A.
Rights to non-interference in private and family life,83 protection of the family,84 and rights of
the child,85 in connection with judicial guarantees86 and judicial protection,87 and in conjunction with
Articles 1.188 and 289 of the American Convention
1. Considerations regarding the rights of the child and international return procedures
86.
In its report on the "The Right of Boys and Girls to a Family," the Inter-American Commission maintained
that "The term corpus juris on minors refers to the set of related basic standards intended to ensure the human
rights of children and adolescents."90 Likewise it has stated that both the Court and the Commission have held
that "the notion of corpus juris of international human rights law comprises a set of international instruments of
varied content and juridical effects (treaties, conventions, resolutions and declarations), as well as the decisions
of international human rights organs. This conception pertaining to international human rights law, and the
interpretation of treaties, is particularly important for the protection and defense of the human rights of children,
which has advanced substantially by the evolutive interpretation of international protection instruments."91 Thus
the IACHR has considered that "for an interpretation of the meaning, content, and scope of children's rights,
particularly in relation to Articles 19 of the American Convention, VII of the American Declaration, and 16 of the
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights "Protocol of San Salvador -which guarantee the right of children to special measures of protection on the
part of their families, society, and the State - it is important to make reference not only to the provisions of said
instruments of the inter-American human rights system but also to other international instruments that contain
more specific regulations on the protection of children."92
87.
In the instant case, the IACHR will analyze the alleged violations of the rights to judicial guarantees,
judicial protection, protection of the family, family life, and the rights of the child in light of the international body
of law (corpus juris) on protection of children. As mentioned earlier (above, par. 51), according to the IACHR93
The pertinent portions of Article 11 of the American Convention provide: 2. No one may be the object of arbitrary or abusive
interference with his private life, his family, or his correspondence, or of unlawful attacks on his honor or reputation.
84 The pertinent portions of Article 17 of the American Convention provide: 1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the state. 4. The States Parties shall take appropriate steps to ensure the equality of
rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In
case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests.
85 The pertinent portions of Article 19 of the American Convention provide: Every minor child has the right to the measures of protection
required by his condition as a minor on the part of his family, society, and the state.
86 The pertinent portions of Article 8 of the American Convention provide: 1. Every person has the right to a hearing, with due guarantees
and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of
any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any
other nature.
87 The pertinent portions of Article 25.1 of the American Convention provide: Everyone has the right to simple and prompt recourse, or
any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by
the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons
acting in the course of their official duties.
88 The pertinent portions of Article 1.1 of the American Convention provide: The States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights
and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social
origin, economic status, birth, or any other social condition.
89 The pertinent portions of Article 2 of the American Convention provide: Where the exercise of any of the rights or freedoms referred to
in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to
those rights or freedoms.
90 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13. October
17, 2013, par. 31.
91 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13. October
17, 2013, par. 32.
92 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13. October
17, 2013, par. 34.
93 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13. October
17, 2013; IACHR, Report No. 25/18, Case 12.428. Admissibility and Merits, Fireworks Factory Workers in Santo Antonio de Jesús and their
families, Brazil, March 2, 2018, par. 108.
83