Court/Judicial body:
Human Rights Committee
Citation:
Communication No. 400/1990
Date:
2 April 1990
Instrument(s) cited:
International Covenant on Civil and Political Rights: Art. 16: recognition as a person before the law; Art. 17: right to privacy; Art. 23: right to family; Art. 24: non-discrimination and special protections for children; Art. 26: equality before the law
Case summary
Ximeno Vicario’s parents were apprehended by police in 1977 and never seen again. The National Commission on Disappeared Persons investigated the disappearance in 1983, but the parents’ whereabouts were never established. Ms. Monaco, the grandmother of Ximeno, launched her own investigation and found her granddaughter living with a nurse, S.S.. Ms. Monaco was granted temporary guardianship over Ximeno and S.S. was granted visitation rights while an investigation was undertaken as to whether to bring criminal charges against her.
Ms Monaco sought to end the visitation rights of S.S. on the basis that they were having a negative effect on her granddaughter, but was denied standing to do so as she was not the child’s parent or permanent guardian. Ms. Monaco also tried to apply for identity papers to be issued under Ximeno’s birth name but, again, lacked standing. Ms. Monaco made the complaint on behalf of her granddaughter and herself alleging, inter alia, that Ximeno was denied her right to be recognised as a person (art. 16), that the forced visits of S.S. amounted to an arbitrary interference with her and her granddaughter’s right to privacy (art. 17) and that the ambiguous situation was harmful to the integrity of the family (art. 23). Before the complaint was addressed by the Committee, Ms. Monaco was granted full guardianship of Ximeno, the visits of S.S. ended according to Ximeno’s express wishes (she was then a minor) and Ximeno turned 18.
The Committee found that denying Ms. Monaco standing in some proceedings served to deny Ximeno a mechanism to protect her rights, and that proceedings had not been carried out with sufficient speed. Many of the alleged violations took place before the ICCPR came into force in Argentina, however, so while the adoption by S.S. entailed numerous acts of arbitrary unlawful interference, they could not be considered. The Committee also considered that the national courts had respected Ximeno’s identity rights in issuing her papers according to her identity at birth.
Link to full judgement:
http://www1.umn.edu/humanrts/undocs/html/vws400.htm
This summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.