González Carreño v Spain, Comm. No. 47/2012, UN Doc. CONVENTION/C/58/D/47/2012 (2014)
The Committee on the Elimination of Discrimination Against Women affirmed that, in matters of child custody and visitation, the best interests of the child must be a central concern and that national authorities must take into account the existence of a context of domestic violence when making decisions. The failure of State parties to exercise due diligence to prevent violations of rights or to investigate and punish acts of violence by a marital party will amount to a breach of the Convention. It is not sufficient for a State party to rely upon notions of formal equality in making decisions as to parental custody.
The author of the communication, Angela González Carreño (Author), married F.R.C in 1996 and gave birth to their daughter in the same year. Throughout their relationship, the Author claims she was subjected to physical and psychological abuse by F.R.C. The Author eventually moved out of their marital home in September 1999 after F.R.C. threatened her with a knife in the presence of their daughter.
The Author reported the situation to the police and to the courts. At the same time, she also requested a trial separation (with her daughter remaining under her guardianship and custody) and a limited regime of supervised visits between father and daughter. A trial separation and regime of supervised visits was granted for a period of 30 days.
After the trial separation, the Author alleges that incidents of intimidation and harassment continued, including:
F.R.C. questioning the child during his visits about the Author's relationships, speaking ill of the Author and repeatedly calling her a "whore". This caused tension and anxiety in the child who began fearing and refusing to spend time with F.R.C.
F.R.C. approaching the Author and her daughter at the entrance of their residence, attempting to pull the child away and then proceeding to follow the Author and the child to the police station where, upon reaching the station, he threatened to kidnap the child and, while seizing the Author's hair, attempted to throw the Author to the ground.
F.R.C. following the Author and her daughter while they were driving and, when the Author stopped the car, proceeding to approach them while shouting and demanding she hand over the girl and banging on the car. This triggered a nervous outburst from the child, who began crying that her father should leave.
As a result of these incidents, the Author filed more than 30 complaints with the police and the courts. She also repeatedly sought protective orders to keep F.R.C. away from her and her daughter.
Despite these many complaints, F.R.C. was only convicted once for harassment and ordered to pay a 45 euro fine.
The courts issued protective orders for the Author but only one of them included the daughter. F.R.C. later appealed this protective order and the courts retracted the protection from the daughter on the basis that it hampered the visitation regime and could harm relations between father and daughter. Other protection orders for the Author were allegedly violated with no legal consequences imposed on F.R.C.
Authorisation of unsupervised visitation regime
Despite numerous alleged incidents of violence during the year and a half that followed, the courts authorised unsupervised visits; basing their decision on a social service report which did not expressly recommend against unsupervised visits. Notably, the report indicated that, while F.R.C. was affectionate with the child, he often acted inappropriately towards her, lacked empathy and was unable to adapt to the child's young age. The Author unsuccessfully appealed the decision.
During the following months of unsupervised visits, social services issued several reports referring to the child's wish not to spend any more time with her father beyond the current regime.
At the end of a judicial hearing on 24 April 2003, F.R.C. approached the Author and told her that he was going to take away what mattered most to her. Later that day, the Author took her daughter to social services for a planned visit with her father. When she later returned to pick her up, F.R.C. had not returned. The Author went to the police and when police officers attended F.R.C's dwelling, they found the lifeless bodies of the child and F.R.C (who had a weapon in his hand). The police investigation concluded that F.R.C. had shot the girl and then committed suicide.
Application and appeals for remedy
On 23 April 2004, the Author filed a claim with the Ministry of Justice for miscarriage of justice, alleging negligence by the administrative and judicial authorities for failing to protect the life of her daughter, despite her many warnings about the danger the child faced with her father. The claim was denied on a finding that the judicial authorities had acted properly, as was an appeal before the High Court.
The Author finally appealed to the Constitutional Court, alleging violation of her constitutional rights to an effective remedy, to security and to life and physical and moral integrity, not to be subjected to torture or cruel or degrading treatment or punishment and to equality before the law. The Court denied the appeal as lacking constitutional relevance.
In 2012, the Author brought the complaint to the Committee. She alleged that the State party violated articles 2, 5 and 16 of the Convention in that the State party's judicial authorities responded inadequately and underappreciated the seriousness and danger of her situation. She alleged that the views of the authorities were obscured by prejudices and stereotypes about women in relationships of domestic violence.
The Committee observed that the murder of the child took place in a context of domestic violence which continued for several years and which the State party did not question. The State party argued that F.R.C.'s behaviour was unforeseeable and that nothing in the reports submitted to the courts could have predicted the danger to the life and mental health of the child. The Committee did not accept this argument in light of the many incidents of physical and verbal violence, F.R.C.'s numerous breaches of protective orders which did not attract any legal consequences, the failure of the courts to issue protective orders which extended to the child and the social services reports which stressed F.R.C.'s inappropriate behaviour towards the child.
The Committee noted that the State party, as a signatory to the Convention was obliged to ensure the realisation and practice of equality of men and women and to adopt appropriate measures to amend or abolish not only existing laws but also customs and practices that constitute discrimination against women (articles 2 and 5 of the Convention). Further, the State party was obligated to adopt all appropriate measures to eliminate discrimination against women in all matters relating to family and marriage relationships (article 16 of the Convention).
The Committee observed that in matters of child custody and visiting rights, the best interests of the child must be a central concern. When national authorities adopt decisions in that regard, they must take into account the existence of a context of domestic violence. The Committee affirmed the comments made in its General Recommendation No. 19 (1992) that gender-based violence which impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms under general international law is discrimination within the meaning of article 1 of the Convention. States may be responsible for the acts of private persons if they do not act with due diligence to prevent violations of rights or to investigate and punish acts of violence and compensate victims.
The Committee found that the State party's authorities failed, before Authorising an unsupervised visitation regime, to conduct necessary due diligence and take reasonable steps with a view to protecting the Author and her daughter from possible risks in a situation of continuing domestic violence. Rather, the authorities applied 'stereotyped and therefore discriminatory' notions that visiting rights are based on formal equality which, in the present case, gave clear advantages to the father despite his abusive conduct which minimised the mother and daughter as victims of violence. In so doing, the State party infringed on its obligations under articles 2, 5 and 16 of the Convention.
The Committee's decision reaffirms the obligation upon State parties to act with due diligence to prevent violations of rights and to investigate and punish acts of violence and compensate victims. It is not sufficient for State parties to rely upon simplistic notions of formal equality in making decisions which may affect the ability of individuals to enjoy their rights. Rather consideration must be given in each case to the peculiar circumstances which may apply discriminately to impair an individual's enjoyment of their rights. Particular regard should be given to the discriminatory effect that domestic violence has upon the ability of women and children to enjoy their rights. In such cases, primacy should be given to the rights of those who are likely to be victimised.
The full decision is available here.
Alison Kwok is a Solicitor at DLA Piper.