separation must be exceptional and, preferably, temporary."135 According to the Court, the direst interference the
State can engage in against a family is when its actions cause separation or a break-up. That situation is especially
serious when, in that separation, the rights of children and adolescents are impaired."136
120.
At the same time, under Article 17 of the American Convention, the family is the natural and fundamental
group unit of society and is entitled to protection by society and the state. The I/A Court of H.R. has established
that the State is obliged to promote the development and strengthening of the family unit and that implies the
right of every person to receive protection against arbitrary or illegal interferences in their family, which means
that States have positive obligations to ensure effective respect for family life. In particular, it has recognized that
"the mutual enjoyment of coexistence between parents and children constitutes a fundamental element of family
life, and that, in certain circumstances, separating children from their families constitutes a violation of their right
to a family recognized in Article 17 of the American Convention."137
121.
The IACHR has taken the view that the right to a family is closely related to the effective exercise of all
rights of the child, due to the position held by the family in the child’s life and its role in
the provision of protection, care, and upbringing. During the first few years of a child’s life, when he or she is most
dependent on adults for the realization of rights, the relationship between the right to a family and the rights to
life, integral development, and personal integrity, is a particularly strong one.138
122.
The IACHR has maintained that "One of the contents of the right to a family is the possibility of defense
from any unlawful or arbitrary interference with family life. Article 11(2) of the American Convention and Article
V of the American Declaration establish that no one may be the object of arbitrary or abusive interference with
his or her private family life. The principles of necessity, exceptionality, and temporal determination in relation
to special measures of protection that involve the separation of a child from his or her parents, for the purpose
of protection, are derived from a necessary balance between the rights contained in Articles 17(1) and 11(2), and
Article 19 of the Convention, and V and VI of the American Declaration with VII of the same instrument."139 The
Inter-American Court has considered that given the importance of the right to a family, “the State has the
obligation to favor the development and strength of the family unit. Thus, it is obliged to take positive and
negative actions to protect people against arbitrary or illegal interference in their family and to promote effective
respect family life”.140
123.
The IACHR has determined that mutual enjoyment of harmonious relations between parents and
children is a fundamental component of family life and that the essential content of this precept is protection of
the individual in face of arbitrary action by public authorities. One of the gravest interferences is that which leads
to division of a family.141 Thus it has regarded separation of children from their parents as exceptional,142 and
that for the interference to be in accord with American Convention parameters, separation is admissible only
under exceptional circumstances, when there are paramount reasons for it, based on the best interests of the
child.143 In addition, the IACHR “uses the term family as established by the jurisprudence of the inter-American
system, i.e., in the broad sense described”.144
I/A Court H.R. Case of López et al. v. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 25,
2019. Series C No. 396, par.173.
136 I/A Court H.R. Case of López et al. v. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of Monday,
November 25, 2019. Series C No. 396, par. 99.
137 I/A Court H.R. Case of Vélez Restrepo and Family v. Colombia. Preliminary Objection, Merits, Reparations and Costs. Judgment of
September 3, 2012, Series C No. 248, par. 225; I/A Court H.R. Case of V.R.P., V.P.C. et al v. Nicaragua. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of March 8, 2018. Series C No. 350, par. 311.
138 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13.
October 17, 2013, par. 57.
139 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13.
October 17, 2013, par. 66.
140 I/ A Court H.R., Case of López Soto et al. v. Venezuela. Interpretation of the Judgment on Merits, Reparations and Costs. Judgment of
May 14, 2019. Series C No. 379, par. 98.
141 Report No. 83/10. Case 12,584 Merits. Milagros Forneron and Leonardo Aníbal Javier Fornerón. Argentina. July 13, 2010, par. 106.
142 Report No. 83/10. Case 12,584 Merits. Milagros Forneron and Leonardo Aníbal Javier Fornerón. Argentina. July 13, 2010, par. 107.
143 Report No. 83/10. Case 12,584 Merits. Milagros Forneron and Leonardo Aníbal Javier Fornerón. Argentina. July 13, 2010, par. 110.
144 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13.
October 17, 2013, foot note number 34.
135