iv) Considerations of the Court on the due diligence of the judicial authorities in the
guardianship proceedings
78.
The Court will examine whether, in the guardianship proceedings which preceded the
decision to grant the adoption of the child M, the domestic judicial authorities acted with the
due diligence required in this case, taking into account its specific circumstances, together
with the enhanced obligation to proceed with special diligence and promptness in
proceedings involving children (supra paras. 51 and 52). To this end, the Court will examine
the following aspects in relation to the guardianship proceedings: (a) failure to observe the
legal requirements; (b) omission of evidence; (c) use of stereotypes, and (d) delay as
grounds for the decision.
a) Failure to observe the legal requirements
79.
The day after the birth of M, Ms. Enríquez surrendered the child to the married
couple B-Z, an act in which the Victoria Ombudsman for Children and the Poor intervened,
drawing up a deed that recorded this act (supra para. 22). Article 318 of the Civil Code in
force at the time of the facts established that “t]he surrender of a minor to guardianship by
means of a public instrument or an administrative procedure is expressly prohibited.”
80.
Several authorities indicated that the surrender of M had not complied with this and
other legal provisions. For example, the Children’s Ombudsman who took part in the
guardianship proceedings before the Chamber stated that “the procedure for the surrender
of the child did not observe the provisions […] of Provincial Law 8,490; because, once the
act had been constituted, […] the acting Ombudsman should have asked for the institutional
protection of the child, since she had been abandoned by her mother, placing her in an
irregular situation without investigating her social and family background.” For its part, the
Civil Chamber involved, which revoked the first instance decision on guardianship, observed
that:
Under article 318 and similar articles of the Civil Code [the surrender of the child by her mother]
would not be in strict compliance with the requirements and purpose of the law, because the latter
expressly prohibits surrender by means of a public instrument or an administrative procedure, […]
and [only] the surrender granted by the courts is admissible.
81.
However, these were not the only observations by the judicial authorities indicating
that the surrender and the “de facto guardianship” did not meet the legal requirements. In
fact, even the Chamber judge who, emitted a minority vote in favor of confirming the first
instance decision, stated that the law was not respected “strictly”; indicating: “I am aware
that, at the time of the decision granting legal guardianship, which is contested by the
biological father, the plaintiffs had exercised de facto guardianship for almost a year, which
is not strictly in accordance with the provisions of substantive law.” The third paragraph of
Article 316 of the Civil Code, which it is indicated has not been observed establishes that
[t]he guardianship must be granted by the judge or court of the child’s domicile or of the
place where his or her abandonment has been verified judicially.
82.
Moreover, regarding the legal requirements that should have been observed in the
judicial proceedings on guardianship, Article 317 of the Argentine Civil Code established:
The requirements for awarding guardianship are:
a) The parents of the child must be summoned so that they can give their consent to the award of
guardianship for the purpose of adoption. The judge shall determine the date of this summons
within 60 days of the birth.
Consent shall not be necessary if the minor is in a welfare institution and the parents have totally
disassociated themselves from the child for one year, or when the lack of moral or material
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