174.
Fifth, the Commission observes that the two reports from the Attorney General's Office in
May 1997 also showed various shortcomings. On the one hand, it was indicated that because of "the mother's
very unstable economic situation" she was not able, at that time, to take care of her children. Apart from the
fact that the economic situation could not be a reason for removing a child from his/her family and that
rather such a situation should trigger the state's duty to provide support in line with its special obligations to
protect the child, the IACHR observes that, in said report, there is no evidence for the reasons that might have
led to said conclusion. On the other hand, it was concluded that Mrs. Ramírez was mistreating her children,
once again on the basis of statements made by neighbors. Nevertheless, just as in the previous report, this
report does not identify either the persons who provided their testimonies or the concrete content of their
statements. Nor did this report indicate that other evidence of corroboration had been obtained such as
forensic examinations of the children, an interview with the children, and psychological checkups. Nor does
this report indicate that statements were taken from Mrs. Ramírez, Mr. Tobar or the children themselves.
175.
Sixth, the Commission deems that the report of May 19, 1977 from the Child Care Residence
of the Guatemala Children's Association about the request made by the two aunts of the Ramírez brothers to
be in charge of taking care of them also showed severe irregularities. Thus, as for the first reports, it is
repeated that there were no safeguards to ensure the report's technical suitability, independence, and
impartiality. Furthermore, it is stressed that it is not possible to identify the evidence that led to various of
this report's conclusions. The IACHR observes that, although the study involved the possibility of who would
be responsible for taking care of the children, the aunts were not even interviewed nor were they subjected to
any psychological examination. In addition, although reference was made to an alleged statement made by
Osmín Tobar Ramírez, it is nowhere supported by any documentary evidence that he was actually
interviewed or that the interview took place with the safeguards set forth in Article 12 of the Convention on
the Rights of the Child, relevant for the application of Article 8.1 of the American Convention when dealing
with the right of the child to be heard, as provided for by the Inter-American Court. The Commission cannot
fail to note that this is the only reference in the entire case file that any of the Ramírez brothers might have
been heard throughout the proceedings of the declaration of abandonment.
176.
Seventh, the Commission observes that after the maternal grandmother of the Ramírez
brothers requested that she take care of the children, the Psychology Unit of the Judiciary drafted a report
where, in addition to the flaws in methodology and contents, it is possible to identify certain discriminatory
stereotypes. In this report, it was indicated that "as a family resource, it has to be taken into consideration
that an adult with homosexual preferences would be transmitting a series of values to the children under her
care.” The IACHR recalls that, in the Case of Atala Riffo and Daughters v. Chile, the Court pointed out that a
decision of removing a father or mother from his/her son or daughter based on a social stigma regarding
his/her sexual orientation is not in line with the best interests of the child principle281 nor in line with the
principle of non-discrimination. This is applicable when deciding whether or not the maternal grandmother is
suitable on the basis of her possible sexual orientation.
177.
The Commission notes that, although other aspects were mentioned in this report, such as
the alleged drug addiction and alcoholism of the maternal grandmother, exactly as in the other reports
examined to date, the reasoning behind these allegations is so tenuous that it does not provide any evidence
on the basis of which these conclusions were reached. The alleged evidence does not appear in the case file
submitted to the IACHR, despite the importance of this report to evaluate whether or not the Ramírez
children could be taken care of by someone from their biological family.
178.
Finally, the decision of the court that issued the judicial declaration of abandonment of the
Ramírez children, did not take into any consideration all of the flaws described in the present section nor was
it interested in listening to what the children had to say. On the contrary, it neglected to judicially review the
suitability of the reports submitted and rather took them as the basis for declaring abandonment and
281I/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. 121.
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