shows that not every family has a maternal or paternal figure, and this does not prevent the
family from providing the necessary well-being for a child’s development.
99.
In addition, this Court has established that a decision based on presumptions and
stereotypes about parental capacity and aptness to be able to guarantee and promote the
well-being and development of the child is not sufficient to ensure the best interests of the
child.82 In addition, the Court considers that the best interests of the child cannot be used to
deny the right of his or her father owing to his civil status, in favor of those who have a civil
status adjusted to traditional concepts of the family.
100. The judicial decisions did not ensure the best interests of the child and the rights of
the father, and were based on assertions that reveal a predetermined idea about the
circumstances in which her paternity occurred, and that a single parent cannot assume
responsibility for a child.
d) Judicial delay as grounds for the decision
101. The Superior Court of Justice of Entre Ríos, which decided to confirm the decision of
the first instance judge on the legal guardianship, made various observations on the
determinant influence that, in its opinion, time had had on the decision concerning the
child’s guardianship.
102.
In this regard, in one of the votes, one of its members indicated:
The reason for these prolonged
mounted up […], which explains
decide disputes promptly so as to
The delay in the proceeding […]
decision that must be delivered in
proceedings arises from reading all the paperwork that has
the slowness of the court system, delaying their obligation to
try and cause as little harm as possible to those seeking justice.
is not a minor issue; evidently, it will have an impact on the
this proceeding.83
103. Furthermore, another judge asserted that “the issue is decided taking into
consideration the time that has elapsed from the day following her birth up until today,
which makes it utterly undesirable to change the child’s situation, owing to the very
damaging effects this would have on her psyche and on the development of her personality.
He added that, “[e]vidently, […] if the final ruling had been made at the time of the first
instance proceeding, the result would probably have been different.” The same judge
indicated that “[t]he duration of this process has not been reasonable; in other words, it
has not complied with [international] standards.” He added that they “were deciding a very
special case on a problem that is clearly complex and with delayed contributions from the
parties, officials, judges, technical personnel, experts, etc., all of this in the context of a
Judiciary collapsed by the economic and political vicissitudes that affect Argentines in
general and those that affect the people of Entre Ríos in particular. Despite all this, the
particularities of the case should have been noted from the outset in order to abbreviate
the procedures to complete it.”84
104. This Court has already determined that the guardianship proceedings violated the
right of Mr. Fornerón and of his daughter to be heard within a reasonable time, established
in Article 8(1) of the American Convention (supra para. 77). Over and above this, the Court
observes that the delay in the proceedings and the passage of time constituted a
82
Cf. Case of Atala Riffo and daughters v. Chile, supra note 50, para. 111.
83
Judgment of the Civil and Commercial Chamber of the Superior Court of Justice, supra note 38, folio 223.
84
Judgment of the Civil and Commercial Chamber of the Superior Court of Justice, supra note 38, folios 242
and 243.
30
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