Noorulhuda NadheerDetail of Noorulhuda Nadheer’s artwork on sexual violence against women and girls. Human Rights
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A group of rapporteurs say the Spanish judicial system has a “discriminatory bias against women” and often favours males in custody cases even if there is a history of domestic violence. The experts call on the government to take action.
Minors in Spain are exposed to violence and sexual abuse by a judicial system that fails to protect them from abusive fathers, said UN experts* who called on the government to “ensure that its courts overcome bias against women and apply a child-centred and gender-sensitive approach”.
“Even in cases where there is a history of domestic violence or evidence of abuse, court decisions often favour fathers, even in cases where there are reasonable grounds to suspect that they are abusive towards children and their mothers,” they said.
“One of the root causes of this problem is the existence of a discriminatory bias against women, which makes their testimony perceived as less credible than that of men,” they said. “Women are even less likely to be believed when they report physical and sexual violence committed by fathers against them and their children.”
The experts were particularly concerned about the case of Diana Garcia M., who recently lost first instance custody of her 6-year-old daughter after being accused of obstructing the relationship between the girl and her father. Despite a history of domestic violence and evidence that he had sexually abused his daughter for years, the father was awarded full custody in the Pozuelo de Alarcón court.
“Despite clear guidance to the contrary in the Convention on the Rights of the Child, courts continue to determine that it is in the best interests of the child to maintain contact with a parent, even when the parent is violent or abusive,” the experts said.
The rapporteurs say they have been in contact with the government over a decade to convey their concerns, but they continue to receive reports of new cases of mothers losing custody of their children to abusive fathers.
The “parental alienation” theory
Women are accused of making it difficult for fathers to have contact with their children – a phenomenon known as “parental alienation” – and are punished by the courts instead of getting protection.
The theory of parental alienation, although lacking credible scientific support, reflects the idea that when a child fears or avoids a parent, it is due to the influence of the other parent, rather than the child’s own experiences.
“Although banned by recent Spanish legislation, theories of ‘parental alienation’ appear to continue to play a role in judicial decisions in Spain,” said the experts who explain that such theories “take advantage of entrenched patriarchal attitudes in the legal system,” as well as a “rising tide of criticism against gender equality” in several countries where anti-rights groups have portrayed women’s rights as “anti-family.”
“Guided by pseudo-scientific and regressive theories, such as parental alienation, courts in Spain and other countries are failing to guarantee the right of minors to be free from violence, and the right of women to non-discrimination,” the experts said. This “worrying trend” has also been detected in other countries in Europe, Latin America and other regions.
“Spain must do more to make its legislation operational and to ensure that all justice system officials apply a gender-sensitive and child-centred approach to child custody and domestic violence cases, as well as take effective measures to prevent these acts of violence that may constitute cruel, inhuman or degrading treatment or punishment, or even torture,” the experts said. “The government must fulfil its responsibility to ensure that children and women can live and thrive free from violence.