The Supreme Court has issued a ruling that opens the door to civil servants who form single-parent families to extend their paternity or maternity leave from 16 to 26 weeks. The litigation judges have resolved the case of a teacher from Valladolid and understand that the Public Personnel Statute must be interpreted in this way in order not to discriminate against children born into single-parent families. For months, another chamber of the Supreme Court, the Social Chamber, has rejected dozens of requests from single-parent families who are not civil servants and the Constitutional Court has several appeals pending on this subject.
In Spain, according to the latest available data, there are around two million single-parent families, the vast majority of which are women. The case that reached the third chamber of the Supreme Court is that of a teacher from Valladolid who received a negative response from the Superior Court of Castilla y León when she requested to benefit from her 16 weeks but also from the part of the leave which would have corresponded to the other parent: “The simple addition of the periods of the two parents is not admissible; one corresponds to the mother and responds to a reason for being and another to the other parent and responds to a different reason,” declared the judges of the Valladolid court.
The Supreme Court accepted the woman’s appeal, finding that this could be used to determine whether it was viable to combine the authorizations of both parents into one in cases of single-parent families. Something handled by the third court because it was a conflict between a civil servant and the administration, in this case the Ministry of Education of Castilla y León, based on the regulation of civil servants. Other files outside the public administration were handled by the Social Chamber, which analyzes everything relating to public services, and received a negative response.
In the case of this teacher, the judges apply the Organic Statute of the civil service and its article 49, which regulates authorizations for the birth of a child. An article, recognizes the Supreme Court, which “does not expressly consider” this duplication of permits in cases of single-parent families, for lack of “specific legal provision” because in the event of the death of one of the two parents, for example, it extends these permissions.
This leads them to apply the test of protecting the best interests of the child and conclude that a single-parent family has the right to extend their leave due to the birth of a child. “What is at stake is equality between minor newborns, avoiding the appearance of any form of discrimination depending on whether they are born into one type of family or another,” affirms the Court supreme. “The type of family cannot determine the difference in treatment, so a person born into a single-parent family will benefit from the care, attention and protection of the family for a much shorter period than if they were born in a two-parent family, 26 weeks.
The Supreme Court is particularly firm in affirming that there is “discrimination between minors which is qualified by the incontestable harm suffered by those who are deprived early of the care that one of their parents provides them with their constant presence”. A “particularly heartbreaking” situation due to the lack of justification for this differentiation.
Conflicting decisions from different chambers
This decision of the Litigation Chamber, which analyzes the conflict between a civil servant and the administration for which he works, clashes head-on with what has been affirmed in dozens of orders and judgments of another Chamber of the Supreme Court, the Social Chamber, on the same case, but in cases between mothers and fathers against social security. Sentences which denied this extension of leave for the birth of a child now recognized for public officials.
The first of these decisions by the social court came in March 2023. The judges explained that, in any case, it would have to be the legislator who changes the rules for this right to be recognized, but that it should not be whatever something that establishes the Supreme in a sentence. For the social judges, contrary to what the litigation judges interpret, this extension of the permit “is not a requirement derived neither from the Constitution nor from any regulation of the European Union”.
Introducing this change, according to what the Social Chamber said more than a year ago, would be “an intervention of such magnitude” that “it is far from what the constitutional organization of the State entrusts to judges and to the courts. Its function is the application and interpretation of the norm, but not the creation of the law. » This decision was not peaceful: two of the eight magistrates of the fourth chamber voted against and the president had to be changed.
This is a question that is already in the hands of the Constitutional Court. As elDiario.es has been able to verify, the Guarantee Court has received dozens of appeals in recent months from women whose appeals to obtain double maternity leave failed before the Social Chamber of the Supreme Court.
