One of the most important sources of information on child abuse are the files held by the Child Protection Services. Most of the children were affected by neglect, emotional abuse and physical abuse in order of priority.

Child maltreatment is a highly complex and heterogeneous problem. There are many different types of child maltreatment (physical abuse, neglect, sexual abuse, emotional abuse, begging, corruption, labour exploitation, prenatal abuse, Münchhausen syndrome by proxy, institutional abuse, etc.), each of which has its own definition, its own aetiology and its own consequences.

Situations of child maltreatment reveal a very serious dysfunction in the relational matrix of the family in which the normal development of the child’s developmental tasks takes place.

Consequently, child maltreatment threatens and affects the development of the child’s competence (socio-cognitive, emotional, behavioural). Separation or divorce can be one of the most traumatic events in people’s lives. Without going into what other situations may seem worse to us, which we can all think of, it is true that a separation, a divorce or the decision-making in parental measures is something that can turn the lives of those who suffer from it into a real “hell”.

I think it is worthwhile to expand on the issue of the conflict generated by this type of family events and to draw the attention of families to it.

Without going that far, who doesn’t know of ex-couples who go at each other’s throats for years, who stay in the family conflict, who speak ill of their exes in front of their children, or who disqualify them and don’t validate them as parents?

“The couple is over. The family structure does not”.

Thus, in our jurisprudence, we find many cases in which there is talk of judicialisation of the conflict, and the need for external help to improve relations and communication, or much worse, in the sentences, in which the psychologist states that the minor presents severe emotional alterations, with the presence of possible psychological sequelae derived from his instrumentalisation in the conflict, with a situation of serious risk for him, as he is forced to take sides with one of the parents.

Therefore, in many judgments, parents are recommended to go to therapy or family mediation.
One of the most relevant rulings, Sentence of the AP Barcelona, Sec. 12.ª, of 22 April 2016, recommends mediation between the parents in order to decide on the custody that best preserves the interests of the minor, trying to avoid chronification of the opposing positions of the parents.

On many occasions, the judicialisation of the conflict, and the intense complaints between both parents, means that the conduct of both parents is not adequate for the creation of a climate of calm that can provide an adequate development of their children’s education.

The continuous ups and downs and judicial proceedings do not favour the change of concurrent circumstances, with the aim of facilitating parental-child communication, unlike a good mediation process carried out by a specialised professional.

In my experience, all this also increases the emotional mistreatment of children, not only because of the legal battle in which their parents are involved, but also because the continuous judicialisation of conflicts also entails different examinations of the children to see their psychological state, to make decisions for the children themselves, to be heard in interminable processes.

Are these actions necessary? Up to what limit? On multiple occasions should they be considered counterproductive and inappropriate? The minor evaluations that prolong the duration of the conflict and lead to excessive interventionism by professionals?

Children are in a phase of physical and emotional development and their best interests must be given the utmost protection, as stated in General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24).

Minors deserve the protection provided for in art. 39.3 of the Spanish Constitution, and crimes against moral integrity, as it is an attack on the psychological integrity of the minors involved in the conflict.

Parents, immersed in their own conflict, do not pay attention to this and even instrumentalise them, making them a bargaining chip on too many occasions, and this is abuse that is not included in the Penal Code and, in my opinion, it should be, precisely because there is damage and there are several legal assets to protect.

However, it is not the separation itself that has a negative effect, but the parental conflict and lack of positive family support, both before and after the divorce.

Litigation procedures are inadequate to deal with these disputes. Conflict resolution and the pacification of family life are highlighted by the role of mediation in our society.

This approach focuses on ensuring the emotional and psychological well-being of the people involved in mediation processes. Nowadays, mediation tries as far as possible to humanise the law. Mediation aims to improve the well-being of people involved in court proceedings by avoiding court proceedings and thus facilitating access to appropriate treatment and services.

In family law, the application of the Mediation paradigm is essential to facilitate beneficial outcomes for people in conflict and to improve the health and well-being of families and societies. From this approach, it is assumed that those involved in separation or divorce proceedings should consider not only the best interests of the child, but also those of the other family members in order to facilitate more positive family relationships and appropriate family dynamics.

Mediation is a specialised intervention within the framework of more restorative justice. In fact, these services are offered in the courts of many Autonomous Communities and are already well developed, to deal with cases of conflict in separated couples with children and in which there is an unjustified rejection of one of the parents by the children.

Mediation is thus presented as a complementary and/or alternative to other measures in the judicialisation of the conflict, and can be especially effective in cases of inter-parental conflict on many occasions.

Mercè Pomar
Mediator – Lawyer
Systemic therapy.