to provide special protection to the child owing to her condition as a minor, and not on the
procedural activity of the father. Furthermore, since Mr. Fornerón made it clear to several
authorities from the outset that he wished to exercise his rights and to fulfill his obligations
as a father, this should have been ensured immediately.68 The Court stresses that the main
purpose of the proceedings was to determine a child’s rights to a family and those of her
biological father, and to establish the ties between them.
70.
Regarding the conduct of the authorities, the proceedings on the legal guardianship
lasted more than three years. During that time, the first instance judge took three months
from the moment he became aware of Mr. Fornerón’s acknowledgement of paternity to
request a DNA test, and seven months to request an expert psychological opinion on the
child, which he received more than two months later. The Chamber that revoked the first
instance judgment found it necessary, inter alia, to collect evidence that had been omitted
in first instance, which delayed the judicial ruling on Mr. Fornerón’s right to obtain
possession of his daughter. In this regard, on August 7 and 13, 2001, the Children’s
Ombudsman and the Chamber’s prosecutor, respectively, requested the collection of the
evidence omitted in first instance, which the Chamber had ordered, “with the urgency
required by this case.”69 Subsequently, five more months passed before the Superior Court
of Entre Ríos confirmed the first instance ruling. This case had the specific particularity that
the time that was passing could lead to irreparable effects on the juridical situation of Mr.
Fornerón and his daughter, as some judicial authorities and domestic expert opinions
acknowledged.70 However, the said authorities did not accelerate the proceedings for which
they were responsible and did not take into account the effects that time would have on the
rights of Mr. Fornerón and his daughter, based on the best interests of the child.
71.
Regarding the proceedings that were supposed to determine a visiting regime
between father and daughter, the Court emphasizes that the first instance judge of Victoria
took more than three years to declare himself competent. In addition, there is no record
that any procedural activity occurred for a year and a month after the said judge’s
declaration of competence and, after this, a hearing was ordered at Mr. Fornerón’s request.
Despite the subsequent measures taken in the proceedings on the visiting regime, over
more than 10 years no visiting regime was established by the provincial courts, with the
exception of the May 2011 agreement reached between the parties (supra para. 42), and
there is no record that it has been implemented.
72.
The domestic authorities specifically referred to the flaws in the judicial proceedings.
The Court recalls that the State referred to the considerations of the Secretariat for Children
and the Family and those of two Ministers of Justice, Security and Human Rights of the
Nation who, among other irregularities, mentioned the delay incurred by the judicial
authorities (supra paras. 55 to 57),
68
The Chamber’s prosecutor indicated: [the father] has opposed [the guardianship] since his first appearance
in this hearing, which occurred four months after the birth […]. The time passed between both dates cannot be
attributed to the appellant as negligence or lack of interest. If he did not appear before, this was purely and simply
because he was unaware of the existence of these proceedings. The lower court opted to maintain the pre-existing
tie with the de facto guardians, without taking any account whatsoever of the legitimate rights of the father who, I
insist, had nothing to do with the surrender of the newborn and who should not be prejudiced by the circumstance
of not having formed a family with [the mother]” (file of attachments to the answer, tome III, folios 3259 and
3260).
69
The Chamber ordered that some of these tests be carried out seven and eight months later; and an
interdisciplinary team was requested to interview the guardians and the parents on July 1, 2002 (file of
attachments to the answer, tome III, folios 3288, 3296, 3321 and 3382).
70
For example: brief of the Children’s Ombudsman of August 7, 2001 (file of attachments to the answer,
tome III, folio 3257), and Judgment of the Second Chamber of Paraná of June 10, 2003, supra note 36, folio 3463.
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