The Criminal Code in Spain protects the family and the welfare of minors as a superior good above all other rights. In recent years we have seen an exponential increase in cases of child abduction, family abandonment and non-payment of economic benefits. In some occasions, there is an excess in the denunciation for facts that are not criminal and in others, the victims do not denounce for ignorance of their rights, reason why it is important to consult a specialized lawyer about your case.
Below we explain the existing family crimes in Spain.
Breach of the duties of custody
It is an intentional crime, it cannot be committed through imprudence. It punishes the infraction of the duty to return the minor or person with disability to his parents or guardians when the author is required to do so.
An attenuation of responsibility is foreseen in those cases in which the minor or dependent is returned to a known and safe place, without having endangered his life, health, physical integrity or sexual freedom, as long as the place of stay of the minor or person with disability has been communicated within a period not exceeding 24 hours.
The crime cannot be charged to the parents who have custody of the minor in cases of separation or divorce and fail to comply with the duty of delivery to the other parent defined by judicial or administrative resolution. Those cases will be prosecuted for the crime of abduction of minors of art. 225 of the Penal Code.
Inducing minors or persons with disabilities to leave home
The purpose of this crime is to take care of the family order established in art. 154 of the Spanish Civil Code, in which the parents are the ones who have the right to decide and fix the residence of their minor children.
Not any action or advice will be a crime. The inducement must be an action that in a direct and effective way, gives birth in the minor or the subject with disability, the will to leave the domicile. It must be performed on a specific person and consist of actions capable of decisively influencing the will. That is to say, mere advice will not be a crime, nor will expressions that encourage a decision already taken.
The penalties for those who induce the abandonment of the family home are from 6 months to 2 years imprisonment.
In the cases of minors or persons with a high degree of disability, if the control is prolonged and the minor is kept locked up, we will be in possible cases of detention or aggravated kidnapping of minors of art. 165 of the Penal Code in relation to art. 164 and 164 of the same legal text.
It is regulated in art. 225 of the Penal Code and protects the guardianship and custody of the minor. It is intended for cases in which the parent, in disagreement with the established visitation regime, abducts the minor with the aim of taking custody of him/herself.
In Spain, this crime can only be committed by parents or relatives up to the second degree of consanguinity or affinity who commit the abduction. The parent who has guardianship and custody of the child is excluded from the crime.
The safety of the minor does not have to be in danger, but only that the minor is moved from his/her place of residence without the consent of the parent who has custody or that he/she is retained in serious breach of a duty established by administrative or judicial resolution.
The penalties are 2 to 4 years imprisonment, except in cases where the minor is transferred out of Spain in which a penalty of 3 to 4 years imprisonment will be imposed. Of course, these are the penalties in the abstract, without the possible applicable mitigating factors.
There are two possibilities of exemption from punishment and they are the following:
- When the abductor has informed the other parent of the child’s place of stay and there is a commitment to return the child within 24 hours.
- When there is a justified cause such as a serious risk of physical or psychological endangerment of the child in case of return.
The consent of the child to the abduction is irrelevant and does not exclude liability, although on this point it is worth noting that the Hague Convention provides that the judicial or administrative authority may also refuse to order the child’s return if it finds that the child objects to his or her return when he or she has reached an age and degree of maturity at which it is appropriate to take his or her views into account.
And where appropriate, a possibility of mitigation of the penalty, when the abductor does not communicate the place of stay but returns the child within 15 days, taking into account as the starting date of the time limit the day of the report of the abduction. In this case the penalties shall be from 6 months to 2 years imprisonment.
Abandonment of a family
Included in the Penal Code in art. 226 as non-fulfillment of family duties, meaning life, health, dignity, the right to an integral education and training, economic welfare, etc.
In order to determine the content of the duties whose infringement is punishable, it is necessary to refer to the provisions of family law. In order to be a crime, the infringement must be relevant, otherwise it would be subject to civil proceedings.
In this sense the duties would be:
- Patria potestas: to watch over the children, to keep them in company, to feed them, to educate them, to procure them an integral formation and to represent them and administer their property. Article 154 of the Civil Code.
- Guardianship and guardianship: to watch over the ward, to feed him/her, to educate him/her, to provide him/her with an integral formation, to promote the acquisition or recovery of the ward’s capacity and his/her better insertion in society and to administer his/her property. Article 269 of the Civil Code.
- Foster care: to watch over the minor, to keep him/her in his/her company, to feed him/her, to educate him/her and to provide him/her with an integral formation. Article 173 of the Civil Code.
- Assistance to descendants, ascendants or spouse in need. Articles 110 and 142 of the Civil Code.
Not any occasional neglect in the care, feeding, education, integral formation, etc. of the minor or person with disability, gives rise to the crime, but only those that due to their seriousness or duration can seriously damage the basic rights of the minor or disabled person.
Non-payment of economic benefits
The crime protects minors and seeks to ensure compliance with the obligations and duties of care set by the courts.
We usually know of this crime due to accusations against parents for failing to provide economic assistance included in the regulatory agreement. Regarding this non-compliance, it is essential to study under what circumstances it occurs and what are the causes.
It is not the same to stop paying 100% of the pension than to stop paying a part of it due to the impossibility of meeting the expenses. It is also not the same to stop paying when there has been a worsening of the patrimonial situation than to stop paying without new circumstances. In this regard, there are judgments that have stated that if the defendant is in a proven impossibility to comply with the obligation, there is no crime.
In short, it is not possible to return to the pre-Constitution regulations in which imprisonment for debt existed.
The prison sentence ranges from 3 months to 1 year.
In case there are any injuries, then the crime is different.
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