The principle of parental responsibility is transversal in the new Family Code. It is a structuring variable among those that support the progressivism of this law. It is a direct blow to patriarchy and its legal conditions of reproduction. However, this principle has been one of the most contested, while there has been no small misrepresentation, half-understanding, or clear lie, about its contents and scope.
The perspective of parental responsibility advances, dismantles and surpasses guardianship, present as a term in the current Family Code, and as an attitude in certain areas of common sense. Article 86 still protects the right to “adequately and moderately reprimand and correct the children under guardianship.” In everyday life it is possible to hear sentences such as “they are my children and I do with them what I want.”
Originally, guardianship refers to the absolute power of the father of the family with respect to his offspring and his partner, even through the use of violence. Over time, this basic condition has changed, but the term itself is the hindrance of a type of authoritarian, imposing relationship, with affective distance, where possession is assumed rather than a bond based on rights and duties.
To speak of responsibility is to assume care based on conscience, while guardianship is the power exercised over something or someone. Responsibility suggests the expansion, in the case that concerns us, of the sense of being a father, mother or any other bond established with children and adolescents based on their rights.
To look at this matter as accurately as possible, let us give the floor to the new Code, where it establishes that parental responsibility is always exercised in the best interests of children and adolescents, according to their capacity, progressive autonomy, the free development of their personality and their degree of maturity.
The contents of this new figure are specified (article 138), among other points, in the responsibility of legally representing them and managing their assets; to exercise their custody and care, love them and provide them with emotional stability, contribute to the free development of their personality; educate them based on positive parenting; live, whenever possible, with their parents and maintain permanent family communication with grandparents and other relatives or people with whom they have a significant affective bond; guarantee them safe living conditions, take care of their physical and mental health; decide on their usual place of residence and their temporary or permanent transfer.
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Added to the detailed points, to protect them, ensure their good behavior; attend to their comprehensive education and training; instill in them a love of study and ensure attendance at their educational center; promote their family, community and social inclusion in case of being in a situation of disability, as well as their inclusive education; provide them with food; listen to them and allow them to express and defend their criteria, as well as participate in decision-making at home in accordance with their mental and emotional maturity; inculcate in them an attitude of respect towards equality, non-discrimination; provide them with education for responsible sexuality; teach them to share housework and care at home; guarantee them a family environment free of discrimination and violence.
Article 146 emphasizes the prohibition of inappropriate forms of discipline. Children and adolescents have the right to receive guidance and education without, in any way, authorizing the use of corporal punishment in any of its forms, humiliating treatment or the use of any other type of violence or abuse, including abandonment, negligence and neglect, or any fact that injures or impairs them physically, morally or psychically.
Faced with such a controversial issue as the use of digital media and the situation of vulnerability in which children and adolescents are sometimes involved, Article 148 provides for parental responsibility to ensure that the presence of minors in digital environments is appropriate to their capacity and progressive autonomy, as well as ensuring that they make a balanced and responsible use of digital devices to guarantee the adequate development of their personality and preserve their dignity and rights.
As a specific content of parental responsibility, the provisional suspension of the children’s access to their active accounts, or even their cancellation, can be promoted. They must, at the same time, avoid exposing in digital media information concerning the privacy and identity of children and adolescents, taking care that the integrity of their personal data and their right to image are guaranteed.
The law itself also provides for the conditions in which parental responsibility is lost, the situations that cause it and the ways in which it occurs, including its possible recovery.
Article 189 establishes the reasons why parental responsibility is extinguished: the death or judicial declaration of presumption of death of the mother or father, the death of the child; the arrival of the age of majority; or the adoption of the child, except in the cases that it is due to the integration modality.
Article 190 also provides for the deprivation of parental responsibility or suspension of its exercise by a final judgment issued in family proceedings, or when so provided as a sanction in criminal proceedings.
Article 191 specifies that the court, depending on the circumstances of the case, may deprive one or both holders of parental responsibility when: they seriously or repeatedly fail to comply with the duties set forth in Article 138, referred to above; exercise ill-treatment, corporal punishment or any other manifestation of violence, or any act that in the family environment physically or psychically injures or undermines, directly or indirectly, children or adolescents; induce the children to carry out a criminal act; abandon the children, even if they are under the custody and care of another person or persons; observe a vicious, corrupting or criminal conduct that is incompatible with the due exercise of parental responsibility; commit a crime against the person of the children; and risk their life or mental and physical integrity.
The law includes, in its Article 197, the conditions for the recovery of parental responsibility. The court, in appropriate cases and exceptionally, once it has been verified that the cause that gave rise to the deprivation of parental responsibility has been overcome or ceased, may order its recovery if this is in the best interest of the minors, and provided that the child or adolescent has not been adopted or is in the process of being adopted. Likewise, whoever has been suspended from the exercise of parental responsibility, or the prosecution, as the case may be, can request the cessation of the measure when the cause that motivated it has ceased (Article 198).
The body of the law is much more explicit in the contents of parental responsibility and the terms in which it is carried out. However, the previous annotations show the authority that mothers and fathers maintain over their children, and that this regulation, far from being to the detriment of that function, specifies it extensively, with the particularity that it assumes in it the rights of the minors.
Responsible authority, without authoritarianism or violence, relationship based on rights. This is perhaps the formula that sums up the cultural change that the transition from guardianship to parental responsibility means. Change that, due to the sense of dignity, development and well-being that it promulgates for mothers, fathers and children, deserves a Yes vote on this September 25.
Author
Ariel Dacal Díaz
