THE ABANDONED MINOR IN THE SPANISH AND FRENCH LAW (REFERENCE TO THE FRENCH MODEL AFTER THE REFORM BY ACT OF 5 MARCH 2007, PORTANT RÉFORME DE PROTECTION DE L'ENFANCE. PROPOSALS FOR CHANGE).

Abstract

The object of this work is the study and critique of the juridical regime of the «Automatic guardianship or ex lege of the Administration» as juridical institution of protection of the minor abandoned in the Spanish Law; and its comparison with the French model of protection, especially as a result of the enactment of the Law of 5 March 2007, portant réforme de protection de l'enfance. According to the above analysis, I conclude with some proposals for change (in order to respect the balance between two principles, of international and constitutional protection: that the family is the main responsible for the custody of the child, and complementing this that, the best interests of the child requires, at times, the separation from his family, and its special protection by the State): On one hand that, because of the lack, still, of desirable normative standards of delimitation of the suppositions of risk and those of abandonment, some instruments of scales to discriminate both situations should be developed, due to the serious consequences resulting from its erroneous assessment (for instance, the problematic of the judicial declaration of nullity of an administrative declaration of abandonment due to arbitrariness, in causal relationship, in some occasions, to the irreparable damage to parents). And likewise, I propose that the Spanish legislator should bear in mind the guilty reasons or not of the breach of the paternal duties in order to adopt the automatic or ex lege guardianship of the Administration, or only the custody of the child, as the Italian Law and catalan legislation regulate; as well as some alternative proposal inspired by French law.