CEDAW Committee finds violations of CEDAW concerning domestic violence, child visitation rights and child support (Angela González Carreño v. Spain)

In 1999, Angela González Carreño left her husband, F.R.C., because he had subjected her to domestic violence over several years. She reported the violence to the authorities. A trial separation was ordered between Angela and F.R.C. Angela was given custody and guardianship of Andrea, their daughter, and F.R.C was ordered to pay child support. A limited regime of supervised visits between F.R.C. and Andrea was ordered.

The violence against Angela continued, some of which Andrea witnessed, and included repeated death threats. During his visits with Andrea, F.R.C. questioned Andrea about her Angela’s private life, spoke ill of Angela and made accusations about her. As a result, Andrea became afraid of her father and did not want to spend time with him outside the visitation regime. He then accused Angela of manipulating Andrea. Despite many complaints, F.R.C. was only convicted once on a charge of harassment and then fined only 45 euros.

Angela repeatedly sought protective orders before local courts to keep F.R.C. away from her and Andrea, a regime of supervised visits and child support payments. The courts issued protective orders for Angela, but F.R.C. violated them without legal consequence to him. Only one order included Andrea, but the court left this order unenforced following an appeal by F.R.C., since it considered the order hampered the visit regime and could harm relations between F.R.C and Andrea.

In January 2001, the Court of First Instance No. 1 of Navalcarnero drew up a provisional schedule of supervised visits monitored by social services. In September 2001, a psychological evaluation report proposed that visits between F.R.C. and Andrea should be normalised gradually.

In November 2001, the court entered the order of marital separation. The order did not take the domestic violence into account or identify it as the cause of the separation. The order maintained the supervised visit regime for one month, gradually expanding it in line with F.R.C.’s behaviour. It did not address F.R.C.’s continued non-payment of child support.

In May 2002, Court No. 1 of Navalcarnero authorised unsupervised visits between F.R.C. and Andrea, despite many violent incidents by F.R.C. during the period of supervised visits. Angela appealed the decision without success.

In April 2003, F.R.C. murdered Andrea and committed suicide. In June 2003, Investigative Court No. 3 of Navalcarnero declared F.R.C.’s criminal liability for Andrea’s death extinguished on account of his suicide.

In April 2004, Angela filed with the Ministry of Justice a claim for compensation for miscarriage of justice. Angela claimed that the authorities were negligent and failed in their obligation to protect the life of Andrea, despite being repeatedly informed of the danger she faced. The Ministry denied the claim, concluding that the authorities acted properly regarding the visitation regime. It noted that Angela could pursue her claim for compensation only if the Supreme Court found judicial error. An appeal, filed by Angela, was denied. In June 2007, Angela lodged an administrative appeal before the High Court, alleging improper functioning of the administration of justice. This and subsequent appeals, including to the Constitutional Court, were also denied.

Angela’s subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed to be a victim of a violation by Spain of articles 2(a)-2(f), 5(a) and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Among other things, she asserted that:

  • the authorities failed to act with due diligence to prevent, investigate, prosecute and punish the known violence experienced by Angela and Andrea and the murder of Andrea
  • the authorities failed to provide an effective judicial response to Andrea’s murder and appropriate redress for the damages Angela suffered through the State Party’s negligence
  • the State Party had inadequate protections against domestic violence at the relevant time and that victims continued to experience discrimination
  • stereotyping by the authorities meant that, inter alia, they: did not investigate Andrea’s situation as a direct and indirect victim of violence; prioritised F.R.C.’s wishes over Andrea’s rights and best interests; and questioned Angela’s creditability
  • the authorities discriminated against Angela in the decisions on her separation and divorce, including by not taking the violence into account and ensuring F.R.C. paid child support.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication on several grounds. First, it claimed that the Committee should declare the communication inadmissible because Angela had failed to exhaust domestic remedies, specifically by alleging judicial error before the Supreme Court. Second, it claimed that Angela’s complaint was not sufficiently substantiated. Specifically, it asserted that F.R.C., and not Spanish authorities, committed the acts of which Angela complained and, further, that its authorities did not act negligently. Third, it claimed that the Committee was unable to consider a communication concerning events that occurred prior to the entry into force of the Optional Protocol for the State Party and which were not continuing.

Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol or Protocol).

Ratione temporis

In declaring the communication admissible ratione temporis, the Committee acknowledged that some of the abuses and complaints occurred prior to the Protocol’s entry into force for the State Party. However, it determined that key facts and decisions leading up to the murder of Andrea, including judicial decisions authorising the regime of unsupervised visits and refusing Angela’s appeal, occurred after the relevant entry into force date. It explained that it would take the prior abuses and complaints into account only insofar as they explained the context of events occurring after the Protocol’s entry into force for Spain.

Exhaustion of domestic remedies

The Committee determined that Angela had exerted reasonable efforts to exhaust domestic remedies. In this connection, it noted that Angela had filed several appeals, including before the Constitutional Court, all of which were rejected by national authorities. The Committee also noted the State Party’s failure to identify other remedies that it believed could respond effectively to Angela’s complaint about the establishment of unsupervised visits between F.R.C and Andrea and the lack of redress for Andrea’s death.

Sufficiently substantiated

In the Committee’s expert view, Angela had sufficiently substantiated her complaints, for the purposes of admissibility.

State Party’s observations on merits

The State Party asserted that it had not violated CEDAW. Among other things, it claimed that: F.R.C.’s behaviour was unforeseeable and nothing could lead it to predict a danger to the life or physical or mental health of Andrea; its authorities had not acted negligently; and the acts of which Angela complained were committed by F.R.C. It further claimed that Angela had wrongly asserted that Spain had no protections against gender-based violence at the time and provided the Committee with a list of actions undertaken to eradicate discrimination against women.

Committee’s decision on the merits

The CEDAW Committee determined that the State Party had violated articles 2(a)-2(f), 5(a) and 16(1)(d) of CEDAW, read with article 1 and its General Recommendation No. 19.

Gender-based violence against women

In reaching its determination, the Committee recalled its General Recommendation No. 19, in which it defined gender-based violence as a form of discrimination, within the meaning of article 1 of CEDAW. It also reiterated that States Parties have a due diligence obligation to take all appropriate measures to prevent, investigate, punish and provide reparations for gender-based violence perpetrated by non-state actors. According to the Committee, public officials must respect the due diligence obligation, if women are to enjoy substantive equality and protections against violence in practice. This obligation, the Committee explained, includes investigating the existence of failures, negligence or omissions on the part of public authorities that may have deprived victims of protection against such violence.

Turning to the facts, the Committee concluded that the violence committed by F.R.C. against Angela and the murder of Andrea was foreseeable. It noted, for instance, that F.R.C.: committed numerous acts of violence against Angela, which Andrea often witnessed; was not held legally liable for ignoring court protective orders; and had been diagnosed with an “obsessive-compulsive disorder with aspects of pathological jealousy and a tendency to distort reality which could degenerate into a disorder similar to paranoia”. It also noted a social services report regarding the need for continuous monitoring of visits between F.R.C. and Andrea. According to the Committee, the State Party’s due diligence obligations were not meet, since no reasonable steps were taken to protect Angela and Andrea against the violence and, in Andrea’s case, murder. Moreover, the State Party had not investigated whether its authorities failed to protect, or were negligent in protecting, Angela and Andrea against violence.

Unsupervised visits

In reaching its determination, the Committee affirmed that child custody and visitation decisions should be based on the best interests of the child, not on stereotypes, with domestic violence being a relevant consideration. In addition, it stressed that stereotypes affect women’s right to an impartial judicial process and the judiciary must not apply inflexible standards based on preconceived notions about what constitutes domestic violence.

Turning to the facts, the Committee concluded that the decision to grant F.R.C. unsupervised visits with Andrea: was based on stereotypes about domestic violence that prioritised his (male) interests and minimised his abusive behaviour, over the safety of Andrea and Angela; did not take into account the long-term pattern of domestic violence; and did not specify necessary safeguards.

Lack of reparation

The Committee determined that Angela’s efforts to obtain redress for the serious and irreparable harm she had suffered had been futile, resulting in further violations of her rights under CEDAW.

Recommendations 

The Committee recommended that the State Party provide Angela reparations and investigate whether failures in its structures and practices led to Angela and Andrea being denied appropriate protection. Other recommendations included: ensuring domestic violence is taken into account in custody and visitation matters and that the best interests of the child prevail in related decisions; ensuring that its authorities exercise due diligence and respond appropriately to domestic violence; and providing mandatory training for judges and administrative personnel on the legal framework concerning domestic violence and gender stereotyping.

Communication No. 47/20 12, UN Doc. CEDAW/C/58/D/47/2012 (2014)

Decision

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Looking to CEDAW: An Opportunity to Protect Women’s and Children’s Rights in Spain and worldwide (Women’s Link Worldwide)

Gema and Paloma Soria copy

Gema Fernández Rodríguez de Liévana and Paloma Soria Montañez of Women’s Link Worldwide discuss Ángela González Carreño v. Spain, a family violence case currently pending before the Committee on the Elimination of Discrimination against Women (CEDAW Committee)

Click here to read the post in Spanish.

 

Factual background

After more than 20 years of being subjected to violence by her partner, in 1999, Ángela Gonzalez left her family home with her three-year-old daughter Andrea after an episode of violence that took place in front of the girl.  Ángela feared that the aggressor –Mr. Rascón – would kill her and her daughter or cause them grave harm. 

Ángela reported the violence she had been suffering, both before the police and the courts on several occasions, and initiated divorce proceedings.  During the following four years that she lived separated from the aggressor, Ángela fought tirelessly to protect her daughter from her daughter’s abusive father and used all the means at her disposal to protect her daughter.  She went before the courts repeatedly to ask, amongst other things, for Rascón’s visitation with Andrea to be supervised.  Despite her efforts and belief in the social protection services and the judiciary, the system failed her and her daughter completely.  Rascón was allowed to have unsupervised visits with Andrea.  On 24 April 2003, during one of these unsupervised visits, Rascón murdered his six-year-old daughter and then committed suicide.

Despite filing more than thirty complaints seeking protection, Ángela’s abuser was condemned only once to a misdemeanour for harassment with a fine.  Ángela had requested protection orders repeatedly for herself and her daughter.  The courts granted the protection order for Ángela, but Mr. Rascón violated the order repeatedly, without consequences for him.  A protection order for Andrea was granted only on one occasion, but even this order was withdrawn later because the judicial authorities said “it hindered Mr. Rascón’s visitation rights.”  In withdrawing the order, the judiciary allowed Rascón’s visitation rights to prevail over the right of Ángela to live free of violence and the best interests of the girl child. 

After Andrea’s death, Ángela unsuccessfully sought justice and reparations from the State for the negligence of the authorities that led to the death of her daughter.  Ángela litigated her case through the court system in Spain, filing before both the Supreme Court and the Constitutional Court.  At every instance, the courts failed to recognise the authorities’ negligence in Andrea’s death, further violating the rights of both Ángela and Andrea.  

Why the CEDAW Committee? 

In her hunt for justice, Ángela decided to take her case to an international body, the CEDAW Committee.  She wanted the State to be held responsible for the acts that led to her daughter’s death and, even more important to her, she continues her fight in the hopes of having the case lead to systemic changes and guarantees of non-repetition for other women and children victims of domestic and gender-based violence. 

Ángela highly values that the CEDAW Committee is the only international body dealing specifically with women’s rights, including the right of women to be free of discrimination on the basis of their sex/gender.  The CEDAW Committee has developed extremely valuable expertise analysing the context of discrimination in which the facts of individual communications brought before it take place.  This expertise has allowed it to take its views from a gender perspective that enables the identification of harmful gender stereotyping.  Moreover, the CEDAW Committee’s case-law sets an international standard that can have an impact on all 187 State Parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Ángela’s claim under the Optional Protocol to CEDAW 

Represented by Women’s Link Worldwide, Angela’s communication to the CEDAW Committee alleges violations by Spain of articles 2 (general obligations), 5 (stereotyping) and 16 (equality in marriage and family relations) of CEDAW.

Ángela has claimed in her communication that Spanish authorities violated article 2 of CEDAW by failing to act with due diligence, by all means at its disposal and without delay, to prevent, investigate, prosecute and punish the violence committed against her and Andrea by Rascón, resulting in the murder of Andrea.  Moreover, she has claimed that Spain violated article 2 of CEDAW when, following the murder of Andrea, its courts failed to offer Ángela an effective judicial response or adequate reparations for the harm she had suffered as a result of the negligent actions of the State Party.   

In addition, Ángela has claimed that the State Party’s reliance on harmful gender stereotypes when responding to the violence she and her daughter experienced and when determining the visitation rights of the batterer, violated article 5(a) of CEDAW. 

Finally, Ángela has claimed that the State Party failed to fulfill its due diligence obligation to protect her rights in article 16 of CEDAW, since no remedy was provided after she repeatedly reported the violation of her right to equality in the economic maintenance of Andrea by Rascón.  

Ángela’s expectations 

Ángela’s struggle has always been fueled by her desire to ensure that what happened to her and her daughter doesn’t happen again to any other woman or child.  She is therefore looking to the CEDAW Committee to adopt broad reparation measures and to issue general recommendations to the State Party that can bring about structural changes that will better protect women and children suffering from domestic violence.  Ángela also hopes that her case will clearly identify gender stereotyping as a root cause of violence and discrimination and help to highlight how such stereotyping negatively affects women’s right to access justice.  She hopes that the CEDAW Committee’s views in her case will help to highlight concrete measures that the State Party can adopt to eliminate wrongful gender stereotyping by the judiciary and other state institutions.

Finally, Ángela hopes that her case will help to highlight the significant gaps between Spain’s laws and the protections available to women in practice in respect of domestic and gender-based violence, including through the implementation of those laws by the judiciary and other state institutions.  In her opinion, real, prompt and effective protection for victims of domestic violence and her children is still lacking in Spain, in large part due to wrongful gender stereotyping. 

Status of proceedings

Ángela’s case was filed in September 2012.  Since then, the Spanish Government has submitted its observations on the admissibility and merits of the communication and Ángela has commented on those observations. 

Why did Women’s Link Worldwide take this case?

Women’s Link Worldwide is an international human rights non-profit organisation working to ensure that gender equality is a reality around the world.  With this aim, it strives to advance women’s rights through the implementation of international human rights standards and strategic work with courts, including strategic litigation.

Ángela’s communication to the CEDAW Committee is the first domestic violence case from Spain to be examined by an international body.  Women’s Link Worldwide became involved in the case because it wanted to assist Ángela in her pursuit of justice.  It also became involved in the case because it provides a unique opportunity to review and improve implementation of Spain’s domestic violence law (Protection Measures against Gender Violence Act), which although considered to be a robust law has not been implemented effectively in practice.  

Women’s Link Worldwide hopes that the provisions of CEDAW that require the Spanish Government to end discrimination against women will arm the CEDAW Committee well to make strong recommendations requiring structural changes that will help to prevent similar violations to those suffered by Ángela and her daughter Andrea.  Such recommendations could include directions on how to implement Spain’s current law on domestic violence at all levels (courts, social services, and police) in order to ensure that victim’s rights are guaranteed and a gender perspective is central to any considerations of domestic violence.

Women’s Link Worldwide also became involved in Ángela case because it is illustrative of the problems facing many women in Spain.  In other words, the facts of the case are not unique or isolated to Ángela and Andrea.  In Spain, just like in many other countries, there is a high incidence of violence against women and a lack of adequate responses by the authorities when women try to seek protection and remedies.  In 2004, specific legislation on domestic violence was adopted to ensure protections for victims of domestic violence, but implementation of these laws is greatly lacking.  Judges are reluctant to enforce these laws because of their own biases, regardless of the victim’s rights, and there is no mechanism holding them accountable to do so.  At the same time, the lack of judicial investigation leads to a high rate of cases that are dismissed.

Women’s Link Worldwide was also attracted to Ángela case because there is compelling evidence about the harms of judicial stereotyping.  The application of gender stereotypes by authorities, judges and courts is one of the most significant barriers for the elimination of gender discrimination in Spain and in other countries, and undermines women’s ability to access justice when their human rights are violated.  Judicial gender stereotyping is also one of the main obstacles for gender justice that Women’s Link Worldwide works to eliminate.

Violence against women, the absence of legal protections for the children of victims of domestic violence and judicial gender stereotyping are present in almost all countries in the world.  Women’s Link Worldwide invites the CEDAW Committee to consider Ángela’s communication as an opportunity to address some of these issues, with a view to having a global impact and furthering develop States Parties’ positive obligations to eliminate wrongful gender stereotyping in its domestic violence case-law.

Paloma Soria Montañez has a law degree from the University of Malaga, Spain and a Masters in International Solidarity Action in Europe from the University of Carlos III, Madrid, Spain. She is Senior Attorney and coordinator of the International Gender Crimes and Human Trafficking programs at the organization Women’s Link Worldwide, where she works from 2006.

Gema Fernández Rodríguez de Liévana graduated with a law degree from the University Complutense, Madrid and holds a postgraduate degree as part of the doctoral program ”International Relations: European Union and Globalization” from the same university. She works as a litigating attorney at Women’s Link in trafficking in persons, intersectional discrimination and sexual and reproductive rights.

 

Click here more information about the work of Women’s Link Worldwide. 

 

This post has been published with the permission of Ángela