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Montserrat Gas: “In addition to the new law, we need family policies to protect minors”
The vice dean of the Faculty of Law at UIC Barcelona and director of the Childcare and Family Policies Chair, Montserrat Gas, analyses the new organic law on the protection of minors
The draft Organic Law for the protection of children and adolescents against violence in Spain has just been approved. To what extent was there a need for an update to this legislation?
This legislation, as well as other recent regulations regarding children, is based on international recommendations, mainly from the United Nations’ Committee on the Rights of the Child (CRC). The Committee's last recommendations and observations of Spain in 2018 addressed the lack of a comprehensive law on violence against children in our country.
How long has it taken to pass such a law? How difficult is it to carry out such a measure?
Unfortunately, legislation on the protection of children is one of the last to be drafted in the field of human rights. The UN Convention on the Rights of the Child was not signed until 1989 and, since then, the signatory countries have been working on specific ways to protect children in their respective country, in line with existing legal framework. It is a slow process, but it is bearing fruit.
The new law implies a paradigm shift, as did the law on gender-based violence in its day, and aims to protect children’s and adolescents’ rights against any form of violence. Do you think we need to make violence towards children a public and social issue?
Violence is an issue that affects society and it is our public duty to fight it. Another issue is that these situations often remain invisible, since the real effectiveness of these comprehensive laws still has to be confirmed. In fact, in the case of the law on violence against women, there are voices for and against. Several feminist groups have protested against it, since they believe it confuses sex and gender and denies the material reality of sex, which is the source of violence and discrimination suffered by girls and female adolescents.
One of the main developments is the prescriptive period for the crime. Up until recently, it was 18 years old, but it will now be counted from the day the victim turns 35. Even in the most serious cases, it will be possible to report the offence up to the age of 55. What does this mean?
The fact that the bill envisages extending this term to 35 years is a measure that seeks to promote prosecution. However, due to the probative limitations that result from the passage of time, it is expected that only a very small number of cases will be affected, perhaps the most serious ones related to organised crime or those that involve multiple victims.
Another new development is that a bill will be submitted to the Spanish Parliament to create courts specialised in violence against children and adolescents. Is there any other precedent of law that has brought about a change of this magnitude?
There are areas of prosecution such as gender-based and domestic violence, or criminal proceedings directed against minors, which can serve as a background, given that there are courts that are specialised in these matters. Experience in these areas can be leveraged to create courts that are specialised in the field of violence against children, in which procedural rules are established to protect minors who have been victims of crime, and professionals are required to be trained to act in this field.
The debate on the ‘right to be heard’ has also been broached. Was it not taken into account under current legislation?
Children’s right to be heard is one of the rights set forth in Article 12 of the UN Convention. Until now, it had been mainly applied to family law, when family break-ups occur, but not specifically to the area of violence against minors.
The law also discusses new types of crime using the internet. To what extent is it necessary to address other measures to protect minors from abuse online?
The internet is a recent social environment that poses many legal challenges. One of the main ones is keeping children and adolescents safe. The statistics show that on the internet, minors are victims of criminal behaviour on a daily basis, and this figure is growing exponentially year after year. We therefore need to take urgent measures to reverse the situation.
How can we do this?
Platforms and online companies must share this responsibility and promote a sage online environment for young people. It is so easy these days for users to remain anonymous and impersonate someone else, which makes it easier for them to abuse children and gives them very easy access to different forms of violence and abuse –especially against women– such as pornography. It is therefore necessary to encourage children to seek other forms of entertainment away from social media, and for adults to limit their unsupervised access to this virtual world in which they are highly vulnerable.
This is where families come into play.
It is important to mention that we can do more to prevent violence than change laws, or introduce this comprehensive law in particular. There are many other measures that help prevent violence against children, such as family policies. Often the lack of child protection has to do with the lack of care and attention from their families or the hours they spend in front of a screen. Therefore, measures that favour a healthy a work-life balance, which help parents and children spend more time together, can prevent, perhaps even more effectively, situations that may pose a risk to children.
This law will also introduce welfare coordinators in schools and educational, sports and leisure centres, as well as a protocol for healthcare.
We will have to see what kind of role this figure plays. But I must stress that we are not going to eradicate the root of this violence simply by being more vigilant –although it will help–, but by treating the cause and taking real preventative measures. A family’s role is essential, and parents must be able to give their children all the care they need. The law speaks of encouraging parental training in these matters, but it is limited to training on gender and forms of violence. The most important thing is for parents to be aware of how important it is to spend more time with their children in order to keep them out of danger.
I understand that beyond the law, more actions need to be taken to address the complex nature of child-related issues.
Families must be put back in the driving seat. Families need support, in all its forms, to access training, services and tools to help them cope with today’s reality. In addition to laws, public bodies need far more expertise in terms consulting, counselling and family mediation. This is the best way to prevent future problems like the ones we’re facing today.