Leave of absence for the care of children older than three years.

The question raised is about the possibility of enjoying a leave of absence for the care of children over three years of age.

Article 89.4 of the consolidated text of the Law on the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of October 30 (TREBEP), regulates two surpluses for the care of relatives, by providing:

‘4. A career official shall be entitled to a period of leave of absence not exceeding three years in order to care for each child, whether by nature or by adoption, or for each minor subject to guardianship for purposes of adoption or permanent fostering, commencing from the date of birth or, where appropriate, from the judicial or administrative decision.

They will also be entitled to a period of leave of no more than three years, to take care of a relative who is in their care, up to the second degree inclusive of consanguinity or affinity that for reasons of age, accident, illness or disability cannot stand on its own and does not perform paid activity.

The period of leave will be unique for each causative subject. When a new causative subject gives rise to a new leave, the beginning of the period of leave will put an end to the one that has been enjoyed.

In the event that two officials generate the right to enjoy it by the same subject causing it, the Administration may limit its simultaneous exercise for justified reasons related to the operation of the services.

The time spent in this situation will be computable for the purposes of trienniums, careers and rights in the Social Security system that is applicable. The job performed shall be reserved for at least two years.

After this period, this reservation will be made to a position in the same locality and with equal pay.

Officials in this situation may take part in training courses convened by the Administration.’

In the light of the above precept, it is noted that the Act provides in article 89, paragraph 4, for two forms of leave dedicated to making it possible to reconcile family and working life, with the same effects if they are granted, but with different requirements for their granting: (i) child care leave, and; (ii) family care leave.

With regard to the first, child care leave, the Act seeks to ensure that the civil servant can obtain a leave of absence for the care of the child in his or her first years of life, from zero to three years, a period that also coincides with the fact that, although the child may be enrolled in school, the current legal regime still does not guarantee free schooling in all cases. For the granting of this leave, the only requirement that must be met, in addition to confirming the parent-child relationship, is that the child has not exceeded three years of life.

The second, on the other hand, is a leave of absence intended for the care of family members, that is, what the Law seeks in this case is to allow the official to attend to the needs that may arise due to some kind of helplessness.

In this case, the employee ' s children are over three years of age, so there would be no request for child care leave. The question then arises as to whether it is possible to grant a leave of absence for the care of family members on the basis of a dependent child over three years of age, but who, because of his age, cannot stand on his own feet.

The answer must be negative. It is true that Article 89.4 of the TREBEP provides for the possibility that family care leave may be granted in relation to consanguineous descendants up to the second degree, among which minor children must be included regardless of age.

However, the precepts must be interpreted within the framework of article 3 of the Civil Code, taking into account the proper meaning of its words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose of those.

Thus, it cannot be ignored that the legislator has broken the leave to care for relatives in two different cases, the first relating to leave to care for children and the second relating to care for relatives.

Thus, to maintain that minor children, regardless of their age, are eligible for family care leave, would mean that child care leave was meaningless, since there would be no age limitation to qualify for family care leave.

In this regard, the TSJ Andalucía (Granada) (Contencioso), sec. 3rd, S 17-02-2014, No 511/2014, rec. 1365/2008 in the following terms:

“Therefore, a systematic interpretation of the precept that refers leave to care for children exclusively to the first paragraph of Article 89.4 is required, excluding children from the second paragraph (leave to care for relatives).”

Therefore, the reference to age as a circumstance causing the needs of care, must be understood as referring, in principle, to the elderly, without prejudice to the assessment for the case of minors of the other conditions of accident, disease or disability that concur in the specific case.

However, this should not be understood in absolute terms. It is possible for a minor child to leave for family care, but the age is not in itself sufficient, but it should be accompanied by a qualifying element that records the aforementioned helplessness.

Therefore, in order that the age of a minor over three years may give rise to the granting of the leave of absence of 89.4, and given that this is an administrative privilege since there are other surpluses that will have to be granted in the first instance because it does not represent a privilege, it will be essential that it be linked to ostensible elements of disability and helplessness.

In conclusion, given that these are different types of leave, it would not be possible in general to extend the use of leave for family care to cases in which a child over three years of age is to be cared for, unless, as he has repeatedly pointed out, it is proven that the child over three years of age suffers some form of illness or disability from an entity that justifies the granting of such leave.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.