Committee on the Rights of the Child CRC/18/07
22 January 2018
COMMITTEE ON THE RIGHTS OF THE CHILD EXAMINES REPORT OF SPAIN
The Committee on the Rights of the Child today considered the combined fifth and sixth periodic report of Spain under the Convention on the Rights of the Child.
Introducing the report, Mario Garcés Sanagustín, Secretary of State for Social Services and Equality of Spain, said that minors comprised nearly 18 per cent of the population of Spain, adding that having well targeted policies was important in building a pillar for the next generations. In terms of practical policies, the Government had begun drafting its third National Plan on Childhood and Adolescence 2018-2022. In addition, in 2015 it had adopted two laws to endow minors with better legal protection and to treat minors as active and participative subjects. The right to education covered the entirety of all educational cycles, and dropout rates had decreased by half in the past 10 years. In line with European strategies, Spain had set up an Internet security center for minors. Children in Spain enjoyed universal health care, whereas the Government had in place the National Strategy on Drugs 2009-2016 and the law on the use of alcohol by minors. Other priorities included fighting gender violence and child trafficking, and improving the living conditions for children through efficient public policies as part of the programme called “Childhood Friendly Cities,” in which more than 170 municipalities in Spain participated. In conclusion, Mr. Sanagustín reminded that the Spanish Government was committed to work on implementing the Sustainable Development Goals, eight of which directly referred to girls and boys.
In the ensuing discussion, Committee Experts raised the issues of dissemination of the Convention and its direct application,de facto discrimination of Roma children, children with disabilities, and children in the context of migration, the best interest of the child, respecting the views of the child, children’s participation, institutional coordination, budgetary allocations for children’s programmes, and the functioning of the Ombudsman for Children. Other issues concerned businesses and children’s rights, extraterritorial jurisdiction, participation of children in bullfighting, the minimum age of marriage, the status of children born in surrogacy, access of children to the Internet and social media, corporal punishment, sexual exploitation and abuse of children, bullying in school, minors affected by evictions, children in residential care, healthcare and mental health, treatment of intersex children, breastfeeding, child poverty, education, juvenile justice, refugee and migrant children in Ceuta and Melilla, treatment of child soldiers, and legal aid to child victims,
In concluding remarks, Ann Marie Skelton, Committee Expert and head of the task force for Spain, highlighted the problem of children living in poverty in Spain, vulnerable children, children living in care institutions, and migrant children. She expressed hope that the Government of Spain would make the Committee’s concluding observations part of its planning and policies.
Mr. Sanagustín assured the Committee that Spain would fully take on board its recommendations. Despite the progress made, Spain needed to continue making progress. As the gateway to Europe, Spain had to face many challenges and demands. The Government therefore had to step up to the plate.
Renate Winter, Committee Chairperson, thanked the delegation and asked it to convey the greetings of the Committee to the children of Spain.
The delegation of Spain included representatives of the Ministry of Foreign Affairs and Cooperation, the Ministry of Justice, the Ministry of Defense, the Ministry of the Interior, the Ministry of Education, Culture and Sports, the Ministry of Employment and Social Security, the Ministry of Health, Social Services and Equality, and the Permanent Mission of Spain to the United Nations Office at Geneva.
The Committee will next meet in public on Tuesday, 23 January, at 9 a.m., to review the combined second and third periodic report of Solomon Islands (CRC/C/SLB/2-3) via video conference.
The Committee is considering the combined fifth and sixth periodic report of Spain (CRC/C/ESP/5-6).
Presentation of the Report
MARIO GARCÉS SANAGUSTÍN, Secretary of State for Social Services and Equality of Spain, said that nearly 18 per cent of the population of Spain comprised minors. Having well targeted policies was important in building a pillar for the next generations. The ratification of the Convention meant a deep reform of the laws on childhood and adolescence. Spain was the first country to incorporate the principle of the best interest of the child into its legal system. In order to provide truly global protection to children, the Spanish model was based on opportunity. The Government had begun drafting its third National Plan on Childhood and Adolescence 2018-2022, in which it would incorporate the recommendations of the Committee. Children could express their opinion in matters that affected them, in line with their age and level of maturity. As for the progress made in terms of legislation, two laws had been adopted in 2015 to endow minors with better legal protection and to treat minors as active and participative subjects. Mr. Sanagustín noted that the right to education covered the entirety of all educational cycles, adding that the dropout rates had decreased by half in the past 10 years. In line with European strategies, Spain had set up an Internet security center for minors. Children in Spain enjoyed universal health care, whereas the Government had in place the National Strategy on Drugs 2009-2016 and the law on the use of alcohol by minors.
The family was a key pillar of the Spanish society, and the authorities recognized different types of families. The Government insisted on the principle of conciliation and shared responsibility, and it provided social services and aid to vulnerable families. As for protection, the Government had set up the Central Registry of Sexual Offenders, and offices to support victims. In December 2017, the Parliament had adopted the Agreement on Gender Violence. Another priority for the Government was the fight against trafficking of children. In order to improve the living conditions for children and implement efficient public policies in that respect, more than 170 municipalities in Spain participated in the programme called “Childhood Friendly Cities.” In conclusion, Mr. Sanagustín reminded that the Spanish Government was committed to work on implementing the Sustainable Development Goals, eight of which directly referred to girls and boys. He noted that the Spanish authorities aimed to be like “Sanchos” when it came to correcting faults of the system, and like “Quijotes” when it came to securing a better future for future generations.
Questions by the Committee Experts
OLGA KHAZOVA, Committee Expert and Rapporteur for Spain, commended the significant achievements made by Spain, notably the two laws adopted in 2015. She inquired about the dissemination of the Convention and training, noting that in many schools children’s rights were not taught on a regular basis. How did the Government plan to provide regular and up-to-date training to all those who needed it?
Ms. Khazova regretted that de facto discrimination persisted in Spain, especially against Roma children, children with disabilities, and children in the context of migration. Did the National Strategy for Social Inclusion of the Roma Population 2012-2020 include work with the Roma community and with Roma mediators?
Turning to the best interest of the child, Ms. Khazova wondered whether the accepted criteria and universal values existed and whether it was consistently applied by the courts and children protection bodies across the country? Did the courts directly refer to the best interest of the child when they made judgments? Were the same criteria used by judges in different autonomous communities? Was training provided to judges, prosecutors and all those involved in decision-making?
As for respecting the views of the child, Ms. Khazova stated that it seemed that in reality the voice of the child was still very little heard or taken into account within decision-making processes. Had the 12-year old threshold for listening to the child been abolished? What concrete measures had been undertaken to ensure children’s participation?
HATEM KOTRANE, Committee Expert and Rapporteur for Spain, asked about the measures taken to ensure direct applicability of the Convention? Referring to the National Action Plan for Children and Adolescents 2013-2016, he asked about the programmes and measures envisaged to ensure the implementation of a global policy in favour of children.
What measures had been taken by the State to strengthen institutional coordination between the central Government and autonomous communities? With respect to the budgetary allocations, Mr. Kotrane noted that it seemed that the best interest of the child was not Spain’s priority and he expressed concern about the lack of coherent budgetary analysis.
GEHAD MADI, Committee Expert and Rapporteur for Spain, inquired about independent monitoring and the Office of the Ombudsman, noting that offices of the Ombudsman for children’s issues were still functioning in some autonomous communities, but had been closed in Madrid.
As for businesses and children’s rights, what was the current status of the Government’s plan in that respect? What had the Government done in order to ensure that Spanish companies working abroad protected children’s rights?
There were 55 bullfighting schools in Spain. Was there a minimum age of enrolment in such schools? The Committee was concerned about the level of violence in such schools. Did the Government consider prohibiting children from attending such schools and from attending bullfighting events?
On the minimum age of marriage, Mr. Madi expressed hope that the authorities would remove the exception to the marriage of minors of age which was set at 15, and that the age of marriage of 18 would be applied across the board.
LUIS ERNESTO PEDERNERA REYNA, Committee Expert and Rapporteur for Spain, asked about the status of children born in surrogacy. What was the number of children participating in school councils and the budget allocated to their participation? Children had stated that what they had proposed was neglected by school councils. What was being done to promote the participation of vulnerable children, such as Roma children, children with disabilities, and migrant children?
What measures was the State taking to guarantee long-lasting policies on taking into account children’s opinions? Mr. Pedernera Reyna also raised the issue of judges listening to children’s opinions. How was a child’s position taken into account with respect to homelessness?
What initiatives were in place to regulate the access of children to the Internet and social media? What programmes did the authorities plan to train teachers on the challenges of digital media? What actions was the Government taking to implement the safer Internet center in Spain?
ANN MARIE SKELTON, Committee Expert and Rapporteur for Spain, appreciated the fact that corporal punishment was banned in all settings in Spain. However, she noted that in practice it was difficult to move people away from administering corporal punishment at home, and even in schools, because it was a practice deeply embedded in some sections of society. What were the consequences when parents and teachers were reported to have used corporal punishment? What was the status of the draft bill on the protection of children against violence? Had there been any risk assessment studies identifying the factors leading to the abuse of children by their families?
As for sexual exploitation and abuse, Ms. Skelton inquired whether the State would consider amending the law to make exceptions to the statute of limitations in cases of sexual abuse of children, as several other countries had done. Would there be value in having one easy to remember 24-hour helpline at the national level, covering all communities?
Replies by the Delegation
The delegation explained that the implementation of policies on children was shared by the central Government and regional governments through the Territorial Council on Social Services, the Interregional Commission on Children and Families, and the State Childhood Observatory. Autonomous communities also worked with local authorities on those policies.
As for the budget for children’s programmes, Spain was in recovery, but all autonomous communities had seen significant economic growth and were increasing their budgetary allocations for children’s programmes. Spain was a country that thought about its future and children.
MARIO GARCÉS SANAGUSTÍN, Secretary of State for Social Services and Equality of Spain, explained that the budgetary allocation for children’s programmes in the past three years had increased and reflected investments at all levels of the Government.
The delegation stated that there were courses on children’s rights in schools for judges and lawyers every year. The authorities were working to disseminate information about the Convention and to ensure that children were aware of their rights. Students received knowledge on the Convention rights in primary and secondary schools as part of the courses on civic and ethical values. Children’s participation in decision-making was ensured through the four-level School Council.
As for digital content, the Ministry of Education, Culture and Sports had adopted several measures to ensure high-quality digital content and it was working on a digital curriculum. The content was assessed by a local body and an external body. The Ministry of Education, Culture and Sports was working to improve schooling at all levels. There was an increase in the rate of completion of primary school among Roma children, as well as an increase in the school attendance rate by Roma girls. There was a special plan for Roma children in order to include in the school curriculum courses on Roma culture. In the past five years, the Ministry of Education had increased the total endowment for scholarships by 15 per cent.
The Ministry of Education, Culture and Sports had created a free-of-charge helpline for students to report bullying in school. The helpline was operated by psychologists and pedagogues. A study had been written on the profile of victims and perpetrators, and the type of bullying. As for children with disabilities, the Ministry of Education, Culture and Sports was moving towards complete inclusion of children with disabilities in mainstream education.
Currently there were more than 1,200 court rulings with a clear reference to the best interest of the child. As for hearing theopinion of the child, it applied not only in the family setting but in all social situations. Prior notice was given to children as to why they were called to the court and about the implications of their testimony. The age was not relevant when children spoke in court and their right to privacy was preserved in the proceedings. The authorities needed to look into each case and determine what the best interest of the child was. The language used in proceedings was in line with the children’s age and maturity. Children’s wishes were recorded in writing. Every year courses were offered to judges on the right of the child to be heard.
Bullfighting was an activity regulated at the level of autonomous communities. According to regulations, children could receive certain practical lessons at bullfighting schools if they were over the age of 14. Responding to the Experts’ comment that bullfighting represented a serious violence issue, the delegation explained that each bullfighting school and autonomous government had their own regulations about bullfighting.
The direct implementation of the Convention was regulated by the law on international treaties, which was to be directly implemented, unless that implementation was subject to the adoption of relevant laws.
Turning to the issue of minors affected by evictions, the delegation explained that in 2012 there had been a temporary modification of the mortgage legislation and families with difficulties had been offered an opportunity to restructure their debts. The European Court of Human Rights recommended the freezing of evictions to protect the interests of children.
If there were any delays in the adoption of the draft bill on the protection of children against violence, it was because the authorities wanted to make it better. As for the statute of limitation for sex crimes against children, that issue arose when minors became adults. The working group on child trafficking comprised all autonomous communities and non-governmental organizations.
On the status of surrogacy children, they were registered in the civil registry and they were afforded all legal protection under the law.
The closure of the Ombudsman’s Office for Children in Madrid was due to the optimization of financial resources. Nevertheless, children’s issues were being dealt with by the national Ombudsman’s Office.
In 2017 the Council of Ministers had adopted a national plan of action on businesses and children’s rights. The Government was committed to developing awareness raising campaigns and outreach in the areas most prone to risk. It was also committed to adopting a self-regulating code of conduct in various industries.
Second Round of Questions by the Committee Experts
OLGA KHAZOVA, Committee Expert and Rapporteur for Spain, reminded that there were almost 13,600 children in residential care, that some centers were overcrowded, and that there were incidents of degrading treatment. Was there an opportunity to invest more in the prevention of child removal from families, reduce the number of children in institutions, and to create decent conditions in the centers for those children? Who decided on a child’s removal from the family? Was there an opportunity for the creation of a single national registry for adoption?
With respect to healthcare, did general practitioners who took care of children after the age of 15 receive specific training on dealing with adolescent health problems? What was the reason for the shortage of pediatricians in Spain? As for intersex children, Ms. Khazova expressed concern about the still existing practice of non-consensual genital mutilation. Was there a plan to stop such surgeries during infancy and postpone them until a later time when adolescents could make their own decisions?
As for mental health, there was a concern about the excessive prescription of drugs to children with behavioral problems. What were the plans to use good pedagogical techniques with a focused individual approach instead? What was the strategy to reduce drug use among children? What were the plans to tackle declining breastfeeding in the country?
Spain was the third country in the European Union in terms of child poverty, with 40 per cent of children living below the poverty line. Did the authorities consider that situation alarming? What measures could be taken to deal with that problem?
ANN MARIE SKELTON, Committee Expert and Rapporteur for Spain, raised the issue of children in prison with their mothers. Were there any laws or legal precedents that required courts to consider the best interest of the child when sentencing caregivers of children? Did Roma mothers and children make up a disproportionately large number of those in the prison mother and baby units?
What measures were being taken to tackle the problem of hidden costs of education and uneven progress in access to education? What measures had been taken to reduce school dropout rates? Those problems were more likely to affect Roma children and migrant children. What measures were being taken to allow them to catch up? What progress had been made in preventing gender stereotyping in curricula and textbooks? Did all children in Spain have safe, accessible and inclusive places for play and socialization?
Turning to juvenile justice, Ms. Skelton inquired why the law prohibited incommunicado detention for persons under the age of 16 rather than under the age of 18. Was videotaped evidence of children admissible? Were there any cautionary rules relating to children’s evidence? Did children have to take the oath? What methods were used to prevent children from coming face to face with perpetrators, especially in sexual offences?
Which minority groups lived in Spain and how were policies and services tailored to ensure that minority children were not left out?
GEHAD MADI, Committee Expert and Rapporteur for Spain, voiced serious concerns about the large number of complaints filed against Spain by refugee and migrant children under the third Optional Protocol. The policy of automatic pushback of refugees to Morocco constituted a violation of the Convention on the Rights of the Child and of the Conventions on Refugees. Children were not informed about the age assessment procedure and its consequences, and very often had no option to appeal and review the age assessment. Children found themselves in a legal limbo because the Spanish State in most cases regarded them as adults.
The reception conditions in Ceuta and Melilla were below standard and their capacity outstretched, leading to violence and prostitution. The authorities in those centers had not taken any effective measures to respond to the difficult situation. Mr. Madi also expressed concern about a group of about 100 unaccompanied Moroccan children, some of them only aged eight, who were outside any protection system. The practice of the Spanish authorities to separate migrant children from their families in order to conduct genetic testing to establish family links was regrettable.
Turning to the Optional Protocol on the participation of children in armed conflict, Mr. Madi inquired about the lack of precise legislation on the recruitment of child soldiers. Was there any data on Spanish children who might have left their country to join ISIS in Syria or Iraq? How were the authorities treating those who had returned?
HATEM KOTRANE, Committee Expert and Rapporteur for Spain, inquired about the support given to child victims of trafficking. What was the state of play concerning the Framework Protocol and uniform standards of victim identification across different autonomous regions?
As for fighting exploitation of children in the tourism sector, had there been any cases when the Government imposed penalties on companies? Had there been any cases of extraterritorial jurisdiction?
OLGA KHAZOVA, Committee Expert and Rapporteur on Spain, expressed concern about the continued operation of coal-fired power plants in the country which caused a high level of air pollution and resulted in an adverse impact on children’s health. What did the State party plan to do to improve that situation?
What specific measures had been taken to ensure the full inclusion of children with disabilities in social life?
Replies by the Delegation
The delegation clarified that the behavioral disorder (ADHD) diagnosed in children was of serious concern for the authorities. The Ministry of Education and the Ministry of Health had therefore designed immediate measures, upon advice of the best experts in the field. There was full prohibition of any form of corporal punishment in classrooms. There was an inspectorate that determined disciplinary measures for those who administered corporal punishment in school.
With respect to fighting gender stereotyping in curricula, the Ministry of Education promoted gender coexistence. Vulnerable students and those from minorities took part in schooling activities. Teaching tools, individualized programmes, and specialized teaching staff were provided to traveling children and Roma children. As for the integration of migrant children in education, there were various programmes in Ceuta and Melilla. Responding to the Experts’ question about teaching in containers, the delegation stated that it was difficult to meet changing demands for education. Some autonomous regions had to use pre-fabricated classrooms as a measure of last resort.
Spain was making a lot of progress in ensuring inclusive education for children with disabilities. The Government was working with various civil society organizations to achieve that goal. The Ministry of Education had managed to decrease school dropout rates by making the cost of education as low as possible. In 2014 the Ministry had approved a plan to tackle school dropout, looking at social integration through educational content, which was a good stimulus for students. The Ministry followed up on those autonomous regions which had not implemented the plan.
With respect to the hidden costs of education, the Ministry of Education had provided funds for the purchase of school textbooks. All autonomous communities provided children with transport to school.
On children’s health, a strategy on healthy lifestyles that focused on children under the age of 15 was in place, and it proposed different activities for different age groups. The Ministry of Health provided training to nearly 9,000 health professionals in that respect. Sexual and reproductive health programmes focused on children above the age of 15.
It was hoped that positive parenting courses provided to parents would have a positive impact, but concrete indicators and results were yet to be determined. The new National Strategy on Drugs and Addiction would be adopted soon.
Pediatricians checked children’s health up to different ages, depending on autonomous regions. The authorities were currently discussing what model of healthcare for children they would follow. Autonomous communities also followed different models of mental healthcare services.
Intersex children were cared for by the mainstream healthcare services and they were treated as all other children. There was no national registry of intersex children because autonomous communities collected their own data. Autonomous communities had their legal guidelines vis-à-vis intersex children, which were developed in consultation with specialists in the field.
Breastfeeding figures were not going down or up. Breastfeeding was promoted and it was a priority for the authorities. Early assistance and care for children with disabilities was grounded in primary child welfare. It depended on the welfare model used in autonomous regions, and on the severity of impairment.
As soon the international adoption regulation was approved, Spain would have a single national adoption registry. There were more than 10,000 children in residential homes, and more than 19,000 in foster families. The decision to institutionalize children was made by specialized staff, but there was always a possibility to appeal in court such decisions. Autonomous communities ensured that children lived in families rather than in residential homes.
The best interest of the child was always observed, and certainly in the case of mothers incarcerated with their children up to three year of age. Turning to juvenile criminal responsibility, the delegation clarified that sentences were not handed to juvenile offenders, but rather educational and rehabilitation measures.
A person could be held in incommunicado detention for a very limited period of time in connection with serious crimes, such as terrorism, and was examined by a forensic doctor every six hours. Persons aged 16 could be held in incommunicado detention, and recidivism could lead to stricter sentences.
Specialized free legal aid was provided to child victims, regardless of the child’s socio-economic status. The Statute of Child Victims stipulated a series of procedural and non-procedural measures. Simple and accessible language should be used in criminal hearings involving children, and the child should have the same person taking his or her statement. He or she did not have to swear an oath. The perpetrator was separated from the child. Children who had already been victims should not be made to appear in front of the court again, and victims of sexual crimes did not have to face perpetrators.
In 2017 the Ministry of the Interior had approved a code for minors in courts, guided by the principle of the best interest of the child. The legal representative of the child should at all times be informed about the child’s whereabouts during the proceedings. Children could be imprisoned at the age of 13. There were special units in prisons for children under the age of three, with nurseries, play rooms, and other special facilities for children.
With respect to unaccompanied minors in Ceuta and Melilla, there were 23 registered cases against Spain. Only one case had been decided and it concerned the age assessment procedure. The Spanish authorities had carried out the appropriate procedure in full respect of the best interest of the child, and they had determined that the person in question had been an adult with previous criminal charges.
The age assessment of children and adolescents was vital for being able to protect children. On the one hand, if a crime was committed, a judge would determine whether the perpetrator was a minor or adult. On the other hand, the Public Prosecutor determined the age. Sometimes children tried to pass themselves off as adults in order to move from Ceuta and Melilla to the mainland. Evidence used for assessing age included the date of birth found in officially issued documents, military service documents, health procedures overseen by a forensic doctor, and information gathered from consular contacts with foreign countries. There were direct and indirect legal procedures to appeal the final decision and concerned persons received legal aid. Only one of the cases related to pushback at the border, which was a matter to be considered under the International Covenant of Civil and Political Rights.
Responding to the Experts’ questions about the temporary holding centers in Ceuta and Melilla, the delegation explained that those were State facilities under the aegis of the Secretariat for Migration. They were open centers and people could enter and leave them as they saw fit. It was not lawful to hold minors in those temporary holding centers. Spain had seen a sharp increase in the number of asylum application, nearly doubling as of 2015. To tackle the resulting overcrowding in the temporary holding centers, the authorities had tried to increase their capacity and to provide improved medical attention, welfare and different residential facilities. The Government also needed to provide more staff with better training to identify potential victims of sexual violence and trafficking.
As for some 100 unaccompanied Moroccan children living on the streets of Melilla, the Spanish Government was very sensitive to that situation and it had signed protocols to provide greater care to those children. In 2016 the federal Government had provided a budget of 1.4 million euros, and 4.1 million euros in 2017. The City of Melilla had also launched a programme of education for those street children.
On child poverty, all public policies aimed to alleviate child poverty and its rate had decreased by more than one per cent since 2015. The National Plan of Action for Social Inclusion was in place, and the Government was working on a poverty reduction strategy with autonomous communities.
The Protocol on Child Victims of Trafficking had been approved in December 2017, and the National Observatory on Trafficking had been functioning since 2014. Seventeen Spanish companies had been involved in an initiative to draft a self-regulating corporate responsibility code.
As for the prohibition on the recruitment of children by State or non-State armed groups, the delegation explained that in 2010 the Government had included in the Criminal Code the specific charge of enlisting of any person under the age of 18 in any armed forces whether domestically or internationally. Spain was fully committed to preventing the recruitment of children in the armed forces, and to protect children in armed conflict in its cooperation activities.
ANN MARIE SKELTON, Committee Expert and head of the task force on Spain, acknowledged that Spain had seen an increasing population and a difficult economic situation recently. She thanked the delegation for providing more information to the Committee. She highlighted the problem of children living in poverty in Spain, vulnerable children, children living in care institutions, and migrant children. She expressed hope that the Government of Spain would make the Committee’s concluding observations part of its planning and policies.
MARIO GARCÉS SANAGUSTÍN, Secretary of State for Social Services and Equality of Spain, assured the Committee that Spain would fully take on board its recommendations. The dialogue was an opportunity for the Government to further its commitment. In public policies words were not enough. Despite the progress made, Spain needed to continue making progress. As the gateway to Europe, Spain had to face many challenges and demands. The Government therefore had to step up to the plate. Legal protection was of utmost importance in Western democracies. There was a new situation arising every day which was why Spain’s response had to be adequate and flexible. Children had to be seen and heard.
RENATE WINTER, Committee Chairperson, thanked the delegation and asked it to convey the Committee’s greetings to the children of Spain.