If the parents decide not to take their child to school because they believe this will protect their health, it will not be a crime, as long as the decision is made during the time strictly necessary so as not to neglect their education, each case and the specific family situation must be studied.
Firstly, it should be made clear that the simple fear of the coronavirus is not in itself a justified reason for not taking children to school.
In Spain, schooling is compulsory from the year in which the child reaches the age of 6 to 16, and this is because their education and training is considered to be protected in such a way that failure to comply with the duties inherent in parental authority is condemned as a crime of abandonment of the family with a prison sentence of 3 to 6 months or a fine of 6 to 12 months. Además de la posibilidad de imponer la inhabilitación especial para el ejercicio de la patria potestad por un tiempo que oscile entre los 4 a los 10 años.
Notwithstanding the above, for the facts to be considered a crime, they must be serious, obvious and lasting in time. Therefore, if such a decision is taken to protect the health of the child, and for the time strictly necessary, it is not a crime, provided that it is duly justified in view of the specific circumstances.
Thus, it will only be considered a crime if the facts show that the parents have been negligent or unwilling to educate the child, and this is clearly evident in the case of schooling.
The specific circumstances of each case must be analysed in the light of the environment that justifies this decision as posing a serious risk, either to the health of the child himself or to that of the persons living with him.
With all of the above, we advise from this Legal Office that the decision not to take the child to school should be duly communicated and justified to the school, since it is the schools that are responsible for communicating unjustified absences to the social services.
In the event of a disagreement between the parents about whether to take the child to school, the parents may go to court to have the competent judge rule on this discrepancy in the exercise of parental authority.
In conclusion, each case must be analysed individually, taking into account the specific circumstances and the environment of the child in order to guarantee his or her education and training for the benefit and in the interest of the child, since only in justified cases could a decision be taken to suspend the face-to-face teaching activity.