Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

The case happened within a broader context of seri­ous irregularities in adoption procedures in Guate­mala, which consisted of the absence of proper insti­tutional oversight and inadequate regulation that allowed criminal networks to profit from international adoptions. On 9 January 1997 Osmín Tobar Ramírez and J.R., sons of Flor de María Ramírez Escobar aged respectively seven and five, were taken from the home they shared with their mother and institutional­ised in a children’s home, after authorities received an anonymous complaint that they were alone and had been abandoned. Their mother was out working at the time. The day after, Ms Ramírez Escobar appeared before the competent judge and requested that her children be returned. However, her claims were dis­missed and after several socio-economic studies about her and her family were performed with serious irregularities, a domestic court declared that the chil­dren should be considered abandoned.

The court granted legal guardianship to the institu­tion where they were residing and ordered that the brothers be included in its adoption programme. They were subsequently adopted in June 1998 by two different families from the United States of America under an administrative procedure, before a pub­lic notary, as allowed under Guatemalan law. The applicants (Osmín and his parents) claimed before the Inter-American Court (hereafter “the Court”) that the children’s adoption had violated the minimum requirements to be compatible with the American Convention on Human Rights (ACHR) and that the judicial remedies available had been ineffective in restoring and ensuring their rights.

Merits

Articles 11(2) (right to privacy), 17(1) (rights of the fam­ily), 19 (rights of the child), 8(1) (right to a fair trial) and 25(1) (right to judicial protection), in conjunction with Articles 1(1) (obligation to respect and ensure rights without discrimination) and 2 (domestic legal effects) of the ACHR: Firstly, regarding the decision to declare the children in a state of abandonment, the Court reiterated that the separation of a child from their biological family is only admissible when it is duly justified in the best interest of the child and should, when possible, be temporary. Taking into account the ECHR’s judgment in the case of R.M.S. v. Spain, the Court analysed if the national authorities adopted all necessary and adequate measures that could reason­ably be demanded to ensure that the children could lead a normal family life within their own family. It concluded that the separation of the Ramírez fam­ily was carried out after an insufficient investigation and as such the decision breached both domestic law and the applicants’ right to be heard. Moreover, the Court determined that the judicial decisions that ordered the separation lacked an adequate and suf­ficient basis to determine that it was carried out in the best interest of the children and that the procedure to determine a child’s state of abandonment was incom­patible with the ACHR.

Secondly, the Court established States’ obligations in the context of international adoptions by interpret­ing Article 19 of the ACHR in conjunction with the rel­evant provisions of the Convention on the Rights of the Child and the opinions of the Committee of the Rights of the Child. In this regard, it considered that for international adoptions to be compatible with the ACHR, States must verify that a set of substantive and procedural requirements are met, namely, that: (i) the children are legally eligible for adoption; (ii) their best interest was taken into account as a determining and primary consideration; (iii) their right to be heard has been guaranteed; (iv) the children could not receive adequate care in their country of origin or habitual residence; and (v) the placement does not result in improper financial gain for anyone involved. The Court concluded that the international adoptions in this case did not meet these requirements.

Thirdly, the Court determined that the decision to separate the children from their biological family was based on discriminatory justifications regarding their economic situation, gender-based stereotypes about parental responsibilities and their grandmother’s sex­ual orientation. In reaching this conclusion, the Court referenced the ECHR’s judgments in the cases of Saviny v. Ukraine, Soares de Melo v. Portugal, K. and T. v. Finland [GC], and Kutzner v. Germany, among others, stating that poverty alone cannot justify the separation of children from their families and that the mere fact that children may be placed in a more suitable environment does not per se justify a separation measure, given that States may provide financial aid and social counselling.

Conclusion: violation (unanimously).

Articles 6(1) (freedom from slavery), 8 (right to a fair trial) and 25 (right to judicial protection) of the ACHR: The Court recognised that Article 6(1) of the ACHR includes the prohibition of human trafficking of children for adoption purposes. However, it considered it lacked suf­ficient evidence to determine if the illegal adoptions in this case constituted human trafficking. Notwithstand­ing, it established that the failure to investigate whether human trafficking had occurred, despite the parents’ complaints and circumstantial factors, constituted a vio­lation of the right of access to justice.

Conclusions: no violation of Article 6(1); violation of Articles 8 and 25 (unanimously).

Article 7(1) (right to personal liberty) of the ACHR: The Court determined that the institutionalisation of children may constitute a restriction to their personal liberty when their freedom of movement is restricted beyond what would seem a reasonable imposition by a family to assure their wellbeing. Additionally, refer­encing the ECHR’s judgment in Scozzari and Giunta v. Italy [GC], it emphasised that the fact children are under custody of the State should not entail losing relationships with their family. In this case, the Court concluded that the institutionalisation of Osmín Tobar Ramírez constituted an arbitrary restriction on his per­sonal liberty because the State did not demonstrate that such a measure was necessary. Furthermore, the Court found that the State failed to adequately regu­late, supervise and oversee the institution where he was kept and thus did not ensure that his residential care was carried out in accordance with his rights as a child.

Conclusion: violation (unanimously).

Reparations – The Court established that the judgment constituted per se a form of reparation and ordered, among others, that Guatemala: (i) adopt all necessary and adequate measures to facilitate the restitution of family ties between Osmín Tobar Ramírez and his parents, and initiate some form of family reunifica­tion between J.R., Osmín and their mother; (ii) modify Osmín’s birth certificate, in such a way as to reinsti­tute legal family ties and other rights to which he was entitled at the time of his birth; (iii) conduct criminal, administrative and disciplinary investigations regard­ing the facts of the case; (iv) carry out a public act of acknowledgment of the State’s international responsi­bility; (v) develop a video documentary about the facts of the case, their context and the violations declared in the Judgment; and (vi) adopt a national programme to effectively ensure adequate State supervision and con­trol over the institutionalisation of children.

(As regards the ECHR case-law, see R.M.S. v. Spain, 28775/12, 18 June 2013, Information Note 164; Saviny v. Ukraine, 39948/06, 18 December 2008, Information Note 114; Soares de Melo v. Portugal, 72850/14, 16 Feb­ruary 2016, Information Note 193; K. and T. v. Finland [GC], 25702/94, 12 July 2001, Information Note 32; Kutzner v. Germany, 46544/99, 26 February 2002, Infor­mation Note 39; and Scozzari and Giunta v. Italy [GC], 39221/98 and 41963/98, 13 July 2000, Information Note 20)