Fornerón and of his daughter, as well as the protection of the rights of the child of the latter
(supra paras. 66 and 106).
110. The denial of access to justice relates to the effectiveness of the remedies, because it
cannot be considered that a remedy that exists in a State’s laws but that does not decide
the litigation filed for an unjustified delay in the proceedings is an effective remedy.87
111. The judicial remedies filed by Mr. Fornerón did not provide an effective and
appropriate response to protect his right and that of his daughter to the protection of the
family and to the rights of the child of M. Consequently, the State violated the right to
judicial protection recognized in Article 25(1) of the Convention, in relation to Articles 17(1),
8(1) and 1(1) of this instrument, to the detriment of Mr. Fornerón and of his daughter M, as
well as in relation to Article 19 thereof to the detriment of the latter.
D. Protection of the family
i) Considerations of the Commission
112. Regarding the presumed violation of Article 17 de la Convention, 88 in relation to
Articles 1(1) and 19 thereof, the Inter-American Commission indicated, inter alia, that
children have the right to live with their biological family; the right of a father or mother to
live with his or her child is a fundamental element of family life, and the domestic measures
that prevent this, constitute an interference with a right protected by Article 17 of the
Convention. The decision to separate a child from its family must be made in keeping with
the law, a requirement that was not met in this case, because Mr. Fornerón had indicated
his opposition to the guardianship, and there is no record that a declaration of incapacity
had been made that would have avoided this requirement or compliance with the other
requirements of article 317 of the Argentine Civil Code. Consequently, the State’s decision
to grant judicial guardianship and, subsequently, adoption, contrary to the wish of the
biological father and without respecting the other legal requirements, constituted “an
unlawful restriction of the right to a family” of Mr. Fornerón and his daughter. This decision,
taken without ensuring due “access of the father to the child,” not only interfered in the
exercise that the Convention guaranteed them of their family rights, but also entailed the
risk that affective ties would be established over time that would be difficult to reverse
without causing harm to the child.
113. In addition, the Commission affirmed that the State had not taken the necessary
measures to implement an appropriate visiting regime, so that the child has been deprived
of her right to have access to various aspects of her identity, to have information that was
important for her development, and to establish ties with her biological family. The family
relationships and the biological aspects of the history of an individual, particularly a child,
constitute a fundamental element of his or her identity, so that any act or omission of the
State that has an effect on the said components can constitute a violation of the right to
identity. In this regard, the conduct of the domestic authorities who granted the
guardianship and the adoption engaged the State’s international responsibility for the
violation of the rights to a family and to identity. It concluded that the State’s decision to
87
Case of Salvador Chiriboga v. Ecuador. Preliminary objection and merits. Judgment of May 6, 2008. Series
C No. 179, para. 88. Cf. also Case of Las Palmeras v. Colombia. Merits. Judgment of December 6, 2001. Series C
No. 90, para. 58.
88
The pertinent part of Article 17 of the American Convention establishes:
1. The family is the natural and fundamental group unit of society and is entitled to protection by
society and the state.
32
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