Consultation on various issues relating to the regime for the enjoyment of the adoption permit, foster care or foster care.

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, regulates the permission for adoption, for foster care, both temporary and permanent, in the following terms:

“b) Permission for adoption, for guardianship for the purpose of adoption, or for foster care, both temporary and permanent: it will last for sixteen weeks. Six weeks must be enjoyed on a full-time basis on a mandatory and uninterrupted basis immediately after the judicial decision establishing the adoption or the administrative decision of custody for the purposes of adoption or fostering.

In the event that both parents work and after the first six weeks of compulsory rest, the period of enjoyment of this leave may be interrupted and exercised from the end of the compulsory rest following the event until the child reaches the age of twelve months. In the case of interrupted enjoyment, a notice of at least 15 days will be required for each period of enjoyment and will be carried out for full weeks.

This permit will be extended by two more weeks in the case of disability of the adopted or foster child and for each child, starting with the second, in the case of adoption, custody for the purpose of adoption or multiple fostering, one for each of the parents.

The calculation of the time limit shall be counted at the choice of the parent, on the basis of the administrative decision of custody for the purpose of adoption or fostering, or on the basis of the judicial decision by which the adoption is constituted, without in any case the same minor being able to give entitlement to several periods of enjoyment of this permit.

This permit may be enjoyed on a full-time or part-time basis, when the service needs allow it, and in the terms determined by the regulations, in accordance with the rules established in this article.

If it is necessary for the parents to move to the country of origin of the adopted child, in cases of adoption or international foster care, they will also be entitled to a leave of up to two months, receiving during this period only the basic remuneration.

Regardless of the permission of up to two months provided for in the preceding paragraph and for the case contemplated in that paragraph, the permission for adoption, custody for the purpose of adoption or placement, both temporary and permanent, may be initiated up to four weeks before the judicial decision establishing the adoption or the administrative or judicial decision of placement.

(…)

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.”

As for the modality of part-time enjoyment of the permit by adoption, custody or temporary or permanent fostering, as stated in the Agreement of the Higher Personnel Commission, of December 30, 2021, approving the interpretation criteria relating to the application of the permits regulated in article 48.f) and in letters a),b) and c) of article 49 of the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of October 30, for the part-time adoption of the permit by adoption, is the same as the rest of the Law. Notwithstanding the foregoing, the second paragraph of the Agreement states that the six weeks following the event are considered mandatory rest, being unavailable to the person holding the permit, and may not be subject to fractionation, resignation, or part-time enjoyment.

Accordingly, the provisions of Royal Decree 180/2004 are considered to be in force, with the aim of making the enjoyment of the same more flexible and increasing the sharing of family responsibilities between mothers and fathers, improving the care of children by parents, as well as making it possible for civil servants to maintain links with their work, so that motherhood is never an obstacle to their professional career.

Having said that, Article 2.1 of Royal Decree 180/2004 provides that “The part-time enjoyment of the permits referred to in the preceding article shall require prior agreement between the official concerned and the body competent to grant them”. To this end, it is necessary that “The request submitted by the interested party will be accompanied by a report from the person in charge of the unit in which the official was assigned, showing that the needs of the service are duly covered.” In this sense, “The competent body, in the light of the application and the corresponding report, shall issue a decision within three days by which the agreement for the enjoyment of the permit in the part-time mode or, where appropriate, its refusal shall be formalized.”

With regard to the time when the corresponding period of part-time leave may be initiated, reference should be made to the provisions of point 3 of the said precept, according to which: “Agreement may be concluded both at the beginning of the relevant permit and at a later time, and may extend to the entire duration of the permit or part thereof.”taking into account the criterion established by the Higher Personnel Commission for the six weeks immediately following the event giving rise to the offence.

Finally, the aforementioned article concludes by pointing out that, “Where the organization of work so permits, the official shall be granted the part of the working day requested for the enjoyment of the part-time leave that suits his or her personal interests”.

In addition to the principles expressed above, it is appropriate to highlight the different rules that must accommodate the enjoyment of the aforementioned part-time permit provided for in article 3 of the aforementioned Royal Decree, as detailed below:

“a) This right may be exercised by both the mother and the father, and in any of the cases of simultaneous or successive enjoyment of the rest period. In the event of childbirth, the mother will not be able to use this form of leave during the six weeks immediately after childbirth, which will be mandatory rest.

b) The period during which the permit is enjoyed will be extended proportionally depending on the working day that is carried out, without, in any case, exceeding the duration established for the aforementioned permits.

c) The enjoyment of the permit in this modality will be uninterrupted. Once agreed, the agreed regime may only be modified by a new agreement between the competent organ for the granting of permits and the official concerned, on the latter ' s initiative and due to causes related to his or her health or that of the minor.

(d) During the period of part-time leave, the official may not perform extraordinary services outside the working day that he must perform in this mode.”

Therefore, in the light of the query raised and for the purposes of calculating the permit for adoption, it is kept for the purposes of adoption, or reception, both temporary and permanent, if - according to the needs of the service - it is exercised on a part-time basis, the permit must be extended in proportion to the working day performed during it, without, in any case, exceeding the duration established for the permit in question, in accordance with the provisions of article 49 (b) of the TRLEBEP.

On the other hand, the question arises as to the time from which the computation for the enjoyment of the permit may be initiated in the case of adoption abroad, if the date of the judicial or administrative decision of the country recognizing the same occurs before the child is handed over to its adopters.

In this regard, in general, article 49 (b) of the TRLEBEP provides that permission for adoption, for guardianship for the purpose of adoption, or for fostering, whether temporary or permanent, shall be granted for a period of sixteen weeks, six of which shall be enjoyed on a full-time basis on a compulsory and uninterrupted basis immediately after the judicial decision establishing the adoption or the administrative decision on guardianship for the purpose of adoption or fostering.

In accordance with the provisions of our legal system, the recognition of the effects in Spain of the adoption that is constituted abroad is regulated by the second additional Provision of Organic Law 1/1996, of 15 January, on the Legal Protection of Minors, partially amending the Civil Code and the Civil Procedure Law, as it establishes that “for the registration in the Spanish Registry of adoptions constituted abroad, the person in charge of the Registry will appreciate the concurrence of the requirements of article 9.5 of the Civil Code”.

Currently, article 9.5 of the Civil Code, following the reform implemented by Law 54/07, of December 28, on International Adoption, provides for a reference to it in the following terms: "International adoption shall be governed by the rules contained in the International Adoption Act. Likewise, adoptions constituted by foreign authorities shall take effect in Spain in accordance with the provisions of the aforementioned Law on International Adoption."

In this regard, chapter III of the aforementioned Law 54/2007, of December 28, regulates the effects in Spain of the adoption constituted by foreign authorities. In this regard, Article 25 of the Constitution provides that, "Adoption constituted by foreign authorities shall be recognized in Spain in accordance with the provisions of the International Treaties and Conventions and other rules of international origin in force for Spain and, in particular, in accordance with the Hague Convention of 29 May 1993 on the Protection of Children and Cooperation in Respect of Intercountry Adoption. Such rules shall prevail, in any case, over the rules contained in this Law.”

In addition, article 27 of the aforementioned Law 54/2007 provides for the control of the validity of adoption constituted by foreign authority, by providing that:

“The Spanish public authority against which the validity of an adoption constituted by a foreign authority arises and, in particular, the Registrar of Civil Status requesting the registration of an adoption established abroad for recognition in Spain, shall monitor, incidentally, the validity of such adoption in Spain in accordance with the rules contained in the Hague Convention of 29 May 1993 on the Protection of Children and Cooperation in Respect of Intercountry Adoption, through the presentation of the certificate in accordance with the provisions of Article 23 thereof and that the cause of non-recognition provided for in Article 24 of that Convention has not been incurred.”

Under the above regulations, the recognition in Spain of the adoption constituted by foreign authority will require the registration of the birth and adoption of the child in the corresponding Spanish Civil Registry - or of the Spanish Consulate in the country of origin of the child -, so it is considered that it will be decisive for the purpose of fixing the beginning of the calculation of the permit in question, as well as in relation to the relevant documentation that must be taken into consideration by the managing body.

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.