Section 154 of the Spanish Civil Code defines parental authority as a parental duty which is performed by the parents always in the benefit of the children, and which includes the following duties and powers:
1) To look after the children, keep them in their company, feed them, educate them and provide them with a comprehensive education.
2) To represent them and administer their assets.
3) To decide on the children’s place of habitual residence.
When there are two parents, whether separated or not, parental authority corresponds to both, and must be performed jointly by both. In cases of serious breach of the duties of parental authority, according to Section 170 of the Spanish Civil Code, a Judge may deprive a parent of his/her parental authority. But what happens when a father has not had the slightest contact with his child since the child’s birth, merely acknowledging his paternity, but without ever being involved in the child’s life? Is this sufficient to deprive him of parental authority? Spanish Supreme Court in its Ruling 106/2024 of 30th January, of the Civil Chamber, has stated a clear criterion for these cases which, if confirmed, will change the trend hitherto prevailing in many Provincial Courts on this point.
The respondent father had not had any relationship with the child at any time since his birth, nor had he been responsible for his care and maintenance, nor had he been concerned about his situation. The mother requested the total deprivation of parental authority from the father, and that she be granted the exclusive right to exercise it. Both the Court of First Instance and the Provincial Court of Appeal upheld the claim only partially, granting the mother the exclusive exercise of parental authority as requested by her, but keeping the right to parental authority as shared with the father. This was on the grounds that there was no evidence of a serious breach of the duties of parental authority in the terms required by section 170 of the Civil Code; and that, as the mother did not allege difficulties in decision-making in areas such as education, administration or health, it was not correct to deprive the father of parental authority altogether, but only to grant the mother the ordinary, day-to-day exercise of the function.
But the Supreme Court categorically states that they “do not share the criterion maintained by the judgments of the lower court, which create a situation of uncertainty and insecurity as to the cases in which the mother (or third parties related to her) should hear the father to know his opinion, in decisions that affect the child, which would be of no benefit to the child. To allow, in this open and diffuse way, interference in the exercise of parental authority by someone who has disregarded everything that affects the child from birth (…) is not in the best interests of the child, since neither the father knows him, nor is he aware of his personal, material and emotional needs, his personality, or any of his circumstances (…)’ For these reasons, in the specific case, the Spanish Supreme Court considers that the benefit and interest of the child justifies the deprivation of parental authority requested.
Such deprivation does not extinguish the paternal-child relationship. The father continues to have the legal duty to look after his child and provide him with maintenance, by virtue of the bond of filiation (sections 39 of the Spanish Constitution and 110 of the Spanish Civil Code). And in the event that he changes his attitude in the future, being willing to fulfil the duties of parental authority, and this would be beneficial for the child in view of the circumstances, the lost parental authority could be returned to him.
