Foreign couple convicted of leaving baby alone in Malaga hotel room while they went to dinner acquitted

Juan Cano

Malaga

Wednesday, 17 April 2024, 14:27

They had come to spend a few days' holiday in Malaga city. The couple, who travelled from Holland, left their six-month-old baby in their hotel room and went to a nearby restaurant for dinner, using a mobile phone app to alert them if he was crying. The police, who were tipped off by another guest, then arrested both, with a judge convicting them. However, Malaga's provincial court has acquitted the couple, ruling their conduct did not match up to a crime of temporary child abandonment.

The incident happened on 28 October 2022 when the couple were staying with their baby in room 219 of the city's H10 hotel. They were travelling with the baby's grandparents, who were in room 216. That afternoon, in the cafeteria, a hotel guest saw the couple playing with the child on a rug. The guest then observed they went up to the room with the child, but after a while, came down alone, with a mobile phone in the mother's hand on which, according to the witness, a baby could be heard crying.

The hotel guest saw the parents leave the hotel accompanied by another older couple, so he understood the child had been left alone in the room. His first reaction was to tell the receptionists, who, according to the judgement, did not attend to him.

The man then phoned police warning them the child might be in danger. National Police sent four officers to the scene who observed a 'do not disturb' sign had been hung on the door of room 219. At first they heard nothing, but when they knocked on the door, they clearly heard a baby crying on the other side of the door. The policemen asked the receptionist to open the door and when they entered, found the baby standing in the cot. Next to him, on a table, there was a mobile phone turned on and pointed towards the ceiling of the room.

Police asked hotel staff to look up the parents' phone number and to call them to find out where they were. The couple answered instantly and told them they were having dinner at the Los Mellizos restaurant in Soho. The receptionist informed them that the police were tat the hotel and their presence was requested immediately.

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The couple arrived within minutes. Almost at the same time, the baby's maternal grandparents also showed up, who told the officers they could take care of the child, as the parents were going to be arrested for a possible offence of child abandonment.

The couple, who had no criminal record, were taken to the police's provincial station, where they exercised their right not to testify. Both were provisionally released and a case was opened against them which led them to the dock in Malaga criminal court. The public prosecutor's office asked for a sentence of 12 months in prison.

At the trial, the parents claimed they had left the baby asleep in the room when they left for dinner and said the child did not crawl, so they saw no possibility of him getting out of the cot. They told the court they used a phone app to listen to him, that they did not hear him cry and they did not see any danger as in the Netherlands this form of remote monitoring of babies is "very normal".

The couple was initially sentenced to six months in prison. The first sentence, handed down in December 2023, considered they had left the baby without anyone responsible to supervise it "for at least two hours" and left the hotel to go out for dinner in the company of the maternal grandparents, "in breach of the most elementary duties of care and assistance inherent to parental authority".

The couple lodged an appeal signed by lawyers Luis Entreambasaguas and Sabina Pozuelo Torralbo in which they alleged an error in the assessment of the evidence, breach of the right of defence and lack of malice. The case was heard by Malaga's provincial court, with the judge issuing a new judgement upholding their claim and overturning the conviction.

Although the court understands their actions cannot be described as "diligent", as a baby "must receive the utmost attention at all times", it does not consider it to be a crime. The judge said it is "a case of lack of care for a minor of a young age".

The acquittal therefore upholds one of the main arguments of the defence, which included in its appeal a map of the area and indicated that, according to the Google Maps application, the distance between the H10 hotel in Malaga and the Los Mellizos del Soho restaurant is a six-minute walk. For the court, the offence of abandonment requires active or omissive conduct, causing a situation of neglect for the minor, "with the child being deprived of the necessary moral and material assistance that has an impact on his survival, his emotional, social and cognitive development".

The court ruled that given the baby's young age, he was not yet walking or crawling and could not get out of the cot by himself, "which minimises the risks and dangers, although it does not eliminate them". Even though remote supervision is normal in other countries such as the Netherlands, "in our country [Spain] it is not, and clearly reveals a temporary neglect of a baby, but it does not reach such intensity as to make it worthy of a crime", the court ruled.