requirements in the de facto surrender of M and the legal guardianship proceedings, which
included the fact that the child had been surrendered by means of an administrative act,
without the intervention of the competent judge (supra paras. 80 and 81), that the father
had not consented to the surrender to guardianship, and that the conditions that allow such
consent to be disregarded were not verified (supra paras. 82 to 84).77
b) Omission of evidence
87.
Various officials indicated that when the judicial decision was issued awarding
guardianship, the necessary probative measures had not been taken. In this regard, the
Chamber’s judgment indicated that, when it received the case file, the measures it adopted
were designed, among other objectives, “to remedy the production of evidence that had not
been obtained at the appropriate time (and the evidence that, of necessity, must be
obtained in this type of litigation)” (italics added).
88.
Furthermore, that judgment also noted the flaws in the psychological report on
which the first instance judge had based his guardianship decision, indicating, inter alia,
that: “it does not appear that ties between the baby and the adopting mother had been
observed, or between the baby and the adopting father, or that interviews were conducted
with the adopting parents or the biological father.”
89.
For his part, the Children’s Ombudsman who intervened before the Chamber also
verified the omission of evidence in first instance and, citing articles 73 and 74 of provincial
Law No. 8,490, indicated that it was necessary to rectify this omission. Accordingly, among
other measures, he proposed “a social and environmental study of the father, [and]
interview[s] by professionals of the Juvenile Court’s technical team […], together and
separately, with the parents of the child and [with the] guardians.” Similarly, the Public
Prosecution Service also noted that, in first instance, no study of any kind, whether
psychological, social, environmental or any other, had been conducted concerning Mr.
Fornerón. Even the minority vote of the Chamber noted that the possibility of delivering
judgment “was delayed because the Chamber had to take essential measures to
incorporate important probative material.”
90.
In conclusion, the first instance decision granting the legal guardianship of M, not to
her biological father, but to a couple who had “de facto guardianship,” was issued without
the necessary evidence, as indicated by various officials, who all agreed that probative
measures had been omitted in first instance.
c) Stereotypes used as grounds for the guardianship decision
91.
The first instance judge stated that “the biological parents of the child […] had not
had a formal relationship for more than 12 months, […] but had merely had occasional
meetings, and the child’s mother had been having at least one other relationship; I am
stating this, not to judge the mother’s conduct, but to underscore that the fruit of this
relationship […] was not the result of love or the desire to form a family.” In addition, he
emphasized the existence of a dispute between the parents of M and “the absence of a
biological family.” He stressed that Mr. Fornerón was aware of the pregnancy, at least
during the two months before the birth and, nevertheless, “did not show any kind of interest
77
Only one member of the Superior Court of Justice “underline[d]” and endorsed the assertion of the
Chamber judge in relation to the irregularity that, at the time of the court’s decision, a guardianship that was not in
keeping with the provisions of the law had been exercised “de facto” for almost a year. However, this finding had
no legal consequences (file of attachments to the answer, tome III, folio 3652).
27
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