Spanish legislation puts a special emphasis on children legal protection, and in the last years has adopted several new laws, at national and at Autonomous Community levels, adopted to ensure better a compliance with the provisions of the UN Convention on the Rights of the Child.

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Spanish legislation puts a special emphasis on children legal protection, and in the last years has adopted several new laws, at national and at Autonomous Community levels, adopted to ensure better a compliance with the provisions of the UN Convention on the Rights of the Child.

The Organic Law 4/2000, amended by Organic Law 8/2000, and implementing regulations, have numerous articles about foreign children, their rights and their legal protection. Article 9(1) states about the right/duty to compulsory education up to the age of 18 also for foreign nationals.

About the right to health care article 12 (3) states  “Foreign nationals in Spain who are younger than eighteen years of age shall have the right to health care in the same conditions as Spaniards.”

Spanish legislation affords it  at the same level as Spanish children, including protection from repatriation if such repatriation puts the child or the child's family at risk.

Cases from well documented sources have been reported, however, in Ceuta and Melilla, of unaccompanied migrant children, and especially Moroccan children, who have been denied access to education, health care and temporary residence status and have in some instances been removed from the country without previous verification of their return to family or appropriate agencies in the country of origin. There have also been reports that some children have been ill-treated by staff or by other children during their stay in residential centres and by police officers during removals. While the situation is reportedly improving as concerns removals, instances of ill-treatment continue to be reported. Spanish Authorities replied that unaccompanied foreign children in Spain receive the same treatment as Spanish children in danger, pursuant to Organic Act 4/2000, amended by Organic Act 8/2000, and implementing regulations, and to Organic Act 1/1196, on the legal protection of children and that it is totally incorrect to refer to the "removal from the country" since this administrative penalty cannot be applied in Spain to unaccompanied children.

Article 35 requires unaccompanied migrant children to be placed “in the care of the competent services for the protection of minors,” and considers the residency status of such minors to be considered regular “for all purposes.” If a child cannot be reunited with family members or placed with social service agencies in his or her country of origin within nine months, the child “shall be granted a residence permit, the validity of which shall be retroactive to the moment in which the minor was placed in the care of child protective services.” This temporary residence permit expires when the child reaches the age of eighteen. At that point, the youth may be eligible to apply for permanent residence based on his or her length of time in the country, or the youth may be able to receive an extension of temporary residence on humanitarian grounds.

So, at least in theory, Spanish legislation provides for the same level of protection for migrant children, especially unaccompanied ones as Spanish children, including protection from repatriation if such repatriation puts the child or the child's family at risk.

Discrimination against children, including migrant children is another issue of concern also in relation to rights of Roma children, Spanish and non Spanish nationals. School drop-out rates and absenteeism are very high among Roma/Gypsy children and involve approximately 70% of children over 14 and 90% of girls over 14. Difficulties have also been reported in Roma/Gypsy children's access to pre-school education. While a certain resistance on the part of Roma/Gypsy families to entrust small children to non-Roma/Gypsy institutions has been reported, uneven territorial distribution of such institutions, disadvantaging eligibility requirements and discrimination are also reported to be important factors in determining the low representation of Roma/Gypsy children in pre-school education.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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