Justice recognizes the right to add paternity leave to maternity leave to a mother without a partner

Justice has recognized the right of single-parent mothers to enjoy paternity leave after having used maternity leave. The Social Court number 16 of Valencia has estimated that the minor cannot see her care time reduced because she has only one parent.

In this way, the mother can enjoy eight weeks of leave to care for her child. The plaintiff's request was to enjoy the 12 weeks allowed by law for those born in 2020. However, four of these weeks must be immediately after childbirth and, therefore, were already consumed within the maternity leave.

This is the first ruling in this line that, although it can be appealed, can advance a precedent for single-parent families. For now, the sentence condemns the National Social Security Institute and the General Security Treasury to "be and go through this declaration" and allow the leave that the mother could not enjoy at the time of it.

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The woman requested, after having enjoyed her maternity leave between October 3, 2020 and January 22, 2021, the additional 12 weeks that would correspond to the father for being a single-parent household. However, the Valencia Provincial Directorate of Social Security denied it, considering that, according to the Workers' Statute, it is "an individual right and, therefore, cannot be transferred to the other parent."

Right to eight of the twelve weeks

However, the judge agrees in part with the woman, since she understands that since the law establishes that four weeks of parental leave must be immediately after childbirth and the remaining eight after, since the mother has enjoyed those four weeks immediately after giving birth "that time cannot be raised as a breach of the principle of equality".

For this reason, she considers that she only has the right to the remaining eight weeks of birth and care permit for the minor, since this is the period that "truly, neither the applicant nor the minor have enjoyed due to the fact that they are a single-parent family, and cannot be This difference is admissible in accordance with international and constitutional regulations". In addition, it indicates that the woman "is not taking over any right, since there is no other parent who has the right to the period of enjoyment requested by her and, therefore, it is not a question of any transfer of her individual right."

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The sentence also underlines that the Convention on the Rights of the Child does not make "any distinction based on the condition of the child, his parents or his legal representatives", and that "all measures must be adopted so that the child is protected against any form of discrimination or punishment due to the condition of their parents" and that the Courts must consider "the best interests of the child paramount".

The Supreme Court deepens in this line, in a ruling of 2016, when it highlights that "the rules of maternity protection must be interpreted in light of the general principle of the best interests of the minor".

The interest of the minor prevails

Likewise, the judge attends to a ruling of the Superior Court of Justice of the Basque Country of 2020, although it is not final, in which she analyzes a similar case and the enjoyment of those eight weeks is recognized because she notes that "if the benefit is denied to the beneficiary in the terms requested, there is a violation of the right to equality enshrined in the Convention on the Rights of the Child".

In addition, she points out that "the affected minor would suffer a clear reduction in terms of attention, care or development that those others framed in a two-parent family model will receive." In addition, she warns that "single-parent households, and indirectly women, are discriminated against."

In this regard, CSIF, which has handled the case, highlights in a statement that it is a "pioneering" sentence that emphasizes "the discrimination" that meant not adding eight weeks of care after birth and that it opens "a way to improve "Care for their children after birth for other workers in single-parent families.

On the other hand, from January 1, 2021, paternity and maternity leaves have been equated to 16 weeks. The first six must be mandatory for both if they request rest as stated in the Workers' Statute, although the mother may advance the request for rest after childbirth if she considers it necessary.