Court/Judicial body: Family Appeals Court of Montevideo
Date: August 12, 2008 CRC
Provisions: Article 3: Best interests of the child Article 5: Parental guidance and the child’s evolving capacities Article 12: The child’s opinion
Domestic provisions: Law No. 16.137 Uruguayan Constitution, Article 41
Case summary
Background: A father filed suit to claim visitation rights with his 14-year-old son. There was a history of reciprocal domestic violence between the father and the mother of the child, and the child expressed that he did not wish to see his father.
Issue and resolution: Custody; visitation. The Tribunal ruled that it was important for the son to have a relationship with his father and ordered that the father and the son attend joint counselling sessions.
Court reasoning: Although children have the right to express their views in proceedings that affect them under the Convention on the Rights of the Child and those views must be taken into account in line with the child’s age and maturity, the Court must also consider the best interests of the child and the rights of other parties involved in reaching its decision. Here, the father has a right and responsibility to guide and mentor his son, and the child’s interests would be better served by providing an opportunity for this relationship to develop than following the child’s wishes not to see his father.
Excerpt citing CRC and other relevant human rights instruments as translated by CRIN: The solution adopted in cases such as the present must be based on the evidentiary process and guiding principles in this area, in this case mainly the best interests of the adolescent (Convention on the Rights of the Child art. 3rd and art. 350.2 of the General Code of Procedure). The Convention, which was adopted in New York on December 6, 1989 and approved via Law No. 16.137 (September 28, 1990), establishes in Article 3 that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. … This Tribunal adheres to what has been established by this doctrine. Thus, we must not lose sight of the fact that the opinion of the child is one factor among those which must be evaluated by a judge, as part of his/her critical analysis, with great care to avoid invading the sphere of parental decision-making with state control. Based on the above, it would not be fair to ignore the child’s opinion, particularly given that the Convention on the Rights of the Child establishes the importance of this factor in Article 12. However, it is important to note that the Importance of this factor does not necessarily require doing what the child wishes, but rather taking his opinion into account in conjunction with all other elements of the case, so that the child does not become the arbiter of issues which are beyond his responsibility and decision-making abilities. This Tribunal has already established that with regards to the application of the principle of the best interests of the child, the Tribunal must a) consider the objective elements that are supported by the documentary evidence in the case; b) consider the child’s opinion, taking into account his age and maturity level, which does not mean blindly following the child’s opinion, and c) keep in mind that according to Article 41 of our Constitution, the objective must be for children to be able to achieve their full intellectual, physical and social capabilities, and that Article 5 of the Convention on the Rights of the Child establishes parents’ rights and duties aimed at guiding and mentoring the child so that he can fully exercise those rights codified in the Convention.
CRIN comments: CRIN believes this decision is inconsistent with the CRC in that, although the Court recognised the child’s right to express his views under Article 12 of the Convention, it prioritised the father’s right to access over the son’s wishes. As envisioned by the CRC, the Court sought to determine and weigh the child’s wishes and best interests. However, given the child’s age and the family’s history of domestic violence, the Court does not appear to offer sound reasoning for forcing the child to see his father apart from the father’s right to remain involved in his son’s life.
Citation: Sentencia Tribunal Familia 1er Turno, No. 181/2008 (Uruguay) Link to Full Judgment: http://www.juecesinfanciamercosur.org/docs/senttap1.htm