Family Law(OPINION) Disqualification from exercising parental authority in the case of Juana Rivas from te perspective of Private International Family Law

June 1, 2023by Diana Carrillo0

Last April 2021, the Plenary of the Supreme Court confirmed the conviction of Juana Rivas for the crime of child abduction to two and a half years in accordance with article 225 bis of the Criminal Code, as well as the penalty of special disqualification from exercising parental authority for six years in respect of her children, compensation and costs.

In the summer of 2017, Spain was shocked to see on television how this mother disobeyed the court order to return to Italy and remained in hiding along with the couple’s two minor children, it being clear to any jurist that such conduct could only mean a criminal conviction and an exemplary sentence, given the media coverage and the stubbornness shown to prevent her return, as finally happened.

However, it is not the criminal conviction for child abduction that is the subject of this opinion article, but rather the penalty of special disqualification from exercising parental authority contained in Article 225 bis of the Criminal Code, which the Supreme Court, as it could not be otherwise, sentenced, as established by our Criminal Code.

Now, Article 8 of Regulation EC 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, better known as Brussels II bis, states that the courts of a Member State shall have jurisdiction in matters of parental responsibility in respect of a child habitually resident in that Member State at the time the court is seised, that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised, and in this case there is no doubt that the habitual residence of the children was Italy, where they lived and attended school and where the courts had awarded custody to the father.

The abduction by their mother in no way implies a change of residence of the children as this change must be lawful and this was a clear case of wrongful retention. This is expressly provided for in Article 10 of the same Brussels II bis Regulation, which states that in the event of the wrongful removal or retention of a child, the courts of the Member State in which the child was habitually resident immediately before the wrongful removal or retention shall retain jurisdiction until the child has acquired a habitual residence in another Member State. Therefore, jurisdiction to decide on any measures concerning parental responsibility of children remained with the Italian courts.

(OPINIÓN) Juana Rivas. La inhabilitación para el ejercicio de la Patria Potestad en el caso desde la perspectiva del Derecho Internacional Privado de Familia

Among the measures of parental responsibility is the parental authority of the parents over the children, with the Italian courts having jurisdiction to determine any measure of parental authority in accordance with the above-mentioned Articles of the Brussels II bis Regulation.

On the other hand, as regards the law applicable to child protection measures, the Hague Convention of 19 October 1996 is the applicable instrument. Article 16 of the Convention states that the attribution or extinction of parental responsibility, understood in an exercise of equivalence to parental authority in Spanish law, is governed by the law of the habitual residence of the child; Article 17 states the same law for the exercise of parental responsibility and Article 18 in relation to the deprivation of parental authority or modification of the conditions of its exercise refers to the provisions of the Convention.

Therefore, in application of international standards, the only competent courts to disqualify Juana Rivas from exercising parental authority over her children were the Italian courts and not the Spanish courts, and the applicable law for this disqualification was Italian law and not Spanish law.

The Supreme Court applied the Spanish Criminal Code correctly to the offence of abduction but the penalty established in Article 225 bis of the Criminal Code on special disqualification from exercising parental authority is a domestic rule and not a supranational rule such as the Brussels II bis Regulation and the 1996 Hague Convention, rules which are above the domestic rules of each State, From this it can be deduced that if these rules take precedence over the Spanish Criminal Code, the Spanish courts cannot adopt a protective measure such as disqualification from exercising parental authority, as they are not competent to do so and Spanish law cannot be applied, thus giving rise to the paradox that if this article is applied in this case, a measure is being applied for which the courts, according to private international law, are not competent.

Similarly, if the father of the children were to seek recognition of this disqualification in Italy, it could be refused, since one of the grounds for refusing recognition is that it was issued by an incompetent court and according to international instruments Spain is incompetent to adopt such a measure.

It seems that in cases of child abduction in which Spain is the requested State and which orders the return of the child, if this order is not complied with and the abducting parent is sentenced in Spain, as has happened with Juana Rivas, the penalty of special disqualification from exercising parental authority comes into conflict with supranational rules, a problem that I leave for consideration by the magnificent jurists specialising in private international law that we have in Spain or, if appropriate, so that one day the question may be raised before the CJEU.

Diana Carrillo

More than 33 years of professional experience. Expert witness before the High Court of Justice of London. She is the author and co-author of various publications in Lawyerpress, Family Journal Issue or Resolution. Founding partner and vice president of AMAFI.

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