The multi-level reconstruction of parental responsibility in cases of gender violence: the best interests of the child as a structural criterion for the interpretation of articles 94 and 170 of the civil code

Abstract

This article provides a critical analysis of a recent judgment of the Spanish Supreme Court concerning the deprivation of parental responsibility and the suspension of contact rights in a case involving a parent convicted of gender-based violence. It highlights the decision’s significance in the evolution of Spanish family law following the enactment of Organic Law 8/2021 on the comprehensive protection of children and adolescents against violence. Drawing upon a systematic examination of the judgment, the study explores the reinterpretation of Article 170 of the Spanish Civil Code through a functional conception of parental responsibility as an officium exclusively aimed at safeguarding the child’s best interests. It further analyses the consolidation of the best interests of the child as the central interpretative principle governing parental responsibility.

The article argues that the judgment goes beyond the mere application of the new statutory framework by establishing a new judicial standard for assessing parental suitability, under which the repeated exercise of gender-based violence constitutes a particularly significant indicator of functional incompatibility with the proper exercise of parental responsibilities. It also examines the transformation of contact and visitation arrangements following the amendment of Article 94 of the Civil Code, demonstrating the abandonment of the traditional view that regarded the preservation of the biological parent-child relationship as an autonomous legal value and its complete subordination to the best interests of the child. Finally, the study analyses the procedural dimension of the judgment, emphasising the enhanced evidentiary role assigned to psychosocial expert reports and the strengthened duty to provide reasons where courts depart from their conclusions.

The article concludes that the judgment represents a milestone in the constitutionalisation and internationalisation of Spanish family law by consolidating a model of parental responsibility centred on the effective protection of children’s fundamental rights.