took into consideration a series of psychological reports which it ordered to determine the
girls’ psychological and emotional status235.
203. In this regard, the Court finds that the first instance court in the custody proceeding
complied with the obligations arising from the child’s right to be heard in a judicial
proceeding that affects them, since it is clearly stated that the views of the three girls were
taken into account, bearing in mind their maturity and capacity at that time.
204. On the other hand, the Court notes that there is no evidence in the custody case file
stating that the girls were heard again by the Supreme Court of Justice of Chile in the
context of the decision on the remedy of complaint, nor is there any mention in the ruling
issued by the Supreme Court regarding the decision to set aside the wishes expressed by
the girls during the proceedings.
205. In the present case, the Court takes note of the unique nature of the remedy of
complaint, which is mainly a disciplinary recourse against lower court judges and in which
no evidence other than at already presented during the entire custody hearing is gathered
(supra para. 185). Likewise, this Court cautions that a child must not be interviewed more
often than necessary, particularly when disturbing events are investigated, since the
process of “hearing” a child may be difficult and may cause traumatic effects in the child236.
Therefore, the Court does not consider that the Supreme Court needed to hold a new
hearing in the context of the decision on the remedy of complaint to hear the girls express
their preferences regarding which parent they would rather live with, if there were already
several pieces of evidence in the custody case file that confirmed their wishes.
206. However, the fact that a judicial authority is not required to gather the testimony of
a child once again in the context of a judicial proceeding, does not release it from the
obligation to duly consider and assess, in one way or another, the views expressed by the
child in the lower courts, according to the child’s age and maturity. If appropriate, the
respective judicial authority must argue specifically why it will not take into account the
child’s views. In this regard, the expert García Méndez stated that:
In any type of conflict between children’s views and those of the parental authority or institutional
authorities, […] the child’s opinion cannot be thrown out discretionally. In other words, this means that
[…] very sophisticated arguments must be developed to eventually oppose the children’s views. [T]he
child’s opinion does not automatically create case law […]. But similarly, the child’s views cannot be
automatically disregarded without offering weighty and profound arguments 237.
207.
Likewise, the expert Cillero Bruñol stated that:
[There is] an obligation [on the part of the state authorities] to consider their opinion in deliberations that
lead to a decision that affects children. […] [T]he adults responsible for the decision must not decide
arbitrarily when the child says something relevant to the decision […]. […] If the children are sufficiently
developed in their opinions and points of view, these must prevail in matters affecting them, unless there
are very serious reasons against them. This means that if the children’s opinions are well-based, precise,
with sufficient knowledge of the facts and the consequences they imply, they must prima facie prevail
over other arguments to determine the decision that will affect the child in what refers to the facts and
states that involve him. This priority is demanded by the principle of the best interest of the child of Article
3 of the [Convention on the Rights of the Child]. The foregoing does not mean that the determination of
the child’s best interest is always going to coincide in the specific case with the child’s opinions, even when
235
Cf. Judgment of the Juvenile Court of Villarrica of October 29, 2003, considering clause No. 36 (record of
appendices to the petition, volume V, page 2589).
236
Cf. Committee on the Rights of the Child, General Comment No. 12, supra note 218, para. 24.
237
Statement by expert García Méndez at the hearing in the present case held on August 23, 2011.
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