15
defining element of ties of affection that would be hard to revert without causing damage
to the child. This situation entails a risk that is not only imminent but may already be
occurring. Consequently, greater delays in the proceedings, irrespective of any decision on
the determination of his rights, may determine the irreversible53 or irreparable54 nature of
the actual situation, and render invalid and detrimental to the interests of the child L.M.
any decision to the contrary.55
19.
Therefore, although it is not applicable to order, as the Commission has requested,
the acceleration of the domestic proceedings, since the analysis of the rapidity and
effectiveness of the proceedings concerning the facts that give rise to the request for
provisional measures corresponds to the examination of the merits of the case,56 the Court
observes that the delay or lack of response may imply an irreparable damage to the rights
to psychological integrity, identity, and protection of the family of the child L.M.. Therefore,
while the judicial proceedings to define his legal situation are resolved, the Court deems it
pertinent to order, as a provisional measure to prevent the child’s rights being affected, that
the State take the necessary, adequate, and effective measures to allow him to maintain
contact with his family of origin,57 with the support of appropriate professional personnel to
monitor the child’s emotional condition.58 In this regard, this Court recalls that the Court of
Appeal itself established that an interim measure could be established for contact with the
biological family, without this entailing anticipating a decision in relation to the proceedings
underway concerning the child L.M.; in other words, without broaching the merits of those
proceedings.
20.
In addition, the State must take the pertinent measures to ensure that the
provisional measures required in this order are planned and implemented with the
participation of the beneficiary’s representatives, the respective members of his biological
family, and when appropriate, of the family with custody, so that the said measures are
adopted diligently and effectively.
21.
Consequently, noting that the Inter-American Commission received the request for
precautionary measures on June 17, 2010, and that petition 1474/10, received on
September 1, 2010, is at the admissibility stage, the Court considers that the InterAmerican Commission should decide on the petition as promptly as possible, based on the
urgency alleged in the request for provisional measures.59
53
Cf. ECHR, Case of H, supra note 51, paras. 85 and 89, and B. v. The United Kingdom, No. 9840/82, of 8
July 1987, para. 63.
54
Cf. ECHR, Case of V.A.M., supra note 47, para. 134, and Case of Monory, supra note 47, para. 82
55
Cf. ECHR, Case of Sommerfeld, supra note 43, paras. 65, 88 and 90; mutatis mutandis Case of Monory,
supra note 47, para. 82, and Case of H, supra note 51, para. 85.
56
Cf. Matter of Leonel Rivero et al. Provisional measures with regard to Mexico. Order of the InterAmerican Court of Human Rights of November 25, 2008, eighteenth considering paragraph; Matter of Pilar
Noriega et al. Provisional measures with regard to Mexico. Order of the Inter-American Court of Human Rights of
February 6, 2008, fourteenth considering paragraph; Matter of Liliana Ortega et al. with regard to Venezuela,
Order of the Inter-American Court of Human Rights of July 9, 2009, seventeenth and forty-first considering
paragraphs.
57
Cf. Advisory Opinion OC-17, supra note 38, para. 72; Convention on the Rights of the Child, adopted and
open to signature and ratification by the General Assembly in resolution 44/25, of 20 November 1989, article 9.3;
Council of Europe, European Convention on the Legal Status of Children Born out of Wedlock, 15 October 1975,
article 8, and Council of Europe, Convention on Contact concerning Children, 15 May 2003, article 4.1.
58
Cf. Advisory Opinion OC-17, supra note 38, para. 78; Council of Europe, Convention on Contact
concerning Children, May 15, 2003, article 4.3; Council of Europe. “Guidelines of the Committee of Ministers of
the Council of Europe on child-friendly justice,” supra note 47, “general elements of child friendly justice,” 1.k and
11.
59
Cf. Matter of the Four Ngöbe Indigenous Communities and their members v. Panama, Order of the InterAmerican Court of Human Rights of May 28, 2010, sixteenth considering paragraph; Matter of Wong Ho Wing.