young people think" Internet site;
(xi) The international radio and television day for children (second Sunday in December);
(xii) One of the organizations has been promoting the Municipal Charter of Children's Rights, which includes a commitment by municipalities to publicize the Convention and celebrate Universal Children's Day;
(xiii) For several years now one of the organizations, in conjunction with several Autonomous Communities, has been running the schools programme "You learn to take part by taking part: know your rights", carrying out teaching activities which encourage critical thought, a proper balance between rights and responsibilities, better personal relations, independence, and learning by taking part.
(i) Seminars for the professional staff of the organizations;
(ii)Summer course on "Child labour" held in El Escorial by Madrid's Complutense University in conjunction with the Ministry of Labour and Social Affairs;
(iii)Conferences on the rights of the child as part of the training courses for volunteers working in the programmes on social training and education at home for sick children and in the leisure and free-time programmes run jointly by two of the organizations. Copies of the Convention are distributed at these conferences;
(iv)Conferences on the principles of the Convention run by technical staff from one of the organizations;
(v)The project "Make sure your rights are observed" operated jointly by two of the organizations since 1995 includes educational topics related to the rights of the child: environmental education, education for peace, education for equality, and education for participation;
(vi)Programmes of education for development (see above). These programmes are officially recognized by the Ministry of Education and Culture;
(vii)Educational materials produced in collaboration with the General Secretariat for Gypsies association: programme to develop tolerance and respect for diversity in compulsory secondary education;
(viii)Schools and courses for members of parents' associations, which include the distribution of teaching materials on children's rights, run by the Spanish Confederation of Parents' Associations;
(ix)Training courses for trainers run by the same Federation for members and technical personnel of parents' associations;
(x)Adult awareness and training course run by one of the organizations from 1992 to 1995 for professionals working with children;
(c) Activities and events in various social communication media, coinciding with the anniversary of the adoption of the Convention or with other relevant dates;
(i) Publication of the Convention and distribution to children, teachers and parents;
(ii) Publication of the text of the Convention in the periodicals Escuela Española , Comunidad Escolar and Magisterio Español in 1994 and 1997;
(iii) The magazine Jatun Sunqu is published under the programmes of education for development carried out jointly by two of the Platform organizations. Some issues have contained extracts from the Convention (No. 2, November 1995, for example) and others refer indirectly to it when discussing subjects such as child labour;
(iv) The activities carried out by these two organizations under the programmes of education for development include the publication of a family bulletin. This bulletin seeks to gain parents' commitment to instruct their children in values and to comply with the principles and rights contained in the Convention. It suggests learning activities for parents to carry out at home with their children, always in coordination with the children's teachers;
(v) Distribution of materials to parents' associations under the programmes of education for development;
(vi) A comic strip on children's rights was published in the quarterly magazine Aldeas ;
(vii) Publications on maltreatment of children: "Ten commandments for the prevention of maltreatment in institutions" issued in Euskera and Spanish, and other publications in Catalan and Spanish;
(viii) Report on child labour in Spain;
(ix) Preparation and publication of materials on education in values;
(x) Collection of comic papers: "Crispín and his friends remind you about your rights" and "Crispín and Sara against AIDS".
L. Measures undertaken or foreseen to make the periodic reports widely available
to the public (CRC/C/58, para. 23)
1. Measures adopted by the State
411. As noted in section A.1 of the Introduction, the initial report and the Committee's observations thereon were published in 1996.
412. An account of the preparation of the second report and the institutions and social organizations involved in the exercise was given in section D of the Introduction.
413. Beginning in 1997 and continuing throughout 1998, several meetings were held with the Platform of Children's Organizations in order to arrange for its participation in the preparation of the second report through the working group created by the Platform itself for this purpose. The organizations members of the Platform were sent a questionnaire based on the Committee's guidelines for the collection of information.
414. This cooperation meant an enormous effort and investment of time and resources by the Platform organizations.
415. In addition to this work, the organizations are making a study of the extent of the application of Spanish legislation and the possibility of gaps in the legislation with respect to the principles and provisions of the Convention. The aim is to establish a clear picture of the situation of children and to try to produce specific recommendations and suggestions on what needs to be done to improve it.
416. The corresponding sections of this report contains the information supplied by the Platform organizations.
II. DEFINITION OF THE CHILD
(CRC/C/58, para. 24)
The age of majority and minority in Spanish law
417. According to article 12 of the Constitution, "Spaniards legally come of age at 18".
418. Although birth is what determines personality in the legal sense and therefore what renders a person capable of holding rights and obligations, the exercise of these rights and fulfilment of these obligations may require particular conditions and aptitudes.
419. During the age of minority, i.e. for all who have not yet reached the age of 18, children and adolescents are subject to a different legal regime, which in some respects regards them basically as persons requiring social and legal protection. During the age of minority, as will be seen, certain rights may be acquired and exercised and certain responsibilities accepted at specific ages, depending on the personal capacity accorded at those ages.
420. The Civil Code states that the age of majority is 18 years (art. 315).
421. The Protection of Minors Act, which was discussed at length in the Introduction to this report and in paragraphs 172 et seq. , applies to "persons under the age of 18 years within Spanish territory" (art.1), thus coinciding with the age of application of the Convention.
422. Eighteen years is also taken as the reference age in the legislation of the Autonomous Communities referred to in paragraphs 172 et seq. : Asturias -article 3 of Act 1/1995 of 27 January on the protection of minors; Balearic Islands - article 1 of Act 7/1995 of 21 March on the protection of minors; Canary Islands - article 2 of Act 1/1997 of 7 February on the integrated care of minors; Castile-La Mancha - article 8 of Act 5/1995 of 23 March on solidarity; Catalonia - article 2 of Act 8/1994 of 27 July on the care and protection of children and adolescents; Extremadura - article 2 of Act 4/1994 of 24 November on the protection of minors; Galicia - article 2 of Act 3/1997 of 9 June on the family, children and adolescents; Madrid - article 2 of Act 6/1995 of 28 March on guarantees of the rights of children and adolescents; Murcia - article 2 of Act 3/1995 of 21 March on children; Valencia - article 1 of Act 7/1994 of 5 December on children.
423. Some of the autonomous legislation (Catalonia, Galicia, Madrid) distinguishes between two stages of minority: childhood (0-12 years) and adolescence (12-18 years).
424. However, the age of majority for foreigners is set at 18 years.
425. In private international law as applied by Spain the age of majority has traditionally been regarded as determined by the corresponding national law as a matter of personal status (art. 9 of the Civil Code).
426. Furthermore, article 1 of the Protection of Minors Act states: "This Act and its corresponding legislation shall apply to persons aged under 18 years within Spanish territory, provided that such persons have not previously reached the age of majority under the law applicable to them".
427. However, this referral to national law is subject to an important exception when the matter in respect of which the age status of a foreigner is being determined falls within the scope of certain agreements ratified by Spain and containing special rules.
428. For example, article 12 of the 1961 Hague Convention concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Infants, which is in force in Spain, states: "For the purposes of the present Convention, `infant' shall mean any person who has that status, in accordance with both the domestic law of the State of his nationality and that of his habitual residence".
429. Other agreements define the age of majority specifically and not by referral to other legislation: the Conventions of the Hague and Luxembourg on international child abduction limit their scope to children aged under 16 years. This same age is used in the Agreement between Spain and Morocco on judicial assistance and the recognition and enforcement of judicial decisions in matters relating to the law of custody, visiting rights and surrender of children, signed in Madrid on 30 May 1997.
430. Depending on their degree of maturity and subject to the law, minors aged under 14 years may act in the following matters:
(a) They may acknowledge children born out of wedlock, although in order to be valid such recognition requires judicial approval after a hearing by the Government Procurator's Office (art. 121 of the Civil Code);
(b) They may acquire possession of things, although they require the assistance of their legitimate representatives in order to use the rights created by such possession (art. 443);
(c) Foster care proceedings require the consent of children aged 12 and older (art. 173.2, first para.);
(d) Adoption proceedings require the consent of children aged 12 and older (art. 171.1). And such children must be heard provided that they have sufficient judgment (art. 177.3 (3));
(e) If administration by the parents endangers the estate of a minor child, he may request a court to take whatever action it deems necessary for the security and protection of the property in question, to order a surety or bond for the continuation of the administration, or even to appoint an administrator (art. 167);
(f) If they have sufficient judgment, they must always be heard by their parents before any decision affecting them is taken (art. 154, fifth para.). Article 9.1 of the Act stipulates in general terms that minors are entitled to be heard in the family with respect to decisions affecting their personal, family or social life;
(g) In the event of the de facto separation of the parents, unless they decide by common accord which of them is to take charge of the care of any minor children, the court shall make this decision for the benefit and in the best interests of the children. Before making the corresponding order the court must hear the children, provided that they have sufficient judgment, and must in any case hear children aged 12 or older (art. 159);
(h) When ruling on guardianship the court must hear a minor who has sufficient judgement and all minors aged 12 or older (art. 231);
(i) They may request the court to order appropriate measures for their maintenance and for their future needs if their parents fail to perform this duty (art. 158.1);
(j) In the event of separation, annulment or divorce, children aged under 12 who have sufficient judgement and all children aged 12 or older must be heard by the court when considering measures concerning their care and upbringing (art. 92, second para.);
(k) They may accept unencumbered gifts (i.e. without liens or other obligations) provided that "they have the natural capacity to understand and wish to accept" (art. 625);
(l) They may exercise parental authority over their children with the assistance of their parents or, failing that, of their guardians. In the event of disagreement or incapacity, this assistance is provided through the courts (art. 157).
431. Depending on their degree of maturity and subject to the law, minors aged 14 years or older may act in the following matters:
(a) They may marry, provided that a competent court, with just grounds and on the application of the party concerned, waives the age impediment (arts. 46.1 and 48, second para., of the Civil Code). Marriage produces the de jure emancipation of a minor (art. 316);
(b) They may conclude marriage settlements, although the cooperation and consent of their parents or guardian is required, and such settlements are limited to matters of separation and participation (art. 1329);
(c) They may make gifts in connection with their marriage, although the authorization of their parents or guardian is required (art. 1338);
(d) If majority is acquired by marriage, they may exercise parental authority over their children without any assistance (art. 157);
(e) A married minor may alienate or encumber immovable property, commercial or industrial establishments or items of exceptional value owned in common by the spouses. If the other spouse is of age, the consent of both spouses is sufficient. If the other spouse is also a minor, the parents or curators of both spouses must also give their consent (art. 324);
(f) They may validly acknowledge children born out of wedlock without requiring judicial approval or a hearing by the Government Prosecutor's Office (art. 121);
(g) They may make wills (art. 663) subject to the holograph requirements applicable to persons over the age of majority (art. 688);
(h) They may request the acquisition of Spanish nationality by election, or a naturalization or residence card, with the assistance of their legal representatives (arts. 20.2 (b) and 21.3 (b));
(i) Provided that they are 14 or older and within one year of their emancipation, they may opt for civil residence in their place of birth or for the latest civil residence of either of their parents. Non-emancipated minors must be assisted by their legal representatives when making this choice (art. 14.3, fourth para.);
(j) They may give testimony in court (art. 1246.3);
(k) Under the civil law of Aragón, minors aged 14 or older, although not emancipated, may conclude by themselves any kind of legal act or contract, with the assistance if necessary of either of their parents, their guardian or the council of relatives (art. 5 of the compilation of civil law of Aragón);
(l) In addition, if such minors live independently of their parents - with their consent and on justified grounds - they are free to administer all their own property (art. 5.3 of the compilation).
432. Depending on their degree of maturity and subject to the law, minors aged 16 or older may act in the following matters:
(a) They may request judicial emancipation in the cases specified by law (Civil Code, arts. 314.4 and 320);
(b) Until they reach the age of majority or acquire the civil status of emancipation, they may not change their names or surnames without action by their legal representatives (arts. 109 and 323 and in accordance with the civil registry legislation);
(c) Emancipation may be granted by the persons exercising parental authority if the minor in question has reached the age of 16 and gives his consent (arts. 314.3 and 317);
(d) Minors aged 16 or older living independently of their parents with their consent are regarded as emancipated for all purposes (art. 319);
(e) Minors aged 16 or older who are subject to tutorship may request a court to grant the benefits of majority (art. 321), with the effect that they may administer their persons and their property as if they were of age, subject to the limitations provided by law (art. 323);
(f) Minors aged 16 or older who have been emancipated or granted the benefits of majority may exercise parental authority over their children without any assistance (art. 157);
(g) Emancipated minors may accept encumbered gifts with the assistance of their parents or curator (arts. 1263, 323 and 626);
(h) Emancipated minors may request, of their own accord, the acquisition of Spanish nationality by election or a naturalization or residence card (arts. 20.2 (c) and 21.3 (a));
(i) Emancipated minors, with the consent of their parents or, in the absence of both parents, of their curator, and minors who have been granted the benefits of majority by a court, with the consent of their curator, may before reaching the age of majority: accept monetary loans, encumber or alienate immovable property and commercial or industrial establishments and objects of exceptional value (art. 323, first para.)
(j) Emancipated minors and minors who have been granted the benefits of majority by judicial order may appear alone before the courts (art. 323, second para.);
(k) Minors aged 16 or older may act as witnesses for the purposes of making a will during an epidemic without the involvement of a notary (art. 701);
(l) Minors aged 16 or over may carry out acts of ordinary administration of property which they have acquired through their work or industry. Acts of special administration require the consent of their parents (art. 164.3);
(m) Provided that a minor aged 16 or older gives his consent in a public document, his parents may:
(i) Revoke the rights which he possesses;
(ii)Alienate or encumber his immovable property, commercial or industrial establishments, valuable objects and securities;
(iii)Repudiate any inheritance or legacy made in the minor's favour;
If the parents do not have the consent referred to above, all these acts of disposition are subject to the demonstration of justified grounds of utility or necessity and to the prior authorization of the competent judicial authority following a hearing by the Government Prosecutor's Office. However, this judicial authorization is not required for acts of disposition of movable assets when the proceeds will be reinvested in property or securities or for matters connected with preferential rights to stocks and shares (art. 166).
433. Children possess the right to protection of health and to health care and they are legally capable of exercising this right either by administrative means or through the courts.
434. This provision applies to the following rights accorded in article 10 of the General Health Act (14/1986 of 25 April) with respect to the various public health administrations:
(a) The right to respect for one's personality, human dignity and privacy, as well as to non-discrimination on the grounds of race, social class or sex or by reason of ethical, economic, ideological or political beliefs or trade union membership;
(b) The right to be informed about the available health services and the requirements for their use;
(c) The patient's right to confidentiality of all information connected with his case or stays in public health facilities or in private ones collaborating with the public system;
(d) The patient's right to be told whether any diagnostic, prognostic or therapeutic procedures may be used for teaching or research (which must never entail an additional threat to health). In any event, the patient's prior written authorization and acceptance by the doctor and the management of the health facility is mandatory;
(e) The right of the patient and his family or other close relatives to be given, in comprehensible spoken or written language, full and up-to-date information about his case, including diagnosis and prognosis and treatment options;
(f) The patient's right to choose freely from among the options presented by the doctor in charge of the case and for any intervention to be subject to the patient's prior written consent, except in the following circumstances:
(i) When failure to intervene may entail a public health risk;
(ii)When the patient is incapable of deciding; in such cases this right is transferred to the members of his family or other close relatives;
(iii)When the urgency of the case allows no delay owing to the risk of irreversible damage or of death;
(g) The patient's right to be assigned a doctor, whose name must be communicated to him and who must act as his main intermediary with the medical team. In this doctor's absence one of the other professional members of the team assumes this responsibility;
(h) The patient's right to receive a formal certificate of his state of health when a law or regulation so requires;
(i) The patient's right to refuse treatment, except in the cases mentioned in paragraph (f) above; if he refuses treatment he must request voluntary discharge on the terms specified in paragraph 4 of the next article;
(j) The right to participate in health activities through community institutions, under the conditions set out in this Act and in its enabling legislation;
(k) The patient's right to have full details of his case recorded in writing. At the end of a patient's stay in hospital his discharge report must be delivered to him or to a family member or other close relative;
(l) The patient's right to lodge claims and make suggestions within the prescribed time limits. In either case he must receive a written response within the time limits established in the regulations;
(m) The right to choose a doctor and other qualified personnel in accordance with the provisions of this Act, its enabling legislation, and the regulations on health centres;
(n) The patient's right to obtain medicines and other medical items necessary for improving, maintaining or restoring his health on the terms set out in the regulations of the General Administration of the State;
(o) Subject to the particular financial regime of each health service, the rights mentioned in paragraphs (a), (c), (d), (e), (f), (h), (j) and (l) of this article may also be exercised with respect to private health facilities.
435. The consent of a third party is required only in the cases specified in the Act. If a patient is incapable of making decisions concerning surgery, the consent of his family or close relatives may be sought.
436. In its chapter on bodily harm the Criminal Code makes a reference to elective organ transplants, sterilization and sex-change surgery, when the consent of the patient provides an exemption from criminal liability; this provision does not apply to minors, whose consent or that of their legal representatives is invalid.
437. The involvement of minors in clinical tests is also subject to specific regulations: with a few exceptions, only such tests as are of benefit to the patients concerned may be carried out and only when they cannot be carried out on persons not affected by the specific condition because the pathology under study is peculiar to those patients. When minors are concerned, consent must always be given in writing by their legal representatives. When the patient's condition allows, and without exception when he is aged 12 or older, he must also give his consent, after having received all the relevant information in a form that he can understand.
438. According to the General Education (Organization) Act (1/1990 of 3 October), basic compulsory free education includes primary (art. 12) and the first four academic years of secondary, i.e. from age six to 16. The Baccalaureate is taken for two academic years, from age 16 to 18 (art. 25).
439. According to articles 6 and 7 of Royal Decree 1/1995 of 24 March, which approved the amended text of the Workers' Statute Act, the minimum age of work is 16 years, subject to some exceptions discussed below. Thus the labour legislation does not allow children aged under 16 to work. However, the appearance of such children in public performances may be authorized by the labour authorities on an exceptional basis.
440. Children aged 16 or 17 may sign labour contracts if they are living independently (emancipated de facto or by marriage) or otherwise by authorization of their parents or guardians.
441. In no case may workers aged under 18 do more than eight hours actual work a day, including training time. Nor may they do night work or overtime or work declared to be heavy, harmful or hazardous either for their health or for their vocational and personal training.
442. In addition, the period of rest during the working day is extended for minors to 30 minutes from the 15 minutes stipulated for other workers, provided that the day is longer than four and a half hours; similarly, minors must have two uninterrupted days of weekly rest.
443. The 1994 reform of labour legislation retained the option of training contracts for workers aged 16 or over but under 21 desiring specific on-the-job training. The main innovation here is that, following the reform, social security cover is extended to this type of contract, including for example health benefits in respect of common illnesses and temporary incapacity to work, but other benefits such as unemployment benefit are still excluded. Furthermore, a new subsidized type of contract has been introduced in the legislation: the contract for the promotion of open-ended (i.e. not fixed-term) recruitment, which may help to bring about significant improvement and stabilization of the situation of young people in the labour market.
444. In addition, according to article 7 of the Protection of Minors Act, children holding a labour contract are free to join the trade union of their choice and to take part in the election of the enterprise's worker representatives, although they may not stand for election themselves until age 18 (art. 69 of the Workers' Statute).
445. Unemancipated minors may not marry. The age restriction may be waived by a court of the first instance to allow marriage from age 14; the minor and the parents or guardians must be heard in such proceedings.
446. A minor obtains emancipation by reaching the age of majority, by marriage, by concession of the persons exercising parental authority, or by court order. In the latter two cases the minor must be at least 16 years old.
447. Emancipation empowers a minor to administer his person and his property as if he had reached the age of majority; however, such minors do not have the legal capacity to perform certain acts until the age of majority: to accept cash loans or to encumber or alienate immovable property, commercial or industrial establishments or objects of exceptional value.
448. In any conflict of interest between a parent and his or her non-emancipated child, the other parent is responsible by law for representing the child, but if the conflict is between both parents and their child, the court appoints a legal counsel for the child, to represent him in and outside the court.
449. Spanish legislation does not specify a minimum age of consent to lawful sexual relations. As already mentioned in chapter I.B in the discussion of State legislation, the Criminal Code regards all sex acts committed with children aged under 12 as sexual abuse offences, i.e. the question of consent is completely irrelevant. However, in the case of children aged 12 or older but under 18 no offence is committed if the child consents. But even if the child does consent the sexual act may constitute an offence if it is demonstrated that the consent was obtained by deception or by abuse of a position of authority.
450. With regard to the minimum age of recruitment, article 12.1 of the Military Service Act (13/1991 of 20 December) states: "The reference age for the performance of military service is 18 years". However, it is possible for persons aged under 18 to volunteer for military service (Royal Decree 1107/1993 of 9 July, approving the recruitment regulations).
451. On the subject of criminal responsibility see also chapter VIII.B.1 for a discussion of the situation of children aged 12 or older but under 18. As already explained in the initial report (paras. 12, 83 and 318-322), in the case of juvenile offenders Organizational Act 4/1992 of 5 June, amending the Act on the jurisdiction and procedures of the juvenile courts, stipulates 12 years as the minimum age of criminal responsibility.
452. Article 19 of the new Criminal Code, approved by Organizational Act 10/1995 of 23 November, raises the age of criminal responsibility to 18 years, the same as the age of civil majority. However, the entry into force of this article 19 was deferred until the adoption of the Organizational Act on the criminal responsibility of minors, which will address comprehensively and on an up-to-date basis all matters of juvenile justice, i.e. the criminal prosecution of offences committed by persons aged under 18 years.
453. Neither imprisonment for life or the death penalty exist in Spain.
454. With respect to the minimum age for seeking asylum in Spain, article 1 of Act 5/1984 of 26 March on the right of asylum and refugee status (amended by Act 9/1994 of 19 May) accords "to foreigners the right to request asylum" without setting any age limits and interpreting "foreigner" to mean any non-national. Minors entering Spanish territory in the company of an ascendant relative are covered by the "extension of asylum to family members" envisaged in article 10 of the Act, which provides that asylum is granted by extension to a refugee's ascendant and descendant relatives (dependent minors) in the first degree of kinship, as well as to the refugee's spouse or a person connected to him by similar bonds of affection and cohabitation.
455. Article 15.4 of Royal Decree 203/1995 of 10 February, which approved the regulations for the application of Act 5/1984, provides that unaccompanied or unprotected minors seeking asylum must be represented by their legal tutors during the processing of their asylum applications, which must be handled in accordance with the international conventions and recommendations applicable to such applications.
456. The rule for unaccompanied minors described above applies in intermediate situations, for example when a minor seeking asylum enters Spanish territory in the company of a relative or friend of his parents.
457. Article 211 of the Civil Code provides that the confinement for reasons of mental disorder of a person who is incapable of taking the decision for himself requires judicial authorization even if he is subject to parental authority. In all cases minors must be placed in a mental health institution suited to their age, on the basis of a report from the child care services.
458. In civil proceedings, only persons in full possession of their civil rights may appear before the courts. Other persons are represented by their legitimate representatives or by persons responsible by law for making good their incapacity. Emancipated minors may appear on their own behalf.
459. Non-emancipated minors require authorization to appear, except in proceedings brought by a child against his father or mother.
460. The Civil Proceedings Act provides that only persons in full possession of their civil rights may institute criminal proceedings, except in respect of an offence or omission committed against their person or property or the person or property of their spouse, ascendant or descendant relatives, siblings, or relatives by marriage.
461. The obligation to comply with a summons to appear as a witness applies equally to minors.
462. For purposes of the criminal prosecution of a minor, the examining magistrate assigns him the services of a juvenile procurator and a lawyer, unless the minor or his legal representative designates persons having their confidence to represent him and conduct his defence.
463. Article 30 of Act 30/1992 of 26 November on the legal regime of public administrations and common administrative procedures established the capacity to appear before a public administration in the following terms:
"In addition to the persons possessing the capacity to appear before a public administration pursuant to the civil law, minors shall possess this capacity for the exercise and defence of those of their rights and interests whose assertion is permitted by the legal and administrative regulations without the assistance of the person holding parental authority, tutorship or curatorship. This provision does not apply to disabled minors when the extent of their disability affects the exercise and defence of the rights and interests in question".
464. The consent of children aged 12 or older is required for formal placement with a foster family. Such consent is also required for the purposes of adoption. If the child is aged under 12 and has sufficient judgment, he may simply make a statement to the court (art. 177 of the Civil Code).
465. Access to civil registry information about adoptive filiation is subject to restrictions, with the effect that certified copies of entries in the register of births may be issued only to adoptive parents, adopted children of the age of majority, and other persons who can demonstrate a legitimate interest and have obtained specific prior authorization from the court having jurisdiction over the civil registry.
466. The Protection of Minors Act, referred to in paragraphs 172 et seq. and elsewhere in the report, accords to minors the right to form associations, without indicating any age restrictions. It merely states that when children's and youth associations wish to assume civil obligations they must appoint a legal representative with full civil capacity.
467. The Constitution and the Protection of Minors Act accord to children the freedom of religion. The Constitution establishes the duty of the public authorities to safeguard this right and to assist parents to enable their children to receive religious and moral training in accordance with their own beliefs. The Act states that parents and guardians have the right and the duty to help children to exercise this freedom in such a way as to contribute to their comprehensive development.
468. The general legislation of the Spanish State prohibits the sale of alcohol to children aged under 16 and the consumption of alcohol by them in places or establishments of recreation or entertainment.
469. The sale or distribution of tobacco and alcoholic beverages are also prohibited in all the schools operated under the Ministry of Education and Culture.
470. In the exercise of their own jurisdiction (policies for children and young people, health, and internal commerce) some of the Autonomous Communities have adopted laws imposing a general prohibition on the sale of alcoholic beverages to children. The minimum age is set at 16 in some cases and at 18 in others, for this issue is not treated in the same way throughout the national territory.
471. In Spanish law the minimum age of employment (16 years) is the same as the age of completion of compulsory education.
472. Spanish legislation does not make any distinctions based on the sex of minors.
III. GENERAL PRINCIPLES
A. Non-discrimination (art. 2)
(CRC/C/58, paras. 25-32)
1. Measures adopted by the State
(a) Non-discrimination in the Spanish Constitution
473. Paragraphs 95-96 of the initial report referred to article 14 of the Constitution, which establishes the principle of equality before the law without any discrimination by reason of any condition or personal or social circumstance. The Constitution addresses equality of treatment in three places:
(a) This concept appears first in article 1, paragraph 1, as a higher value of the legal order;
(b) The Constitution then states the principle of non-discrimination in general terms in article 14, where it establishes Spaniards' equality before the law, for they "may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance";
(c) Lastly, article 9.2 establishes equality as a principle which transforms society:
"It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong is real and effective, to remove the obstacles which prevent or hinder the full enjoyment of such freedom and equality, and to facilitate the participation of all citizens in political, economic, cultural and social life".
474. Spanish doctrine and jurisprudence interpret these various senses of the principle of equality as an extension of the traditional concept of non-discrimination. Equality also sets a limit to the acts of the public authorities, which may not allow discrimination, and its delivery becomes a function of the public authorities: they must carry out a policy of encouraging social changes for the benefit of population groups living in disadvantaged circumstances.
475. The combined effect of these three aspects of equality leads to the prohibition of discriminatory acts but not to the prohibition of differentiated treatment of certain individuals or groups which require such treatment in order to give effect to the principle of real equality proclaimed in article 9, paragraph 2, of the Convention.
476. There is no doubt that the Constitutional system applies to minors in respect of the principle of non-discrimination, for the provisions on equality refer to all citizens. Non-discrimination in general, together with differentiated treatment of certain situations in order to eliminate unfavourable distinctions due to social or economic status or other grounds, constitute general standards of action which form the basis of the judicial system, with the specific purpose of protecting the weakest groups in society, such as children in particular.
477. Accordingly, with regard to the grounds of discrimination referred to in article 2 of the Convention, it must be understood that in Spain everyone is covered by article 14 of the Constitution, which prohibits discrimination on account of any condition or personal or social circumstance, in addition to the specific grounds mentioned.
478. These principles apply to the juridical treatment of filiation, for the Constitution stipulates the full equality of children and the equality of mothers and fathers regardless of their civil status as well as permitting the investigation of paternity. These principles are stated in article 14, on equality, in article 32.1, which recognizes the right to marry "on a basis of full legal equality", and in article 39, mentioned in earlier sections of the report, where paragraph 2 states:
"The public authorities likewise shall ensure full protection of children, who shall be equal before the law, irrespective of their parentage, and of mothers, whatever their marital status. The law shall provide for the investigation of paternity".
(b) Non-discrimination in the Protection of Minors Act
479. Article 3 of this Act, already referred to in the Introduction to the report and in section I.B, states:
"Minors shall enjoy the rights accorded to them in the Constitution and the international treaties to which Spain is a party, in particular the Convention, and the other rights established by law without any discrimination on the grounds of birth, nationality, race, sex, disability or illness, religion, language, culture or opinions or on account of any other personal, family or social circumstance [...] The public authorities shall ensure respect for minors' rights and act in accordance with this Act and the international legislation mentioned above".
480. This provision, which refers specifically to minors, guarantees by virtue of the Act's status of fundamental law non-discrimination against minors in the exercise of their rights.
481. Article 11 sets out the principles governing the acts of the public authorities:
"They shall carry out integrated policies for children's development through appropriate means [...] and shall promote policies to correct social inequalities. In no case shall the essential content of children's rights be affected by a lack of core resources".
(c) Non-discrimination in legislation on education
482. Beyond the sphere of general declarations, education is of particular importance for the effective implementation of the principle of non-discrimination, for it is one of the chief means of eliminating discrimination. Article 27 of the Constitution proclaims the entitlement of "everyone" to education. Education is therefore a generic right, but it must be understood above all as a right to provision of a service by the public authorities.
483. Pursuant to this provision, article 1 of Organizational Act 8/1985 of 3 July on the right to education posits the right to education "of all Spaniards", stipulating that education shall be compulsory and free "at the level of basic general education"; and paragraph 2 of this article states the right to education "and of access to the higher levels of education", to be exercised in the light of "aptitudes and vocation, but such exercise shall never be subject to discrimination based on the student's economic capacity, social status or place of residence".
484. Furthermore, the preamble to the General Education (Organization) Act (1/1990) highlights the importance of education as a tool for eliminating discrimination, for education facilitates "progress in the fight against discrimination and inequality on the basis of birth, race, sex, religion or opinions, or arising
from family or social background or from traditional attitudes, or appearing as a constant feature of the dynamics of society".
485. Article 2.3 (c) of this Act states among the principles on which education is based "the effective equality of rights of the sexes, the rejection of any kind of discrimination, and respect for all cultures".
486. Title V, on the correction of inequalities in education, establishes specific measures of positive discrimination. Article 64 enjoins the education authorities to ensure when necessary:
"...conditions most conducive to attendance at primary school by all children whose personal circumstances owing to their membership of low-income families or to their geographical origins or any other circumstance entail an initial inequality in access to compulsory education and advancement to the higher levels".
487. It also establishes other measures to ensure access to quality education at all levels for children living in disadvantaged circumstances. For example, article 85.3 requires the education authorities to equip "...schools whose pupils have specific difficulties in attaining the general objectives of basic education owing to their social circumstances with the necessary human and material resources to correct the situation". This provision also states that "the organization of these schools and their timetabling shall be tailored to the specific needs of the pupils".
488. Royal Decree 1174/1983 of 27 April on positive discrimination in education is a regulatory instrument on concrete measures to eliminate the inequalities suffered by some people in the education system for reasons connected with their economic or social circumstances, place of residence, etc. With a view to tackling this situation, positive discrimination is established in the legal system as a safeguard of the full exercise of the right to education by disadvantaged groups. The Decree provides for a programme of positive discrimination in education, which has been fully in operation over recent years; it allows for the conclusion of agreements between the Education Ministry and the Autonomous Communities which, having full jurisdiction in educational matters, wish to participate in positive-discrimination programmes. Article 1 of the Decree stipulates that these programmes are to be carried out "for the benefit of those geographical areas or population groups which, owing to their special characteristics, require preferential treatment in education".
489. Lastly, Act 1/1990 recalls the obligation of the public authorities to protect children; article 65.4 states:
"With a view to guaranteeing children's education, the public authorities shall assume a supporting role in providing for their care and attention when their families find themselves in situations which impede the exercise of their responsibilities".
(d) Non-discrimination in health care
490. Article 16 of the General Health Act (14/1986 of 25 April) states that "the rules for use of the health services shall be the same for everyone, regardless of the terms of access thereto...". And article 10, referred to in paragraph 434 above, states:
"Everyone shall have the following rights with regard to the various public health administrations: (1) respect for their personality, human dignity and privacy without discrimination on the grounds of race, social class or sex or by reason of ethical, economic, ideological or political beliefs or trade union membership".
Article 12 goes on to state:
"The public authorities shall use their policies on health expenditure to correct inequalities in health care and ensure equal access to the public health services throughout Spanish territory, in accordance with articles 9.2 and 158.1 of the Constitution".
(e) Non-discrimination in the Civil Code
491. The initial report described some of the amendments designed to bring domestic legislation into line with the principles of the Constitution.
492. The Civil Code underwent a number of amendments in order to give effect to the provision of the Constitution concerning the elimination of all discrimination from birth. As pointed out in the initial report, Act 11/1991 of 13 May, amending provisions of the Civil Code on filiation, parental authority and the financial regime of matrimony, removed the distinction between legitimate and illegitimate birth and its subdivisions. Thus, according to article 108 of the Civil Code only "natural filiation or filiation by adoption" now exist:
"Filiation may occur naturally or by adoption. Natural filiation may occur within or out of wedlock. It occurs within wedlock when the father and mother are married to each other.
Filiation within wedlock and out of wedlock and filiation by adoption produce the same effects, in conformity with the provisions of this Code".
493. Furthermore, the effects of filiation come into force from the moment when the filiation occurs and may be retroactive "provided that such retroactivity is compatible with the nature of the effects and that the law does not stipulate otherwise" (art.112 of the Civil Code).
494. Subsequently and along the same lines, Act 11/1990 of 15 October, amending the Civil Code in application of the principle of non-discrimination on the grounds of sex, modified a number of provisions which, for the purpose of determining the effectiveness of certain legal relationships and situations, used criteria which the Legislature deemed to entail either a preference or improper treatment on the grounds of sex. The initial report already drew attention to the important amendment to article 159 of the Civil Code: instead of assigning the care of children aged under seven years by preference to the mother, this provision now leaves it to the court to decide, always with an eye to the children's benefit, which parent should care for minor children.
(f) Non-discrimination against foreigners
495. In the case of the existing measures to ensure respect for the rights which the Convention accords to foreign and stateless children without any kind of discrimination, attention must be drawn to the provisions of Royal Decree 155/1996 of 2 February, which approved the regulations on the implementation of Organizational Act 7/1985 of 1 July on the rights and freedoms of foreigners in Spain.
496. Article 12 of these regulations refers expressly to the need for foreign minors to be treated in conformity with the Convention. It also recalls that they are entitled to education in accordance with the General Education (Organization) Act as well as to health care and other social benefits as prescribed by the Convention.
497. The right to education is established in Spanish law for all foreign children irrespective of the legality or illegality of their status in Spain (art. 12 of the regulations and art. 10.3 of the Protection of Minors Act).
498. The regulations accord the right to health care to all foreign children. The Protection of Minors Act provides that they have this right when in a situation of risk or in the guardianship of the Public Administration (art. 10.3), and although this right is not expressly stated for foreign children when neither of these situations obtains, any interpretation of the Act to mean that they are not entitled to health care would be at variance with the Convention: it must be recalled that the Constitution stipulates that the Convention prevails in any conflict of this type (article 96.1 in fine of the Constitution, already discussed in chapter I).
499. More specifically, article 13 of the regulations guarantees that children "in a situation of desamparo " will be entrusted to the child care services of the relevant Autonomous Community. It also exempts them from the possibility of expulsion envisaged in article 26.1 of Organizational Act 7/1985 and grants them a residence permit at the request of the institution exercising guardianship, as well as stipulating that they shall if necessary be provided with documents in accordance with article 63 of the regulations.
500. Prior to the approval of these regulations, foreign children in a situation of desamparo were frequently regarded as "illegal" under Spanish law. The present situation constitutes an important step forward in the defence of the rights of such foreign children, for although previously the protection provided by the State dealt with the problems caused by their illegal status while they were minors it did not prevent the difficulties which arose once they reached the age of majority.
501. Perhaps the most important contribution of these regulations to the integration of foreigners in Spain was the creation of the "permanent" residence permit.
502. One of the situations in which this permanent permit is granted is when a minor has been in the guardianship of a Spanish public agency for the three consecutive years prior to attaining the age of majority (art. 5.2 (e) of the regulations), this period providing the opportunity for integration in society and the labour market.
503. Comments have already been offered in chapter II on foreign minors seeking asylum with reference to Act 5/1984 of 26 March on the right to asylum and refugee status (amended by Act 9/1994 of 19 May).
504. A distinction can be made between those minors who rely on an application for asylum lodged by one of their parents under the "family extension" provision (art. 10 of Act 5/1984) and those seeking asylum in their own right, who fall within the scope of article 15.4 of Royal Decree 203/1995 of 10 February, which approved the regulations on the implementation of Act 5/1984, and of the legislation on foreign minors in general (art. 12 of the regulations on the implementation of Organizational Act 7/1985) and on minors in a situation of desamparo .
505. In the case of children included in their parents' asylum application, the submission of the application by the parents secures provisional residence rights for the children (or admission to Spanish territory if they did not travel with their parents), a guarantee that they will not be returned or expelled and, if the parent or parents lack sufficient economic resources, the right of access to the social, education and health services provided by the competent public authorities (arts. 11, 12 and 15 of the regulations on the implementation of Act 5/1984).
506. In the case of children acquiring refugee status through the granting of their parents' application, in which they were included under the "family extension" provision, the regulations provide that the competent authority must issue an identity document authorizing "the refugee and the dependants or family members admitted under the family extension clause to reside in Spain and take up employment..." (art. 29.2), and if the refugee lacks work or the economic means of providing for his needs or those of his family (art. 30) they may also have access to the social, education and health services provided by the competent public authorities (art. 15.1).
507. The situation of minors seeking asylum independently or accompanied by someone other than a parent is addressed in article 15.4 of the regulations on the implementation of Act 5/1984, in the general provisions on foreign minors (art. 12 of the regulations on the implementation of Organizational Act 7/1985) and on minors in a situation of desamparo (art. 13 of the same regulations). They are entrusted to the child care services of the Autonomous Community in question and their cases are brought to the attention of the Government Prosecutor's Office, it being understood that "in no case may expulsion orders be imposed on such minors"; they are issued with a residence permit, at the request of the body exercising tutorship and, when necessary, with documents in accordance with article 63 of the regulations. Of course, as foreign minors they also fall within the scope of article 12 of the regulations on the implementation of Organizational Act 7/1985, which safeguards their rights under the Convention. Furthermore, pursuant to article 15.4 of the regulations on the implementation of Act 5/1984 the tutor legally assigned to such children represents them during the processing of their asylum application, which must proceed in conformity with the provisions of the international conventions and recommendations applicable to children seeking asylum.
508. As may be seen, Spanish legislation on the right of asylum is not over-specific with respect to the obligation set out in article 22, paragraph 1, of the Convention, under which States parties must take appropriate measures to ensure that a child seeking asylum or refugee status, whether unaccompanied or accompanied by a parent or by any other person, receives appropriate protection and assistance in the enjoyment of the rights set forth in the Convention.
509. The recent resolution of the Council of the European Union on unaccompanied minors who are nationals of third countries (97/c 221/03. DOCE, 19.7.97) regulates the details of the asylum procedure applicable to unaccompanied minors.
510. This resolution recognizes the right of unaccompanied minors to apply for asylum, the need for States to process their applications quickly, the need for interviews with the children to be conducted by qualified and experienced officials, who must have undergone special training, and the need to take due account of the possibility that a child's knowledge of the situation prevailing in the country of origin may be limited.
511. In any event, the resolution obliges the States members of the European Union only to keep its contents in mind when making any amendment to their domestic legislation on asylum and to make maximum efforts (an obligation of conduct not of result) to incorporate the principles set out in the resolution in their internal law before the beginning of 1999.
(g) Non-discrimination in other legislation
512. The International Covenant on Civil and Political Rights of 16 December 1966, ratified by Spain in 1985, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, both referred to in chapter I.K above, stipulate the need for each State party to respect and ensure to all individuals within its territory the rights recognized in the two instruments without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status (art. 2.1 of the Covenant and, in similar language, art. 14 of the European Convention).
513. The important thing in these provisions lies not so much in their respective declarations as in the fact that both the Optional Protocol to the Covenant, to which Spain is a party, and the machinery of the European Convention accord to individuals who believe that their rights have been infringed the possibility of submitting communications to the Human Rights Committee (for the Covenant) and to lodge truthful applications with the European Commission and the Court of Human Rights (for the European Convention). As pointed out in chapter I.F above, any applications may be brought before the Court, for Additional Protocol 11, which so provides, entered into force in November 1998.
514. In any event, neither of the provisions cited above (art. 2.1 of the Covenant and art. 14 of the European Convention) states the right not to suffer discrimination on the grounds of race, colour, sex, language, religion, etc., but only the right not to suffer discrimination for these reasons in the exercise of the other rights set forth in the two instruments, many of which are also found in the Convention on the Rights of the Child (right to life, right not to be subjected to torture, right to liberty and security, freedom of conscience and religion, freedom of association and peaceful assembly, etc.). The text of the Convention itself, in article 2, paragraph 1, on non-discrimination, refers only to the prohibition of discrimination in the exercise of the rights of the child in accordance with the Convention.
515. Except in article 14 mentioned above, the European Convention does not refer to non-discrimination as such, but the Covenant does do so.
516. Article 24.1 of the Covenant states:
"Every child shall have, without discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State".
This article goes on to recognize the right of every child to be registered immediately after birth and to have a name and acquire a nationality. Article 26 provides that all persons are equal before the law and are entitled without any distinction to equal protection under the law against discrimination on any ground such as race, colour, sex, language, religion, political or other opinions, etc. It is important to keep in mind that these provisions provide protection not only against "vertical discrimination", i.e. discrimination by the public authorities, but also, and very pertinently, against "horizontal discrimination", i.e. by society, private institutions and so on.
517. The International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, to which Spain is a party, condemns racial discrimination "in all its forms" and in particular in the exercise of certain rights (in the procedural, political and civil spheres: the rights to a acquire a nationality and to marry, the freedoms of thought, conscience and religion, opinion and expression, and the freedom of association and peaceful assembly; and in the economic and social spheres: the rights to work, health, education, culture, etc.).
518. This Convention created the Committee on the Elimination of Racial Discrimination, to which States parties undertake to submit reports on the legislative, judicial, administrative or other measures adopted in order to give effect to the provisions of the Convention. The Committee may make recommendations based on the contents of these reports. The Convention also provides that any State party may bring to the Committee's attention a failure by another State party to give effect to any provision of the Convention, but it stipulates further that any State party may declare that it recognizes the competence of the Committee to consider communications from individuals concerning a failure to
implement the Convention properly. However, Spain has not made a declaration to this effect under article 14.
519. Where labour relations are concerned, article 16 of Royal Decree 1/1995 of 24 March, approving the amended text of the Workers' Statute Act, stipulates that employment offices must ensure, within their area of competence, the application of the principle of equal access to employment and exclude any discrimination for reasons of race, sex, age, civil status, religion, political opinions, trade union membership, origin, social status or language. Article 17 establishes a general principle of non-discrimination entailing the specific application of the provisions of article 14 of the Constitution.
520. In the case of minors, Royal Decree 2015/97 of 26 December fixed for the first time in Spain a minimum inter-occupational wage applying equally to workers older and younger than 18 years and thus ended an extremely dubious distinction, for the effective output of a 16-year-old is not necessarily less than the output of a worker aged 18 or 19; on the other hand, the time invested in the training of younger workers is already taken into account in fixing their wages, which depend on the time actually spent working, in accordance with the regulations on training contracts.
521. The system of criminal law contains measures to prevent and combat discrimination in general, although there are no specific provisions on minors.
522. The most typical of these measures is contained in article 22.4 of the Criminal Code, which establishes as an aggravating factor the commission of an offence for reasons of racism, anti-Semitism or other kinds of discrimination connected with the victim's ideology, religion or beliefs, his ethnic group, race or nation, sex or sexual orientation, or illness or disability. The aggravating factor of discriminatory motives applies to all acts punishable as crimes under Spain's criminal legislation, except for acts in which a motive of discrimination is already specifically assumed.
523. In addition to this generic provision on the elimination of racism of all kinds, the Legislature has established two specific offences involving discriminatory acts.
524. The first is found in article 510.1 of the Criminal Code, which establishes the offence of provoking discrimination, hatred or violence against groups or associations for reasons of racism or anti-Semitism or on other grounds connected with ideology, religion or beliefs, ethnicity or race, national origins, sex, sexual orientation, illness or disability; such conduct is punishable by imprisonment from one to three years and a fine of six to 12 months.
525. The other specific provision designed to prevent discrimination is contained in article 515.5 of the Criminal Code, which defines as unlawful any association that encourages or incites discrimination, hatred or violence against individuals, groups or associations on account of their ideology, religion or beliefs, the ethnicity, race or nationality of the group or association or any one of its members, their sex, sexual orientation, family circumstances, illness or disability. Article 516 provides for the punishment of the founders, managers and chairmen of such groups or associations by imprisonment for two to four years, a fine of 12 to 24 months, and specific disqualification from holding a public post or position for a period of six to 12 years; active members of the group or association are liable to imprisonment for one to three years and to a fine of 12 to 24 months.
526. Article 17 of Act 25/1994 of 12 July, which incorporates directive 89/552/EEC into Spanish law, states:
"Television broadcasts shall not include programmes, scenes or messages of any kind which may seriously impair the physical, mental or moral development of children, or programmes which encourage hatred, disrespect or discrimination on grounds of birth, race, sex, religion, nationality, opinions or any other personal or social circumstance".
(h) Other measures
527. The Constitutional Court's decision 67/1998 of 18 March, already mentioned earlier in the report, which was handed down in response to amparo application 109/95 in a case involving non-payment of maintenance and which cites the Convention in its statement of legal grounds, establishes the principle of non-discrimination against children by reason of their birth.
528. In 1993 the plaintiff had brought to court a complaint against the father of her daughter alleging failure to pay the maintenance which he had been ordered to pay in proceedings under non-contentious jurisdiction (i.e. not as the result of separation, divorce or annulment).
529. The claim against the father was dismissed, for the criminal legislation in force at the time (specifically article 487 bis of the former Criminal Code) provided for the punishment of "anyone who ceases to pay for three consecutive months or for six non-consecutive months any kind of economic benefit awarded to his spouse or his children in a judicially approved agreement or in a judicial order following legal separation, divorce, or annulment of the marriage".
530. Since the child in question had been born out of wedlock, the economic benefit did not derive from one of those situations; therefore, pursuant to the principle of legality, also established in the Constitution, the non-payment of maintenance could not be regarded as an offence.
531. The mother based her amparo application on the infringement of the fundamental right of her daughter not to suffer discrimination by reason of her birth, and the Constitutional Court ruled that the Legislature had brought about this discrimination by omitting to include children born out of wedlock when it decided to provide stronger protection under the criminal law for children's right to be cared for by their parents.
532. Programme to prevent racism and intolerance: this programme for young people aged 15 to 18 resulted from an agreement between the Youth Institute of the Ministry of Social Affairs, the Ministry of Education and Madrid's Complutense University. It began with a postgraduate course for teachers, who subsequently took posts in the schools in which the programme was operating.
533. The work units used as teaching materials were published and distributed in 1996; they include components on violence, racism and intolerance, young people, the gypsy people, immigrants and refugees, and human rights. Training courses for mediators were held in 1997; they dealt with the implementation and development of the prevention programme in both formal and informal education through youth associations.
534. A National Committee for the European campaign of youth against racism, xenophobia, anti-Semitism and intolerance, under the slogan "We are different, we are equal", was formed in 1994; it was chaired by the President of the Government and its 85 members came from the public administrations, the Youth Councils of Spain and the Autonomous Communities, NGOs working with immigrants and minorities, other social and cultural institutions, and personalities from the worlds of culture, politics and sport.
535. Many activities were carried out in 1995, and autonomous and local committees were formed. The activities were backed up by a big effort to publicize the project, and various publications and a
campaign guide were produced. Some of the materials have been published in Romany and Arabic as well as in the official languages.
536. An evaluation seminar was held at the end of the campaign, which produced recommendations, including one that this work of combatting all forms of racism and intolerance should be continued.
537. The formal closure of the campaign in 1996 was followed by the publication of a guide to documentary resources and the teaching materials used in the campaign and by the production of a instructional video and the campaign report.
538. The Spanish Committee for European Year against Racism was created by a Royal Decree of 13 January 1997 pursuant to the resolution of the Council of Europe of 23 July 1996; the Committee was an organ of State responsible for promoting and coordinating the activities held to mark the Year.
539. The programme of activities included information and awareness campaigns, seminars and conferences, studies and publications, support for the work of NGOs, etc.
540. The Committee issued a manifesto containing a public denouncement of racism and all forms of intolerance, rejection, discrimination and exclusion, as well as an undertaking to support the fight against ideologies and practices which encouraged discrimination and tensions between groups having different ethnic, cultural, national or social roots or religious or sexual practices.
541. From 1993 to 1997 funding was provided for activities of NGOs, especially youth NGOs, designed to combat racism and xenophobia and promote positive attitudes towards differences and friendly co-existence in society.
542. On the subject of reducing economic, social and geographical disparities, chapter I.J mentioned the social integration programme and the gypsy development plan, which include measures to promote equity in access to resources and to prevent and combat discrimination.
543. Furthermore, the existence in Spain of a national health system (ch. VI of the report), an education system (ch. VII), and the Public System of Social Services (section 3 of the Introduction), all of which are public, universal and free, has without doubt played a central role in ensuring equal opportunities and reducing inequalities.
544. All the measures mentioned and discussed earlier in the report have an obvious application in the prevention of discrimination against girls, for gender is one of the topics always cited in connection with discrimination. Moreover, article 3 of the International Covenant on Civil and Political Rights provides that States parties shall undertake to ensure "the equal right of men and women to the enjoyment of all the civil and political rights" set forth in the Covenant.
545. The Convention on the Elimination of All Forms of Discrimination against Women states among many other requirements the obligation:
"To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interests of the children is the primordial consideration in all cases" (art. 5).
546. Attention may also be drawn to the obligations with respect to non-discrimination against young women in access to education (art. 10).
547. It must be remembered that, unlike the Committee created under the International Convention on the Elimination of All Forms of Racial Discrimination, the Committee established under the Convention on the Elimination of All Forms of Discrimination against Women, although it too receives reports on the legislative, judicial, administrative and other measures adopted to give effect to the provisions of the Convention, may not receive reports from States parties on the failure of other States parties to apply the Convention, and even less receive communications from individuals about such failure. This shows how much more reluctant the international community is to undertake commitments to prevent gender discrimination than to prevent racial discrimination. This point is corroborated by the declarations and reservations made by various States parties in respect of the Convention on the Elimination of All Forms of Discrimination against Women.
548. Discrimination against women is not addressed expressly in the Criminal Code, although article 314 does contain a provision on discrimination against women in employment. This article provides for the punishment of, amongst other acts, serious discrimination against any person in public or private employment on account of his or her sex, and it restores the situation of equality before the law by means of an injunction or administrative penalty making good the damage suffered. This offence is punishable by imprisonment for six months to two years or a fine of six to 12 months.
549. The second programme of opportunities for women (1993-1995) of the Institute for Women of the Ministry of Social Affairs includes several measures affecting children:
(a) Removal of the sexist or discriminatory elements still found in official forms and leaflets;
(b) Promotion of the participation of women on an equal footing in the production and transmission of information: formulation and distribution of curricula in all areas of infant, primary and secondary education, production of teaching materials, teacher training, encouragement of sports, and promotion of research in accordance with the principles of non-sexist education and co-education;
(c) Dissemination of an image of women and girls truly representative of their social reality: formulation of recommendations for the social communication media and awareness campaigns for the public at large;
(d) Programmes on the prevention of teenage pregnancies.
550. The third programme on equal opportunities for women and men (1997-2000) is continuing the policies pursued in the previous two programmes.
551. Many different efforts are being made to correct the differential treatment of men and women in employment. One of the 10 areas of priority action in the third programme concerns the economy and employment and stresses the need for more women to join the labour market. This aim is pursued by various means, including measures under autonomous legislation to create jobs in high-unemployment districts, and the services and grants available to women for the start-up of businesses.
552. Article 28 of Royal Decree 1/1995 of 24 March, which approved the revised text of the Workers' Statute Act, deals with equal remuneration for men and women. This matter had been touched upon in several jurisprudential decisions. A recent ruling of the Constitutional Court (147/95) established that an employer must pay the same wages to men and women "for work of equal value", with the consequence that an enterprise in which half of the female employees were clearly paid less than the male staff was breaking the law.
553. Furthermore, chapter IV bis of the General Social Security Act establishes that some maternity benefits may be enjoyed by women and men without distinction. And article 48 of Royal Decree 1/1995 provides that maternity leave may be requested by men as well as women. According to article 463 of this Decree, leave of absence to care for children for three years is available to all workers, male or female.
554. See chapter I.H for information about the situation of children affected by these situations.
2. Measures adopted by the Autonomous Communities
555. The legislation of the Autonomous Communities referred to in chapter I.B contains provisions designed to combat discrimination on account of any ground or circumstance, relating to children, their families or legal representatives, and to establish measures for the prevention and elimination of discrimination.
556. It also establishes measures to promote equality as a binding principle at several levels of public administration, and specifically in the organization and operation of the child care institutions of the Autonomous Communities, whether run directly or by collaborating agencies, which may not permit any discrimination or differentiated treatment with respect to children's rights. One of the aims of the governmental and independent bodies mentioned in chapter I.H is to ensure respect for the principle of non-discrimination.
557. Some of the Autonomous Communities decided not to refer to non-discrimination in their child protection legislation and merely to cite the application within their territorial jurisdiction of the Constitution and the Convention, while others included express references to the principle of non-discrimination, recalling that it is proclaimed in those two instruments.
558. The Communities which refer expressly to the principle of non-discrimination in their legislation do so in language similar to that of article 3 of the Protection of Minors Act.
559. As stated in chapter I, the children's legislation of the Autonomous Communities, as well as the legislation on social service benefits and the programmes mentioned in chapter I.G, provide that the autonomous authorities must ensure compliance with the schedules and amounts of benefits for children and their families and the rates of the income and other subsidies paid to families having insufficient income for the maintenance, upbringing and training of their children, in order to correct social inequalities.
560. Some of the autonomous legislation on children refers expressly to non-discrimination against foreign children residing in or present in the territory in question in language similar to that of the State legislation, stressing that the public authorities have an obligation to ensure equality of opportunity for the children of immigrants and their access to all the available social facilities and resources.
561. Some of the Communities - Aragón for example - have introduced plans for the social integration of immigrants in coordination with the local authorities of the places where the immigrants settle. The Social Services Institute of Murcia has an interpretation service to facilitate communication with foreign children and families. Catalonia recently established a service specifically for the reception and care of immigrant children from the Maghreb.
562. In 1997 the Autonomous Communities set up their own committees for European Year against Racism consisting of representatives of institutions, NGOs specializing in the fight against racism, and the
localities most directly affected, in accordance with the guidelines and aims indicated by the Spanish Committee for European Year against Racism.
563. Some of the Communities have carried out in conjunction with NGOs specific programmes to combat racism and xenophobia and integrate marginalized groups and individuals and immigrant children into the education system and society. Some of the legislation on children specifies that the public authorities must promote programmes to combat racist and sexist attitudes in society.
564. Institutions such as the social action centres created in Castile and León for persons suffering discrimination are designed to help marginalized individuals and groups to find employment "by means of suitable vocational training", to carry out "grass-roots awareness programmes to facilitate the cultural and social integration of individuals and groups suffering discrimination", to implement "programmes to change discriminatory and segregationalist attitudes", and to "collaborate in the coordination" of other programmes for the "integration in society of specific persons and groups".
565. For seven years now Castile and León has been carrying out an integrated programme for the gypsy community under its comprehensive plan for ethnic minorities, with specific measures to prevent and eliminate racist conduct in society. Other Autonomous Communities have similar integrated programmes designed to ensure equality of opportunities for gypsies, improve their living standards, prevent their social exclusion, and make it easier for them to join the labour market, always bearing in mind that discrimination against gypsies and their exclusion are very deeply rooted in some areas, not to mention the aggravating factor of drug addiction in some groups of the gypsy population. These municipal programmes give particular emphasis to education and combatting truancy and drop-outs.
567. In the financial years 1996 and 1997 Castile and León cofinanced a HORIZON programme for immigrants, in which social awareness measures played a central role in facilitating the integration of immigrants and preventing social rejection and xenophobic conduct.
568. Valencia is planning an integrated development programme which, while respecting the culture and individual characteristics of ethnic minorities, encourages their integration in society all the way from their earliest years at school to their joining the jobs market. The programme's education component will concentrate mainly on truancy and on discrimination in any form. Under the employment component the government of Valencia will be required to create jobs.
569. Galicia's integrated family support programme devotes special attention to rural children under the "Preschool at home" project.
570. In the specific area of drug addiction among children, articles 7 and 8 of Galicia's Drugs Act (2/1996 of 8 May) provide that the autonomous authorities will ensure the establishment of grass-roots prevention programmes in order to boost social solidarity and a positive attitude to individual and collective health and well-being and to reduce the social inequalities and marginalization which encourage drug-taking.
571. In the case of discrimination against girls, the autonomous legislation has incorporated the principle that gender discrimination is prohibited. Some of the Autonomous Communities expressly ban from the communication media messages impairing the dignity of either sex, sexist advertising, sexual stereotypes, and notions of gender superiority or inferiority.
572. Attention must also be drawn to the creation of many institutions specializing in women's affairs in the Autonomous Communities.
573. In addition to the various social services institutes already in existence, the following agencies have come into being in the recent period: in 1993, Aragón's Institute for Women, the Interdepartmental Committee on Women of the Balearic Islands, Catalonia's Interdepartmental Committee for the Advancement of Women, Madrid's Council on Women, the Basque Country's Interdepartmental Committee on Women, and Valencia's Institute on Women; in 1994, the Institute on Women of the Canary Islands, and the Institute for Women's Studies of the University of Valencia; in 1995, the Committee for Coordination and Monitoring of Equality of Opportunities for Women of Asturias; in 1996, the Regional Council on Women of Castile and León, and Navarra's Council on Women; and in 1997, the Council on Women of Cantabria and Galicia's Service for the Promotion of Equality between Men and Women.
574. The specific measures to combat discrimination against women include regulations on compliance with the principle of non-discrimination in information publications, grants to associations for the promotion of equality and research work, equality-of-opportunity awards, grants to local authorities for literacy work, assistance for training in occupations in which women are under-represented, support for private non-profit bodies carrying out legal aid programmes, assistance for business start-ups, and creation of agencies to promote equality of opportunity between men and women in society and at work, such as the one set up in the Basque Country.
575. Some of the Communities have included in their legislation on children the obligation of collaboration between the Administration and the education authorities "to ensure non-sexist education".
576. Equality of opportunities in employment is being achieved by means of strong incentives for the recruitment of women, assistance for the start-up of businesses, and many programmes of vocational training and guidance in social and labour matters, as well as by the provision of child care services and several services offering assistance in the home. In addition, there are health programmes for prevention of cardiovascular ailments, allergies and breast cancer, as well as mother and child programmes. Several of the communities have introduced programmes of holidays and breaks for women with unshared family responsibilities.
3. Measures adopted by social organizations
577. The social organizations working with children, whether or not members of the Platform of Children's Organizations referred to in chapter I.G, clearly work for the prevention and eradication of discrimination, encouragement of integration in school and society, and equality of treatment of children in employment, and thus help to translate the principle of non-discrimination on any kind of ground into a reality and make supportive attitudes a more widespread feature of Spanish society.
578. The leisure and free time programme which one of the Platform organizations has been running since 1990 with a grant from the Ministry of Labour and Social Affairs, mainly in the Autonomous Communities of Castile-La Mancha, Madrid, Castile and León, Valencia, and the Balearic Islands, is targeted on vulnerable children from rural and suburban areas and ethnic minorities, and on immigrant children, children subject to tutorship, and children with physical or mental disabilities who are experiencing serious difficulty of access to cultural and leisure activities, either because of their socio-economic circumstances or because few such activities are available.
579. The programme seeks to correct situations of vulnerability, to make good the shortage of educational leisure activities and lack of family support by offering a varied range of activities, and to facilitate the integration of immigrant children and children from other cultures through leisure activities. In 1994, 6,197 children and 839 volunteers took part in the programme. In 1995, 6,681 children and 948 volunteers took part and some 900 activities were offered. In 1996, 8,028 children and 1,224 volunteers
took part and some 920 activities were offered. In 1997, 9,805 children and 1,777 volunteers took part in the programme.
580. The education for development programmes, mentioned in chapter I, which have been run jointly by two Platform organizations since the 1993-94 school year, seek to encourage young people to develop properly thought-out attitudes to the world, especially to problems deriving from social inequalities, and to equip teachers with methods and materials on education for development, as well as encouraging changes of attitude and behaviour in respect of the economic, social and cultural differences between peoples.
581. In the school year 1993-94 the programme was run in Castile-La Mancha and Madrid. It involved 381 teachers and 8,442 children from 111 schools. In 1994-95 it was run in Castile-La Mancha, Madrid, the Balearic Islands, and La Rioja. More than 300 schools, 1,500 teachers and some 35,000 pupils took part. In 1995-96 it was run in Castile-La Mancha, Madrid, the Balearic Islands, La Rioja and the provinces of Burgos and Valladolid. Fifty thousand pupils and 2,200 teachers from 550 schools took part. In 1996-97 it was run in Castile-La Mancha, Madrid, the Balearic Islands and La Rioja, and in Burgos and Valladolid, Cadiz and Málaga, Aragón and Lleida, and Valencia. A total of 87,439 pupils and 5,195 teachers from 1,110 schools took part. Children's meetings and seminars against racism, xenophobia and social exclusion were held under the programme.
582. In 1997 one of the Platform organizations carried out a project on the creation of an intercultural resource centre with a grant from the Ministry of Education and Culture.
583. This programme consisted firstly of the purchase and collection of various materials, such as stories, music tapes and books of games from different countries, books on cultural traditions, etc. A series of training courses for teachers was then held under the programme in order to instruct them in the use, organization and distribution of all these resources, to encourage them to think about the socio-economic situation of Spain's immigrant population, the cultural characteristics of the countries of origin of local immigrants, and the general methodological principles of instruction in intercultural values, and to increase their awareness of the rights of the child. The purposes of the creation of this intercultural resource centre are to facilitate the integration and social training of immigrant pupils, to use language as the backbone of the teaching and learning process, and to encourage familiarity with the cultures of one's fellow citizens in order to facilitate understanding and tolerance.
584. The materials produced in collaboration with the General Secretariat for Gypsies association under the programme for developing tolerance and respect for diversity in compulsory secondary education was discussed in chapter I.
585. To mark European Year against Racism an association in the Basque Country prepared a "Materials guide" for schools for use in programmes and activities designed to enhance understanding and a positive perception of other peoples and to encourage critical thought about society's injustices and inequalities. Another organization carried out in collaboration with the Education Department of the Basque Country a programme entitled "Mundopolis" based on theatrical performances and other activities and aimed specifically at the whole education community, as a support for teachers and to enhance the awareness of development problems in all young people by promoting such values as respect, tolerance and solidarity through study of various aspects of cultural diversity, human rights, development and gender inequalities from the standpoint of education for development.
586. Several social organizations have stressed that, despite the progress made in the elimination of discriminatory attitudes, the precarious economic, employment and socio-cultural circumstances of the families of immigrant children and children from other races and cultures sometimes create big obstacles
to their effective integration in the school system and that this situation leads them to reject school, thereby making it even more difficult for them to find jobs and take their place in society when they are older.
B. Best interests of the child (art. 3)
(CRC/C/58, paras. 33-39)
1. Measures adopted by the State
(a) Best interests of the child in legislation
587. Act 21/1987 of 11 November amending the Civil Code and the Civil Proceedings Act in matters of adoption, which was discussed in the initial report and referred to in the Introduction to the present report, states in preambular paragraph 4 that adoption should be based on two principles: its function as a tool of family integration and "the benefit of the adopted child, which takes precedence, subject to maintenance of the necessary balance, over any other underlying legitimate interest"; it adds that these purposes "of family integration and the interest of the child as the prime consideration" are to be achieved by the final rupture of the adopted child's links with his previous family.
588. Article 2 of the Protection of Minors Act, discussed in the Introduction and in chapter B.2, states that "in the application of this Act the best interests of the child shall take precedence over any other competing legitimate interest". And article 11.2 states that "the primacy of the interest of the child" shall be a guiding principle of the acts of the public authorities.
589. The final provision of this article (11.7) establishes that measures connected with foster care shall be taken "always with the best interests of the child in mind".
590. Organizational Act 4/1992 of 5 June on reform of the Act on the jurisdiction and procedures of the juvenile courts states in its explanatory introduction that measures applicable to juveniles who have committed acts susceptible of characterization as criminal offences must "take special account of the interest of the child".
591. The Civil Code refers to the best interests of the child in several of its articles:
(a) Article 154.2 states that "parental authority shall always be exercised for the benefit of the children and take account of their personalities";
(b) Article 161 states in connection with the situation of children in foster care and the possibility of parental visits that such visits "may be suspended by the court in the light of the circumstances and the child's best interests";
(c) Along the same lines, article 170.2 states that "the courts may, for the benefit and in the interest of the child, grant the restoration of parental authority if the ground for its suspension no longer exists";
(d) Article 172.4 states in connection with foster care that "in all cases the best interests of the child shall be the aim, and an effort shall be made, when this is not at variance with those interests, to return the child to his own family and to ensure that siblings are entrusted to the same institution or person";
(e) Article 173.4 states in connection with the grounds for termination of foster care that it may be terminated "by decision of the public body having tutorship or guardianship of the child when, after hearing the views of the foster parents, it deems termination necessary for the protection of the child's interests";
(f) Article 176.1 states that "adoption is granted by judicial order, which shall take into consideration the interest of the child to be adopted and the suitability of the adoptive parent or parents to exercise parental authority".
592. The best interests of the child constituted the grounds for Constitutional Court decision 67/1998 of 18 March 1988, referred to in chapters I.C and I.E and in chapter III, which was handed down in response to amparo application 109/9 alleging non-payment of maintenance; the legal arguments supporting the decision were based on the Convention, thus reflecting the additional protection which the Convention accords to children.
593. Article 1 of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption of 29 May 1993, which entered into force for Spain on 1 November 1995, states among its objectives:
"To establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law".
Article 24 states:
"The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child".
594. Article 4 of the Hague Convention concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Infants of 5 October 1961 (Spain's instrument of ratification is dated 29 April 1987) states:
"If the authorities of the State of the infant's nationality consider that the interests of the infant so require, they may, after having informed the authorities of the State of his habitual residence, take measures according to their own law for the protection of his person or property".
(b) Best interests of the child in other measures
595. See chapter I.J for the details of the budgetary allocations.
596. The best interests of the child are established as a guiding principle of all measures adopted under immigration procedures (see also ch. III.A and ch. VIII.A.1). The acts of the public authorities in this area are also governed by the principles set out in article 11.2 of the Protection of Minors Act, which include the primacy of the best interests of the child, as pointed out earlier.
597. This is also the purpose of article 12 of Royal Decree 155/1996 of 2 February, which approved the regulations on the implementation of Organizational Act 7/1985 of 1 July on the rights and freedoms of foreigners in Spain, also cited in section A of this chapter, when it states: "Foreign minors shall be treated within Spanish territory in accordance with the provisions of the United Nations Convention on the Rights of the Child of 1989".
598. In the case of foreign minors seeking asylum, attention is drawn to the comments contained in section A on the distinction between minors benefiting under the "family extension" provision from an asylum application submitted by their parents and unaccompanied minors or minors accompanied by persons other than their parents, who remain within the category of foreign minors in a situation of desamparo .
599. With regard to the placement and care of children in institutions, article 11 of the Protection of Minors Act states as a guiding principle of administrative measures:
"The public authorities shall pay particular attention to the proper regulation and supervision of the places, facilities and services in which children are usually cared for, with respect to their physical and environmental conditions, hygiene and health standards, human resources, and educational provision, and with respect to the participation of the children and the other conditions which facilitate the exercise of their rights".
Article 21 states:
"Bearing in mind that children, especially very young children, must have experience of family life, when the public body orders the residential care of a child it shall endeavour to ensure that the child's stay in the institution is as short as possible, except when the child's best interests dictate otherwise.
All services, homes and centres for children must be authorized and accredited by the public body. The public body shall regulate the operation of the specialized services under different schedules and shall enter them in the corresponding register in accordance with the schedule in question, paying particular attention to the service's security and health care arrangements, the numbers and professional qualifications of its staff, and its educational provision, as well as to the participation of the children in its internal operations and to the other conditions which facilitate the exercise of their rights".
600. See also chapter V.H.
601. When it comes to social security benefits, although all Spanish children are entitled to free health care, as will be seen in chapter VI, the best-interests principle is not mentioned in connection with this benefit.
602. The same comment may be made in respect of the other benefits available to children (see ch. VI.C).
2. Measures adopted by the Autonomous Communities
603. The autonomous legislation mentioned in chapter I.B refers expressly to the principle of the best interests of the child as the basis for all the decisions and measures taken by children's institutions in order to deliver the protection and care necessary to their well-being.
604. The same basic principle of protection and the same criterion of action by the administrative authorities and all children's institutions are expressed in different terms in the legislation of the Autonomous Communities: "the precedence of the child's interest over any other competing interest"; "the best interests of the child and the priority attaching to integration in the family and society"; "the precedence of the best interests of the child"; "the primacy of the general interest of the child over any other legitimate interest, the limits to the child's capacity to act being interpreted restrictively"; "the best
interests of children and adolescents; in the determination of these interests particular consideration shall be given to child's wishes and opinions as well as to the specific features of his place in the family and social setting".
605. As some of the Communities (Aragón, Canary Islands, Galicia and Valencia) stipulate, account must be taken in the allocation of public housing to the number of children in the family, and preference must be given to families with disabled children.
606. Some of the action programmes referred to in chapter I.G includes measures on tax allowances, which depend on the number of children for which the family is responsible.
607. The Autonomous Communities have introduced measures to remove the obstacles to the use of public transport by disabled persons.
608. In accordance with these principles, all measures of protection, adoption and foster or institutional care, and the procedures for determining suitability must take into account the child's best interests.
609. The same criterion applies to measures adopted with respect to juvenile offenders, in accordance with Act 4/1992, mentioned earlier.
610. The comments made in the section on measures adopted by the State apply in the Autonomous Communities to foreign children and children seeking asylum.
611. With regard to the placement and care of children in institutions, the Communities have issued regulations on the operation of the institutions, both their own which they run directly and those operated by collaborating bodies. The Community is involved in the coordination, supervision, inspection, monitoring and evaluation of the operation of these facilities, ensuring respect for the rights of the children and compliance with the best-interests principle.
612. This checking of the operation of the institutions and the measures applied to children takes place at least every six months, although more frequent checks may be made in the light of a child's specific circumstances.
613. Children's homes must have a general scheme for provision for education and social training and their own internal rules of procedure, which are subject to regulation.
614. Some of the Communities have established an educational framework containing measures and criteria for the provision of education in all institutions, both their own and those run by collaborating bodies. Furthermore, every child living in an institution must have his own individual education plan, which is subject to periodic review.
3. Measures adopted by social organizations
615. Social organizations concluding agreements with the Autonomous Communities on the management of children's institutions must comply in operating such institutions with the provisions of the State and autonomous legislation concerning the best interests of the child.
616. The best interests of the child is a guiding principle for all the other activities of children's organizations.
617. These organizations stress the need to expand their coordination with the public authorities in order to improve the conditions of the residential care of children.
618. Some organizations say that the vagueness of the best-interests principle sometimes lends itself to a diversity of implementation proposals. The application of the principle may be jeopardized by a failure to take account of cultural diversity or to listen to the child at certain moments, by giving general interests precedence over particular ones, or by the conception of children still harboured by some parents.
619. The organizations often report situations in which the best-interests principle is disregarded by some of the communication media when they do not give sufficient respect to the privacy and self-image of children.
C. The right to life, survival and development (art. 6)
(CRC/C/58, paras. 40 and 41)
1. Measures to guarantee the child's right to life
(a) Measures adopted by the State
620. Reference has already been made in earlier parts of the report (for example, in chapters I.B, I.G and II.B) to the State and autonomous policies and strategies designed to ensure children's proper and comprehensive development.
621. Article 15 of the Constitution states: "All have the right to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment".
622. Article 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on 4 November 1950 and ratified by Spain on 26 September 1979, and article 6 of the International Covenant on Civil and Political Rights, adopted in New York on 16 December 1966 and ratified by Spain on 20 April 1977, both establish the right to life as inherent in the human person.
623. The 1996 Protection of Minors Act states in article 17, in addition to the provisions of article 11 already mentioned in section B of this chapter:
"In situations of risk of any kind which may impair a child's personal or social development but do not require the assumption of tutorship under the Act, the acts of the public authorities must always guarantee the child's rights and be designed to reduce the risk factors and social problems affecting the child's personal or social situation and to promote the protection of the child and his family".
624. Article 18 provides that when the competent public body considers a child to be in a situation of desamparo it must act in accordance with article 172 et seq. of the Civil Code, assuming tutorship of the child and adopting appropriate protection measures and informing the Government Prosecutor of its action.
625. In addition to the standard treatment of offences against life and physical and moral integrity applying equally to persons of the age of majority, Spain's criminal law contains some specific provisions on this subject.
626. Articles 157 and 158 of the Criminal Code provide for the punishment of acts which intentionally (art. 157) or through gross negligence (art. 158) cause foetal injury or disease which impairs the normal development of the foetus or results in a serious physical or mental defect in the child. These provisions fill a gap in the former criminal legislation, which provided impunity by not punishing these acts as abortion, since they do not cause the death of the foetus, or as infliction of bodily injury (impairment of physical integrity or physical or mental health), since this offence requires a person already born as its victim and in this case the injury occurs before birth. Intentional injury of a foetus (art. 157) is punishable by imprisonment for one to four years, and negligent injury (art. 158) by detention for six to 24 weekends. In both cases the Code stipulates a penalty of disqualification from professional functions if the act was committed in the course of the provision of a health service.
627. The physical development of children is also protected under articles 155 and 156 of the Code, which establish, as seen in chapter II, the invalidity of a minor's consent to acts involving injury or to elective organ transplants, sterilization or sex-change surgery. The consent of a minor's legal representatives is not valid either, such surgery requiring a judicial order; the purpose of these provisions is to protect minors against possible abuse.
628. Article 630 seeks to protect children's health by prohibiting the disposal of syringes and other dangerous implements in such a way as to cause personal injury or transmit diseases or in places frequented by children. The penalty for these offences is detention for three to five weekends or a fine of one to two months. In more general terms, attention must be drawn to the importance for the protection of children of the universal and effective guarantee of the rights to education and health enjoyed by all Spanish children (see ch. II).
(b) Measures adopted by the Autonomous Communities
629. Attention is again drawn to the policies and strategies described in chapter I of the report. It may also be said that all the legislation adopted by the Autonomous Communities in the 1990s, mentioned in chapter I.B, is designed for the protection and comprehensive development of children's personalities through intervention in situations of risk, lack of protection and social difficulty, as well as through education and health measures. The same comment applies to the children's programmes of the Autonomous Communities referred to in chapter I.G.
2. Measures to ensure the registration of the deaths of children and the causes of death
(CRC/C/58, para. 41)
630. See chapter VI.B for information on infant mortality.
(a) Measures adopted by the State
631. The measures to ensure the registration of deaths and the causes of death are to be found in the legislation on civil registration:
(a) If a new-born baby does not survive for a full 24 hours outside the womb and/or does not have human form, it is considered to be aborted (art. 171 of the Civil Registry Regulations);
(b) The following persons are required to report the delivery of such babies: the father, mother or closest relative or, in their absence, any person of the age of majority present at the place and time of the birth, the head of the establishment in which (or the head of the family in whose dwelling) the birth took place and, in all cases, the doctor, midwife or health worker attending the birth (arts. 43 to 45 of the Civil Registry Act);
(c) The registry official issues a certificate of the declaration of the death by the persons mentioned above, in accordance with the registration requirements, and immediately places the documents relating to the declaration in the abortions file together with a copy of the certificate (art. 174 of the Civil Registry Regulations);
(d) The information contained in the abortions file is subject to restricted distribution. Access to this information requires special prior authorization, except when the applicants are ascendant relatives of the deceased infant (arts. 21 and 22 of the Civil Registry Act);
(e) If the foetus had acquired the characteristics for it to be considered born for civil purposes, the registration of its death is subject to the same rules as apply to persons of the age of majority. In particular, in matters connected with determination of the cause of death Article 85 of the Civil Registry Act stipulates, firstly, that the registration of the death requires the issue of a medical certificate of the presence of unmistakable signs of death, and, secondly, that in the absence of this medical certificate or if the certificate is incomplete or unclear, or if the registry official deems it necessary, the forensic medical officer attached to the registry office must issue an opinion as to the cause of death after having himself examined the body;
(f) Pursuant to this provision, article 274 of the Civil Registry Regulations requires the medical officer who attended the baby during its last illness, or any other medical officer who recognizes the body, immediately to send to the registry office a death certificate, which must state, in addition to the name, position and registration number of the person signing the certificate, the presence of unmistakable signs of death and the cause of death and, in the form required for registration purposes, the date, time and place of the death and the identity of the deceased child;
(g) Any signs of violent death must be communicated immediately and in detail to the registry official.
(b) Measures adopted by the Autonomous Communities
632. Data on natural population changes and on deaths, disaggregated by cause of death, in the Autonomous Communities are produced under collaboration agreements with the National Institute of Statistics.
3. Measures to prevent children's suicide, ensure the survival of children and prevent the risks to
which they may be exposed (CRC/C/58, para. 41)
(a) Measures adopted by the State
633. See also chapter VIII. A.
634. According to article 11.2 of the Protection of Minors Act, cited earlier, one of the guiding principles of the measures adopted by the public authorities with respect to children is "the prevention of any situations which may impair their personal development".
635. See chapter VI.B for information on cases of children's suicide.
(b) Measures adopted by the Autonomous Communities
636. The measures adopted by the Autonomous Communities with respect to children's suicide form part of the regular mental health care dispensed by the health services of each Community in their primary and specialised systems.
637. Some of the health plans expressly include measures to prevent suicides and to treat and monitor persons exhibiting suicidal tendencies; one such measure is the telephone "Hope Line".
638. Some of the health services keep a cumulative record of psychiatric cases treated in the mental health system, including details of suicidal behaviour, to facilitate the monitoring of this phenomenon.
639. In some cases preventive measures are also taken by the school psychology services.
640. Some of the systems for the social care of children give priority to support and psycho-social care activities for children in situations of risk or in need of protection who exhibit a tendency for self-injury.
641. The autonomous children's acts stress that the priority is prevention of potential lack of protection and serious deficits which impair children's comprehensive development, and that priority must also be given to the prevention of juvenile delinquency.
642.Accordingly, the preventive work is designed to prevent and mitigate the socio-economic causes of the deterioration of children's social and family environment and the repercussions on their personal development, to reduce the risk factors for marginalization, to provide information on the available public resources, to prevent truancy and the maltreatment and exploitation of children, to make it easier for children with special difficulties to take their place in society by removing the physical and communication barriers, and to make society and institutions more aware of children's rights.
643. Some of the autonomous acts refer explicitly to the introduction of "social guarantee" programmes designed "to offer adolescents alternatives to rejecting the regular school system and to dropping-out and truancy by providing them with pre-vocational training to facilitate their future entry into the jobs market" (art. 15 of Galicia's Act 3/1997 of 9 June on the family, children and adolescents).
644. These acts assign to local authorities an essential role in the preventive protection of children through community or primary social services working in collaboration with social organizations and with the technical support of the autonomous administration.
645. When it comes to the prevention of juvenile delinquency, special attention is given to "individualized intervention and appropriate treatment for children aged 10 or older but under 18 who exhibit conduct very likely to lead to the commission of criminal offences" (art. 47 of Catalonia's Act 11/1985 of 13 June on the protection of minors). The prevention of social conflicts and delinquency also involves the social services in the implementation of "prevention and reintegration programmes for adolescents with social problems, which shall provide concrete leisure activities, pre-employment activities, training in social skills and coexistence in the family, and any other measures which may contribute to the attainment of the objectives" (art. 69 of Madrid's Act 6/1995 of 2 August on safeguards of the rights of children and adolescents).
646. Some of the autonomous acts, for example Act 1/1997 of 7 February of the Canary Islands on the comprehensive care of minors, place special emphasis on prevention and on "the necessary information
measures in the educational, cultural and social spheres to prevent the harmful effects of the activities of sects" (art. 24).
647. The Communities carry out periodic interdepartmental campaigns for the prevention of sexually transmitted diseases, with special emphasis on AIDS. The health and education departments of the Basque government singled out AIDS, other sexually transmitted diseases and unwanted pregnancies as an area of special attention with respect to adolescents and designed specific projects in which the active collaboration of teachers, who receive support in the form of training, is indispensable. Some 150 schools have taken action under these projects, with the involvement of 580 teachers in classroom activities reaching about 19,000 adolescents.
648. In the case of the prevention of violence, the pedagogical guidance centre of the Bilbao City Council is carrying out a pilot programme under a project initiated by the Council of the European Union with the aim of enhancing adolescents' independence and their awareness of their responsibilities. This programme seeks not only to intervene in cases of violence but also to prevent violence from the pupils' earliest years.
(c) Measures adopted by social organizations
649. The working groups of the Platform of Children's Organizations number among their aims the prevention of the risks to which adolescents may be exposed, with special attention given to violence. Some of the Platform organizations have carried out campaigns to prevent these risks.
D. Respect for the views of the child (art. 122)
(CRC/C/58, paras. 42-47)
1. Measures adopted by the State
(a) The right to express opinions under the Protection of Minors Act
650. The second paragraph of the explanatory introduction to this Act notes that the new legislation brought in since the adoption of the Constitution has accorded to minors the status of holders of rights. Thus, the concept of "being heard if having sufficient judgment" has been extended to the whole legal system in all matters affecting minors, subject to the need for the direct exercise of their rights to be developed gradually.
651. Article 7 accords to minors the right "to participate fully in social, cultural, artistic and recreational life and gradually to become active citizens"; this provision obliges the public authorities to "encourage the establishment of organs responsible for ensuring participation by minors and children's organizations".
652. Article 9 states:
"1. Minors have the right to be heard both in the family and in any administrative or judicial proceedings in which they are directly involved and which may result in a decision affecting their personal, family or social life.
Minors shall appear in judicial proceedings in a manner appropriate to their situation and degree of development, with due safeguards of their privacy.
2. Minors shall be guaranteed the exercise of this right either in person or through a person designated by them, if they have sufficient judgment. However, when this is not possible or is not in the minor's interest, his opinion may be expressed through his legal representatives, provided that they do not have an interest in the case or interests which conflict with those of the minor, or through other persons who by reason of their profession or their relationship of special trust with the minor can transmit his opinions objectively.
3. If a minor requests to be heard directly or through a person designated by him, any denial of a hearing shall be supported by a statement of grounds and communicated to the Government Prosecutor's Office and to the minor and his representatives".
653. Article 11 states as a guiding principle of administrative acts:
"The public administrations shall give particular attention to the regulation and supervision of the places, facilities and services frequented by children with regard to [...] children's participation and the other factors which help to guarantee their rights".
654. Article 15 states that "in any intervention an effort shall be made to secure the collaboration of the minor and his family and to avoid interference in his school, social or working life".
655. The final provision of this article states:
"Article 177 of the Civil Code shall be redrafted as follows:
1. The adoptive parent or parents and the child to be adopted if aged 12 years or older must give their consent to the adoption in the presence of the judge.
3. The following persons shall simply be heard by the judge:
3. The child to be adopted if he is aged under 12 years and has sufficient judgment".
(b) The right to express opinions in the family
656. Chapter I.H referred to the international conference on "Evolution of children's role in family life" held in Madrid in December 1994 by the Ministry of Labour and Social Affairs and the Council of Europe in connection with the International Year of the Family.
657. As already reported in chapter I, the Ministry maintains regular contacts through its Office for Social Action, Children and the Family with the Platform of Children's Organizations, which carries out participatory activities for children and played a central part in the organization and conduct of the conference mentioned above.
(c) The right to express opinions at school
658. Article 27.7 of the Constitution, on the right to education, stipulates that teachers, parents "and, when appropriate, pupils shall share in the control and management of all the schools maintained by the
Administration out of public funds, under the terms to be laid down by the law". Pursuant to this provision of the Constitution, article 6.1 (e) of Organizational Act 8/1985 of 3 July on the right to education stipulates pupils' right "to be involved in the operation and life of the school".
659. Article 39.1 (e) of the Act provides for pupil representation from the then higher cycle of general basic education, which began at age 12. The participation of pupils in the adoption of decisions affecting them is effected through the school councils, which must exist in all public schools and schools operated under agreements.
660. The Act creates the National Schools Council and the councils of the various Autonomous Communities. The latter organs have pupil representatives appointed by "the most representative pupils' associations", in the words of article 31.1 (c). The National Schools Council must include representatives of the various education sectors affected, and the Act refers specifically to pupil participation. Article 31.1 (c) states that the representation of the pupils in this State organ must be effected through "the confederations of the most representative pupils' associations". In the case of the regional schools councils, the Act also stipulates that the autonomous legislation should ensure the participation of the pupils concerned, establish their legal status and their right "to take part in the formulation of the initial project" and "to have a say in important decisions: always for pupils aged 12 or older and for under-12s if they have sufficient judgment".
661. Articles 26 and 27 of Royal Decree 732/1995 of 5 May on the rights and duties of schoolchildren refer to "schoolchildren's right to freedom of expression without prejudice to the rights of all the members of the education community and the respect due to the institutions in accordance with the principles and rights set forth in the Constitution".
662. Article 6 establishes the councils' obligation to attend to "the proper exercise of the rights and duties of schoolchildren". Committees on social behaviour consisting of teachers, parents and pupils and chaired by the head teacher are to be created in order to make this commitment fully effective.
663. Schoolchildren are also accorded the right to state their disagreement with educational decisions affecting them; if such disagreement is felt by a group of pupils, it must be expressed through the pupil representatives.
664. Article 20 establishes schoolchildren's right to elect their representatives on the schools council by direct secret ballot. This right also applies in the election of group delegates. The delegates form a committee to perform the functions stipulated in the internal rules of procedure. This committee will always be entitled to examine any documents relating to the school, including the records of the school council, except when the privacy of individuals or the normal procedures of academic assessment may be affected. In addition, the school heads will have to provide the committees with a suitable place for their meetings. The detailed application of this provision will have to be regulated by the statutory rules to be adopted by each school with respect to the regular election of representatives, administration of the elections, and the additional functions of the committees of delegates.
665. Article 10 et seq. of Organizational Act 9/1995 of 20 November on the organization and operation of non-university educational establishments reiterates, in connection with the regulation of school councils in public schools, the right of the pupils' parents and of the pupils themselves to be involved in the school council and it stipulates that they must make up one third of the members. The pupil members of the council enjoy the same rights as other members (teachers, parents, representatives of the administration, etc.).
666. However, pursuant to article 12.1 of the Act pupils in "the first cycle of compulsory secondary education" are not permitted to take part in the selection or dismissal of their school's head teacher. This is the only exception to pupils' participation in the operation of their school, for they are entitled to be involved in all the other activities of the school council.
667. These activities, regulated by article 11.1 of the Act, include the following functions: establishing guidelines for the formulation of the educational project, approving the school's internal rules of procedure, its budget and budget performance, promoting the renovation of the plant and equipment and supervising its maintenance, and imposing punishments, for educational purposes, on pupils whose conduct seriously disrupts the running and atmosphere of the school.
(d) The right to express opinions in the administration of juvenile justice
668. As pointed out earlier, this right is recognized in article 9.1 of the Protection of Minors Act.
669. Organizational Act 4/1992 of 5 June on reform of the Act regulating the jurisdiction and procedures of the juvenile courts sets out a procedure for ensuring that a full hearing is given to minors accused of the commission of an offence.
670. However, the possibility is still open for a future amendment of the Criminal Proceedings Act to ensure, by means of a special prerogative, that when minors appear in criminal proceedings their right to enjoy personal privacy and the other established rights is fully respected.
(e) The right to express opinions in institutional life
671. As already mentioned in chapter II, in proceedings concerning the placement of a minor in an institution for reasons of mental disturbance, the judicial authority must examine the minor in person before ruling on the placement application (art. 211 of the Civil Code).
672. Following such placement the competent court, whenever it deems fit and in any event every six months, must formally obtain information as to whether the placement should continue. To this end it must again examine the minor in person and hear an expert report.
673. If in addition to placement in an institution it is argued that the minor should be declared legally incapable, before issuing its ruling the court must hear the minor's closest relatives, examine the minor in person, and hear an expert report; without prejudice to the evidence submitted by the parties, it may formally request any other evidence that it deems pertinent (art. 208 of the Civil Code).
674. If some new circumstance comes to light after the ruling, the court may be requested to issue a new ruling to revoke or to amend the scope of the minor's legal incapacity. Once again, the court must examine the minor in question (arts. 212 and 213 of the Civil Code).
675. For the purposes of committing a minor in a situation of desamparo to a residential facility, both and the State and all the autonomous legislation establish as a requirement for any protection measure that the minor's opinion must be heard, for these are after all measures which affect him personally.
(f) The right to express opinions in asylum proceedings
676. As pointed out in chapter III.A in connection with the principle of non-discrimination, Spain's asylum legislation does not contain a special procedure or even any specific requirements with regard to asylum applications by minors.
677. Furthermore, the recent resolution of the Council of the European Union on unaccompanied minors who are nationals of third countries (97c 221/03. DOCE, 19.7.97), which deals with the details of asylum proceedings in respect of unaccompanied minors, makes no reference to the need to obtain the minor's opinion concerning the proceedings, although it does specify some circumstances in which the minor in question must be interviewed.
678. However, a minor's right to be heard in proceedings for the consideration of his asylum application is guaranteed by the Protection of Minors Act itself, article 9 of which, as seen earlier, provides for a minor's right to be heard in any administrative or judicial proceedings in which he is directly involved or which may result in a decision affecting his personal, family or social life.
679. It may be taken that this provision makes it mandatory not only for an unaccompanied minor who has submitted his own application for asylum to be given a hearing but also for minors to be heard, for example during the processing of asylum applications submitted by their parents, if this is possible, opportune and/or convenient, for the decisions on such applications also affect the minors' "personal, family and social life".
(g) The right to express opinions in civil and criminal legal proceedings
680. Minors may appear in civil proceedings as parties or as witnesses.
681. Although minors possess the capacity to be a party to legal proceedings of their own right, they lack procedural capacity since they do not enjoy full exercise of civil rights, and therefore a legal representative must act for them in the proceedings themselves; this does not apply to emancipated minors (arts. 314 and 323 of the Civil Code).
682. Legal representation may be undertaken by parents possessing parental authority, acting either jointly or singly with the other's consent (arts. 162, 145 and 156 of the Civil Code) or, failing that, by a tutor (art. 222). In the event of a conflict of interests between the parents and the minor, an official legal representative is appointed (arts. 163 and 299-302). If a minor is represented by a tutor, the tutor must hold judicial authorization "to bring proceedings on behalf of wards" except when the matter is urgent or of little account (art. 272.3).
683. According to article 1246 of the Civil Code, children aged under 14 may not appear as witnesses in civil proceedings. However, article 647 of the Civil Proceedings Act appears to allow their appearance as witnesses when it says that children under 14 do not have to swear an oath. The courts have resolved this contradiction in practice by ruling that the inability of children to appear as witness is limited to cases in which the evidence relates to obligations. Children do give evidence in the everyday practice of the courts, but the restriction comes into play in the assessment of their evidence.
684. There is also a distinction between appearance as parties and appearance as witnesses in criminal proceedings.
685. Article 789.5 of this Act provides that the proceedings must take place in a juvenile court when all the accused are aged under 16.
686. It should also be borne in mind that article 9 of Organizational Act 4/1992 of 5 June amending the Act on the jurisdiction and procedures of the juvenile courts states:
"The juvenile courts are competent to hear: (1) cases involving acts committed by children aged 12 years or older but under the age of criminal responsibility fixed in the Criminal Code [16 years] when such acts are characterized as crimes or offences in the criminal law. If the perpetrator of the act is aged under 12 years he shall be placed, when appropriate, in the care of the administrative institutions for the protection of minors".
687. With regard to the possibility of minors laying charges in criminal proceedings, their capacity to be a party follows the general rule but a legal representative must act for them in the proceedings.
688. There is no restriction on the appearance of minors as witnesses in criminal proceedings, and they enjoy the protection of Organizational Act 19/1994 of 23 December on the protection of witnesses and experts in criminal actions.
(h) The right to express opinions in administrative proceedings
689. Reference has already been made to article 9 of the Protection of Minors Act in connection with the opportunities for children to be heard in administrative proceedings and the situations in which they may act.
690. See chapter I.K on measures to make families and the general public aware of children's right to express their opinions and on the training of professionals in this area.
2. Measures adopted by the Autonomous Communities
691. Various pieces of autonomous legislation refer expressly to children's right to be informed about protection measures and to express their opinions and be given a hearing in whatever procedures are introduced by the administrations, especially when decisions affecting their personal, family or social life may be adopted.
692. Several legal provisions agree on the guarantee of this right:
Article 3.4 of Act 19/1989 of 14 December on the protection of minors (Aragón);
Articles 22.2 (g) and 53.1 (o) of Decree 79/1995 of 18 April on declarations of desamparo and protection measures (Aragón);
Article 13 of Decree 238/1994 of 28 December on the organization and operation of centres for the protection of minors (Aragón);
Article 11 of Act 1/1995 of 27 January on the protection of minors (Asturias);
Article 8 of Act 7/1995 of 21 March on the care and protection of minors (Balearic Islands);
Articles 48 and 86 (g) of Act 1/1997 of 7 February on the comprehensive care of minors (Canary Islands);
Articles 12, 20 and 24 of Decree 66/1992 of 7 September approving the regulations on administrative proceedings for adoption, tutorship, guardianship and foster care of minors (Cantabria);
Article 8 of Act 5/1995 of 23 March on solidarity (Castile-La Mancha);
Article 14 of Decree 57/1988 of 7 April issuing regulations on the protection of minors (Castile and León);
Article 2 of Act 12/1996 of 29 July on parental authority (Catalonia);
Articles 3 and 11.3 of Act 8/1995 of 27 July on the care and protection of minors, amending Act 37/1991 of 30 December on measures for the protection of minors and on adoption (Catalonia);
Article 12 of Act 4/1994 of 10 November on the protection and care of minors (Extremadura);
Articles 8 and 12 of Act 3/1997 of 9 June on the family, children and adolescents (Galicia);
Article 13 of Act 4/1998 of 18 March on minors (La Rioja);
Articles 3, 52 and 73 of Act 6/1995 of 2 August on safeguards of the rights of children and adolescents (Madrid);
Article 5 of Act 3/1995 of 21 March on children (Murcia);
Articles 3, 15 and 44 of Act 1/1993 of 19 February on public schools (Basque Country);
Article 39 of Act 7/1994 of 5 December on children (Valencia).
693. In this legislation the Autonomous Communities stress the importance of the free expression of opinions by children and refer both to the advancement and participation of children in various spheres such as their immediate social environment, cultural activities, the school community, and the operation of children's centres.
694. In addition to the services provided for in the legislation, some of the Communities have created others such as children's hotlines and post boxes, which offer children an opportunity to say what they want and to be given a hearing. See also chapter I.H.
695. In several of the Communities the annual celebration of Universal Children's Day on 20 November (see chapter I.H) provides an occasion for children to have their opinions heard.
3. Measures adopted by social organizations
696. Children's organizations comply with the rules on respect for children's opinions in their work with children and their education projects and in the residential care which some of them provide under agreements with the Autonomous Communities: they regard children as individuals and active holders of rights who are capable of expressing their own opinions.
697. In collaboration with the Ministry of Labour and Social Affairs, one of the Platform organizations produced a study on standards of quality in residential care and a handbook on good practice in the residential care of children setting out standards of education and communication which take account of the need to respect children's opinions.
698. In 1994 another of the organizations, in collaboration with a number of European bodies, made a survey of children in various Autonomous Communities with the principal aim of learning what they thought about their own families. This survey is included in an evaluative and comparative study of the
way in which children perceive their families in five countries of the European Union (Belgium, France, Netherlands, Spain and Portugal). The findings of this study were translated into Spanish and subsequently published by the Ministry under the title "What do children think of their families?"
699. The education for development programmes described in chapter I and in section A of the present chapter encourage the young participants to think critically about the various social problems. In addition, the periodical Jatun Sunqu has an opinions page open to schoolchildren.
700. The periodical Nuestro Rollo published by one of the Platform organizations is an organ for the free expression of children's opinions.
701. The leisure and free time programme seeks to enhance children's self-management and sense of responsibility, as well as good habits, attitudes and values, by developing their capacity to take sensible decisions on the use of their free time.
702. Another of the Platform organizations has an internal children's body, democratically elected at assemblies, where children can state their views about the running of the organization itself and about social issues. This organization holds children's encounters for three to four hundred children from all over Spain, which examine the family, school, the communication media, policies, local districts or towns, the Church, etc. The most recent of these encounters was held in Huesca in July 1997.
703. One of the Platform organizations created an Internet site called "Youth thinks".
704. The training programmes run by the Platform organizations stress children's right to express their opinions and to participate.
705. One of the organizations created "Our Phone", a free national telephone service which listens and gives advice both to children with problems and to adults responsible for children who want to report or discuss some problem affecting a child. "Our Phone" holds at least two annual theoretical and practical training courses for the volunteers who man the lines and give advice to callers. Mexico's "Our Phone", initiated in August 1996, has the same operational arrangements and aims as the Spanish service.
706.Other activities of social organizations which encourage the free expression of children's opinions are mentioned in chapters I.G and I.K.
IV. CIVIL RIGHTS AND FREEDOMS
707.Generally speaking, as has been explained in detail in chapter I.C, the civil rights and freedoms of children set forth in the Convention are expressly recognized both in the Spanish Constitution and in the Legal Protection of Minors (Organization) Act, 1/1996 of 15 January, partially amending the Civil Code and the Civil Proceedings Act. Specifically, article 3 of that Act establishes that "minors shall enjoy the rights conferred on them by the Constitution and international treaties to which Spain is a party, especially the Convention on the Rights of the Child...".
708. Chapter II of the same Act includes many of the rights set forth in the Convention, as already described in chapter I.C.
A. Name and nationality (art. 7)
(paras. 49-53 of the general guidelines (CRC/C/58))
1. Measures adopted by the State
709. The Civil Code, after establishing in its article 29 that "birth shall determine personality", adds in its article 30 that, for civil purposes, only a foetus that has human form and survives 24 hours entirely separated from its mother's body shall be regarded as a newborn child. Accordingly, the Civil Registration Act and Regulations permit the registration of a birth only once that period of time has elapsed (arts. 40 and 42 of the Civil Registration Act).
710. With regard to this legal provision and those of article 7 of the Convention, on 3 September 1996 the Directorate-General of Registers and Notaries (DGRN) of the Ministry of Justice issued a decision in response to a request, by a woman whose child had survived only five-and-a-half hours after birth, to register its birth irrespective of that time limit.
711. The Directorate-General, having regard to article 7 of the Convention, articles 8 and 14 of the European Convention on Human Rights and the relevant provisions of the Civil Code and of the legislation on registration, refused the application for registration, on the basis, inter alia, of the following argument:
"Finally, [the fact] that article 7 of the Convention on the Rights of the Child provides that 'the child shall be registered immediately after birth and shall have the right from birth to a name, [and] the right to acquire a nationality...' is not a decisive argument. The purpose of that Convention is to safeguard the fundamental rights of children who subsequently survive, but its provisions may not interfere with the modalities established by each domestic legal system with a view to securing registration immediately upon birth ( lato sensu , inclusion in the Spanish record of abortions is a modality of registration), or in the conditions, which it is for each domestic legislation to determine, that a birth must fulfil in order for the civil personality of the newborn child to be recognized. Whether these conditions consist of so-called independent viability (degree of maturity of the foetus), dependent viability (ability of the foetus to continue to survive in the absence of internal defects), or statutory viability, i.e. the length of time survived (the system adopted by our Civil Code) is a decision that each country can and must take in accordance with its own tradition and reasons of legislative policy."
712. Article 42 of the Civil Registration Act provides that any person may inform the Civil Registrar of a birth, and article 43 enumerates the persons who are obliged to ensure that the birth is registered and those who are obliged to give immediate notice thereof in writing.
713. Persons so obliged must submit the declaration of birth promptly: within eight days of the delivery as a general rule, or within 30 days when there is deemed to be good cause for the delay (arts. 42 of the Civil Registration Act and 166 of the Civil Registration Regulations).
714. The following persons are obliged to ensure that the birth is registered by means of the declaration: (1) the father; (2) the mother; (3) the closest relative, or, failing that, any person having attained the age of majority present at the place of birth when it occurs; (4) the head of the establishment or household in the premises in which the birth has taken place; and (5), in the case of abandoned newborn children, the person who has given them shelter (art. 43 of the Civil Registration Act).
715. As examples of measures taken to promote registration by removing social or cultural obstacles, it should be mentioned that the obligation to promote registration extends to the doctor, midwife or auxiliary health worker who has assisted the birth ( ibid . art. 44), and that article 169 of the Civil Registration Regulations lays down special rules to facilitate the registration of abandoned or exposed children.
716. It should also be mentioned that these regulations obviously also cover children born while their parents' applications for asylum are being processed, as well as refugee and displaced children.
717. Given that the Spanish Civil Register has been in operation since 1870, that it is an institution fully accepted by society, and that cases of failure to register a birth are rare, no special measures have been taken to sensitize public opinion with regard to the issue. Nonetheless, mention should be made of a DGRN Circular of 29 October 1980 which, taking up a proposal of the Justice Committee of the Congress of Deputies of 2 October 1980, recalls the need for gypsies and other minority groups to register births that have occurred in Spain.
718. As for the elements of the child's identity, in accordance with article 41 of the Civil Registration Act, registration of newborn children certifies the fact, date, time and place of the birth, and the sex, given name and, where applicable, filiation of the child registered.
719. Pursuant to article 53 of the same Act, persons are designated by their given names and their father's and mother's family names as determined by filiation. Every Spaniard must be identified by two family names, the first being that of the father and the second, the mother's first family name (arts. 109 of the Civil Code; 53 and 55 of the Civil Registration Act; 194, 199 and 213 of the Civil Registration Regulations).
720. At the time of drafting of this report, various draft laws were being tabled, amending the Civil Code and the legislation on registration so as to permit, if both parents so decide, the mother's name to precede that of the father when the child's birth is registered within the prescribed time limits.
721. As for children born as a result of assisted or artificial reproductive techniques, article 7 of Act 35/1988, of 22 November, provides that:
"1. The filiation of children born as a result of assisted reproductive techniques shall be regulated by the rules in force, except as otherwise provided in the special rules contained in this chapter.
2. In no case shall the entry in the Civil Register reflect information from which the form of reproduction involved may be inferred."
722. Although the Civil Register is in the public domain, so that any person may request certification of the entries it contains, certain data are designated as restricted and require special authorization in order to be accessed. Article 21.1 of the Civil Registration Regulations provides that:
"The following data shall be not made public without special authorization: adoptive, non-matrimonial or unknown filiation or circumstances revealing such filiation; the date of the marriage or the date of birth as recorded on the birth certificate, if the former was subsequent to the latter or took place during the period of 180 days prior to the birth; and any change of the name "Foundling" or other analogous or otherwise inappropriate information."
723. Such authorization will, however, not be necessary where the person requesting the certification is "the person registered or his or her ascendant relatives, descendants or heirs..." (art. 22 of the Civil Registration Regulations).
724. Biological matrimonial filiation is legally determined by registration of the child's birth together with registration of the parents' marriage (art. 115.1 of the Civil Code).
725. Non-matrimonial maternal filiation is legally determined merely by the reference to the mother in the registration of birth within the prescribed time limits ( ibid . art. 120.4).
726. With regard to the determination of non-matrimonial paternity - including non-matrimonial maternity in extreme cases in which article 120.4 of the Code does not apply - the law, in accordance with the principle proclaimed in article 39 of the Constitution, facilitates investigation of paternity or maternity so that, if one or the other is not acknowledged voluntarily by the parents, the child has a lifelong right to take judicial action to claim filiation (art. 133 of the Civil Code).
727. As already indicated in chapter II, the right of the child to know the identity of his or her biological parents does not disappear by virtue of the fact that the child has since been adopted, because, as can be seen from article 22.1 of the Civil Registration Regulations, adopted children who have reached the age of majority have the right to obtain written certification of their birth, stating, where applicable, their previous natural filiation. Similarly, minors may obtain this information from the Register upon authorization by the competent judge.
728. For the right to be cared for by the parents, see chapter V.A.
729. As for the right of children to acquire a nationality, article 17 of the Civil Code establishes that the following are Spaniards by origin:
(a) "Those born of a Spanish father or mother." Spanish nationality is attributed automatically, regardless of whether the filiation is matrimonial or non-matrimonial or whether the child was born in Spain or elsewhere. Likewise, no account is taken of cases in which the foreign law of the place of birth or of the foreign parent attributes a different nationality to the child, or in which such attribution is a voluntary act on the part of the parents, who, in accordance with the foreign legal order, have opted for that nationality;
(b) "Those born in Spain of foreign parents, if at least one of the parents was also born in Spain. In this case, the children of diplomatic or consular officials accredited in Spain are excluded." In these cases the fact that the foreign law may have attributed another nationality to - or that the father, the mother or both may have opted for a foreign nationality for - their child is also immaterial;
(c) "Those born in Spain of foreign parents, if both are stateless, or if neither parent's national legislation attributes a nationality to the child." The purpose of this provision is evidently to eliminate or reduce cases of statelessness;
(d) "Those born in Spain whose filiation remains undetermined. For such purposes, minors whose first known place of residence was Spanish territory shall be presumed to have been born in Spanish territory."
730. As regards foreign minors, see chapters II, III.A. 1 (f) and VIII.A.1.
731. Under article 19 of the Civil Code, a foreign minor adopted by a Spanish national acquires original Spanish nationality from the moment of adoption.
732. If the foreign minor is or has been subject to the parental authority of a Spaniard, he has the right to opt for Spanish nationality. To do so, he will have to make a declaration of such election, through a legal representative if he is under 14 years of age; with the assistance of the legal representative if over that age; and unassisted if he has reached the age of majority (art. 20 of the Civil Code).
733. It is also possible for foreign minors to acquire Spanish nationality through the granting by the Government of the Carta de Naturaleza (Naturalization Card), or by virtue of having resided in Spain for a specified time. For this purpose, the child must submit a request, which will be made by his legal representative if the child is under 14 years of age; with the assistance of the legal representative if he is over that age; and alone, without the need for additional capacity, if he is emancipated ( ibid . arts. 21 and 22).
734. As for the right to asylum, the Asylum (Regulation) Act, to which detailed reference is made in chapter VIII.A.1, provides in its article 35 that recognized refugees may request Spanish nationality as provided for in article 22.1 of the Civil Code.
735. Although the required period of continuous legal residence immediately prior to the application for Spanish nationality on grounds of residence is generally 10 years (two years if the applicant is a national of an Ibero-American country, Andorra, the Philippines, Equatorial Guinea or Portugal, or of Sephardic origin), the Civil Code provides for a period of only five years for asylum-seekers or refugees. Accordingly, a refugee minor may request Spanish nationality after five years' residence, in cases where he is emancipated at the time of the application; if at that time he has attained 14 years of age, he will be assisted by his legal representative. If he is under 14 years of age, after the period of five years' legal residence has elapsed, the application for Spanish nationality will be made on his behalf by the legal representative (art. 21.2 of the Civil Code).
736. As for displaced persons or "refugees from violence", Spanish legislation treats these persons within the context of application of its aliens' legislation and, except where otherwise expressly provided in the Asylum (Regulation) Act, they do not enjoy the privileges accorded to refugees.
737. Displaced persons may request Spanish nationality after 10 years' legal residence pursuant to article 24.4 of the Civil Code. The First Additional Provision of the Asylum (Regulation)
Act allows for the possibility for any displaced person to request recognition of his refugee status under the relevant Geneva Convention and the Asylum Act. This Additional Provision offers displaced persons the entitlement to annually renewable residence permits, the possibility to participate in reception and integration programmes provided for refugees, the social benefits provided for under articles 15 and 30 of the Regulations, the possibility of being granted work permits, and, above all, the right not to be returned to the country of the conflict.
2. Measures adopted by the Autonomous Communities
738. In addition to complying with the national legislation referred to above, the Autonomous Communities, in recently enacted legislation governing children, are explicitly setting forth the right of the child to a name and nationality from the moment of birth. In the case of children in the guardianship or custody of the autonomous administration and cases where the parents have not registered the child, the administration will make the necessary arrangements for registration, once appropriate inquiries have been made and the necessary documentation has been collected.
739. Similarly, some Autonomous Communities regulate matters relating to the correct and unequivocal identification of the newborn child, applying the most accurate and up-to-date techniques and
issuing a Child's Identity Document. In this connection mention may be made of article 5 of Andalusia's Act 1/1998 of 20 April, governing the rights and care of children; article 3 of Extremadura's Act 4/1994 of 10 November, on the protection and care of minors; article 8(c) of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; article 9(d) of La Rioja's Act 4/1998 of 18 March, on minors; article 11.1(a) of Madrid's Act 6/1995 of 28 March, guaranteeing the rights of children and adolescents; and article 7 of Murcia's Act 3/1995 of 21 March, on children.
B. Preservation of identity (art. 8)
(CRC/C/58, para. 54)
1. Measures adopted by the State
740. See also section A of this chapter.
741. The Criminal Code groups together various offences with the aim of preserving children's identity and ensuring that they are not deprived of the elements necessary for their identification.
742. Article 200 punishes fraudulent registration of a non-existent birth, the concealment (abandonment of a newborn child to conceal the fact of its birth) or handing over of a child to third parties in order to change or modify its filiation), and the substitution of one child for another (altering children's filiation). The first three of these acts are punishable only when committed deliberately and with the intention of changing the child's civil status, in which case the perpetrators are liable to six months' to two years' imprisonment, with the additional possibility, where the offenders are ascendant relatives, of specific disqualification from the right to exercise parental authority. However, substitution of one child for another may either be intentional, in which case the penalty is one to five years' imprisonment, or the result of gross negligence on the part of the hospital staff responsible for children's filiation, in which case the penalty is six months' to one year's imprisonment.
743. Filiation of children is also protected by article 221, which punishes the handing over, for financial reward, of a son or daughter, descendant or any other minor, even where there is no relationship of filiation or blood, circumventing the statutory procedures for custody, reception or adoption, with a view to establishing a relationship analogous to filiation. The penalty provided for such "trading in children" is one to five years' imprisonment and specific disqualification from exercise of parental authority for four to 10 years in the case of "sellers". The person receiving the child (the "purchaser") and the intermediary shall be liable to the same punishment, even when the child was handed over in a foreign country. Where these acts were committed with the involvement of crèches, schools or other premises or establishments for children, the offenders shall be liable to specific disqualification from the exercise of those activities for a period of two to six years, and the establishments concerned may be closed down permanently, or temporarily for a period not exceeding five years in the latter case.
744. Article 31 of the instrument of ratification of the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, concluded in The Hague on 29 May 1993, to which Spain is a party, provides that "without prejudice to the provisions of article 30, personal data obtained or transmitted in accordance with the Convention, in particular those referred to in articles 15 and 16, may not be used for purposes other than those for which they were obtained or transmitted."
C. Freedom of expression (art. 13)
(CRC/C/58, para. 55)
1. Measures adopted by the State
745. See also chapter III.D.
746.Paragraph 1 of article 20 of the Spanish Constitution recognizes "the right freely to express and disseminate thoughts, ideas and opinions by word, in writing or by any other means of communication", thereby covering all possible aspects of freedom of expression in the broadest sense. The legal interest protected by the establishment of this constitutional right is not freedom of personal opinion, but the private or public communication of ideas or opinions; hence, the Constitution does not confine itself to establishing that right, but also establishes the conditions for its exercise, by specifying that such thoughts, ideas and expressions shall be expressed freely - a condition which presupposes respect for the opinion expressed.
747. Paragraph 2 of the same article establishes an absolute and unconditional prohibition on any form of prior censorship. This prohibition protects all the rights recognized in paragraph 1.
748. Paragraph 4 indicates the limits to freedom of expression, which is bounded by respect for fundamental rights, and in particular the rights to honour, privacy, personal reputation; and by the need for protection of youth and childhood.
749. Article 8 of the Protection of Minors Act (1/1996) establishes that:
"1. Minors shall enjoy the right to freedom of expression as provided for under the Constitution. This freedom of expression is also limited by protection of the privacy and reputation of the minor himself, set forth in article 4 of this Act.
2. In particular, the right of minors to freedom of expression extends to:
(a) publicization and dissemination of their opinions;
(b) publication and production of media messages;
(c) access to any aid that the public administration may establish for that purpose.
3. The exercise of this right shall be subject to any restrictions provided by this Act to guarantee respect for the rights of others or the protection of public safety, health and morals or public order."
750. Article 9 includes as an extension of the right to freedom of expression the right of children to a hearing "in the family as well as in any administrative or judicial proceedings in which they are directly involved and which may lead to a decision affecting their personal, family or social circumstances."
751. In addition to the remedies available under Spain's domestic order to guarantee the right of the child to freedom of expression, mention should also be made of remedies under international law.
752. Children benefit from the system of guarantees established by the European Convention on Human Rights, to which Spain is a party. Article 10 of that Convention recognizes the right of "everyone" - whether or not a minor - to freedom of expression, restricting limitations on that right to such measures as are "... necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
2. Measures adopted by the Autonomous Communities
753. Reference was made in chapter III.D to legislation of the Autonomous Communities setting forth the right of children to express opinions and to receive a hearing.
754. Children's freedom of expression, which extends to the publicization and dissemination of their opinions and publication and production of media messages, is expressly established in article 8 of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; and in article 31 of La Rioja's Act 4/1998 of 18 March, on minors.
3. Measures adopted by social organizations
755. See chapters I.G and K and III.D.
D. Freedom of thought, conscience and religion (art. 14)
(CRC/C/58, paras. 56-57)
1. Measures adopted by the State
756. As already indicated in paragraphs 129-133 of the initial report, the right to freedom of thought, conscience and religion is recognized in article 16, paragraph 1, of the Spanish Constitution. Its content, according to article 2 of the Religious Freedom (Organization) Act, 5/1980 of 5 July, includes the rights to hold one's own beliefs, or to hold no belief, to change one's religion or to abandon one's religion, freely to express one's own beliefs or absence of beliefs or to refrain from making them public, to practise the rites of the religion and to receive religious ministration, to receive and impart religious education of all kinds, and to meet publicly for religious purposes or congregate in order to engage in communal religious activities.
757. Article 6, paragraph 1, of the Protection of Minors Act (1/1996) recognizes the right of minors to freedom of ideology, conscience and religion, while stating in paragraph 2 that "the rights flowing from this freedom are limited only as prescribed by this Act and by respect for the fundamental rights and freedoms of others"; without prejudice, of course, to the provisions of other domestic legislation relating to this right.
758. A problem arises concerning the exercise of freedom of conscience, religion and belief by children when those beliefs come into conflict with their own right to life. This happens in the case of conscientious objection to medical treatment essential to save the child's life. The only form of such conscientious objection that has come to the attention of the courts in Spain concerns blood transfusions, which are prohibited by Jehovah's Witnesses on the basis of their interpretation of the Bible.
759. The State cannot neglect to protect the lives of children to the extent of exonerating persons responsible for care of the child who, on the basis of their own beliefs and/or those of the child, fail to provide medical treatment which could save the child's life.
760. No account is taken of the wish of a child under 13 years of age, rooted in his or her own firm religious beliefs, not to submit to treatment; but strong religious convictions on the part of those responsible for the child are regarded as mitigating circumstances by those applying the law; kinship by
blood is not regarded as an aggravating circumstance, and may even predispose the court partially to exonerate those responsible, as occurred in a judgement of the Supreme Court of 19 June 1997.
761. The general framework of legal guarantees provided by article 16 of the Spanish Constitution and article 2 of the Religious Freedom (Organization) Act also serves to protect religious freedom in education. Article 27, paragraph 3, of the Spanish Constitution makes special reference to "the right of parents to ensure that their children receive religious and moral instruction that is in accordance with their own convictions".
762. Both the Right to Education (Organization) Act, the General Education (Organization) Act and the judgement of the Constitutional Court of 13 February 1981 proclaim the non-denominational (neutral) role of the State in educational matters.
763. The 10 articles of the Agreements of 10 November 1992 recognize the right to religious instruction in the Jewish, Evangelical and Islamic faiths at all levels in the schools operated under agreements.
764. With regard to Roman Catholicism, Spain's predominant religion, the Second Additional Provision of the General Education (Organization) Act provides that:
"The teaching of religion shall be in accordance with the provisions of the Agreements on Education and Cultural Matters concluded between the Holy See and the Spanish State on 3 January 1979 and, where applicable, with the provisions of other such agreements as may be concluded with other religious faiths. For such purposes, and in accordance with the provisions of such agreements, religion shall be included as a topic or subject at the corresponding educational levels; its provision shall be compulsory for the schools, and attendance voluntary for the pupils."
765. Royal Decree 1007/1991 of 14 June, on compulsory secondary education, Royal Decree 1700/1991 on higher school examinations, and Royal Decree 1006/1991 on primary education, provide that:
"Given the voluntary nature of such courses for pupils, the corresponding qualifications shall not be taken into account in the vacancy announcements which, within the education system and for the purposes thereof, are made by the public administrations and in which account is taken of the students' academic records."
766. As is to be expected, the European Convention on Human Rights, ratified by Spain, includes, in its article 9, the right to freedom of thought, conscience and religion. Consequently, the exercise of this right by children is covered by the system of guarantees under that Convention, which includes the possibility of individual application to the European Court of Human Rights.
767. With a view to protecting children from harmful sects, the Protection of Minors Act provides that "when a minor's or the parents' membership of an association prevents or jeopardizes the minor's full development, any interested person, natural or legal person or public entity may apply to the Government Procurator's Office to initiate any legal measures it may deem necessary."
2. Measures adopted by the Autonomous Communities
768. Some of the Autonomous Communities' legislation on children explicitly recognizes these freedoms.
769. Thus, mention may be made of article 4(c) of Aragón's Act 10/1989 of 14 December, on protection of minors; article 12 of Asturias' Act 1/1995 of 27 January, on protection of minors; article 4 of Decree 272/1990 of 20 December approving the statutes of its own establishments and services, of Castile and León; article 19 of Catalonia's Act 11/1985 of 13 June, on protection of minors; article 3(a) of Extremadura's Act 4/1994 of 10 November, on protection and care of minors; article 8 of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; article 14 of La Rioja's Act 4/1988 of 18 March, on minors; and article 7.2 of Valencia's Order of 14 May 1991 approving the Statute of Children's and Young People's Care Centres.
770. Similarly, some Autonomous Communities provide for the protection of young people against sects. Mention may be made of article 24 of the Canaries' Act 1/1997 of 7 February, providing comprehensive care for minors; and of article 53 of Catalonia's Act 8/1995 of 27 July, on care and protection of children and adolescents.
3. Measures adopted by social organizations
771. See chapter III.D.
E. Freedom of association and peaceful assembly (art. 15)
(CRC/C/58, para. 58)
1. Measures adopted by the State
772. Article 22 of the Spanish Constitution contains a formulation that fundamentally affects the process of setting up associations and the question of unlawful associations. Article 48 includes, among the principles governing social and economic policy, "the free and effective participation of young people in political, social, economic and cultural development".
773. Article 7 of the Legal Protection of Minors (Organization) Act, 1/1996 of 15 January, partially amending the Civil Code and the Civil Proceedings Act, provides that:
"1. Minors have the right to full participation in the social, cultural, artistic and recreational life of their environment, as well as to gradual initiation into active citizenship. The public authorities shall promote the setting up of participatory bodies for minors and of social organizations for children.
2. Minors have the right to associate, a right which, in particular, includes:
(a) The right to membership of youth associations and party political and trade union organizations, in accordance with the law and their statutes;
(b) The right to promote children's and youth associations and to register them in accordance with law. Minors shall comprise part of the governing bodies of such associations.
To enable children's and youth associations to comply with their civil obligations, they shall be required to appoint, in accordance with their statutes, a representative with full legal capacity. Where a minor's or the parents' membership of an association impedes or jeopardizes the minor's full development, any interested person, natural or legal person or public entity may apply to the Government Procurator's Office to initiate any legal measures of protection it may deem necessary."
3. Minors have the right to participate in public meetings and peaceful demonstrations convened in compliance with the law.
Likewise, they also have the right to promote and convene them, with the express consent of their parents, guardians or custodians."
774. The educational legislation on this question is essentially aimed at regulating the freedom of association of students at non-university educational establishments, the majority of whom are minors.
775. Thus, article 7 of the Right to Education (Organization) Act provides that students in non-university educational establishments regulated by the Act "may form associations appropriate to their age, setting up organizations in accordance with the law and with such applicable regulations as may be established." Those regulations were established by Royal Decree 1532/1986 of 11 July, which regulates students' associations. The right is extended to all pupils 12 years of age or over.
776. At international level, both the International Covenant on Civil and Political Rights (whose first Optional Protocol, to which Spain is a party, provides for the submission of communications to the Human Rights Committee by individuals), in its articles 21 and 22, and the European Convention on Human Rights, in its article 11, protect freedom of association and peaceful assembly. Consequently, as in other cases already mentioned, the mechanisms guaranteeing effective protection of those rights provided by both systems are available to children and their legal representatives.
777. Reference was made in chapter I.K to various activities conducted to disseminate the Convention, in which the right to participation has a prominent place.
778. The Ministry of Labour and Social Affairs finances programmes carried out by NGOs, the aim of which is to promote education for group participation and children's responsibility. Children must participate directly in the development of the programme, and its implementation will involve the creation of stable associations, enabling children to participate in the NGOs themselves. These programmes seek first and foremost to integrate children who find themselves in difficult social circumstances.
2. Measures adopted by the Autonomous Communities
779. The Autonomous Communities, by virtue of their powers in areas such as youth policy and protection of children and associations, have introduced legislation governing participation of children in society, and specifically their freedom of association, as well as committing the administrations to the task of stimulating and promoting associative activities among children.
780. In this context, mention may be made of article 12.3 and 4 of Andalusia's Act 1/1998 of 20 April, governing the rights and care of children; article 4 of Aragón's Act 10/1989 of 14 December, on protection of minors; the Canaries' Act 1/1997 of 7 February, providing comprehensive care for minors; articles 12 and 51 of Catalonia's Act 8/1995 of 27 July, on care and protection of children and adolescents; article 7 of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; article 20 of La Rioja's Act 4/1998 of 18 March, on minors; articles 15, 19, 23 and 90 of Madrid's Act 6/1995 of 28 March, guaranteeing the rights of children and adolescents; article 6 of Murcia's Act 3/1993 of 21 March; and article 8 of Valencia's Act 7/1994 of 16 December, on children.
781. There are many children's and youth associations in the territories of the Autonomous Communities, including some of the social organizations forming part of the Platform of Children's Organizations. These associations' objectives include the defence of children's rights, participation in the
organization of the school community, and conducting educational, play, sporting, artistic and voluntary activities.
782. In Autonomous Communities where there are no children's associations as such, it is usual for young people under 18 years of age to participate in youth associations. In some cases, adult associations also have children's sections.
3. Measures adopted by social organizations
783. See also chapters I.G and III.D.
784. Two of the social organizations comprising the Platform of Children's Organizations, in addition to promoting group and associative activities among the children with whom they work, are themselves made up of children and young people.
F. Protection of privacy (art. 16)
(CRC/C/58, para. 59)
1. Measures adopted by the State
785. Article 18 of the Spanish Constitution guarantees the right to honour, to personal and family privacy and to personal reputation, a right that has been developed in Organizational Act 1/1982. Article 20, paragraph 4, which, as was mentioned in section C, refers to limitations to freedom of thought or intellectual freedoms, lists "the right to honour, to privacy, to personal reputation and to the protection of youth and childhood" as limits to freedom of expression.
786. A series of recent events, involving the depiction of children by the media and alleged breaches of the privacy of child victims of offences, have illustrated the importance of protecting children's privacy. On this problem, reference should be made to the provisions of the Civil Protection of the Right to Honour, Privacy and Personal Reputation (Organization) Act, 1/1982 of 5 May. Under the terms of this Act, interference in the right to honour, privacy and personal reputation ceases to be unlawful when the person concerned has given his or her express consent. However, where the person whose rights may be impaired is a minor or legally incompetent, under article 3 of this Act consent may be given by such persons only "if they have attained sufficient maturity as to so permit". If that is not the case, consent must be given "in writing by the legal representative, who shall be obliged first to notify the Government Procurator's Office".
787. Article 4 of the Protection of Minors Act (1/1996), on the right to honour, privacy and personal reputation, provides that:
"1. Minors have the right to honour, personal and family privacy and personal reputation. This right also includes inviolability of the family home and of correspondence, and secrecy of communications.
2. Any dissemination of information or depiction or use of the names of minors in the media that may involve unlawful interference in their privacy, honour or reputation, or that may be contrary to their interests, shall result in intervention by the Government Procurator's Office [...].
3. The following shall constitute unlawful interference in minors' right to honour, personal and family privacy and personal reputation: any depiction or naming of them in the media that may involve detriment to their honour or reputation or that may be contrary to their interests, even where the consent of the minor or of the legal representative has been given.
5. The parents or guardians and the public authorities shall respect these rights and protect them against possible attacks by third parties."
788. Article 13 provides that in all activities involving situations in which a child may be at risk or suffering "lack of protection" ( desamparo ), "the authorities or persons who by virtue of their profession or function are familiar with the case shall act with due caution. Such activities shall avoid any unnecessary interference in the life of the minor."
789. Act 4/1992 of 5 July, organizing and reforming the Act regulating the powers and procedures of juvenile courts, provides that "in the interests of the minor, the judge may declare that the hearings are to be held in camera . In no case shall the mass media be permitted to obtain or disseminate images of the minor, or data enabling him or her to be identified."
790. Instruction 2/1993 of 15 March, of the Government Procurator, goes so far as to urge procurators to withdraw parental authority from parents who allow the publication of, or sell to the news media, information concerning any of their children under the age of majority who have been victims of an offence. It is the Government Procurator's understanding that, in so doing, parents or guardians would be failing to comply with the principle set forth in article 154.1 of the Civil Code, which proclaims the obligation of parents to provide their children with "a full education". The Instruction adds that "Items of news involving unnecessary intrusion and which, rather than merely seeking to inform, instead affect and infringe the rights of minors, are not to be tolerated in a State governed by the rule of law."
791. The criminal law rules that seek to prevent arbitrary or unlawful intrusion into children's private lives so as to protect their honour and reputation are the same rules that protect the privacy of adults, namely, articles 197 to 199 of the Criminal Code, which punish disclosure and revelation of secrets and infringement of privacy, and the appropriation or alteration of confidential data contained in any kind of register or filing system. The only feature specific to the area of protection of children is a more severe penalty than that provided for under article 197.5 of the Criminal Code, the sentence imposed being half again as severe where the victim of the offence is a minor. In order for these offences to be prosecuted, it is a requirement that the victim must first report the offence. Where the victim is a minor, the incident must be reported by the legal representative, although the Government Procurator's Office may also submit a report. Likewise, a pardon granted by the minor's legal representative extinguishes criminal liability for these offences (art. 201 of the Criminal Code), without prejudice to the entitlement of the judge to reject the validity of the pardon granted by the legal representative in cases where the victim was a minor, upon an application by the Government Procurator's Office.
792. Act 19/1994 of 23 December, organizing the protection of witnesses and legal experts in criminal proceedings, was promulgated with the purpose of striking the necessary balance between the right to a trial with full guarantees and the safeguarding of the fundamental rights of witnesses, legal experts and their families, an issue that assumes particular importance when the victim or witness is a minor. It establishes a system that entrusts the court with responsibility for carrying out a rational assessment of the risk, and with the power to apply the necessary measures to protect the various legal interests.
793. Although this Act makes no explicit reference to the possibility that the individual protected may be a minor, these measures are also applicable to minors. They include measures intended to safeguard the identity of witnesses: exclusion from the records of evidence that may enable them to be identified, and a
ban on photographing them or depicting them by any other means. However, the primary aim of this regulation is, not the preservation of privacy - which is protected by other means -but the avoidance of possible reprisals.
2. Measures adopted by the Autonomous Communities
794. In addition to reaffirming the rights set forth in national legislation, the legislation of the Autonomous Communities concerning children has dealt with some areas relating to respect for the privacy of children, especially where they are protected by the Administration. The right to privacy must be ensured when handling such cases; those involved are required to respect the confidential nature of files, and any breach of the secrecy of the proceedings is regarded as a very serious offence.
795. This legislation also regulates intervention by the Administration itself, which is required to bring a prosecution when the rights in question are violated by the mass media.
796. In this context mention may be made of article 6 of Andalusia's Act 1/1998 of 20 April, governing the rights and care of children; article 34 of Aragón's Act 10/1989 of 14 December, on protection of minors; articles 6.2(k) and 13 of Asturias' Act 1/1995 of 27 January, on protection of minors; articles 9 and 36 of Catalonia's Act 8/1995 of 27 July, on care and protection of children and adolescents; article 40 of Extremadura's Act 4/1994 of 10 November, on protection and care of minors; article 8(i) of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; article 15 of La Rioja's Act 4/1998 of 18 March, on minors; articles 35, 49 and 95 of Madrid's Act 6/1995 of 2 August, guaranteeing the rights of children and adolescents; and articles 5, 8 and 21 of Murcia's Act 3/1995 of 21 March, on children.
797. Chapter I.H refers to the resources and opportunities available to children for the defence of their right to privacy.
G. Access to appropriate information (art. 17)
(CRC/C/58, para. 60)
1. Measures adopted by the State
798. See also chapter VII.C of the report.
799. The right to information is protected in the aforementioned article 20 of the Spanish Constitution, on freedom of expression, being considered as encompassed by the general concept of freedom of expression. Paragraph 1 (d) of that article recognizes the right of all citizens "to freely communicate or receive accurate information by any means of dissemination whatsoever...".
800. Furthermore, it is clear that the right to receive accurate information and the right of individuals to honour are closely related, since the latter is the legal interest most likely to suffer as a result of inaccurate information. In this regard, the relevance to children is important: it is not simply a matter of confirming the accuracy of the information received; it is also essential that the information should not have the potential to harm children in any way, as has already been pointed out in section F.
801. Article 5 of the Protection of Minors Act (1/1996) provides that:
"1. Minors have the right to seek, receive and use information appropriate to their development.
2. The parents or guardians and the public authorities shall seek to ensure that the information received by minors is accurate and diversified and complies with constitutional principles.
3. The Public Administrations shall promote the production and dissemination of information and other materials destined for minors that comply with these criteria, and shall also facilitate access by minors to information services, documentation, libraries and other cultural services.
In particular, they shall seek to ensure that the media, in their messages addressed to minors, promote the values of equality, solidarity and respect for others, avoid depictions of violence, of exploitation in interpersonal relationships, and of degrading or sexist treatment.
4. To guarantee that the advertising or messages aimed at minors or contained in the programmes directed at them do not harm them morally or physically, they may be regulated by special rules.
5. Without prejudice to other persons so entitled, it is in any event incumbent on the Government Procurator's Office and the public administrations responsible for protecting minors to ensure that unlawful advertising is discontinued and amended."
802. As regards international cooperation for the dissemination of children's books and materials necessary for children's social and cultural development, with particular regard to the linguistic needs of children belonging to minority groups, mention should be made of the UNESCO Convention Against Discrimination in Education, to which Spain has been a party since 20 August 1969.
803. Under the terms of that Convention, States parties undertake to repeal any legislation or administrative practice that discriminates in the sphere of education and to accept measures, including legislative provisions, to ensure that there shall be no discrimination on any grounds with regard to the admission of students to educational establishments; however, the Convention is also clear with regard to the requirement "to give foreign nationals resident within their territory the same access to education as that given to their own nationals" (art. 3 (e)). Furthermore, the Convention proclaims that States parties agree that education must promote tolerance and friendship among all racial and religious groups, and that national minorities must have the right to carry on their own educational activities, such as maintaining schools and teaching or using their own languages, provided that right does not prevent minorities from understanding the culture and language of the community as a whole (art. 5.1 (a) and (c)). The Convention does not permit States parties to make any form of reservation to any of its articles (art. 9).
804. Article 3 of the ILO Paid Educational Leave Convention (No. 140), of 24 June 1974, which has been in force in Spain since 18 September 1979, declares that the States parties' policies in this area must contribute to the human, social and cultural promotion of employees and favour continuing education appropriate to the requirements of contemporary life. Article 8 provides that paid educational leave shall not be denied to employees for reasons of race, colour, sex, religion, political opinion or national or social origin.
805. In the sphere of the Council of Europe, the European Agreement on Travel by Young Persons on Collective Passports between the Member Countries of the Council of Europe, concluded in Paris on 16 December 1961, which entered into force for Spain on 18 June 1982, reflects member States' desire to facilitate travel by young people among their respective countries.
806. As for the protection of children from information injurious to their well-being, mention has already been made of article 5.3 of Act 1/1996, referring to media messages.
807. Article 17 of Act 25/1994 of 12 July, which incorporates Directive 89/552/EEC, on the exercise of television broadcasting activities, into the Spanish legal order, provides, as already indicated in chapter III.A, that:
"1. Television broadcasts shall not include programmes or scenes or messages of any kind that may seriously harm the physical, mental or moral development of minors, or programmes that encourage hatred, contempt or discrimination on grounds of birth, race, sex, religion, nationality, opinion or any other personal or social circumstance.
2. The broadcasting of programmes likely to harm the physical, mental or moral development of minors and, in any event, of programmes containing pornographic or gratuitously violent scenes, shall take place only between the hours of 10 p.m. and 6 a.m. and shall contain visible and audible warnings as to their content."
808. To protect children from advertising, article 16 provides that:
"Television advertising shall not contain images or messages that may cause minors moral or physical harm. Accordingly, it must respect the following principles:
(a) It must not directly encourage minors to purchase a product or service by exploiting their inexperience or credulity, or to persuade their parents or guardians, or the parents or guardians of third parties, to purchase such products or services.
(b) In no circumstances shall it exploit children's especial confidence in their parents, teachers or other persons.
(c) It shall not, without justifiable reason, depict children in dangerous situations."
809. Article 11 provides that:
"The advertising of alcoholic beverages must comply with the relevant provisions of General Advertising Act 34/1988 of 11 November, and with the following principles:
(a) It shall not be targeted specifically on minors, or, in particular, depict minors consuming such beverages.
(b) It shall not associate the consumption of alcohol with an improvement in physical performance or the driving of vehicles, or give the impression that the consumption of alcohol contributes to social or sexual success, or suggest that alcoholic beverages have therapeutic properties or a stimulant or sedative effect, or that they are a means of resolving conflicts.
(c) It shall not encourage immoderate consumption of alcoholic beverages or present a negative image of abstinence or sobriety, or emphasize their high alcohol content as a positive quality."
810. Article 186 of the Criminal Code punishes anyone who, through a direct relationship with minors, distributes, sells or exhibits pornographic material among them.
811. The draft organizational law amending Title VIII of Book II of the Criminal Code (which concerns offences against sexual freedom), which was before Congress as this report was being prepared, retains the classification of this offence unaltered, but increases the penalty.
812. Article 1 of Act 1/1982 of 24 February, regulating special premises for the viewing of films and the Spanish film archive and setting dubbing rates, provides that:
"Films of a pornographic nature or that glorify violence shall be rated with an X certificate by resolution of the Minister of Culture, on a report by the Film Classification Board, and shall be shown exclusively in special premises which shall be designated as X-rated cinemas. No other class of films may be shown in such premises, and in no circumstances shall persons under 18 years of age be admitted to them."
2. Measures adopted by the Autonomous Communities
813. The Autonomous Communities have dealt in great detail with the relationship of children to the media and measures to protect them from media messages that may be injurious to them.
814. The scope of the protection regulated by the Autonomous Communities covers various areas:
- protection against pornographic and violent publications and videos and those advocating crime;
- protection concerning the contents of radio and television programmes, regulated in terms similar to those of the aforementioned Act 25/1994 of 12 July, incorporating Directive 89/552/EEC, into the Spanish legal order;
- protection against the advertising of harmful products (alcohol, tobacco);
- protection limiting access by children to shows and premises;
- measures taken by the Autonomous Administration to foster cultural and artistic events for children, as well as access by children to information services, libraries and other public cultural services.
815. Mention may be made of article 7 of Andalusia's Act 1/1998 of 20 April, governing the rights and care of children; articles 26, 34-36 and 38 of the Canaries' Act 1/1997, providing comprehensive care for minors; article 4 of Castile-La Mancha's Act 2/1995 of 2 March, against the sale and advertising of alcoholic drinks to minors; articles 11 and 33-37 of Catalonia's Act 8/1995 of 27 July, on care and protection of children and adolescents; article 8(i) and (j) of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; articles 16, 17.1, 31-33, 35, 36, 38 and 40 of Madrid's Act 6/1995 of 2 August, guaranteeing the rights of children and adolescents; and articles 27 to 29 of La Rioja's Act 4/1998 of 18 March, on minors.
3. Measures adopted by social organizations
816. See chapter I.K.
H. The right not to be subjected to torture or other cruel, inhuman or degrading
treatment or punishment (art. 37 (a))
(CRC/C/58, para. 61)
1. Measures adopted by the State
817. Information on ill-treatment and exploitation is contained in chapters V.I and VIII.C.3 respectively.
818. Articles 173 to 177 of the Criminal Code punish degrading treatment and torture, thereby protecting the moral integrity of individuals against any type of attack.
819. In the new Criminal Code moral integrity is characterized independently of other, more traditional interests such as freedom, honour and physical integrity, under which it was previously considered to be subsumed.
820. The offence of degrading treatment (art. 173), consisting of injury to the moral integrity of a person, is to be regarded as the generic form of the offence, whereas torture, that is, injury to the moral integrity of a person performed by a public official with the intention of obtaining a confession or punishing the victim for some action committed, is its specific form.
821. The individual is cited as the victim of the generic offence of degrading treatment, but no measures exist explicitly protecting children against degrading treatment, whether committed by an individual (art. 173) or by a public official in abuse of his authority (art. 175). Likewise, the individual is cited as the victim of the specific offence of torture, which may be committed only by a public official in abuse of his authority (art. 174.1). Article 174.2 extends the penalty provided for in article 174.1 to the authorities or officials of children's and adolescents' prison or corrective establishments guilty of such conduct.
822. Another provision protecting children's moral integrity is article 185 of the Criminal Code, which imposes a fine of three to ten months' minimum wage on anyone who performs or causes others to perform obscene acts before children.
823. Royal Decree 732/1995 of 5 May, establishing the rights and obligations of pupils and the internal rules governing social behaviour in schools, is the statutory framework regulating relations in such establishments involving student participation. Respect, tolerance, and the adoption of positive and non-violent measures in response to breaches of discipline are aspects of everyday coexistence in schools and serve to raise awareness of and prevent conduct incompatible with those rights. Under the terms of the Royal Decree, pupils have the right to respect for their physical and moral integrity and their personal dignity, and may in no circumstances be subjected to maltreatment, degrading treatment or physical or psychological punishment.
824. Other protective provisions are article 7 of the International Covenant on Civil and Political Rights, through the Human Rights Committee; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and article 3 of the European Convention on Human Rights, through the European Commission and Court of Human Rights.
2. Measures adopted by the Autonomous Communities
825. See the legislation referred to in chapter V.J, on abuse and negligence, and the sections relating to paragraphs 158-159 of the guidelines, on sexual exploitation and sexual abuse.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Parental guidance (art. 5) and B. Parental responsibilities (art. 18)
(paras. 1 and 2; paras. 62-67 of the general guidelines (CRC/C/58))
1. Measures adopted by the State
826. On family structures within society, see the tables in annex A.
827. With regard to enacted measures to support and protect the family, irrespective of the type of family structure, article 39 of the Spanish Constitution provides, as already indicated in paragraph 148 of Spain's initial report, that "the public authorities shall ensure the social, economic and legal protection of the family", including in that protection all forms that the family may take.
828. Similarly, the protection of the family by society and the State, equality of rights and responsibilities of the parents and protection of the children in the event of dissolution of the marriage are recognized in Spain's instrument of ratification of the International Covenant on Civil and Political Rights, adopted in New York on 16 December 1966 (art. 23).
829. As regards the question of parental responsibility, in the area of criminal law rules, article 226.1, first paragraph, of the 1995 Criminal Code punishes anyone who fails to perform the statutory duties of assistance inherent in parental authority, guardianship, custody or family fostering, as well as anyone who fails to perform the statutory duties of assistance to their needy descendants, a requirement that may, for instance, apply to the duty of assistance incumbent on grandparents vis-à-vis their grandchildren.
830. In the context of civil law, and having regard to the information contained in paragraphs 149 to 159 of Spain's initial report, on the regulation of relations between parents and children, the following should also be mentioned:
(a) Under article 9.1 of the Protection of Minors Act (1/1996), the minor has the right to a hearing within the family environment with regard to all decisions that affect his or her personal, family or social circumstances;
(b) The Fourth Final Provision of the same Act amended article 158 of the Civil Code. The result is that the court authority, without any need for submission of a request to that effect (in contrast to the position under the previous legislation, whereby a prior request by the child, a relation or the Government Procurator's Office was necessary), may adopt - in any civil, criminal or non-contentious proceedings - the following measures:
"1. Any measures it may deem appropriate to ensure maintenance and provide for the future needs of the child, in the event of the parents failing to fulfil that duty;
2. Appropriate measures to avoid disruptive effects on the children in the event of a change of guardianship;
3. Generally, any measures it may deem appropriate to avert danger to the minor or prevent injury to him."
(c) With regard to the final paragraph of article 154 of the Civil Code, pursuant to which parents may "administer reasonable and moderate punishment to children", Spanish jurists are unanimously of the view that this is a power correlating to the duty to educate, and that it must in any event be exercised within certain limits, beyond which the conduct of the parents would be unlawful;
(d) Appraisal and assessment of this power of administering punishment is subject to judicial control. Abuse of the power may give rise, in addition to criminal sanctions (arts. 153 and 147 of the Criminal Code), to deprivation of parental authority under article 170 of the Civil Code. Likewise, it may constitute a relevant factor in assessing the minor's state of desamparo ("lack of protection"), resulting in the assumption of guardianship by the competent public agencies and the ordering of protective measures, with interim suspension of parental authority;
(e) Article 12 of Act 1/1996 provides that the protection of minors by the public authorities shall take the form of prevention (and, where applicable, rectification) of risk situations, with appropriate services established for that purpose. It further provides that the public authorities must seek to ensure that the parents, guardians or custodians perform their responsibilities in an adequate manner, by providing accessible services in all areas affecting the development of the child, with a view to securing that end.
831. Constitutional Court Judgement 67/1998 of 18 March 1998, to which reference has been made in other paragraphs of this report, delivered in Remedy of Amparo 109/95, in a case of non-payment of maintenance, recognizes the parental responsibilities in the upbringing and development of the child and the right of the child - including children born out of wedlock - to be assisted by the parents, thus proclaiming the fundamental right to non-discrimination on grounds of birth. Among its legal arguments, the Court cites the Convention on the Rights of the Child, reflecting the additional protection that the Convention accords to children (Legal Ground No. 5).
832. In 1997 the Ministry of Labour and Social Affairs set up a care programme for disadvantaged families and families in situations of social risk, to be conducted in collaboration with the Autonomous Communities and Local Corporations, through agreements whereby the Autonomous Community and the Local Corporation responsible for the project jointly finance at least 50 per cent of its total cost.
833. This programme, which supplements the activities already being conducted by the Community's social services, is intended to provide care for families in less privileged areas who find themselves in especially difficult social circumstances and who require comprehensive, individually tailored social interventions, including both socio-educational measures and social and employment integration measures, to help them overcome their social difficulties and to prevent any risk of social exclusion.
834. The Ministry of Labour and Social Affairs earmarked 130 million pesetas for these activities in 1997. The 15 Autonomous Communities and the 108 Local Corporations participating together contributed 265,382,283 pesetas, benefiting an estimated 4,000 families through 30 programmes. The Ministry allocation for 1998 is 200 million pesetas.
835. Chapter VI.C refers to social security benefits and criteria concerning protection of children and their families.
836. Chapter V.C provides information on services for children of between 0 and 3 years of age.
2. Measures adopted by the Autonomous Communities
837. Identification of situations of risk and desamparo ("lack of protection"), and the consequential measures taken by the Autonomous Communities to protect and support families and children, fall within
the framework of the national civil legislation referred to above and of the legislation on children promulgated by the Autonomous Communities themselves.
838. Among the laws establishing the responsibilities of parents and measures to support families, mention may be made of article 3.4 of Andalusia's Act 1/1998 of 20 April, governing the rights and care of children; article 11 of Aragón's Act 10/1989 of 14 December, on protection of minors; article 8 of Asturias' Act 1/1995 of 27 January, on protection of minors; article 45 of the Balearics' draft statute of minors; articles 4.2, 16 and 21 of the Canaries' Act 1/1997 of 7 February, providing comprehensive care for minors; articles 11 and 48 of Castile-La Mancha's Act 5/1995 of 23 March, on solidarity, and chapter III of its Decree 143/90 of 18 November, on procedures for the protection of minors; article 10 of Castile and León's Act 18/1988 of 23 December concerning social action and social services, and article 11 of its Decree 57/1988 of 7 April, enacting rules on the protection of minors; articles 17 and 18 of Catalonia's Act 8/1995 of 27 July, on care and protection of children and adolescents, and articles 12 and 20 of its Act 11/1985 of 13 June, on protection of minors; title III of Galicia's Act 3/1997 of 9 June, on the family, children and adolescents; articles 3 and 8 of Madrid's Act 6/1995 of 28 March, guaranteeing the rights of children and adolescents; and articles 4, 5, 12 and 18 of Murcia's Act 3/1995 of 21 March, on children.
839. As regards programmes and activities to support, counsel and protect families, section B.3 of the Introduction to the report referred to the network of equipment, services and basic benefits available for the care and protection of children and families comprising the Public System of Social Services, at both primary or community and specialized levels.
840. Within this legislative and institutional framework of social policies, and under the Family Programme, the community social services of the Autonomous Communities and municipalities adopt positive measures, including:
(a) economic benefits, such as assistance for family integration and emergency aid;
(b) minimum integration incomes additional to economic aid, enabling families to comply with obligations such as the obligation to provide the children in their care with effective schooling;
(c) assistance with housing;
(d) tax benefits;
(e) educational programmes for parents, to provide training in parenting skills and avoidance of ill-treatment. Some Departments of Education of the Autonomous Communities grant all school courses aids to finance programmes of this type organized by associations of parents of pupils in State schools and schools operated under agreements at non-university level;
(f) home help programmes;
(g) preventive programmes to cover children's basic needs and improve their family environment, so as to guarantee their right to remain in the home in circumstances conducive to their full development;
(h) the establishment of socio-educational services for children aged 0-3, to compensate for inequalities among the most socially disadvantaged groups and facilitate the parents' or guardians' integration into the labour force;
(i) media campaigns to raise social awareness of attitudes and behaviour conducive to social support for families;
(j) campaigns to promote social awareness of attitudes that foster joint responsibility of men and women for family responsibilities and housework and non-sexist family education;
(k) information campaigns by the administration, to increase families' awareness of the existence of the "large family" category and of the price benefits it offers; issuance of "large family" cards to families in that category;
(l) telephone help lines offering advice on social resources for the family;
(m) measures to facilitate access by single parents with family responsibilities to the technical and economic assistance available;
(n) support for the integration of immigrants and ethnic minorities, their family reunification and temporary accommodation;
(o) family counselling, provided by the municipalities' and Autonomous Communities' child guidance services;
(p) coexistence and social rehabilitation programmes, to prevent and resolve problems resulting from the break-up of families, remedy the situation of the needy, and facilitate the reintegration of groups at risk of marginalization;
(q) guidance and mediation services for families with problems;
(r) programmes to deal with cases of child abuse;
(s) vacations for single or separated mothers;
(t) research into the social situation of families in the Autonomous Communities.
3. Measures adopted by social organizations
841. Some of the organizations comprising the Platform of Children's Organizations include among their activities and services provision of foster homes for children who lack an adequate family environment, in Spain and also in some countries of Latin America.
842. These organizations offering residential care services work concertedly both with children and with families, offering guidance to parents on relations with their children. After the child has been reintegrated in the family, his or her social and family situation continues to be monitored for some time.
843. Some of these organizations frequently organize classes for parents, the aim being to prepare them for the successful integration of the child into a normal social and family environment.
844. As already indicated in chapter III.D, one of the Platform organizations has set up a nationwide free telephone help line, " Nuestro Teléfono ", which, in addition to offering advice to children, also assists adults wishing to report or seek advice about a problem concerning the children in their charge.
845. The "Stand Up For Your Rights" educational programme referred to in the replies to paragraph 22 of the general guidelines offers material for distribution to parents. This material refers to the rights of the child and to problems of communication between children and adults.
846.Some organizations stress the need to set up government programmes to educate parents in the rights of the child and provide them with guidance in educational matters, particularly in their relations with their teenage children.
B. Separation from parents (art. 9)
(CRC/C/58, paras. 68-72)
1. Measures adopted by the State
(a) In the Legal Protection of Minors (Organization) Act, 1/1996 of 15 January
847. With a view to avoiding the separation of children from their parents, the Protection of Minors Act (1/1996) expressly included among the protective functions of the public administrations the task of developing a preventive social policy with regard to family situations that might lead to the separation of the child from the parents in his or her best interests.
848. Specifically, in any type of so-called risk situation liable to harm the child's personal or social development, article 17 of the Act establishes that "the actions of the public authorities must in every case guarantee the rights available to the minor and aim to reduce the risk factors and social difficulties that may affect his or her personal and social situation and to promote the factors intended to protect the minor and his or her family". The Act obliges the public authorities to monitor the child's progress in the family.
849. Furthermore, the explanatory statement clarifies the meaning of the expression "risk situation" and the distinction between it and situations of desamparo .
"In risk situations, characterized by the existence of harm to the minor that does not attain sufficient gravity to justify his or her separation from the nuclear family, the intervention referred to is confined to attempting to eliminate, within the institution of the family, the risk factors; however, in situations of desamparo , where the seriousness of the acts makes the removal of the minor from the family advisable, such removal takes the form of assumption by the Public Authority of guardianship of the minor and consequent suspension of parental authority or ordinary guardianship."
850. Separation of the child from the parents as a consequence of the decision taken by the competent public agency may result from any of the following causes:
(a) A declaration, by the public agency, of a situation of lack of protection ( desamparo ) of the child. When the public agency responsible for the protection of minors in the autonomous territory in question ascertains that a child is in a situation of desamparo (because of failure to perform, inability to exercise, or inadequate exercise of, the duties of protection established by law for the custody of minors, as a result of which they are deprived of the necessary moral or material assistance), it shall assume, by operation of law, guardianship of the minor (arts. 172.1 and 222.4 of the Civil Code and art. 18 of the Protection of Minors Act, 1/1996). The public agency, in addition to taking the protection measures necessary for the custody of the minor, is obliged to inform the Government Procurator's Office of its actions, and to notify in due legal form the parents, guardians or custodians. In this case, it shall do so within 48 hours. The Act provides that, wherever possible, they must be informed, at the time of the notification, in person, clearly and comprehensibly, of the reasons for the assumption of guardianship by the public agency and of the effects thereof. Guardianship by the public agency entails suspension of parental authority or of ordinary guardianship; however, acts relating to the minor's patrimony performed by the parents or guardians on his or her behalf and for his or her benefit shall be considered valid. Supervision of this administrative guardianship is the responsibility of the Government Procurator's Office, which must verify the minor's situation at least once every six months. Where appropriate, it may request the judicial authority to take any protection measures it may deem necessary. To ensure better performance of this task, the legislature has made it an obligation of the competent public authorities immediately to inform the procurator of any new income accruing to minors, and of any significant change in their circumstances. The parents, guardians or custodians may, without the need for any prior administrative application, appeal to the civil courts against the decisions declaring a state of desamparo and ordering the assumption of authority by the public agency.
(b) A court decision ordering the deprivation of parental authority. In application of article 170 of the Civil Code, the father or mother may be deprived totally or partially of parental authority by a decision based on their failure to perform the duties implicit therein or pronounced in criminal or matrimonial proceedings. Even where they do not exercise parental authority, the parents have the right to maintain relations with their children below the age of majority, except those adopted by others or as otherwise provided in a court decision. Similarly, a minor may not, without just cause, be prevented from continuing to maintain personal relations with other relatives and members of the household.
(c) A court decision ordering annulment, separation or divorce. In cases where annulment, separation or divorce are decreed by the court, the parents are not relieved of their obligations vis-à-vis the children, without prejudice to the possibility that, in the children's interests, it may be agreed that parental authority is to be exercised, totally or partially, by one of the spouses or that one or the other shall be given custody, with every care taken not to separate siblings. The court decision ordering separation, annulment or divorce may also order deprivation of parental authority where due cause emerges in the proceedings. Such deprivation may be total or partial, and the court may, for the benefit and in the interests of the children, order the restoration of parental authority when the cause for its removal has ceased.
(b) In criminal matters
851. Various provisions of criminal legislation are designed to ensure that the parents' duties and rights of custody of their children below the age of majority are not undermined. These provisions also protect the right of the child not to be separated from his or her parents:
(a) Article 223 of the Criminal Code punishes anyone who, having custody of the minor, and without justification, fails to present him or her to the parents or guardians when required to do so;
(b) Article 224 of the Criminal Code punishes the act of inducing a minor to leave the family home or the place where he or she resides with the consent of the parents, guardians or custodians;
(c) Article 231 punishes anyone who, having responsibility for the upbringing or education of a minor, hands him or her over to a third party or to a public establishment without the consent of the person who entrusted the minor to him, or, in the absence of such person, of the authority.
852. The criminal legislation also endeavours to protect children from parents, guardians or custodians who, in breach of a decision taken by a judge or court, forcibly remove them from the establishment,
family, person or guardianship institution to which they have been entrusted, or who fail to return them when obliged to do so.
(c) In proceedings
853. With regard to participation in separation, annulment and divorce proceedings between the parents, hearings of children who are below the age of majority or incapacitated are referred to the relevant court proceedings, in both personal and patrimonial matters.
854. Provision is made for children to be heard when the judge orders the necessary measures for the care and education of the children, which will always be decided in their best interests. As already stated in chapters II and IV.C of this report, such provision is automatic for children 12 years of age or over, and children below that age will be heard if they are old enough to form an opinion.
855. Provision is also made for the children to be heard when the judge has to decide which of the two separated parents is to have custody of them.
856. The Sixth Additional Provision of Act 30/1981 of 7 July, referred to in Spain's initial report and which remains in force, amending the regime regulating marriage in the Civil Code and determining the procedure in cases of separation and divorce proceedings, establishes in its section 6 that "if there are children who are below the age of majority or incapacitated, the judge shall grant the Government Procurator's Office a five-day hearing on the agreement concerning the children and, where appropriate, shall also hear the latter. When the report has been issued by the Government Procurator's Office or when the time allowed for issuance of such report has elapsed, the judge shall, if he considers that the agreement does not sufficiently protect the interests of the children, grant the parties leave to submit to him, within a period of five days that may not be further extended, a new text together with the evidence on which they intend to rely for its approval. When he has examined the submissions, the judge may, within a period not exceeding 10 days, decide to request such other submissions as he may deem necessary."
857. The Government Procurator's Office is also entrusted with a protective role in these proceedings, as the Eighth Additional Provision of Act 30/1981 of 30 July provides for its intervention where one of the spouses or children is a minor, incapacitated or absent.
858. In every case, as was indicated in the section relating to paragraph 55 of the guidelines, article 9 of the Protection of Minors Act (1/1996) establishes as a general condition the right of minors to a hearing in any proceedings in which they are directly involved and which may lead to a decision affecting their personal, family or social interests.
(d) The "right to visit"
859. As for legislative measures provided to ensure respect for the right of the child separated from one or both parents to maintain personal relations and direct contact with both on a regular basis, except where this would be contrary to the child's best interests, provision exists in the Spanish legal order for a "right to visit".
860. Among the most important effects of annulment, separation and divorce orders is the need to determine which of the spouses is to have custody of unemancipated children below the age of majority and subject to parental authority, and to grant a right of access to the parent who is deprived of the children's company.
861. In this connection, article 94 of the Civil Code provides as follows:
"The parent not accompanied by the children below the age of majority or incapacitated children shall enjoy the right to visit them, communicate with them and keep company with them. The judge shall determine the time, manner and place in which this right is to be exercised, and may limit or suspend it in the event of serious circumstances arising that make such a course advisable or in the event of a serious or repeated failure to comply with the duties imposed by the court decision."
862. As regards participation by children in the realization of this right, article 92.2 of the Civil Code provides that, before taking any measure concerning their care and education, the judge must accord them a hearing if they are old enough to form an opinion, and in any case if they are 12 years of age or over.
863. In every case, and pursuant to the same statutory provision, the judge must always, when ordering measures of this type, take account of the best interests of the children.
864. The public agency that assumes the guardianship of a minor in a situation of desamparo has a statutory obligation to inform the parents, guardians or custodians of the situation of minors in its custody, provided that no court decision has prohibited this (art. 22 of the Protection of Minors Act, 1/1996).
(e) Children of women in prison
865. In the case of minors who are the children of women in prison, Organizational Act 13/1995 of 18 December introduced a significant amendment to the General Prisons (Organization) Act (1/1979). This amendment affects two areas of relevance: the possibility for children to remain with their mothers in prison, and the entitlement of imprisoned mothers to a period of maternity rest.
866. Before this reform, the Act had allowed for the possibility for children to remain in the prison with their mothers until attaining the age of compulsory schooling (6 years). The Act has been amended by retaining this possibility only until the child is three years of age. The explanatory statement justifies this reform on the basis of the following considerations:
"[...] At the time, the legislature made a considerable effort to facilitate the lives of children in prisons. However, the option for the child to remain in the prison until the age of six may lead to serious impairment of his or her emotional or psychological development, given the growing awareness that the mother is deprived of her liberty, and the fact that that awareness will significantly affect the early formation of his or her personality.
What is undoubtedly needed is a balance, rather than a confrontation, between the rights of the mother and of the child; but it is no less certain that, ultimately, it is the inherent rights of the weaker party that must prevail, over which, accordingly, the legal order must exercise special protection. Furthermore, changes in the organization of the education system mean that children can now attend school from the age of three, and the social services responsible for child care offer possibilities for living arrangements more propitious to their development."
867. In addition to reducing the age until which the child may remain with the mother, the Act provides for the establishment of child care premises in prisons where children are living with their mothers. It also provides for the establishment of a specific regime of visits, with its own regulations, for children below 10 years of age who do not live with their mothers in the prison, specifying that these visits shall take
place without any form of restriction with regard to frequency or privacy, and that their timing and duration shall be determined by the internal organization of the prison.
868. Lastly, it includes a specific guideline calling on the prison administration to promote the necessary agreements with public and private agencies with a view to providing better institutional and social support for female inmates with children and improving the development of the mother-child relationship, having regard to the special circumstances arising from the fact that the mother is serving a prison sentence.
869. The regulations provide for a 16-week period of rest for imprisoned mothers, during which they shall be exempted from prison duties - the same period as is accorded by the employment legislation and provided for in the labour contracts of working women.
870. With regard to alien minors, article 108 of Royal Decree 155/1996 of 2 February, approving the Implementing Regulations of the Rights and Freedoms of Aliens in Spain (Organization) Act, 7/1985 of 1 July, establishes, in connection with centres for the internment of aliens, that:
"... foreign minors may not be placed in such centres, but must instead be brought before the services responsible for the protection of minors, save where, upon a favourable report by the Government Procurator's Office, their parents or guardians detained in the same centre express their desire to remain together and appropriate accommodation is available to guarantee the family's unity and privacy."
871. Furthermore, in 1995 Spain withdrew the reservations it had formulated on 29 April 1987, when ratifying the tenth Hague Convention concerning the powers of authorities and the applicable law in respect of the protection of minors, concluded at The Hague on 5 October 1961, regarding articles 13 and 15 of that Convention. The effects of the following reservations ceased on 19 August 1995:
(a) Reservation to article 13: "The Spanish State limits the application of the following Convention to minors who hold the nationality of the Contracting State.";
(b) Reservation to article 15: "The Spanish State reserves the powers of its authorities called upon to settle applications for the annulment, dissolution or attenuation of the marital link between the father and the mother of a minor, with a view to ordering measures for the protection of the latter's person or goods."
(f) The International Social Service
872. The International Social Service is an organization created in 1924, the purpose of which is to assist in resolving the social and socio-legal problems confronting individuals and families as a result of international migrations and displacements.
873. The affiliated office of the International Social Service in Spain forms part of the structure and routine operations of the Directorate-General of Social Action, Minors and the Family, attached to the Ministry of Labour and Social Affairs.
874. Three out of every four problems dealt with by the International Social Service in Spain concern children, and arise from changes in family circumstances (separation and divorce, migration, etc.):
(a) rights of custody and access, payment of maintenance;
(b) family reunification, repatriation, reception in families;
(c) tracing families of origin (children not of the marriage and adoptive children);
(d) abduction of minors and support for the restoration of their right to maintain relations with both parents even though they live separately;
(e) verification of consent and investigation of families in international adoption proceedings already under way;
(f) unaccompanied minors arriving in Spain from abroad without their family or legal representative;
(g) problems relating to imprisonment and concerning trafficking in and consumption of drugs by the parents.
875. Interventions by the affiliated office of the International Social Service in Spain are based on a reciprocal exchange of professional services, provided through coordination of each country's international and national networks, through requests for intervention made by a section, affiliated office or correspondent office of another country's International Social Service or by the Spanish social services.
876. In Spain, all these problems are dealt with through collaboration with the network of social services, especially of the autonomous and local administrations.
2. Measures adopted by the Autonomous Communities
877. With regard to judicial and administrative procedures, the administrations of the Autonomous Communities apply the protection measures in accordance with the civil legislation of the State, their own legislation on children and the rules for care under the Children's Programmes, cited in chapter I.G.
878. On the basis of the State legislation, the Autonomous Communities have developed the procedure for declaration of a situation of risk or desamparo in their own laws and regulations, already cited in other paragraphs of this report.
879. In its declarations of risk or desamparo and in its protective measures, implemented by community social service workers who identify cases through technical family and child care teams, the autonomous administration has to adhere to the principle of subsidiarity as regards parental functions. Thus, a guiding principle of administrative action is integration, or, where applicable, reintegration of children in their family environment, unless such a course is not in their best interests. Whenever possible, efforts will be made to take measures that do not entail separation of the child from the home and family. If a temporary separation is necessary, this must not present an obstacle to the natural family's rights of visit and communication, provided that the child's best interests are not adversely affected.
880. The regulations governing administrative procedures for protection that entail separation of the child from his family include an express requirement for all the parties affected to be informed and to be involved at various stages of the process.
881. Some Autonomous Communities have established, on an experimental basis, other professional resources known as child care delegates, closely associated with the child and youth care teams, who offer peripatetic services, coordinating the process of reintegrating and socializing children.
3. Measures adopted by social organizations
882. The social organizations managing and operating child protection services abide by the criteria and standards referred to above and those mentioned in section G of this chapter.
883. The social organizations working with children often stress the need for judges and technical teams attached to the courts to take fuller account of the principles of the Convention in their decisions, so as to ensure respect for children's views and to avoid situations in which children are unwilling to accept court decisions because they recognize that they conflict with their own rights and interests.
C. Family reunification (art. 10)
(CRC/C/58, paras. 73-77)
1. Measures adopted by the State
884. The current treatment of family reunification under the Spanish law of aliens is a recent innovation. The regulations are basically contained in Royal Decree 155/1996 of 2 February, approving the Implementing Regulations of the Rights and Freedoms of Aliens in Spain (Organization) Act, 7/1985 of 1 July, and in Royal Decree 766/1992 of 28 June, amended in 1995, which sets forth the regime of nationals of member States of the European Union and other States parties to the Agreement on the European Economic Area and their family members.
885. These regulations require a distinction to be drawn between different situations, depending on the nationality of the child and of the parents. Where the child is Spanish, regardless of the nationality of the parents, the right conferred on Spaniards in article 19 of the Spanish Constitution comes into play: "Likewise, they have the right to freely enter and leave Spain subject to the terms to be laid down by the law. This right may not be restricted for political or ideological reasons." Entry into and departure from the territory of Spain is regarded as a right of all Spaniards, including minors. Account must also be taken of the assistance provided for in Order No. 9 of January 1991 establishing programmes of action in favour of emigrants, inasmuch as children may also benefit from them.
886. The situation is different if the reunifier is a child and the family is to be reunified in Spanish territory. In this case there is a requirement that the ascendant relatives live at the expense of the child. This requirement presupposes, for example, that the privileged regime of family reunification does not cover a situation such as separation or divorce of the parents, in which custody of the child is awarded to the foreign parent not resident in Spain and it is intended that the Spanish minor should not take up residence outside Spanish territory. However, a hierarchically lower rule provides for a waiver of the visa requirement for "foreigners who can prove that they are direct ascendant relatives of a Spanish minor resident in Spain living at their expense" (art. 2(h) of the Order of 11 April 1996 of the Ministry of Justice and the Interior, regulating visa exemptions).
887. If the child is a foreigner, the regime of family reunification depends on the nationality of the parents and on whether the child, the father or the mother is the reunifier. When the foreign minor is the descendant of Spaniards or of nationals of other member States of the European Union and other member countries of the European Economic Area, or when he or she is the descendant of the spouse of persons of those nationalities - provided they have not legally separated - he or she will have the right to enter, leave
and freely move in and remain in Spanish territory, upon completion of certain formalities. If the child does not have the nationality of one of the member States of the European Union or of other States parties to the Agreement on the European Economic Area, he will need, in addition to a passport or identity card, an appropriate visa, unless his or her stay in Spain, regardless of its purpose, is for less than three months.
888. Children of Spaniards who do not have the nationality of one of the member States of the European Union and other member countries of the European Economic Area will be issued with a residence permit valid for five years. Children of nationals of other member States of the European Union or other member countries of the European Economic Area who do not have the nationality of those States will be issued with a residence permit valid for the same period as that of the person whose dependant they are.
889. When the foreign (non-Community) minor is the descendant of foreigners subject to the general regime, in order to enter Spain he will require the appropriate visa, issued in due form, valid, and entered in his passport, travel document or as a separate document. The child will require a residence permit or a visa permitting residence for purposes of family reunification, depending whether he intends to live temporarily with a father or mother resident in Spain or to reside under the family reunification procedure.
890. The residence permit can be issued to a foreign minor wishing to remain in Spain for up to three months in every six-month period. Although the Implementing Regulations of Act 7/1985 contain no specific provision for the eventuality of a person wishing to enter Spain to visit one of the parents or a family member, the purpose of the visit will be mentioned in the application and in the conditions attaching to the proposed stay. When the person requesting the residence permit is a child, he or she may be asked to furnish parental authorization to travel.
891. In order to reside in Spain the child will need a family reunification residence permit. This requirement may be waived in certain circumstances: "Exceptionally, a waiver of the visa requirement may be granted by the competent authorities where the applicant's good faith can be assumed and one of the following situations applies: [...]
(e) foreign minors:
who are the children of Spaniards or of foreigners lawfully resident in Spain;
who have been taken under judicial guardianship constituted by Spaniards or foreigners lawfully residing in Spain, such that they possess the elements necessary to produce effects in Spanish territory. " (art. 2(e) of the Order of 11 April 1996 of the Ministry of Justice and the Interior, regulating visa exemptions).
892. Children born in Spain of foreign residents will require neither a visa nor a visa waiver in order to obtain a residence permit.
893. In addition to a visa, persons to be reunited require, on arrival in Spain, a residence permit for family reunification. If the children were born in Spain they will automatically acquire the same type of residence permit as either of the parents holds. The period of validity of the residence permit is contingent on the reunifier's legal residence in Spain and the continuation of the circumstances that led to its issuance. The reunifier's children will obtain their own residence permit when they reach the age of majority.
894. Specific provision is made for the situation of minors who are subject to the guardianship of the competent public agencies: "On application by the organ exercising guardianship, a residence permit shall be granted, the effects of which shall be retroactive, to the time when the minor was placed in the custody of the services responsible for the protection of minors in the Autonomous Community in question. If the
minor has no documentation and for any reason cannot be issued with documentation by the authorities of any country, he or she shall be documented in accordance with the provisions of article 63 of these Regulations." (Implementing Regulations of Act 7/1985).
895. The Implementing Regulations of Act 7/1985 sought to offer adequate protection to foreign minors in a situation of desamparo . Minors in this situation - as determined by the civil legislation - will be placed in the charge of the services responsible for protection of minors in the Autonomous Community in question, and the Government Procurator's Office will be notified of the fact. In no case shall these minors be subject to the expulsion measures provided for in article 26.1 of Act 7/1985.
896. Where the children in a situation of desamparo are asylum-seekers, account will be taken of the provisions of the asylum legislation: the children will be placed in the charge of the services responsible for the protection of minors and the Government Procurator's Office will be notified of the fact. The minor's legal guardian will represent him while the application is being processed.
897. In all other cases, the competent public agencies will collaborate with the services responsible for protection of minors to secure family reunification of the minor in his or her country of origin or the country where the family is living. Repatriation of the minor will also be possible when the services in the country of origin that are responsible for the protection of minors assume responsibility for him. Collaborative mechanisms are established between the Spanish services responsible for protection of minors and those in the country of origin, with a view to organizing reintegration in the family whenever possible. Article 13.1 of the Implementing Regulations of Act 7/1985 requires the Spanish authorities to ensure in every case that the return of the minor cannot pose a threat to his integrity or to persecution of the minor or of his family members.
898. Expulsion is an administrative sanction that may be applied to foreign minors (though never, as has been seen, to those in a situation of desamparo ), albeit with certain limitations: children who are below the age of majority or incapacitated and who are the dependents of foreign residents cannot be expelled, provided they have legally resided in Spain for more than two years. In addition, account must be taken of the general rule established in article 99.3 of the Implementing Regulations: they may not be expelled unless the offence committed is that of "being implicated in activities seriously detrimental to public order or to the internal or external security of the State, or conducting any type of activities contrary to Spain's interests or that may harm Spain's relations with other countries", or involves the commission of a further offence within one year of the commission of an offence of the same nature punishable by expulsion, if they are legally resident and meet the following criteria: (a) to have been born in Spain and resided lawfully in Spain for the past five years; and (b) to have permanent resident status.
899. With regard to the measures associated with expulsion, account must be taken of the provisions of article 108.8 of the Implementing Regulations of Act 7/1985, on the placement of minors in detention centres prior to expulsion, as was indicated in section C of this chapter.
900. With regard to the processing of applications for family reunification when the parents and the child reside in different States, the regulation of the procedure assumes that the family member is living abroad. The intention is to verify, before she or she enters Spain, that all the statutory requirements are fulfilled; accordingly, a family reunification visa is required. In other words, unless a visa waiver is obtained, a family member already living in Spain who has entered under other arrangements is not permitted to apply for a residence permit for reasons of family reunification.
901. The family reunification procedure receives priority treatment.
902. The foreign resident wishing to reunite his family requests, from the governmental authority of the province in which he resides, a report certifying that he meets the requisite criteria, namely: that he has means of subsistence and sufficient guarantees of health assistance and housing for himself and his family.
903. The family member seeking to enter Spain for purposes of family reunification submits an application for a visa for family reunification to the diplomatic mission or consulate in whose area he resides.
904. The diplomatic mission or consulate forwards the application, accompanied by a report and the necessary documentation, to the Ministry of External Affairs. The Ministry informs the local government authority that it has received the visa application in due form, and requests the authority to transmit the relevant report. The report of the government authority imposes a binding obligation on the reunifier to comply with the criteria he is required to meet.
905. Upon authorization by the Ministry, the diplomatic mission or consulate will decide whether to grant or refuse the visa, and, where applicable, will issue it. Decisions on applications for visas for family reunification must in any case be taken within three months. Upon arrival in Spain, the family member applies for a residence permit for family reunification. This application is also accorded priority, and in this case the deadline for a decision is a month and a half.
906. The regime for reunification of members of families of Spaniards or of nationals of other member States of the European Union and other member countries of the European Economic Area involves simplified formalities.
907. As for foreign minors requesting asylum and their right to family reunification, two different situations must be distinguished: minors availing themselves of the asylum request of one of their parents through the "family extension" clause (article 10 of the Asylum Act); and minors requesting asylum for themselves or accompanied by persons who are not their parents, who, in application of the "family extension" clause in that article of the Asylum Act, will be entitled to extension of the right of asylum to their parents ("ascendant relatives within the first degree").
908. As for dependent minors included in their parents' asylum request, submission of the request by the parents implies provisional residence by the children (if they have accompanied their parents) or their right of legal entry into Spanish territory (if they are still in the country of origin), thereby guaranteeing family reunification. The effects of the granting of asylum extend to the children.
909. Children in a situation of desamparo seeking asylum are covered by the general regime of foreign minors in a situation of desamparo , and are thus entrusted to the care of the Autonomous Community's services for the protection of minors; their cases are brought to the attention of the Government Procurator's Office; they are protected against expulsion; and - upon application by the guardianship body - granted a residence permit, together with documentation, if they have none. In addition, the guardian assigned to such minors by law will represent them during the processing of the asylum application, "which must comply with the criteria contained in the international agreements and recommendations applicable to the minor seeking asylum".
910. As for their right to family reunification, this too is covered by article 10 of the Asylum Act, on "family extension" of asylum, which allows them to reunite with their parents in Spain. However, as the asylum legislation does not provide for any specific treatment of children seeking asylum, none of its provisions guarantees them, in principle, the possibility of reunification with their siblings who are also
minors. It is assumed that, once in Spain, the minor's parents will initiate the procedures to ensure that their other children below the age of majority are admitted to Spanish territory.
911. The rules governing the entry of foreigners contained in the Implementing Regulations to Act 7/1985 cover the case of a minor who may wish to visit a parent with whom he does not normally live. A residence permit may be issued to a foreign minor wishing to remain in Spain for up to three out of every six months. As has already been indicated, although the Regulations make no specific provision for entry in order to visit one of the parents or a family member, that eventuality is covered when the purpose of the journey and the conditions of the proposed stay are specified in the application. When the person requesting the residence permit is a minor, parental authorization to travel may also be required.
912. Spain is also a party to certain conventions that include measures to facilitate the exercise of the right of access. Thus, a purpose of the Convention on the Civil Aspects of International Child Abduction, concluded at The Hague on 25 October 1980, is "to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States". It is applicable to any minor who has had his or her habitual residence in a State party immediately prior to the violation of the rights of custody or access. Under the terms of the Convention, the request the purpose of which is to organize or guarantee the effective exercise of the right of access may be submitted to the central authorities of the States parties to the Convention. Those authorities are obliged to cooperate to ensure peaceful enjoyment of the right of access and compliance with all the conditions to which it may be subject, adopting all necessary measures to eliminate obstacles to its exercise.
913. Spain has recently signed an Agreement with Morocco on judicial assistance, recognition and execution of court decisions concerning the right to custody and the right of minors to visit and return, concluded in Madrid on 30 May 1997. A request may be submitted to the central authority with a view to organizing or protecting the right to visit. The authority - acting directly or through the Government Procurator's Office or the Government Attorney - must take or arrange for the necessary measures to eliminate obstacles to the peaceful realization of the right to visit and must have recourse to the competent jurisdiction to organize or protect it. Furthermore, a preferential regime is established for the recognition and execution of court decisions relating to the right to visit.
2. Measures adopted by the Autonomous Communities
914. The Autonomous Communities comply with the aforementioned rules and, through advisory services set up for that purpose, facilitate the procedures and documentation required to make reunification effective.
915. Article 22 of Catalonia's Act 8/1995 of 27 July, on care and protection of children and adolescents, establishes that in the case of children resident in a foreign State and travelling to Catalonia to enjoy their right to visit one or both parents, the authorities of the State of habitual residence and the persons having custody of the minor may request the Autonomous Government to ensure that the persons with whom the minor is to reside in Catalonia sign an undertaking to return him or her on completion of the visit.
916. When a minor habitually resident in a foreign State has been transferred to Catalonia in violation of the rights of custody, those having custody of him may request the Autonomous Government of Catalonia to mediate with a view to securing the minor's return to his habitual residence.
D. Illicit transfer and non-return (art. 11)
(CRC/C/58, para. 78)
917. Among the criminal law measures adopted to guarantee respect for the rights of custody and visit, the new 1995 Criminal Code classifies as a minor offence - though not as the offence of disobedience - punishable with a fine of one to two months' minimum wage, any violation by the parents, guardians or custodians of the judge's ruling, involving seizing the minor, removing him from the custody established by the court decision or by a decision of the public agency having guardianship over him, withdrawing him from the guardianship establishment, family, person or institution to which he has been entrusted, or not returning him when obliged to do so.
918. As for the measures taken to avoid and combat unlawful transfers of children abroad, these fall into three categories.
1. International cooperation to secure the speedy restoration of the status quo
919. As was stated in paragraph 154 of its initial report, Spain has ratified the Convention on the Civil Aspects of International Child Abduction, concluded at The Hague on 25 October 1980.
920. The Convention aims to protect minors, at the international level, from the harmful effects they might suffer as a result of unlawful transfer or retention; to establish procedures guaranteeing the immediate return of the minor to his or her State of habitual residence; and to safeguard the right to visit. The Convention urges States to have recourse to any emergency procedures available to them. For the performance of the obligations it imposes, each State party to the Convention appoints a Central Authority. In Spain the Central Authority is the Technical Secretariat of the Ministry of Justice, whose responsibility it is to promote collaboration between the competent Spanish authorities with a view to securing the immediate return of minors.
921. Any person, institution or agency maintaining that a minor has been transferred or retained in violation of the right of custody may apply to the Central Authority of the minor's habitual residence or of any State party so as to secure, with its assistance, the minor's return.
922. In order to ensure adequate performance of this obligation, the Protection of Minors Act (1/1996) amended articles 1901 et seq. of the Civil Proceedings Act.
923. The competent court will be the court of first instance in whose geographical jurisdiction the minor who has been unlawfully transferred or retained is living. The following may promote the procedure: the person, institution or agency to whom the right of custody of the minor has been assigned; the Spanish Central Authority responsible for performance of the obligations imposed by the Convention; and any person designated by that Authority to represent it. The proceedings will take place through the intervention of the Government Procurator's Office and the interested parties may act under the direction of counsel. The proceedings will be accorded preferential treatment and will take place within six weeks of submission of the application to the court for the return of the minor. Upon application by the person initiating the proceedings or the Government Procurator's Office, the judge may order provisional custody of the child as provided for in the Act and any other security measure he may deem appropriate. The judge must, within 24 hours, make an order formally summoning the person who has abducted or is retaining the child, on a date to be determined and in any case within the three days following, to appear before the court with the child and to indicate whether he or she agrees voluntarily to the return or contests it on one of the grounds laid down in the Convention. Articles 1905 to 1909 of the Civil Proceedings Act establish the procedure that the judge must follow if the person summoned appears, and also if he or she fails to
appear. In either case the Government Procurator's Office intervenes, the child is given a hearing, and his or her best interests serve as the principle guiding the proceedings.
924. With regard to the 1980 Hague Convention, Spain and the United Kingdom have exchanged notes constituting special agreements with a view to repealing some provisions that may entail restrictions on the return of minors, concerning the use of English and Spanish by the respective authorities.
925. As for the application of this Convention by the courts, mention may be made of the Judgement of the Supreme Court of 22 June 1998, in a case concerning the abduction of a minor by one of the parents during the separation proceedings in a mixed marriage. The Court upheld the appeal brought by the Government Procurator's Office against the decree of the Provincial High Court, declaring that the decree should have interpreted the Convention in accordance with the interpretative rules and the purpose of the Convention, rather than applying interpretations that thwarted that purpose.
926. The aims of the Agreement concluded between the Kingdom of Spain and the Kingdom of Morocco on judicial assistance, recognition and execution of court decisions concerning the right to custody and the right of minors to visit and return, concluded in Madrid on 30 May 1997, include guaranteeing the return of displaced or unlawfully retained minors to one of the two States. It applies to any unemancipated minor under 16 years of age who is a national of one of the two States.
927. The Spanish Central Authority is the Ministry of Justice, which shall communicate directly with the Moroccan Ministry of Justice. Requests are directed to the Central Authority of the minor's State of habitual residence prior to his displacement or non-return, and the Authority will transmit the request to the Central Authority of the other State. Once the request for return has been submitted to the Central Authority, the competent judicial authority must order - except as otherwise provided in the Convention itself - the child to be returned within a period of six months. If the request for return has been submitted after the six months following the unlawful displacement have elapsed, the judicial authority shall also order the return of the minor, unless it can be demonstrated that the child has become integrated in his new environment or that his return may expose him to physical or psychological danger or to an intolerable situation. In order to invoke this exception, the judicial authority shall take account solely of the best interests of the child and the information provided by the authorities of his or her previous place of residence.
2. Elimination of exorbitant criteria in matters of international jurisdiction
928. In article 22.3 of its Judiciary (Organization) Act, Spain retains a criterion in matters of filiation and relations between the parents and children that may be qualified as exorbitant. This is the criterion that the applicant must be a Spanish national, one which enables the Spanish national to apply to be awarded guardianship and custody of the child regardless of the place where the latter habitually lives. This criterion encourages the removal of the child from his or her habitual residence to Spain, without the consent or even the knowledge of the other parent, with a view to obtaining the protection of the courts through a favourable and effective judgement.
929. As for the law applicable, article 9.4 of the Civil Code provides that "the character and content of filiation, including adoptive filiation and relations between the parents and children, shall be regulated by the personal law of the child, and, if that cannot be determined, by the law of the habitual residence of the child." Article 22.3 of the Judiciary (Organization) Act taken in conjunction with article 9.4 of the Civil Code may result in the Spanish courts being considered to have jurisdiction to hear the application by a Spanish parent, and in Spanish law being applied to resolve the question. This may in turn encourage the
parent to seek a haven in Spain from which to obtain an award of custody, removing the child from the jurisdiction of his own natural court in order to place him under that of the parent's own court.
3. Flexibilization of the regime of recognition and execution of foreign decisions concerning
930. The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children was signed at Luxembourg in 1980.