Decade after losing her children, dead mother wins EUR 1.7m payout

8 February 2008

SEVILLE – Carmen Fernández died in December, not knowing that she would win the final legal battle against the regional government of Andalusia, which took her two children away from her in 1996. The Constitutional Court has just ruled that the regional government will have to pay EUR 1.7 million in compensation, it being impossible to return her children to her despite this being her right, as the High Court in Seville already ruled in 2006.

The court issued this ruling on 21 January, six weeks after the death of Carmen Fernández. The dead woman’s lawyer, Gabriel Velamazán, called it "a bouquet of flowers on her coffin." Velamazán pointed out that in the 12 years the litigation had lasted, the woman had accumulated 11 rulings in her favour. "Now I feel a strange mixture of feelings: satisfaction, sadness and disgust," he said, sitting beside an empty chair symbolising his absent client.

This is the second time that the Constitutional Court has considered this case, which gives an idea of the last 12 years of confrontations between judges, parents, foster parents and child-protection workers. The case began in 1996, when Carmen Fernández had a serious problem with alcoholism. The prosecutor’s office demanded that her two small children be withdrawn from her custody. A month later, the social affairs department of the regional government of Andalusia declared that the two children, aged four and five, had been abandoned. And in June 1997, it handed them over to a family.

By that time, their mother had already begun a process of rehabilitation, and had filed a complaint in court against the withdrawal – but it was in vain. The Seville court endorsed the adoption, and from then on there were rulings, appeals, annulments and more rulings, prolonging the litigation for 12 years, until it came back again to the Constitutional Court.

In 2002 Carmen won a major victory when the High Court in Seville declared that the children had not been "abandoned," and ruled that they should be returned to their mother. But paradoxically, it admitted the "impossibility" of this happening, as six years had gone by since the separation. By then, the children had already spent more time with their foster parents than with their mother.

After this admission that there could be no justice for Carmen Fernández, the judges suggested she be paid compensation. But the amount to be paid became the subject of further wrangling. The Family Court judge proposed EUR 72,670, which was unsatisfactory to both sides – including the regional government, which considered it "excessive."

Finally, upon appeal by both parties, in 2006 the High Court of Seville set the compensation at EUR 1.7 million. The regional government, which at first said it would not appeal the ruling, eventually appealed to the Constitutional Court, alleging that the size of the indemnity was unreasonable, and that the court had not been impartial.

Subject: Spanish news