guardianship and adoption proceedings. Furthermore, the said official did not determine the
existence of any of the circumstances established in the Convention on the Rights of the
Child, such as a case “involving abuse or neglect of the child by the parents,” which would
have permitted, exceptionally, the separation of the father from his daughter.
122. Moreover, in addition to the separation of father and daughter, made official with the
judgment in which the legal guardianship was awarded to the couple B-Z for one year and,
subsequently, in the adoption proceedings, no measures were taken to establish ties
between Mr. Fornerón and his daughter, despite the fact that the judicial decisions on
guardianship and adoption determined this possibility.93 In November 2001, the biological
father filed a lawsuit to establish a visiting regime. However, and with the exception of an
agreement between the parties before the Superior Court of Justice of Entre Ríos in May
2011 (supra para. 42), there is no record that, in more than 11 years, a visiting regime had
been established by the courts that would have established ties between father and
daughter.
123. Lastly, the Court recalls that Article 8(1) of the Convention on the Rights of the Child
indicates that “States Parties undertake to respect the right of the child to preserve his or
her identity, including nationality, name and family relations as recognized by law without
unlawful interference.” The Court has recognized the right to identity, which can be
conceptualized, in general, as a series of attribute and characteristics that allow the
individualization of the person in society and, in this regard, include several other rights
according to the subject of law in question and the circumstances of the case.94 Personal
identity is closely related to the person in his or her specific individuality and private life,
both supported by a historical and biological experience, and also by the way in which the
said individual relates to others, by developing social and family ties. This is why, although
identity is not a right that is exclusive to children, it has special importance during
childhood.95 The circumstances of this case signified that M grew up from birth with the B-Z
family. This fact meant that the personal, family and social development of M occurred
within a family other than her biological family. In addition, the fact that, in all these years,
M has not had any contact or ties with her family of origin has not allowed her to create the
family relationships that correspond to her by law. Consequently, the impossibility of M to
grow up with her biological family and the absence of measures aimed at establishing a
relationship between father and daughter affected the right to identity of the child M, in
addition to her right to the protection of the family.
124. Based on the above, this Court concludes that the State violated the right to
protection of the family recognized in Article 17(1) of the American Convention, in relation
to Articles 1(1), 8(1) and 25(1) of this instrument, to the detriment of Mr. Fornerón and of
his daughter M, as well as in relation to Article 19 of this treaty with regard to the latter.
E. Domestic legal effects
i)
Considerations of the Commission
93
Cf. Judgment of the first instance judge of May 17, 2001, supra note 31, folio 19; Judgment of the Civil
and Commercial Chamber of the Superior Court of Justice, supra note 38, folio 243, and Judgment of the first
instance judge of December 23, 2005, supra note 48, folio 4761.
94
Case of Gelman v. Uruguay, supra note 49, para. 122, and Case of Contreras et al. v. El Salvador. Merits,
reparations and costs. Judgment of August 31, 2011 Series C No. 232, para. 113.
95
Cf. Case of Contreras et al. v. El Salvador, supra note 94, para. 113.
35
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