Manuel Balaguer Santacana v. Spain

• CCPR

International Covenant on Civil and Political Rights: Articles 23 paragraphs 1 and 4, 24 paragraph 1 and 26

Optional Protocol to the International Covenant on Civil and Political Rights: Article 5 paragraph 2 (b)

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The author is Manuel Balaguer Santacana, a Spanish citizen born in 1940 and living in Barcelona. He submitted the communication on his behalf and on behalf of his daughter, María del Carmen Balaguer Montalvo, born in 1985.

In November 1983, the author and María del Carmen Montalvo Quiñones decided to live together. On 15 October 1985, Ms. Montalvo gave birth to a girl, María del Carmen Balaguer Montalvo. After the birth of the child, their relationship deteriorated irremediably. On 7 October 1986 Ms. Montalvo left the common household, taking the child with her. After several weeks the author learned that Ms. Montalvo had moved to Badalona, a town near Barcelona.

On 10 November 1986, the author filed an application with the Third Chamber of the Badalona Court to obtain recognition of his paternal rights and visiting right to his child. On 28 January 1987, the judge decided that provisional measures should be taken until a final decision was issued. The provisional measure allowed the author to see his daughter on Saturdays and Sundays, she was one year old then. In February 1978, the author saw his daughter and believed that she was in ill health. The author took her to the doctor and kept her for four days. Subsequent to this visit, the mother refused to let him see the child for a period of 19 months until November 1988.

On 23 June 1988, the Badalona Court issued an enforcement order against Ms Montalvo, which she appealed to the Superior Court of Barcelona while she continued to deny the author access to his daughter. One year later, on 23 June 1989, the Superior Court affirmed the order of 23 June 1988. On 19 July 1989, the mother started a contentious action before the Badalona Court aimed at modifying the provisional decisions of 28 January 1987 and 23 June 1988. On 16 March 1990, the Court decided to suspend the proceedings of voluntary jurisdiction pending decision on the contentious matter. The author appealed against this decision on 22 March 1990. Nearly two years later, on 31 January 1992, the Superior Court rejected the author's appeal.

The author claimed that he was a victim of a violation of Article 23 paragraphs 1 (protection of family) and 4 (equality of spouses) of the Covenant, because he was denied family rights and equality of treatment by the Spanish courts in the award of child custody and because of the failure of the courts to act promptly in enforcing a regime of reasonable parental visits. He also claimed a violation of his daughter's rights under Article 24 paragraph 1 (protection of child) of the Covenant, since a child should be afforded access to both parents, especially during her formative years, except in very specific circumstances. He further claimed that Spanish legislation did not sufficiently guarantee the right of access and that the practice of Spanish courts, was biased and favoured mothers. Although he did not specifically invoke Article 26 (equality before the law) of the Covenant, the author's allegations also pertain to this provision.

Admissibility

On 14 January, 15 February, 10 April, 10 September 1991, and 20 and 26 February 1992, the State party objected to the admissibility of the complaint. The State party concluded that since the issues raised by Mr Balaguer were being dealt with by the Spanish courts in the exercise of Spanish sovereignty, domestic remedies had not been exhausted, and that the communication should be declared inadmissible.

Merits

As to the merits, the State party indicated that on two occasions the author misused his visiting rights by keeping his daughter longer than permitted. It denied any discrimination in the Spanish law and indicated that the judge had acted in accordance with the State party’s laws. According to which, if the parents were separated and do not decide by mutual agreement, male and female children less than seven years of age would remain in the custody of the mother, unless the judge for special reasons rules otherwise. Furthermore, it provided that parents were allowed access to their children even if they were not exercising their parental authority.

The author added that he could not exhaust local remedies since the court of first instance had not handed down a decision more than seven years after his initial petition. He added that the State party had violated Article 9 paragraph 3 (right of child separated from one or both parents to maintain personal relations) of the Convention on the Rights of the Child which guaranteed contact with both mother and father for children whose parents were separated.

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Consideration of admissibility

The Committee held that the communication was admissible The Committee found that after several years of contentious proceedings, there was no evidence of a judicial decision at first instance. In a dispute about custody rights and access to children, the Committee considered this delay to be unreasonable and found the author’s claims admissible.

Consideration of the merits

The Committee was of the view that the facts did not reveal a breach by the State party of Articles 23 paragraphs 1 (protection of family) and 4 (equality of spouses), 24 paragraph 1 (protection of child) nor 26 (equality before the law) of the Covenant.

The Committee begun by noting that the term "family" had to be understood broadly; it reaffirmed that the concept referred not solely to the family home during marriage or cohabitation, but also to the relations in general between parents and children. Furthermore, it held that some minimal requirements for the existence of a family were however necessary, such as life together, economic ties, a regular and intense relationship, etc. In the instant case, irrespective of the nature of the author's relationship with Ms. Montalvo, the Committee observed that the State party had always acknowledged that the relations between the author and his daughter were protected by the law, and that the mother, between 1986 and 1990, never objected to the author's contacts with his daughter. It was only after Mr. Balaguer continuously failed to observe, and objected to, the modalities of his right of access, that she sought exclusive custody and non-contentious proceedings were suspended. The Committee concluded that there had been no violation of Article 23 paragraph 1.

The Committee further noted that Article 23 paragraph 4 did not apply in the instant case, as Mr. Balaguer was never married to Ms. Montalvo. If paragraph 4 was placed into the overall context of Article 23, it becomes clear that the protection of the second sentence referred only to children of the marriage which was being dissolved. In any event, the material before the Committee justified the conclusion that the State party's authorities, when determining custody or access issues in the case, always took the child's best interests into consideration.

As to Article 24 paragraph 1, the claim that his daughter had not benefitted from the appropriate measures of protection, the Committee held that on the one hand, the girl's mother had, on the basis of the available documentation, fulfilled her obligations as custodian of the child; secondly, there was no indication that the applicable Spanish law did not provide for appropriate protection of children upon dissolution of a marriage or the separation of unmarried parents.

Finally, having examined the material before it, the Committee concluded that no issues arose under Article 26 in the circumstances of the case. There was no indication that the author was treated arbitrarily and on the basis of unreasonable criteria by the Spanish authorities, or that he was treated differently from others in a similar situation.

None, as no violation was found.

In a concurring view, a Committee member noted that she did not agree with the interpretation of the concept of "marriage" in Article 23 paragraph 4, which would automatically exclude its application to relationships which, while not "formal" marriages, were in the nature of marriage and share many of its attributes including joint responsibility for the care and upbringing of children. According to the member, legal regimes applying to such relationships should be in conformity with Article 23 paragraph 4.