discriminatory treatment against Ms. Atala (supra para. 146). Accordingly, it will proceed to
analyze whether said treatment, in turn, resulted in discrimination against the girls M., V.,
and R. In this regard, the Court considers that the prohibition of discrimination, in cases
related to minors, must be interpreted in light of Article 2 of the Convention on the Rights of
the Child, which states that:
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child
within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's
or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms
of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the
child's parents, legal guardians, or family members.
151. In this regard, the Court points out that children cannot be discriminated against
based on their own status and this prohibition extends also to the conditions of their parents
or family members, for example in this case the mother’s sexual orientation. The Committee
on the Rights of the Child has pointed out in its General Comment No. 7 that children may
suffer the consequences of discrimination against their parents, for example if they are born
out of wedlock or in other circumstances that deviate from traditional values 171.
152. On the other hand, regarding the relationship between the child’s best interest and
the prohibition of discrimination, the expert Cillero Bruñol stated that:
a decision justified with the child’s best interest, understood as the protection of his rights,
cannot at the same time expect to legitimize a discriminatory decision prima facie, or
in abstract, that affects the child’s right to be taken care of by his mother172.
153.
For his part, the expert Robert Wintemute emphasized that:
“ discrimination based on […] the sexual orientation of the child’s parent is never in the best
interest of the child” 173.
154. By having used the mother’s sexual orientation as grounds for its decision, the
Supreme Court, in turn, discriminated against the three girls, since it took into account
considerations it would not have used if the custody proceedings had been between two
heterosexual parents. In particular, this Court reiterates that the child’s best interest is a
guiding principle in the drafting of provisions and in their application in all aspects of the
child’s life 174.
155. Furthermore, the discriminatory treatment against the mother had repercussions for
the girls, since it was used as grounds to decide that they should not continue to live with
their mother. Thus, the effects of this decision were extended when the girls were separated
from their mother due to her sexual orientation. Therefore, the Court concludes that Article
171
Cf. United Nations, Committee on the Rights of the Child, General Comment No. 7. Implementing Child
Rights in Early Childhood, CRC/C/GC/7, September 30, 2005, para. 12.
172
Written statement rendered by expert Miguel Cillero Bruñol, August 4, 2011 (record of merits, volume II,
page 929).
173
Written statement rendered by expert Robert Wintemute, September 16, 2011 (record of merits, volume
XI, page 5355).
174
Advisory Opinion OC-17/02, supra note 122, para. 137, opinion 2.
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