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

First of all, the legal framework for implementation must be analysed. Article 49.b) of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (TREBEP), establishes as a permit for reasons of conciliation of personal, family and working life:

“Permission for adoption, for foster care for adoption, or for foster care, both temporary and permanent: will last for sixteen weeks. Six weeks must be spent full time on a mandatory and uninterrupted basis immediately after the judicial decision establishing the adoption or the administrative decision of custody for adoption or placement.

(…)

The calculation of the time-limit shall be made at the choice of the parent, on the basis of the administrative decision of custody for adoption or placement, or on the basis of the judicial decision establishing the adoption without, under any circumstances, the same minor being entitled to several periods of enjoyment of this permission.

(…)

The cases of adoption, custody for the purpose 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 the temporary placement shall have a duration of not less than one year.”

In this way, the TREBEP recognizes adoptive or welcoming persons with a sixteen-week leave period. It is clear from the provisions of the regulations that this permit has as a causal fact 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, with article 176 indicating 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 minor for more than two years.

In this regard, article 49 (b) of the TREBEP regulates permission for adoption or placement, whether pre-adoption or 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 that situation. However, under no circumstances does the legislation provide as a possible ground for refusal that the adopted minor or minor is not incorporated into the family unit prior to the beginning of the period of leave or that there had been prior coexistence.

Since the regulations do not provide as a reason for refusing the permit that there has been prior coexistence, it is not possible to establish requirements or causes other than those established in the regulation that restrict the enjoyment of the permit.

In addition, given the absence of any specific regulation, and in accordance with both a systematic and a teleological interpretation of the rule, it is difficult to deduce from the literal tenor of the precept the desire to establish as a prerequisite for granting the adoption permit that the adopted minor has not lived with the adoptive parent.

The purpose of the integration of the adopted person into his new family and into his new situation does not arise merely from the fact of coexistence with the adoptive person prior to adoption, but it is from the moment of adoption that the new situation of the adopted person arises, since it is from the judicial decision that the adoption is constituted that the situation of the child of the adoptive person is established, and therefore that he becomes integrated into the new family.

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

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.