in relation to Article 19 of this instrument, the Court considers it in order, based on the
facts that have been established, to refer only to the family separation of the members of
the Fils-Aimé, Sensión, Gelin and Pérez Charles families.
414. With regard to the obligations relating to the rights of the family, the Court has
underscored that these rights entail not only that the State must order measures of
protection for children and implement them directly, but that it must also encourage as
comprehensively as possible the development and strengthening of the family unit, 459
because the mutual enjoyment of the harmonious relations between parents and children
is a fundamental aspect of family life. 460 Added to this, the Court has indicated that, in
certain circumstances, the separation of children from their family constitutes a violation
of the right in question. 461 This is because “[c]hildren have the right to live with their
family, which is required to meet their material, affective and psychological needs.” 462
415. The provisions of the Convention on the Rights of the Child, which are part of the
corpus juris of childhood rights, reveal the obligation to prevent family separation and
preserve family unity. 463 In addition, the State must not only abstain from interfering
unduly in the private or family relationships of the child, but must also, depending on the
circumstances, take positive measures to ensure the full enjoyment and exercise of the
child’s rights. 464 This requires that the State, given its responsibility for the common good,
safeguard the predominant role of the family in the protection of the child, and provide
assistance to the family by public authorities, by adopting measures that promote family
unity. 465
416. With regard to possible family separation for migratory reasons, the Court recalls
that States have the authority to elaborate and execute their own immigration policies,
459
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 66, and Case of Norín Catrimán et al.
(Leaders, members and activist of the Mapuche Indigenous People) v. Chile, para. 404.
460
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 72, and Rights and Guarantees of
Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 264.
461
Cf. Juridical Status and Human Rights of the Child. OC-17/02, paras. 71 and 72, and Case of the Pacheco
Tineo Family v. Bolivia, para. 226.
462
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 71; Case of Chitay Nech et al. Vs
Guatemala, para. 157, and Rights and Guarantees of Children in the Context of Migration and/or in Need of
International Protection. OC-21/14, para. 158. In this regard, “[t]he European Court has established that the
mutual enjoyment of harmonious relations between parents and children is a fundamental component of family
life and that, even when the parents are separated, harmonious family relations must be ensured. Measures that
impede this enjoyment are an interference with the right protected by Article 8 of the Convention. The Court
itself has pointed out that the essential content of this precept is protection of the individual in the face of
arbitrary action by public authorities. One of the most grave interferences is that which leads to the division of
the family” (cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 72).
463
Convention on the Rights of the Child, Article 9.1: “States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation is necessary for the best
interests of the child. Such determination may be necessary in a particular case such as one involving abuse or
neglect of the child by the parents, or one where the parents are living separately and a decision must be made
as to the child's place of residence.” Cf. Committee on the Rights of the Child, General comment 14 on the right
of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/CG/14,
May 29, 2013, para. 60. Cf. Rights and Guarantees of Children in the Context of Migration and/or in Need of
International Protection. OC-21/14, para. 273.
464
Cf. Case of Contreras et al. v. El Salvador, para. 107, referring to Articles 7, 8, 9, 11, 16, and 18 of the
Convention on the Rights of the Child
465
Cf. Juridical Status and Human Rights of the Child.OC-17/02, para. 88, and Case of Contreras et al. v. El
Salvador, para. 107. See also Articles 9(3) and 9(4) of the Convention on the Rights of the Child.
132
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