severely and irreversibly undermined.263 As a result of this, the nature and intensity of these impacts on the
rights of the child require public authorities to discharge especially forcefully the duty of due diligence with
respect to decisions involving the removal of a child from his/her parents or family of origin.264
152.
As for the Commission, it has underscored that this exceptionally strengthened duty to show
due diligence refers to all aspects related to decisions made by public authorities involving the removal of the
child from his/her family and his/her insertion in an alternative residential care system: ranging from due
diligence in reviewing the circumstances that surround and affect the child, the objective appraisal of the
impacts that they exert upon his/her rights, the justification for the decisions, the speed in the decision
making, and their timely review.265
153.
The Commission has also understood that fulfillment of the duty of due diligence must be
monitored by means of timely control mechanisms to do so, which must be provided for in the regulatory
framework, with a determination of the consequent responsibilities and sanctions in case of failure to fulfill
this duty.266 The Commission added that, in procedures relative to adoptions, the child's right to be heard by
those in charge of taking the decisions must be safeguarded, whose opinion must be taken into account
according to their maturity.267 Furthermore, the Commission stated the following:
The Commission emphasizes the need for the law to clearly define and regulate the various
legal figures, the rights they protect, their objectives, and the principles that must regulate
their implementation. (…) The Commission underscores that the law must establish due
guarantees that the rights of the biological parents and the child will not be violated in the
event that the law, as an exception, allows for that possibility.268
1.4.
Intercountry adoption of children
154.
Regarding the intercountry adoption of children, the Convention on the Rights of the
Children has the following provisions:
Article 21. States Parties that recognize and/or permit the system of adoption shall ensure
that the best interests of the child shall be the paramount consideration and they shall:
(…)
b) Recognize that inter-country adoption may be considered as an alternative means of
child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any
suitable manner be cared for in the child's country of origin Recognize that inter-country
adoption may be considered as an alternative means of child's care, if the child cannot be
placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the
child's country of origin;
263 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 199. See also: I/A Court H.R. Matter of L.M., Provisional Measures regarding Paraguay. Order of July 1, 2011, considering
clause 16; and Case of Fornerón and Daughter v. Argentina. Merits, Reparations and Costs. Judgment of April 27, 2012, Series C No. 242,
para. 51.
264 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 199.
265 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 200.
266 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 200.
267 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 200.
268 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 289.
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