I. INTRODUCTION OF THE CASE AND PURPOSE OF THE APPLICATION 4 II. PROCEEDING BEFORE THE COURT 5 III. COMPETENCE 8 IV. EVIDENCE 8 A. Documentary, Testimonial and Expert Evidence 9 B. Admission of Documentary Evidence 11 C. Admission of testimonial and expert evidence 12 V. RIGHT TO EQUALITY AND NON-DISCRIMINATION, RIGHT TO PRIVATE LIFE, RIGHT TO FAMILY LIFE, RIGHTS OF THE CHILD, RIGHT TO A FAIR TRIAL AND TO JUDICIAL PROTECTION IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEE RIGHTS REGARDING THE CUSTODY PROCEEDING 13 A. Proven facts in relation to the custody proceedings 13 1) Custody proceedings 14 2) Provisional custody granted to the father 17 3) Lower court decision granting custody of the girls to Ms. Atala 18 4) Appeal to the Court of Appeals of Temuco and injunction granted in favor of the father 20 5) Filing of remedy of complaint (recurso de queja) with the Supreme Court of Justice and granting of second injunction in favor of the father 21 6) Decision of the Supreme Court of Justice of Chile 21 B. Prior considerations 1. Prior consideration on the matter of the case before the InterAmerican Court 2. Prior consideration on the participation of the girls M., V. and R. C. The right to equality and the prohibition of discrimination 1. Right to equality and non-discrimination 2. Sexual orientation as a category protected by Article 1(1) of the American Convention 3. Difference in treatment based on sexual orientation 4. The principle of the child’s best interest and assumptions of risk 4.1. Alleged social discrimination 4.2. Alleged confusion of sexual roles 4.3. Alleged privilege of interests 4.4. Right to a “normal and traditional” family 4.5 Conclusion 5. Discriminatory treatment against the girls M., V. and R. 23 23 25 26 28 29 35 37 40 42 46 49 50 50 D. Right to private life and right to family life 52 E. Judicial guarantees and judicial protection 1. Judicial guarantees and judicial protection regarding Ms. Atala 58 58 2