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In this regard, Article 18 of the Convention on the Rights of the Child establishes that: “[…] 2. For the purpose of
guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate
assistance to parents and legal guardians in the performance of their child -rearing responsibilities and shall ensure
the development of institutions, facilities and services for the care of children . 3. States Parties shall take all
appropriate measures to ensure that children of working parents have the right to benefit from child -care services
and facilities for which they are eligible.” Consequently, the Committee on the Rights of the Child has indicated that
“the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the
family’s capacity to take care of the child, unless separation is necessary to protect the child.” Committee on the Rights
of the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary
consideration (art. 3, para. 1), UN Doc. CRC/C/GC/14, May 29, 2013, para. 61.
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Article 9(3) of the Convention on the Rights of the Child establishes that “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 .”
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The custody requests by the children’s maternal grandmother and godmothers were rejected based on superficial
social studies that were full of stereotypes. The reports concluded that the godmothers and the maternal grandmother
did not constitute a resource for the protection of the children, in part, due to the alleged lack of financial resources and,
in the case of the maternal grandmother, also owing to her sexual orientation. Those elements are examined in greater
detail in the section of this chapter on the prohibition of discrimination infra. However, the Court notes that the
deficiencies in the investigation into the children’s situation mentioned previously were also present in the investigation
of the godmothers and grandmother. In particular, the failure to interview people who could have been relevant to
determine the situation of the children; that the views of Osmín Tobar Ramírez were not heard regarding the possibility
of living with his grandmother, or of J.R in any of the cases, and that the social study on the godmothers was drawn up
by an organization that may have had an interest in the result of the declaration of abandonment proceedings. On this
last point, it is worth emphasizing that the social study on the godmothers prepared by Niños de Guatemala even
repeated the recommendation that “they should be declared to have been abandoned in order to be able to include them
in the adoption program sponsored by Niños de Guatemala.” Social study by the social worker of Niños de Guatemala of
May 4, 1997 (evidence file, folio 4317).
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