Los informes periciales psicológicos forenses en la sustracción interparental de menores

La ponencia de Adolfo Alonso, abogado de familia, en la Jornada de Derecho de Familia Internacional organizada por Asime en Palma de Mallorca en Septiembre de 2019, trata sobre “los informes periciales psicológicos forenses en la sustracción interparental de menores”.

El texto de la ponencia que se presentara en inglés es el siguiente:

Puedes descargarlo en PDF en este enlace.


Forensic psychological peritial reports on the interparental child abduction and checking the minor opinion

1.-We have focused this issue on the general reports in family cases.

2.- They have some aspects I am interested in pointing out anyway.:

Both sides have points in common they have points in commun but there are also differences regardinginternal reports on legal custody judicial affairs

In common with every report they have.: General Technique; Test to use; work methodology.

As A PARTICULARITY, the aim of report is not custody or final contact access rights.

Usually the objective will be if it comes or does not proceed under minor interest either the restitution or the most adequate international contact access under Hague convention.

The concept of illegal removal is a legal one so should not be the object of this report.

Normally and very important, if possible child will be exanimated on his/ her opinion or ideas about restitution or not, but his /her point of view will be not respected or accepted by the judge.

Judge could change the personal exploration by meeting with the legal psychological team of the court and the examination they can make, with him/her or every member of the family group.

It is extremely difficult to practice these reports because here in Spain, we have quick process, and that means not enough time for work, neither by psychological team of the court, not even, by the private one.

We can read, as well, foreigners experts reports, from other countries but, impossible to check or confirm, even by conference call, and not necessary as eventual possibility, or language difficulties, expensive translations, shorn, and or communication, and including inability to examine minors in their environments or surroundings in their own background

The fundamental rights of the minor rise to a specific rank of superior relevance, not only under item 20 th of Hague convention, and either by direct and expressive question or by indirect way. This is linked to the best protection of the minor interest and the compulsory protection as a duty for any Estate under item 8 th of European Human Rights Convention and declaration of human minor fundamental rights of November the 20th 1959.  We are talking about EQUALITY, SPECIAL PROTECT FOR DEVELOPMENT, RIGTH TO A NAME AND NATIONALITY, FOOD , HOUSING AND MEDICAL CARE, EDUCATION, SPECIAL TREATMENT OF DISABILITY, LOVE, FREE EDUCATION AND ACTIVITIES, HELP IN ANY CIRCUSTANCE , PROTECTION AGAINST ANY FORM OF ABANDONMENT, CRUELTY AND EXPLOTATION, TO BE RISED IN A SPIRIT OF UNDERSTANDING AND TOLERANCE, FRIENDSHIP BETWEEN HUMAN BEINGS  AND UNIVERSAL BORTHERHOOD.

Probably not every child knows or is conscious about all these rights but probably children from 12th years old to 15th can be enough conscious about their life conditions at country left behind.

I would like to point out that following the Constitutional court of Spain decision dated on May the 9th 2.019, the judge is the only responsible of the minor exploration, either questions or way to do. And the examination must be recorded or at less notified to the other part. We get to at a point that in which the public prosecutor hasn´t got the exclusivity about the knowledge of the minor decision or opinion.

All these contents of human rights must not be examined in general but in the particular situation of the particular child of the particular country and his/her personal particular circumstances whit regard to human rights at the last country, in which we are interested. We have the example of Venezuela, right now.

We work under the idea that minor interest is linked to a restitution, but this cannot be an absolute criteria.: Human rights must be, under my opinion the most important.  Following the Hague convention “NOT RESTITUTION IS THE EXCEPTION”, and is by exception way that must be denied by court, and the approach therefore of forensic reports are to be considered if in function of the interest of the minor can be rejected and broken, the return. That means to counterbalance the time, the opinion, and the circumstances the minor has and has been before, and if the best interest of minor allows or not, to break relations, culture, language, religion, family relationship bound, grandparents, uncles, cousins. And that is a problem because all this, are also human rights. Yes, it is but also means that it is in a normal life and situation in conditions without any risk for the physical, mental and social development of the child.

And I left now the framework of article 20th and going to article 12th and 13th of Hague convention, and by this we are into the opinion of the Decision of Tribunal Constitutional dated on 1st February 2016 and the subsequent Decision of Section 22 of Audiencia Povincial de Madrid dated May 18th 2016.

Let´s move on, to the end of this lecture, every point together and following these decisions, because eradication, human rights, interest of minor, and mental of PSYCHOLOGICAL health seems here in Spain an “All together now”.

We are involved more and more in process and complaints of gender violence. These decisions are placed there.  is not violence against minor or man, but against the mother, even if the facts are so far in time, years before the removal or that never been denounced. And we are also involved   in serious process of “parental alienation” that could be usually disturb minor thoughts or opinions. The alleged gender violence, impossibility to return for the Mather and impossibility of separation both mother and child, are on the table. We are nowadays living a new interpretation of the law the “gender perspective” in family law and this is family law. Courts cannot forget that the reality is not as cruel as that the picture is, and that particular country probably has capacity enough to protect children under its judicial and legal system. But also including in this frame the psychological reports will need to apply particular points.

At this scene frame the methodology for detection of violence must be used in relation with item 12th and 13th and this linked to the child opinion means that test and method must be used to detect credibility, honesty, truth and confidence. The minor opinion is important but not definitive, it must be given freely and openly and not conditioned by the father or Mather interest, including ideas or language not in accordance with the age of the minor or his/her maturity.  The facts of danger for integrity could not be evident because the age of minor or his/her lacks or silence.

The forensic technics must lead the situation by semi-directed interviews and tests and controlled meetings between the minor and his/her parents, either together or by separated interactions. And is really difficult to evaluate the impact or consequences of domestic violence on the Mather and her projection on the child, and the impact of consequences or the mental and emotional situation of the child.

The expert must assess the risk and its level of risk for the child integrity, but stop there; the judge must assess this situation not only by the opinion of the child but also by the opinion of the forensic team, and this is not easy task.

So, the question is what exactly should be tested in every report, specially when it comes to gender violence.

Four levels.:

  1. Intended victim
  2. Present aggressor in foreign country probably not denounced
  3. Children
  4. Full family as a big unity.

And in each one:

Intended victim

  • Emotional states
  • Vulnerability factors
  • Habitual violence
  • Habitual mistreatment
  • Profile of battered women
  • Credibility of testimony
  • Risk assessment
  • Assessment of the mental state

Present aggressor

  • Evaluation of mental state
  • Personal characteristics
  • Emotional state
  • Immutability (volitional and cognitive ability)
  • Risk assessment(danger and possibility of new violent behaviors)
  • Substance abuse.

Children

  • Assessment of mental state(psychological state)
  • Emotional state
  • Testimony, credibility
  • Vulnerability factors
  • Psychological/ physical abuse
  • Sexual abuse
  • Alienation/ manipulation

Full family unity

  • Psychological rapport of the whole family unit.
  • Existence of habitual abuse.

The result of all this, must be the conclusion and the evaluation on the danger or risk with regards of the highest protection to the minor human rights.

At the end of this lecture I would like to mention the ideas and criteria of the decision of tribunal constitutional and Audience Provincial de Madrid, mentioned.

  • integration, adaptation, “roots” in general, are indeterminate or legal concepts.
  • So, the evaluation is by the court.
  • This idea requires the participation of the legal operators to describe what elements or factors at the individual case integrate this motion.
  • In this way, a RELEVANT LINKED is needed and having the concept of adaptation a great psychological component. It can be defined as the intellectual and emotional capacity to provide an adequate and consistent response to the demands of the environment.
  • Family integration must be essentially prevalent, schools links (developed studies) social relationships are also significant.
  • But all this not having such enumeration exhaustive character.
  • In this environment the decision on not restitution from the child must be accepted not as a main point

If all this is correct, no matter what the child thinks, especially under 15 years old.

1.-The psychological problems. If they have a favorable evolution by a correct therapist, including the criteria of the therapist of school.

2.-The situation with another new parental role, “the second family or the second father” and a “new brother”. Is not a problem while the minor does not forget his/ her first father.

3.-If The encounter looked and controlled by the judicial team batwing the minor and her first father, after a time, is positive and emotional. It is not positive for the restitution, it is just to the contrary.

4.-If the minor has forgotten his /her father language. It is not a problem, he/she can learn again the language and the minor is linked with a new environment.

Thanks for coming along here today and all your attention.

Palma de Mallorca, september 2.019

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