separate M from her biological father, without providing a visiting regime, violated the rights
to a family of the child and of Mr. Fornerón, established in Article 17 of the Convention, in
relation to the rights established in Articles 19 and 1(1) of this instrument.
ii) Arguments of the representatives and of the State
114. The representatives stated that M had been “subjected to one of the most serious
interferences […], that which results in the separation of a family divesting her of the
mutual enjoyment of coexistence between parents and children […] and to be raised and
educated by her father. She continues to be denied her origin, severing family ties.” They
indicated that the separation of a child from his or her biological family is only admissible
under exceptional circumstances. In addition, the child “was separated from her father
without any reason,” and without Mr. Fornerón having consented during the more than 10
years that the proceedings have lasted. The said judicial decisions prevented “access to and
respect for […] family coexistence, and [the child] was deprived of her right to have access
to her identity and to have significant information for her insertion into her family of origin.”
In addition, the decisions had “place Mr. Fornerón to date […] in a situation of
disadvantage” in relation to the couple who obtained the guardianship. They indicated that
“Argentine law has no requirement [other than] acknowledgement to confirm paternity and
possession of the rights and obligations of paternal authority,” so that the Judiciary should
have returned the child to him once the father acknowledged her in July 2000. They stated
that “the child is obliged to live with a family that is not her family, with a different name
than her father; she is the child of another person’s life project” and that “the right of the
child is above all the right to acquire and develop an identity and, consequently, to be
accepted and integrated into the family into which he or she is born, which is the genetic
inheritance of the cultural experiences accumulated by preceding generations.” They
concluded that the State’s decision to separate the child from her father, without granting a
visiting regime, violated the rights of the family of M and of Mr. Fornerón, recognized in
Articles 17, 19 and 1(1) of the Convention.
115. The State indicated that its openness to dialogue was revealed in declarations made
by the senior political level of the Executive, which included, in addition to two Ministers of
Justice, the Secretariat for Children, Adolescents and the Family, stating that the actions of
the courts made it impossible for the two of them to form a family. It added that “Mr.
Fornerón’s acknowledgement gave rise to rights and obligations as the father of the child”
and that the father opposed the pre-adoptive guardianship and the adoption procedure. It
considered that Argentina had done everything possible to reach a friendly agreement
between the parties, focused on bringing the biological father and the child together, always
considering the latter’s best interest.
iii) Considerations of the Court
116. The Court has already indicated that the right to protection of the family, recognized
in Article 17 of the American Convention involves, among other obligations, promoting the
strengthening and development of the family insofar as possible. 89 Also, as previously
indicated in Advisory Opinion OC-17, one of the most serious forms of State interference is
the one resulting in the separation of a family. In this regard, the separation of a child from
his or her family may constitute, under certain circumstances, a violation of the said right to
89
Cf. Advisory Opinion OC-17, supra note 51, para. 66, and Case of Atala Riffo and daughters v. Chile, supra
note 50, para. 169.
33
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