Adoption permit for a civil servant who adopts the son of his wife with whom he married two years earlier.

The question raised concerns the possibility of granting permission for adoption to an official who has adopted his wife ' s child after having lived with the child for more than two years.

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 (TREBEP), establishes as a permit for reasons of reconciliation of personal, family and working life:

“Permission for adoption, for guardianship for the purpose of adoption, or for foster care, both temporary and permanent: 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.

(…)

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.

(…)

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 way, the TREBEP recognizes adoptive or welcoming people with a sixteen-week permit. It follows from the provisions of the regulations that this permit has as a causative act the adoption or placement of the minor, in the terms established in the Civil Code.

In this regard, article 175 establishes the requirements for the valid constitution of the adoption, noting article 176 that “adoption shall be constituted by judicial decision, which shall always take into account the interest of the adopter and the suitability of the adopter or adopters for the exercise of parental authority”.

In view of the above, the question raised focuses on the possibility of enjoying the adoption permit when the child of his wife has been adopted after having lived with the child for more than two years.

In this regard, article 49.b) of the TREBEP regulates permission for adoption or foster care, whether pre-adoptive, permanent or simple. The granting of this permit requires, on the one hand, the concurrence of the protected situation, which is the adoption, and on the other, the accreditation of said situation. However, under no circumstances does the legislation provide as a possible ground for refusal that the minor or adopted minor is not incorporated and integrated into the family unit prior to the start of the leave period or that prior coexistence existed.

Since the law does not provide for prior coexistence as a reason for refusing the permit, it is not possible to establish requirements or causes other than those established in the law that restrict the enjoyment of the permit.

In addition, given the absence of concretion in the regulation, and in accordance with a systematic and teleological interpretative exercise of the rule, it is difficult to deduce from the literal tenor of the precept the will to establish as a requirement to grant the adoption permit that the adopted child has not lived with the adoptive parent.

The purpose of the integration of the adoptee into his new family and his new situation is not merely the coexistence with the adopter prior to adoption, but it is from the moment of adoption that the new situation of the adoptee arises, since it is from the judicial decision constituting the adoption that the situation of the child of the adopter is established, and therefore, when he becomes integrated into the new family.

Therefore, it is reported that, in conclusion, it will be possible to grant the permit for adoption regulated in article 49.b) of the TREBEP, provided that the factual assumption is given, that is, the adoption and the required requirements are justified, regardless of whether there has been prior coexistence.

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.