Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
In this case, Angela González Carreño had separated from F.R.C., the father of her child Andrea, after being subjected to domestic violence for several years; often F.R.C. committed acts of violence against Angela González Carreño in the presence of Andrea, including repeated threats to kill Angela with a knife. Despite failing to pay child support, F.R.C. was given on-going contact with Andrea after the separation, sometimes supervised by social services, but often unsupervised, even though Andrea herself said that she was afraid of her father. Angela González Carreño made more than 30 complaints to the courts and applied for protection orders to ensure that F.R.C. could not harm her or Andrea due to his continued threats (including threats to kill Angela), insults and acts of violence, but the divorce was finalised without mention being made by the court of the domestic violence. He was prosecuted and convicted of harassment once, but fined only 45 Euros. Social services sought to ensure more contact between F.R.C. and Andrea, even though she said that she was afraid of him, he didn’t treat her well, and “tore up her paintings.” Due to F.R.C. failing to pay child support as required, Angela González Carreño sought to have the marital home returned to her for her and Andrea’s use, and was eventually successful in this application. F.R.C told Angela González Carreño that “he would take away what mattered most to her” and during the next unsupervised visit, he killed Andrea and then committed suicide.
Angela González Carreño filed with the Ministry of Justice a claim for compensation for miscarriage of justice. Angela González Carreño 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.
In her application, she also noted that “the existence of prejudices by the authorities showed itself in their inability to correctly gauge the gravity of the situation she and her daughter were facing and her suffering due to the situation of the child. Further, no inquiry was ever conducted into the consequences for the child of living in an atmosphere of violence and her condition as a direct and indirect victim of that violence. Instead, the authorities responsible for providing protection chose to follow the stereotypical view that even the most abusive should enjoy visitation rights and it is always better for a child to be raised by its father and mother; thus failing to appreciate the rights of the child and disregarding the fact that she had expressed fear of her father and rejected the contact. The courts took it for granted that it is better to have contact even with a violent father. The circumstances of the case called for the authorities and courts to evaluate whether the visits respected the child’s right to life, to live free of violence, and the principle of the best interests of the child.”
What was the decision?
The CEDAW Committee concluded that the violence committed by F.R.C. against Angela González Carreño and the murder of Andrea was foreseeable. It noted, for instance, that F.R.C.: committed numerous acts of violence against Angela González Carreño 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 González Carreño 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 González Carreño and Andrea against violence.
Parental rights of fathers to have contact with their children may be invoked as entitlement of men accused of violence to violate the safety and wellbeing of women and their children. However, in such a situation, the CEDAW Committee has observed that the best interests of the child must be taken into account in the existence of a context of domestic violence:
“The Committee observes that during the time when the regime of judicially determined visits was being applied, both the judicial authorities and the social services and psychological experts had as their main purpose normalizing relations between father and daughter, despite the reservations expressed by those two services on the conduct of F.R.C. The relevant decisions do not disclose an interest by those authorities in evaluating all aspects of the benefits or harms to the child of the regime applied. It is also noteworthy that the decision which ushered in a regime of unsupervised visits was adopted without a prior hearing of the author and her daughter, and that the continued non-payment of child support by F.R.C. was not taken into account in that context.
All of these elements reflect a pattern of action which responds to a stereotyped conception of visiting rights based on formal equality which, in the present case, gave clear advantages to the father despite his abusive conduct and minimized the situation of mother and daughter as victims of violence, placing them in a vulnerable position. In this connection, the Committee recalls that in matters of child custody and visiting rights, the best interests of the child must be a central concern and that when national authorities adopt decisions in that regard they must take into account the existence of a context of domestic violence. [para. 9.4]”
The CEDAW Committee recommended that the state party provide Angela González Carreño reparations and investigate whether failures in its structures and practices led to Angela González Carreño 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.
Learning from other institutions
The CEDAW Committee used terminology from the practice of the Committee on the Rights of the Child, particularly the principles that the best interests of the child should be the paramount consideration in all official decisions about children’s well-being, and that children have a right to be heard by decision-makers.
In this case, the CEDAW Committee made important comments about the rights of the child – that in custody cases, their rights should be prioritised, rather than the rights of the adults concerned. The CEDAW Committee also drew attention to stereotyping in custody cases, taking a comprehensive view of all the aspects of the case – that even though the father failed to abide by his obligations, for example, to abide by protection orders, pay child support, his claim to have contact with Andrea was still prioritised by the authorities, and that “formal equality” which does not take abuse into account puts women and children at risk. A context of domestic violence must be taken into account when assessing the best interests of children.