The author of the communication is Abdelaziz El Fassi, a national of Morocco born on 15 January 1987, who submits the complaint on behalf of his daughter J.N.E.A., born on 1 January 2011, and his daughter L.R.E.A., born on 23 November 2011.4 He claims that the State party has violated his daughters’ rights under articles 3 (1), 7 (1) and 9 (1) and (3) of the Convention. The Optional Protocol entered into force for the State party on 14 April 2014.
- On 28 January 2019, the Court of First Instance No. 1 of Arrecife ruled in paternity case No. 664/2016 that the author was the father of L.R.A.A., currently L.R.E.A. ↩
On 24 December 2020, pursuant to article 6 of the Optional Protocol, the working group on communications, acting on behalf of the Committee, requested the State party to provide, within one month, information on the measures that had been or would be taken to prevent the harm, possibly irreparable, done to the author’s daughters, while their case was being considered by the Committee, by the ongoing separation of the author and his daughters.
On 26 January 2021, the State party submitted information on the measures that had been taken to prevent possible irreparable harm to J.N.E.A and L.R.E.A.
On 4 October 2022, pursuant to rule 18 (6) of the Committee’s rules of procedure under the Optional Protocol, the working group on communications, acting on behalf of the Committee, decided to consider the admissibility of the communication separately from the merits. The Committee also decided to reject the author’s request for the Committee to ask the State party to take interim measures.
Facts as submitted by the author
On 31 January 2011, the mother of J.N.E.A. and L.R.E.A. filed a complaint of assault against the author, as a result of which the Court of Investigation No. 1 of Arrecife issued a restraining order requiring the author to stay away from the girls’ mother for two years. The author later moved from Lanzarote to Madrid. At the time, the author had been recognized only as J.N.E.A.’s father.
On 24 September 2012, J.N.E.A. and L.R.E.A. were admitted to the Tinajo centre for minors, as their mother had stated that she no longer had housing or the financial wherewithal to take care of them. The mother noted that she had no family support on the island, except for her grandparents, who could not help her, and her sister, who was a minor, that there was a restraining order against J.N.E.A’s father and that the man who accepted paternal responsibility for L.R.E.A. had been deported to Morocco.5 On 25 September 2012, what was then the Directorate General for the Protection of Minors and the Family ruled that J.N.E.A. and L.R.E.A. were provisionally abandoned. The author states that he was never notified of the ruling. In January 2013, once the restraining order had been lifted, and after learning that the girls were at the centre, the author moved back to Lanzarote and began to visit them. During the visits, the author stated that L.R.E.A. was also his daughter and that he wanted a paternity test to be done.6
On 24 April 2013, the Social Welfare Area of the Cabildo of Lanzarote prepared an assessment and proposal report that stated the mother “had been responsible for breaches of duty of care that could harm the girls’ psychological and emotional development”; that “J.N.E.A.’s father has not fulfilled his parental responsibilities, as he has not lived with the girl since she was approximately a month old”; and that the person who claimed to be L.R.E.A.’s father had not played a parental role, either, “since he had not lived with her since she was approximately seven months old, when he was arrested and later deported”. Their mother’s visits, the last of which was on 21 January 2013, were also found to be irregular. The centre’s educational team stated in an assessment that the mother had, “of her own accord, broken the emotional bond tying her to her daughters, while the father did not have such a bond and currently makes weekly visits of an hour each”;7 that “the father does not have the knowledge and skills necessary to fulfil parental responsibilities”; “he does not have many skills to meet the needs of the child, so he needs to be instructed” and that “he is convinced that L.R.E.A. is his biological daughter”. The authorities concluded that a possible reunification of J.N.E.A. and the author would mean having to break the bond between the two sisters, that the author, who was in an irregular situation in the country, was facing deportation, that his house was unfit for habitation, that his household would be a singleparent household, that he worked under the table (was employed without a contract) and that he had no support from extended family on the island. The Specialized Team thus recommended foster care in preparation for adoption for J.N.E.A. and L.R.E.A., as such care was “the most viable means of providing them with an appropriate and stable family environment”.
- Cabildo de Lanzarote, Social Welfare Area, Assessment and proposal report, dated 24 April 2013, provided by the author. ↩
On 3 December 2013, the Directorate General of Dependency, Children and the Family of the Canary Islands Government confirmed that J.N.E.A. and L.R.E.A were abandoned, arguing that the girls had been “deprived of the necessary moral and material assistance practically since their birth because of the failure or inability of those with parental authority to provide them with the protection that they are entitled to or because of the inadequate provision of such protection”. The author was informed of this decision in respect of J.N.E.A. on 20 March 2014, as L.R.E.A. had not yet been recognized as his daughter. On 1 December 2015, the author filed a request to lift the suspension of his parental rights and revoke the decision to declare J.N.E.A. abandoned.
On 29 May 2014, the Island Social Care Institute of Lanzarote prepared a proposal for a suspension of family visits in which it was again stated that a family intervention project with the mother should not be initiated; that pre-adoptive care or adoption proceedings should continue and that the author’s visitation rights should be suspended to prepare J.N.E.A. and L.R.E.A. for a new situation without interference from the biological family. On 6 June 2014, the Directorate General of Dependency, Children and the Family of the Canary Islands Government decided, as a precautionary measure, to suspend the arrangements under which the girls J.N.E.A. and L.R.E.A. visited, stayed and communicated with their parents and the rest of their biological family, the aim being “to weaken the weakened emotional ties that bind the girls to their parents and the rest of the family”. The author was notified of this decision on 10 June 2014.
The author contested the decision of 6 June 2014,8 arguing that he made weekly visits and that, although it had initially been found that he lacked the skills to meet J.N.E.A.’s needs, there had been a change for the better and that as a result she was affectionate with him, often mentioning him by name, and it became more difficult to take leave of each other. On 17 November 2015, the Court of First Instance No. 5 of Las Palmas de Gran Canaria dismissed the challenge, finding that the author, according to the reports, had been “manipulative, untruthful and disrespectful to the technical team members”, that he was still in an irregular situation, that he did not have a residence or work permit and that he worked on a farm for €35 a day without being registered with Social Security.
- Procedure No. 031/2014 before the Court of First Instance No. 5 of Las Palmas de Gran Canaria. ↩
On 11 August 2014, official arrangements for the pre-adoptive care of J.N.E.A. and L.R.E.A. were made by the child protection authorities and the family selected to adopt them. On 26 April 2016, the Directorate General for the Protection of Minors and the Family submitted a proposal for the adoption of both girls, prompting the institution of adoption proceedings No. 254/2016 before the Court of First Instance No. 8 of Santa Cruz de Tenerife.
On 4 November 2016, the author filed suit before the Court of First Instance No. 8 of Santa Cruz of Tenerife, requesting that paternal consent for the proceedings for the adoption of J.N.E.A. be made mandatory and arguing that there was neither a final judgment depriving him of his parental authority nor a final administrative decision declaring her abandoned. On 18 May 2017, the Court issued a dismissal decision in which it stated that the author was in violation of the grounds for deprivation of parental authority over J.N.E.A. for having “failed to comply with the legal duties inherent to it throughout the child’s life”, that “it is not even minimally proved (quite the contrary) that the current reintegration with the father would be viable, with guarantees for the child’s well-being” and that “returning to residential foster care at this time would not be a good solution at all”. On 19 June 2017, the author filed an appeal, which was dismissed on 4 September 2018 by the First Section of the Provincial High Court of Santa Cruz de Tenerife. The author then filed an appeal in cassation, which was dismissed by the Supreme Court on 29 May 2019.
On 31 October 2016, the author requested that he be recognized by law as L.R.E.A.’s father, a request that was granted by the Court of First Instance No. 1 of Arrecife in a judgment of 28 January 2019. On 17 November 2016, the author requested that the proceedings for the adoption of L.R.E.A. be suspended until a paternity determination had been made. Later, on 11 March 2020, the author filed an action before the Court of First Instance No. 8 of Santa Cruz de Tenerife in which he asked the Court to find that the biological father’s consent was necessary for the adoption of L.R.E.A. to proceed.
Complaint
The author claims that the State party has violated J.N.E.A.’s and L.R.E.A.’s rights under articles 3 (1), 7 (1) and 9 (1) and (3) of the Convention. In relation to article 3 (1), the author contends that, in the decisions it has made, the State party failed to make their best interests a primary consideration by not having attempted to reunite him and his daughters and, in particular, by having set adoption proceedings in motion without consideration of their right to be raised by their biological family – in this case, their father, who at all times showed interest in his daughters.
The author claims that the State party, in violation of article 7 (1) of the Convention, deprived J.N.E.A. and L.R.E.A. of the possibility of knowing and being cared for by their father and that, according to the reports of the technical teams, there had been a change for the better in the work begun with J.N.E.A. However, this process was interrupted even though the primary aim should have been the reintegration of the family. With regard to L.R.E.A., the author states that even after his paternity was acknowledged, all possible family reintegration efforts involving her were abandoned.
Lastly, the author contends that his daughters’ rights under articles 9 (1) and (3) of the Convention were also violated as a result of the administrative and judicial proceedings, throughout which the author, as the girls’ father, expressed interest in recovering his daughters, and that at no time was there any evidence that he had mistreated them. The author submits that, on the sudden interruption of the visitation arrangements with a view to breaking the family bond, the judicial and administrative authorities failed to ensure that the girls would be able to maintain a relationship with their father. The author submits that, under the Convention, children have the right not to be separated from their parents against the parents’ will, except when such separation is necessary for the best interests of the child. He also states that international standards recognize the family as the main source of protection, prioritizing family reunification, and that unjustified and prolonged separation makes it impossible to lead a proper family life, in violation of the rights enshrined in the Convention. The author cites the judgment in the case K.A.B. v. Spain, in which the European Court of Human Rights found the State party liable for acting negligently in placing a child for adoption and considering the child abandoned following the deportation of his mother over the objections of the child’s father, a national of Nigeria resident in the State party.9
- K.A.B. v. Spain, Judgment of 10 April 2012, application No. 59819/08. ↩
The author requests the Committee to recommend to the State party that it decide, in view of the best interests of J.N.E.A. and L.R.E.A., whether the resumption of their relationship with their father is possible. He also requests that the State party be recommended to make arrangements for initially supervised contact that progresses, as warranted by the circumstances, to autonomous arrangements making it possible for J.N.E.A. and L.R.E.A. to maintain, as is their right, both the stability of their current family home and a relationship with their biological father.
State party’s observations on admissibility
In its observations of 26 January 2021 on the request to report on the measures that it had taken to prevent irreparable harm to J.N.E.A. and L.R.E.A., the State party noted that the two girls have been living with their foster family for six years, that the two have a very close bond and that “they have both fully adapted to their current family system, taking for granted that they are part of it and perceiving their guardians as their parents”; therefore, once the circumstances had been assessed by the competent national authorities – judicial and administrative – the State party informed the Committee that there were no exceptional circumstances that would require or make possible the adoption of interim measures to protect the best interests of the girls.
In its observations of 23 April 2021, the State party notes that the facts described by the author depict a situation different from that depicted by the judicial and administrative authorities, who at all times made the best interests of the girls a consideration when deciding on their situation. The State party refers, inter alia, to the judgment in which the Court rejected the author’s request to make the biological father’s consent necessary for the adoption to proceed, finding that he had proved incapable of providing his daughter with the slightest material and emotional stability from the moment of her birth and that returning her to a children’s home at the present time would not be a good solution for J.N.E.A. at all; on the contrary, according to the Court, it would be in her best interest to give her the opportunity to grow up (as she has been doing for more than two years) in a family environment (that of the adoptive family) in which there are guarantees for her full development.10
- Court of First Instance No. 8, Santa Cruz de Tenerife, judgment of 18 March 2017. ↩
The State party argues that the communication is inadmissible ratione personae because, although the author claims to be acting on behalf of his two daughters, he also invokes interference with his own interests, mentioning his right to demand of the State party that he and his daughters be reunited and the “anxiety” that the thwarted reunification has caused him. The State party requests the Committee to determine the partial inadmissibility of all allegations and claims that do not refer to rights enshrined in the Convention, as well as any claims concerning the author’s rights.
The State party contends that the author has no authority to represent the girls and that he also lacks their consent. The State party refers to the decision of 25 September 2012, in which the girls were declared provisionally abandoned, and the decision of 3 December 2013, in which they were declared definitively abandoned. As a result of those decisions, the child protection authorities were made the legal guardians of the girls and consequently had the power to represent them; the progenitors’ parental authority (including the power to represent the girls legally) was suspended.11 The State party also submits that, since the author lost contact with the girls more than seven years ago, it is clearly impossible for him to have obtained their consent, whether explicit, tacit or presumed. The State party concludes that the present communication is inadmissible because it has not been submitted, as is required under article 5 (2) of the Optional Protocol, with the consent of the girls whom the author claims to represent.
- The State party cites the Civil Code, art. 172. ↩
The State party argues that the communication is inadmissible rationae temporis. It notes that the Optional Protocol entered into force for the State party on 14 April 2014 and that the first decisions were the 29 September 2012 decision of what was then the Directorate General for the Protection of Minors and the Family to declare the girls abandoned and the definitive decision of 3 December 2013, of which the author was informed on 20 March 2014. Although the author had three months from the date on which he was informed of the decision to contest it, he did not avail himself of this right, and since both decisions predate the entry into force of the Optional Protocol, they cannot be the subject of the communication. The State party requests the Committee to find inadmissible the claims made in the communication concerning these decisions to declare the girls abandoned, since they predate the entry into force for the State party of the Optional Protocol.
The State party argues that the communication is inadmissible for not having been submitted in due time also because the author claims that his rights have been violated comprehensively, when in fact various administrative and judicial proceedings that took place over a decade are being considered. The State party points out that the communication was submitted on 28 May 2020. A number of the proceedings on which the communication dwells, however, do not fall within the one-year period provided for in article 7 (h) of the Optional Protocol. The State party mentions the decisions to declare the girls abandoned, including the final such decision, made on 3 December 2013, of which the author was notified on 20 March 2014, and that of 6 June 2014 suspending the girls’ visits with their parents, against which the author filed an action that culminated in a judgment dated 17 November 2015.
The State party, drawing on article 7 (e) of the Optional Protocol, also submits that the communication is inadmissible because the author has failed to exhaust all available domestic remedies. The State party argues that a number of administrative and judicial remedies that he did not exhaust in their entirety, or in some cases even avail himself of at all, were available to the author. The State party argues that there are two means, not one, of contesting the decision of 3 December 2013 to declare the girls abandoned, both of which were expressly indicated in the copy of the decision transmitted to the author on 20 March 2014. The first was for the author to contest the decision by asking that it be set aside on the grounds of his being in a position to exercise parental authority.12 According to the information provided by the State party, the author has not filed an action to contest the decision. The second option was for the author, within a period of two years, to ask the authorities to overturn the decision, as a decision to declare a child abandoned may be overturned if, following a change in the circumstances that prompted it, the parents believe that they are in a position to reassume a parental role.13 In addition, it was possible for the authorities themselves, after a change of circumstances, to overturn the decision and return the child to the family. The State party claims that any decision made by the authorities – or a failure to make a decision, which would make it possible to revoke the declaration – may be contested before the civil courts. The author claims that, nearly two years after the decision to declare the girls abandoned was made, he petitioned the authorities to reconsider the decision, but the State party has no evidence that the author turned to the courts, in accordance with the Civil Procedure Act, to obtain relief for the rejection of his petition, if rejection there was, implicit in a failure to respond to it or for the authorities’ failure to act. The State party adds that the remedy is effective, that the application of this remedy is not unreasonably prolonged14 and that the author himself availed himself of it to contest the administrative decision to suspend the visits.
The State party argues that, although the author petitioned the civil courts of first instance to set aside the administrative decision to suspend the visits, the petition was dismissed in a ruling, dated 17 November 2015, that explicitly stated that an appeal could be lodged against it. There is nonetheless no evidence that the author lodged an appeal contesting the decision of 6 June 2014, and, as a result, he failed to exhaust the means of that were available to him. The State party notes that the appeal is an effective remedy and that the provincial high courts have sufficient leeway to consider possible errors in the assessment of evidence by the lower courts.
The State party notes that the author, in an attempt to make paternal consent for the adoption of J.N.E.A. obligatory, filed a timely suit in the civil courts, lodged an appeal and then lodged an appeal in cassation, which was dismissed by the Supreme Court on 29 May 2019. The State party argues, however, that the author’s complaints could and should have been laid out in an application for amparo submitted, on the basis of the right to effective judicial protection under article 24 of the Constitution, to the Constitutional Court. Nonetheless, the author did not avail himself of this domestic remedy. The State party argues that amparo proceedings are an effective remedy that must be instituted in due form and time for domestic remedies to be considered exhausted.15
- European Court of Human Rights, Álvarez Juan v. Spain, judgment of 29 September 2020, application No. 33799/16 ↩
In connection with the failure to exhaust domestic remedies with respect to the request to make paternal consent for the adoption of L.R.E.A. obligatory, the author submitted a petition in that respect on 12 March 2020, and the petition was found admissible on 29 April 2020. The author submitted his communication to the Committee on 28 March 2020, without waiting for a ruling on his petition. The State party argues that submitting a communication including references to issues in respect of which judicial proceedings were ongoing makes for a clear case of failure to exhaust domestic remedies.16
- The State party informs the Committee that, on 14 December 2020, the Court of First Instance issued a judgment rejecting the author’s second petition, filed in relation to L.R.E.A. The author’s appeal against this decision was rejected on 12 April 2021 by the First Section of the Provincial High Court of Santa Cruz de Tenerife. ↩
The State party adds that in the legal system, free legal aid is available to persons who cannot afford a lawyer17 and that the author had no trouble securing both a lawyer and another legal representative to file the actions referred to in the preceding paragraphs. In sum, the State party reiterates that the author had at his disposal procedural remedies that he either did not avail himself of or did not duly exhaust before turning to the Committee.
- See Act No. 1/1996 of 10 January on Free Legal Aid. ↩
Finally, the State party argues that the communication is inadmissible for manifest lack of substantiation and points out that, unless the author of the communication demonstrates that the assessment is irrational, arbitrary or has amounted in fact to a denial of justice, responsibility for assessing the best interests of the child lies primarily with the domestic courts.18 In the present case, the State party argues that the domestic courts have carefully considered the many reports on the girls’ situation, as well as the evidence as a result of which the decisions made by the child protection authorities, like the girls’ favourable situation in the care of a family that is willing to adopt them, were confirmed. The State party argues that, in his communication, the author did not provide evidence that the judicial decisions were irrational, arbitrary or amounted to a denial of justice. The State party adds that these decisions are informed by ample evidence of the parents’ dereliction of duty, which led to the decision to declare the girls abandoned and the later adoption proceedings, and that the authorities have always ruled in the girls’ best interest.
- U.A.I. v. Spain (CRC/C/73/D/2/2015) and K.H. et al. v. Denmark (CRC/C/82/D/32/2017). ↩
Author’s comments on the State party’s observations on admissibility
In his comments on the request for interim measures and on admissibility of 7 October and 10 December 2021, the author opines on the State party’s submissions.
The author states that his ability to act in the best interest of his daughters, even without their express consent, has been amply demonstrated. The author also states that he acted within the time frame established by law, requesting the cessation of the suspension of his parental rights and the revocation of the final decision to declare the girls abandoned, and that, as a consequence, no decision to suspend his representation of the girls was made final.
The author notes that in the present case there has been a succession of administrative and judicial proceedings that cannot be understood in isolation and that all are necessary to the conclusion of the adoption proceedings, which were prompted, as it happened, by the decision to declare the girls abandoned. The author also notes that he never failed to plead his case within the periods that were open to him. The author adds that the court proceedings took place after 2014 and therefore after the entry into force for the State party of the Optional Protocol.
In reply to the State party’s argument about the deadline for submitting the communication, the author points out that he submitted the communication on 28 May 2020 precisely to ensure that no more than one year had elapsed since the final court proceedings – namely, the order issued by the Supreme Court, of which he was notified on 31 May 2019, in respect of J.N.E.A. He proceeded thus keeping in mind that all the administrative and judicial proceedings had revolved around her. The author states that L.R.E.A. had not been recognized as his daughter and that it was only after she had been that he was able to request that paternal consent for her adoption be made obligatory.
With regard to the State party’s argument that the communication is inadmissible for failure to exhaust domestic remedies, the author reiterates that he was never informed of the administrative decision of 25 September 2012 to declare the girls provisionally abandoned and that he submitted a written request for the revocation of the decision of 3 December 2013 within two years of being informed of that decision but that he had still not received a reply.19 The author alleges that, in the present case, the failure to respond to the petition cannot be construed as a rejection of the petition, as the authorities are obliged to make a determination, especially in the case of measures for the protection of minors.
- The author provides a copy of the letter of 1 December 2015 in which he requests the cessation of the suspension of parental rights and, at the same time, the consequent revocation of the decision to declare the girls abandoned. ↩
The author notes that the director of the Tinajo centre for minors stated that “work with the author was proceeding in such a way as to meet the family reintegration objectives” and that the visits were nevertheless discontinued. In this regard, the author reiterates that he contested the decision of 6 June 2014 suspending the visits of the girls with their parents and that his petition was rejected in a judgment dated 17 November 2015. In his comments, the author also claims that he filed an appeal against this judgment.
With regard to the petition for paternal consent for the adoption of J.N.E.A. to be made mandatory, the author claims that he sought the suspension of the adoption proceedings, since there was a preliminary issue (a filiation suit, in relation to L.R.E.A., before the Court of First Instance No. 1 of Arrecife) whose outcome could influence the adoption proceedings if it were shown that he was also L.R.E.A.’s father, an issue not admitted by the judge. The author reiterates that, although the judgment states that no petition of objection was filed, he did file a brief requesting the revocation of the decision and that, when his request was rejected, he filed an appeal with the Provincial High Court of Santa Cruz de Tenerife and then an appeal in cassation with the Supreme Court, which was also rejected. In reply to the State party’s argument that he should have applied for amparo, the author argues that to apply to the Constitutional Court for amparo is not to submit an appeal to a higher court for reconsideration of the evidence and that a higher court hearing an appeal must attend to the assessment of the evidence.
The author reiterates that he has been thwarted at every turn and that, unlike the girls’ mother, who signed several contracts involving parenting commitments, he was denied family reintegration opportunities.
The author states that his repeated requests for a test to determine whether he was L.R.E.A.’s father were ignored until 2016, when he turned to the courts. The author also claims that there was no family reintegration plan, either before or after the court decision recognizing him as L.R.E.A.’s biological father.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol.
The Committee notes the State party’s argument that the communication is inadmissible under article 5 (2) of the Optional Protocol and rule 13 of its rules of procedure, as the alleged victims did not consent to the submission of the communication and the author does not have custody of J.N.E.A. and L.R.E.A. The Committee notes that, although at the time of the submission of the communication, J.N.E.A. and L.R.E.A. were 9 and 8 years old, respectively, and would have been in a position to give their informed consent to the author’s submission of a communication to the Committee on their behalf, the author has stated that he has been unable to secure such consent because he has no direct contact with them. The Committee recalls that, under article 5 (2), a communication may be submitted on behalf of alleged victims without their express consent when the author can justify acting on their behalf. Under such circumstances, a non-custodial parent should still be considered a legal parent and can represent his or her children before the Committee, unless it can be determined that he or she is not acting in their best interest.20 In light of the particular circumstances of the present case, the Committee cannot conclude that, by claiming his daughters’ rights to maintain contact with him, the author is acting in a manner detrimental to their best interests. Accordingly, the Committee concludes that article 5 (2) (b) of the Optional Protocol is not an obstacle to the admissibility of the communication.
- See, inter alia, Y and Z v. Finland (CRC/C/81/D/6/2016), para. 9.4. ↩
The Committee also notes the State party’s argument that the author did not exhaust the domestic remedies available to him since, to do so, he would have had to challenge, in accordance with the Civil Procedure Act, the authorities’ implicit rejection of his petition for reconsideration of the decision to declare the girls abandoned. The Committee also notes the author’s argument that he was never notified of the administrative decision of 25 September 2012 and that the lack of a response to his petition for revocation of the decision cannot be considered an implicit dismissal of the petition, since the authorities have a duty, especially in child protection cases, to make a determination. For its part, the Committee notes the State party’s argument that the author did not appeal against the decision rejecting the author’s objection to the suspension of visits. The Committee also takes note of the author’s argument that he did file such an appeal. In addition, the Committee takes note of the State party’s argument that, in relation to the request to make paternal consent for the adoption of J.N.E.A. obligatory, the author could and should have applied to the Constitutional Court for amparo in connection with complaints he raised at the time. The State party argues that amparo proceedings are an effective remedy that must be instituted in due form and time for domestic remedies to be considered exhausted. The Committee, for its part, takes note of the author’s argument that to apply to the Constitutional Court for amparo is not to submit an appeal to a higher court for reconsideration of the evidence and that a higher court hearing an appeal must attend to the assessment of the evidence. The Committee notes that the State party has indicated which domestic remedies, including an application for amparo, which the author did not prepare, would have been effective and available to the author in his pursuit of his complaint. The Committee notes, too, that, according to the author, none of the decisions has been in his favour, depriving him of the opportunity for family reintegration. The Committee reiterates that authors must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress. The Committee is of the view that domestic remedies need not be exhausted if, objectively, they have no prospect of success, for example in cases where under applicable domestic laws the claim would inevitably be dismissed or where established jurisprudence of the highest domestic tribunals would preclude a positive result. However, the Committee notes that mere doubts or assumptions about the success or effectiveness of remedies do not absolve authors of their obligation to exhaust them.21 The Committee notes that, in the present case, an application for a remedy of amparo could have been submitted to review both the legality of the decisions made by the administrative or judicial authorities and the efforts made to protect J.N.E.A.’s fundamental rights. The Committee is therefore of the view that the author’s claims in relation to J.N.E.A. are inadmissible for failure to exhaust available domestic remedies, as required under article 7 (e) of the Optional Protocol.
- D.C. v. Germany (CRC/C/83/D/60/2018), para. 6.5, and Sacchi et al. v. Argentina (CRC/C/88/D/104/2019), para. 10.17. See also Sacchi et al. v. Brazil (CRC/C/88/D/105/2019), Sacchi et al. v. France (CRC/C/88/D/106/2019), Sacchi et al. v. Germany (CRC/C/88/D/107/2019) and Sacchi et al. v. Turkey (CRC/C/88/D/108/2019). ↩
In relation to the author’s claims regarding L.R.E.A., the Committee notes the State party’s argument that the communication is likewise inadmissible for failure to exhaust remedies, as the author requested that paternal consent for the adoption be made compulsory on 12 March 2020 and then, on 28 March 2020, without having received a reply to his request, a ruling on which is apparently pending, submitted his communication to the Committee. The Committee notes that on 14 December 2020, according to the State party, the Court of First Instance handed down a judgment dismissing the second petition filed by the author in relation to L.R.E.A. The author’s appeal against this decision was rejected on 12 April 2021 by the First Section of the Provincial High Court of Santa Cruz de Tenerife. The Committee is therefore of the view that the author’s claims in relation to L.R.E.A. are inadmissible for failure to exhaust available domestic remedies, as required under article 7 (e) of the Optional Protocol.
The Committee therefore decides: (a) That the communication is inadmissible under article (7) (e) of the Optional Protocol; (b) That this decision shall be transmitted to the author of the communication and, for its information, to the State party.
Joint opinion of Committee members Mary Beloff, Rosaria Correa and Ann Skelton (partially dissenting)
We agree with the Committee’s conclusion that the case is inadmissible due to a failure to exhaust domestic remedies. However, we disagree with the Committee’s decision to find that article 5 (2) of the Optional Protocol was not an obstacle to the admissibility of the communication.
Article 5 (2) of the Optional Protocol requires the consent of children when cases are filed on their behalf. It requires that, when communications are submitted on behalf of children, it is done with their consent unless the author can justify acting on their behalf without such consent. In our view, the test is therefore one of justification, and the onus is on the author to show such justification, the author in the present case being the children’s parent.
We respectfully disagree with the test applied by the Committee, namely, that a parent can proceed without the consent of the child concerned unless it can be determined that he or she is not acting in the best interests of the child. It is not clear how such a determination is to be made and by whom. This approach removes the onus from the author and creates a new rule not envisaged in article 5 (2) of the Optional Protocol, that a parent can act without a child’s consent, unless their doing so is against the child’s best interests.
In our view, the author in the present case did not provide sufficient justification for acting without the children’s consent, and the majority of the Committee used the wrong test to make their determination that article 5 (2) of the Optional Protocol was not an obstacle to the admissibility of the communication. We therefore would have found the communication inadmissible also on the basis of article 5 (2).