in order to determine what, in this case, is the best interest of the child and, therefore, the
most appropriate visiting regime in keeping with the current needs of the girl and her
biological father. First, the State must base its actions on an analysis of the case history,
which means that the actual needs and interests of the child must be determined by a
competent analysis by specialists who consider different pre-identified factors, such as
maturity or experiences to date. Second, the State must guarantee the right of the child to
be heard in the corresponding proceedings, having previously determined the most
appropriate methodology and medium for her to express her opinion in keeping with her
age and maturity. Third, the State must guarantee various conditions and guarantees of due
process when conducting the procedure to determine the most appropriate visiting regime
for Mr. Fornerón and the child.
152. Lastly, the Commission emphasized other aspects that it considered important in the
context of any future proceedings to determine the situation of Mr. Fornerón and his
daughter. In this regard, it indicated that the State must guarantee: (a) that the child has
prior access to all the relevant information she requires to be able to form her own opinion;
(b) an appropriate environment for expressing her opinions, that “the hearing be held in an
environment appropriate to the child’s capacity, in keeping with her age and maturity, so
that she can express herself freely,” and (c) that the courts have access to all relevant
information to determine the best interests of the child.
153. The representatives indicated that, in this case, reparation meant the return of the
child to her family of origin so that she can know the truth about her life and that of her
father; that she was never up for adoption, because she was never abandoned; that no one
replaced Mr. Fornerón’s desire to be her father, and that she is part of the generational
continuity of her biological family. Thus, this return, which will give her back her identity,
her origin and her culture, is an act of integral reparation, in her best interests, and the only
way to repair the human rights violations suffered by the child and her father.
154. In addition, the representatives affirmed that her return is possible taking into
consideration the judicial and the psychological aspects. Regarding the judicial factor, they
indicated that the adoption judgment must be annulled, using mechanisms of domestic law,
because it legalized an unlawful act: the sale of the child. The annulment of the adoption is
possible because: (a) it resulted from an unlawful act; (b) the child was never abandoned
and was never legally declared abandoned and her father opportunely and appropriately
acknowledged her, acquiring parental authority and, in exercise of his paternity, he did not
consent to his child being adopted, and (c) the decision granting the pre-adoption
guardianship was discriminatory based on the personal and financial situation of the father.
Also, from a psychological perspective, they indicated that the psychological-therapeutic
restitution process used in the case of children appropriated during the military dictatorship
should be followed. In addition, they indicated that the act of restitution did not involve a
traumatic situation; the idea of a second trauma being inflicted on the child due to its return
cannot be accepted; “there is no ‘rupture,’ or silence, it is a new and reparatory situation.”
The representatives concluded that to restitute is to repair; it is returning to the child her
liberty, her identity, her honor, her family and her history.
155. The State rejected categorically “the immediate return of the child to her family of
origin” which “does not appear to be a realistic, opportune or viable alternative. Rather, it
would only result in an even more harmful event for all those involved.” As an action
strategy, Argentina proposed the possibility of reuniting Mr. Fornerón with his biological
daughter and indicated its willingness to provide the material resources to facilitate bringing
father and daughter together; even though the two of them must develop the visiting
regime, and decide when and how frequently they will meet, under a “therapeutic structure”
43
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