Origin of a permit for the temporary placement of a Saharawi minor.

The question raised is about permission for foster care. Specifically, if the fostering of a Saharawi minor within the “Vacation in Peace” program, it is considered temporary fostering for the purposes of Articles 49.b) TREBEP.

In the first place, the legal framework for implementation must be analysed. Article 49.b) of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP), recognizes the right to the enjoyment of a sixteen-week permit, by adoption, by foster care for the purpose of adoption, or fostering, both temporary and permanent.

Taking into account the provisions of these precepts, it is considered whether the temporary reception of a Saharawi minor within the program “Vacations in peace”, has the consideration of temporary reception for the purposes of articles 49.b) TREBEP.

On the basis of the above regulations, it can be concluded that the placement of a Saharawi child in summer does not give rise to the placement permit, as deduced from the very article 49.b) of the TREBEP, in its last paragraph, which excludes this possibility, by stating:

“The cases of adoption, custody for the purposes of adoption or placement, both temporary and permanent, provided for in this article shall be those established in the Civil Code or in the civil laws of the autonomous communities that regulate them, and temporary placement shall have a duration of not less than one year.”

In this regard, it follows from the wording of Article 49.b) of the TREBEP that for the recognition of the permit, the fostering must have a minimum duration of one year. In the case of the “Holidays in Peace” program, this consists of the reception of Saharawi boys and girls between 10 and 12 years old by families residing in Spain, during the summer months. Therefore, the temporary requirement of Article 49.b) of the TREBEP is not met.

In addition, with regard to the provisions of the Civil Code, the concept of the placement of minors is regulated in the first section of Chapter V of Title VII of the Civil Code (articles 172 to 174).

Article 173 of the Civil Code states that “foster care produces the full participation of the child in family life and imposes on those who receive it the obligations to look after him, have him in his company, feed him, educate him and provide him with a comprehensive education”. It is, in short, an instrument of legal protection created in the interest of minors deprived, temporarily or definitively, of a suitable family environment, which translates into their full insertion into the welcoming family, ensuring their protection and care.

Article 173 bis of the Civil Code provides for the three modalities that foster care may adopt, taking into account its purpose: simple, permanent or pre-adoptive foster care.

In any event, the temporary holiday accommodation proposed could fall into the category of simple accommodation, since it is temporary in nature, since the child ' s situation provides for the child ' s reintegration into his or her country and family.

However, Article 172.2 of the Civil Code requires compliance with a series of requirements that, in principle, do not fall within the stated case:

It imposes its formalization in writing, with the consent of the public entity, whether or not it has the guardianship or custody, of the persons who receive the minor and of the minor if he/she is twelve years of age and of the parents who are not deprived of parental authority, or the guardian, except in the case of a temporary foster care referred to in paragraph 3 of this article.

- This document on the formalization of foster care must include, among other things: the necessary consents; the type and duration of foster care; the rights and duties of each of the parties, and in particular; the periodicity of visits by the foster child ' s family; the report of the child care services, etc. This document will also be sent to the Public Prosecutor’s Office.

Thus, when foster care in the summer months lasts less than one year and is not one of the forms of foster care provided for in the Civil Code, it will not give rise to the permit provided for in article 49.b) of the TREBEP.

The same conclusion must be reached in relation to Article 49(c) of the TREBEP. It follows from the wording of the precept that the granting of the said permit is subject to the administrative or judicial decision of placement, so that, from the literality itself, it follows that it refers to some of the modalities of placement provided for in the Civil Code.

As we have pointed out, the case raised does not seem to fit into the modalities of simple, permanent or pre-adoptive foster care, which includes article 173 bis of the Civil Code, which includes in its de facto budget article 49 (c) of the TREBEP.

In addition, in order for the placement of a minor to qualify for the leave provided for in Article 49(c) of the TREBEP, the same conditions must be met as provided for in Article 49(b) of the TREBEP for the granting of a sixteen-week placement permit, among which it is emphasized that simple placement must last no less than one year.

For all these reasons, in the opinion of this Centre, the placement of a Sahrawi minor during the summer months does not result in the granting of the sixteen-week placement permit under article 49 (b) of the TREBEP nor, consequently, in the sixteen-week placement permit under article 49 (c) of the TREBEP.

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.