right to family life because “even legal separations of a child from his family may only proceed if these are
duly justified.”254
144.
With respect to the possible separation of a child from his/her parents, Article 9 on the
Rights of the Child provides for the following:
1. States Parties shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial review determine, in
accordance with applicable law and procedures, that such separation is necessary for the
best interests of the child. Such determination may be necessary in a particular case such as
one involving abuse or neglect of the child by the parents, or one where the parents are
living separately and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties
shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child's best interests.
145.
Likewise, the Guidelines for the Alternative Care of Children, adopted by the United Nations
General Assembly on November 20, 2009, in guideline 14, points out the following with respect to protection
measures that entail removing the child from his/her parents or family:
Removal of a child from the care of the family should be seen as a measure of last resort and
should, whenever possible, be temporary and for the shortest possible duration. Removal
decisions should be regularly reviewed and the child's return to parental care, once the
original causes of removal have been resolved or have disappeared, should be in the best
interests of the child […].
146.
The Commission and the Court have reiterated, in their decisions, the principles stemming
from the above-mentioned provisions, that is, the principles of need, exceptionality and temporariness of the
protection measures that entail removing the child from his/her parents.255 In that regard, the state has the
obligation to verify, at all times, the suitability and legitimacy of the special protection measures that entail
the removal of the child from his/her parents and from his biological family.256 As the Commission has
pointed out, both the decision about resorting to a measure of this kind and the review of said measure must
meet the requirements of legitimacy and suitability and, therefore, must be grounded in objective criteria
previously established by the regulations, must be implemented by specialized technical staff trained to
conduct this type of assessment, and must be subject to periodic review by the judicial authority.257
Furthermore, the Commission stated the following:
As in the case with decisions made concerning children’s custody, care, and well-being,
decisions made when reviewing the protection measure must also be justified. The review
254 I/A Court H.R.. Case of Atala Riffo and Daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24, 2012.
Series C No. 239, para. 169; and Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series
A No. 17, para. 77.
255 I/A Court H.R. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A
No. 17, paras. 75 and 77. See also: IACHR. Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón,
Argentina, November 29, 2010, paras. 103, 108 and 110.
256 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 73.
257 IACHR, The Right of Boys and Girls to a Family. Alternative Care. Ending Institutionalization in the Americas. October 17,
2013, para. 71.
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