I.

INTRODUCTION OF THE CASE AND PURPOSE OF THE APPLICATION

4

II.

PROCEEDING BEFORE THE COURT

5

III.

COMPETENCE

8

IV.

EVIDENCE

8

A.

Documentary, Testimonial and Expert Evidence

9

B.

Admission of Documentary Evidence

11

C.

Admission of testimonial and expert evidence

12

V.
RIGHT TO EQUALITY AND NON-DISCRIMINATION, RIGHT TO PRIVATE LIFE,
RIGHT TO FAMILY LIFE, RIGHTS OF THE CHILD, RIGHT TO A FAIR TRIAL AND TO
JUDICIAL PROTECTION IN RELATION TO THE OBLIGATION TO RESPECT AND
GUARANTEE RIGHTS REGARDING THE CUSTODY PROCEEDING
13
A.

Proven facts in relation to the custody proceedings
13
1)
Custody proceedings
14
2)
Provisional custody granted to the father
17
3)
Lower court decision granting custody of the girls to Ms. Atala
18
4)
Appeal to the Court of Appeals of Temuco and injunction granted in
favor of the father
20
5)
Filing of remedy of complaint (recurso de queja) with the Supreme
Court of Justice and granting of second injunction in favor of the father
21
6)
Decision of the Supreme Court of Justice of Chile
21
B.

Prior considerations
1.
Prior consideration on the matter of the case before the InterAmerican Court
2.
Prior consideration on the participation of the girls M., V. and R.

C.

The right to equality and the prohibition of discrimination
1.
Right to equality and non-discrimination
2.
Sexual orientation as a category protected by Article 1(1) of the
American Convention
3.
Difference in treatment based on sexual orientation
4.
The principle of the child’s best interest and assumptions of risk
4.1.
Alleged social discrimination
4.2.
Alleged confusion of sexual roles
4.3.
Alleged privilege of interests
4.4.
Right to a “normal and traditional” family
4.5
Conclusion
5.
Discriminatory treatment against the girls M., V. and R.

23
23
25
26
28
29
35
37
40
42
46
49
50
50

D.

Right to private life and right to family life

52

E.

Judicial guarantees and judicial protection
1.
Judicial guarantees and judicial protection regarding Ms. Atala

58
58

2

Select target paragraph3