Contact disputes and allegations of gender violence in Spain

ABSTRACT

In Spain, progress is being made to restrict contact between aggressors and their children in cases of gender violence. However, visits and communication, even shared custody, are still granted by judges despite shared custody being prohibited by law in such cases since 2005. Under recent legal reforms, children are now considered primary victims of gender-based violence. However, even today, Spanish judges frequently allow contact and even grant shared custody to the aggressor. This is despite the fact that in cases of gender violence, there are usually measures in force that include restraining orders and prohibitions against communicating with the mother. In these cases, communication between the father and his children is effected through grandparents or at the so-called ‘family meeting points’ – neutral spaces supervised by professionals. Insufficient budgets and shortcomings in the management of these meeting points have led to many problems, including women being murdered by their partners after leaving one of these meeting places.

KEYWORDS:

• Gender violence
• child victims
• contact disputes
• legal reform

Acknowledgments

This article was supported by the Project DER2014-55400-R: The Treatment of Gender Violence in the Administration of Justice. Implementation and Effectiveness of L.O. 1/2004.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The Courts of Violence against Women are specialised courts created by the criminal courts whose competences are both criminal and civil in cases of gender violence.

2. ‘Custody’ in Spanish family law refers to general daily care and control of children.

3. El Mundo (2 August 2015) citing as a source the Spanish Federation of Associations of Divorced and Separated Women: see http://www.separadasydivorciadas.org/.

4. In general, restraining orders can be imposed either as a precautionary measure to protect the victim if there is a risk of violence or, as in the case of Alexandra, as an additional order following conviction for an offence of gender violence.

5. As such, the following can be mentioned, among others: SAP (Sentence of the Provincial Court) Badajoz no 2, of 17 April 2013; SAP Balearic Islands no 3, of 13 June 2008; SAP Barcelona no 12, of 9 March 2007; SAP Barcelona no 12, of 24 May 2007; SAP Las Palmas no 3, of 27 November 2007; SAP Murcia no 5, of 29 June 2006; SAP Toledo no 2, of 22 December 2006.

6. Spanish criminal courts are divided into two parts. The Court of Instruction investigates the facts and the evidence, and the Penal Court assesses the evidence and makes decisions on guilt or innocence. The Duty Criminal Courts are open 24 hours a day including weekends.

7. Parental authority is the historical legal concept derived from Roman Law and which continues to be used in the Spanish Civil Law.

8. Law adapted to the Convention of Istanbul of 15 May 2011 of the Council of Europe on Preventing and Combating Violence against Women and Domestic Violence and also transposing European Union directives on this matter. In particular, Directive 2012/29/EU, of 25 October (DOUE-L-2012–82,192).

9. Secretary of State for Security, Instruction 7/2016 establishing a new protocol for police assessment of the level of risk of gender violence and managing the security of victims.

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Teresa Picontó-Novales

Teresa Picontó-Novales is a Senior Lecturer in the Department of Criminal Law, Legal Philosophy and History of Law at the University of Zaragoza, Spain. She specialises in the Sociology of Family Law and Family Justice; Rights, Welfare and Social Policies relating to Children, Gender and Family.