42. On May 8, 2003, in compliance with the decision of the Juvenile Court of Villarrica, Ms. Atala delivered her three daughters to their father57. In response to that decision, on May 13, 2003, Ms. Atala sought to prevent the Regular Judge of the Juvenile Court of Villarica from continuing to hear the custody proceeding based on his having incurred in grounds for incompatibility [implicancia] as set forth in the Organic Code of the Courts58. Ms. Atala’s representative maintained that in the decision of May 2, 2003, the judge gave “form and content, with the force of a judicial decision, to a specific model of society, a view that is no doubt at the bottom of the issue presented and is discriminatory because it is based on stereotypes and patriarchal assumptions that do not accept and value diversity and pluralism within society”59. 43. On May 14, 2003, the Regular Judge of the Juvenile Court of Villarica declared the “sufficient grounds” for incompatibility (implicancia) without expressing an opinion on the merits, and refrained from intervening in the custody proceeding until it was resolved in accordance with Article 120 of the Code of Civil Procedure60. 3) Lower court decision granting custody of the girls to Ms. Atala 44. Given the disqualification of the Regular Judge, the Acting Judge of the Juvenile Court of Villarica was responsible for issuing a decision on the merits on October 29, 200361. In that ruling, the Judge rejected the petition for custody based on the view that the existing evidence had established that the respondent’s sexual orientation was not an impediment to carrying out responsible motherhood, that there was no psychiatric pathology that would prevent her from exercising her “role as a mother,” and that there were no indications that would allow for the presumption of any grounds for incapacity on the part of the mother to take on the personal care of the minors. The Judge also concluded that “no concrete evidence has shown that the presence of the mother’s partner in the custody proceeding, the Juvenile Court gathered as testimonial evidence the following statements from: i) a godfather of one of the girls; ii) a psychologist; iii) a friend of the family; iv) a domestic employee, and v) a nanny (record of merits, volume XII, pages 5919 to 5921). Furthermore, the Juvenile Court considered as documentary evidence various newspaper publications, a socio-economic report, a set of photographs, a report issued by Ms. Atala’s psychiatrist, a report by the psychologist in charge of the girls’ therapy and the report of a student nurse (record of merits, volume XII, pages 5918 to 5921). Likewise, the Court considered that “sufficient grounds exist[ed] to affect the duty to personal care, legally established, [for which reason] the petitioner’s request was accept[ed].” 57 Cf. Record of May 15, 2003 (record of appendices to the application, volume I, page 572). In this respect, the Organic Code of Courts [Código Orgánico de Cortes] provides: Art. 194. Judges may not be competent to hear certain cases based on incompatibility or recusal, if necessary, by virtue of legal reasons. Art. 195. Incompatibility grounds: […] 8. The judge having given his opinion regarding the issue at hand with full knowledge of the precedents necessary to issue a judgment. Available at http://www.oas.org/juridico/spanish/chi_res9.pdf (last visit February 22, 2012) 58 59 Petition to bar Judge Luis Humberto Toledo Obando, May 13, 2003 (record of appendices to the application, volume V, page 2573). 60 Court Order of the Juvenile Court of Villarrica of May 14, 2003 (record of appendices to the application, volume II, page 569). Article 120 of the Chilean Code of Civil Procedure in effect at the time of the events provides that: Once grounds for disqualification are accepted as sufficient or declared in accordance with subparagraph 2 of the preceding article, said declaration shall be made known to the official whose incompatibility or recusal has been sought, ordering him to abstain from participating in the matter in question as long as the motion is not resolved”. Available at: http://www.leychile.cl/Navegar?idNorma=172986 (last access February 20, 2012), electronic address furnished by the State in its brief of final arguments (record of merits, volume XII, page 5914). 61 Decision of the Juvenile Court of Villarrica of October 29, 2003 (record of appendices to the application, volume V, page 2607). 18