Court has stated on other occasions, this corpus juris should define the content and the
scope of the obligations that the State has assumed when the rights of children are
analyzed.49
45.
Children are holders of the rights established in the American Convention, in addition
to having the special measures of protection established in Article 19 of the Convention,
which must be interpreted in keeping with the particular circumstances of each specific
case.50 The adoption of special measures for the protection of the child corresponds to the
State, and also to the family, the community and the society to which the child belongs.51
46.
This Court has already referred extensively to the rights of the child and the
protection of the family in its Advisory Opinion No. 17, and has established that children
have the right to live with their family, which is called on to satisfy their material, affective
and psychological needs.52
47.
In addition, this Court has indicated that the mutual enjoyment of coexistence
between parents and children is a fundamental element of family life. In this regard, the
child should remain within its family unit, unless there are specific reasons, based on the
child’s best interests, to choose to separate the child from his or her family. In any case, the
separation should be exceptional and, preferably, temporary.53
48.
Any State, social or family decision that involves a restriction of the exercise of any
right of the child must take into account the best interests of the child, and be strictly
adapted to the provisions that regulate this matter.54
49.
Regarding the best interests of the child, the Court reiterates that this regulating
principle of the law on the rights of the child is based on the dignity of the human being, on
the inherent characteristics of children, and on the need to promote their development so
that they can realize their full potential. In this regard, it should be noted that, in order to
ensure the prevalence of the best interests of the child to the fullest possible extent, the
preamble to the Convention on the Rights of the Child stipulates that childhood is entitled to
“special care,” and Article 19 of the American Convention indicates that every child has the
right to special “measures of protection.”55
50.
Recently, the Court has indicated that, in cases concerning the care and custody of
minors, the determination of the best interests of the child must be made based on an
evaluation of the specific conduct of the parents and its negative impact on the well-being
and development of the child, if applicable, or on the real and proved, not speculative or
imaginary, harm or risk to the well-being of the child. Thus, speculations, presumptions,
49
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November
19, 1999. Series C No. 63, para. 194, and Case of Gelman v. Uruguay. Merits and reparations. Judgment of
February 24, 2011. Series C No. 221, para. 121.
50
Cf. Case of Gelman v. Uruguay, supra note 49, para. 121, and Case of Atala Riffo and daughters v. Chile.
Merits, reparations and costs. Judgment of February 24, 2012. Series C No. 239, para. 196.
51
Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series
A No. 17, para. 62, and Case of Gelman v. Uruguay, supra note 49, para. 121.
52
Cf. Advisory Opinion OC-17/02, supra note 51, paras. 67 and 71.
53
Cf. Advisory Opinion OC-17/02, supra note 51, paras. 72, 75 and 77.
54
Cf. Advisory Opinion OC-17/02, supra note 51, para. 65.
55
Cf. Advisory Opinion OC-17/02, supra note 51, paras. 56 and 60, and Case of Atala Riffo and daughters v.
Chile, supra note 50, para. 108.
17