The CGPJ before the Family Law: confusing, exceeds the constitutional framework and generates legal uncertainty and inequality

Requests that the right of parents to choose the religious and moral education of their children be regulated in another norm and of an organic nature

   MADRID, 28 Mar. (EUROPA PRESS) -

The General Council of the Judiciary (CGPJ) notifies the Government that the application of the future Law on Families, which the Council of Ministers has approved this Tuesday in second reading and has sent to Parliament, may overlap two or more categories of families, it creates confusion, exceeds the constitutional framework and generates legal uncertainty and inequality among the recipients of protection measures.

This is how the technical committee of the General Council of the Judiciary pronounces on the norm that, in any case, considers that it does include a "family concept" that conforms to the doctrine of the Supreme Court, the Constitutional Court and the European Court of Human Rights . However, it values ​​that it is "inconvenient and certainly inadvisable" for an ordinary law to incorporate provisions of an organic law, so it advises that such precepts be processed independently.

In this sense, it refers to the right of parents to have their children receive religious and moral training in accordance with their own convictions, which does not transcend the central nucleus of the law, for which reason "the technique used" by the draft must be objected to. of law and suggests that this article, 24.3 of the norm be separated from it and be processed independently and with the character of organic law.

The CGPJ report also observes that there are "doubts" regarding the competence of the State in the matter of regulating social protection for families and draws attention to the existence of various incidents in this sense that "should be avoided in good normative technique and for the benefit of legal certainty".

Likewise, regarding the accreditation of cohabitation to be subject to the application of the law, the CGPJ advises including in the law "clear" definitions on what is considered a family unit and on specific types of family situations and suggests to the Government an "alternative" wording. that differentiates, to prove the existence of a family unit, the stable and notorious coexistence and the registration of the domestic partnership.

Likewise, it recommends that "it be clarified" in the articles when the measures should be applied to cohabiting couples with common descendants to avoid "any hint of unequal treatment of minors based on their affiliation" and thus create a difference in treatment between children of registered and unregistered domestic partnerships.

On the other hand, it warns the Government that it "misses" that it defines "concretely" the situations in which people who live alone and non-family cohabitation centers may be recipients of such measures because, the CGPJ understands that They are extending family benefits and measures to cases that "are not" and that, in principle, would be outside of Article 39 of the Constitution without the reason for such equalization to individuals or groups that cannot be recognized or justified. identify as a family for maintaining only the common coexistence, without prejudice to the fact that they deserve some type of protection.

It is in this area that he values ​​the atomization that the law carries out when detailing the cases included in its scope of application, providing for different types of protection depending on the specific case and even being able to give cases of overlapping of two or more categories, to which is added the equalization of single people so that they can be recipients of the measures provided for in the projected standard without explaining the reasons for their equalization to families and the specific assumptions.

"This council understands that the projected norm exceeds the constitutional framework and creates confusion, legal uncertainty and inequalities among the recipients of the lines of protection measures collected," he says.

On the other hand, it recalls that the adjective "filioparental" cannot be found in the dictionary of the Royal Spanish Academy of Language or the Pan-Hispanic of legal Spanish and suggests that it be replaced by "filial", an adjective that already implies the connection of the parents, since son is "person with respect to his parents".

In the same way, it refers to the term "homelessness" which is not included in either of the two glossaries, which is why it suggests that an equivalent expression be used in Spanish that expresses the condition of homeless person.

In another order of comments, in the opinion of the CGPJ, without prejudice to the regulatory power of the State in matters of education and that the pre-legislator establishes family diversity as a principle of the educational system, "the essential content of the right of parents must be respected to give their children a religious and moral education that is in accordance with their convictions" and, in this sense, the report warns that "there are doubts" about the projected wording, which could affect the content of the homeland power and on its reconciliation with articles 27 and 39 of the Spanish Constitution.

In the same way, in relation to the Dependency Law, the CGPJ insists on the need to coordinate all the normative texts to avoid inconsistency and undesirable legal uncertainty and recommends that the law define the functions and operation of the Interministerial Commission of Families of New Creation.

All in all, the CGJP sees "clearly" that what really identifies a family is the existence of maternal-paternal-filial ties or, at least, a nucleus of coexistence while making a positive consideration that the text conforms to the doctrine, but finds that, in the absence of a regulatory framework that provides coherence to the protection provided by the administrations, there is a fragmentation in the regulations governing family protection to the extent that there are different sectoral regulations with different scope in terms of their subjective scope .

Finally, it observes that the draft contains a regulation "at least confusing as regards the concepts of family unit and family, for the purposes of applying the protection measures contemplated."