The Constitutional Court analyzed the “right to equality and non-discrimination, the principle of the best interests of children and adolescents and parental co-responsibility.”
On the morning of this Friday, December 10, 2021, it transpired that the Constitutional Court (CC) declared numerals 2 and 4 of article 106 of the Childhood and Adolescence Code unconstitutional. Those regulations gave maternal preference when entrusting the custody of children and adolescents.
The numerals declared unconstitutional indicate textually:
2.- In the absence of agreement of the parents or if what is agreed by them is inconvenient for the best interests of the family son or daughter, the parental authority of those who have not reached the age of 12 the mother will be entrusted, unless it is proven that this is prejudicial to the rights of the son or daughter.
4.- If both parents show the same conditions, mother will be preferred, as long as it does not affect the best interests of the son or daughter.
But now, the magistrates’ decision changes the landscape. The measure was taken in an ordinary session held on November 24 last. There they resolved this issue that was promoted in the cause No. 28-15-IN.
In sentencing, hea CC analyzed the “right to equality and non-discrimination, the principle of the best interests of children and adolescents and parental co-responsibility ”.
???? NEWSLETTER | This Agency issued Judgment 28-15-IN / 21 in which it analyzed the right to equality and non-discrimination, the best interests of children and adolescents, and parental co-responsibility.
Plus: https://t.co/Evd7i6UEze
Full text: https://t.co/E5AykDoFhT pic.twitter.com/F0Nm9XFVLk– Constitutional Court (@CorteConstEcu) December 10, 2021
The magistrates also reiterated that in cases where the rights of minors are resolved “The principle of superior interest will prevail over the interests of the parents “.
After the respective analysis, the Court concluded that the challenged provisions were discriminatory, for which he expelled them from the legal system.
For this reason, parameters were outlined to evaluate, case by case, the order of the custody of the children.
After this analysis, the CC established that this judgment bets on the “Need to combat gender stereotypes and inequality in the domestic environment, seeking compliance with parental co-responsibility ”.
When verifying that the justification of the challenged norm is the protection of women from vicarious gender violence, the Court recognized that it translates into “extremely alarming events (…)”. Therefore, among other parameters, established that, in order to entrust custody to the mother or father, the judicial authority “must take all the necessary measures to rule out the threat, existence or history of physical, psychological, domestic, economic – patrimonial and vicarious violence”.
Within the sentence, the Ombudsman was ordered to prepare a report that it be known by the National Assembly so that the debate on the “Project of the Organic Code for the comprehensive protection of girls, boys and adolescents” continues.
In it, the active participation of social organizations and different state bodies must be counted on.
It also ordered that the Office of the Ombudsman and the Public Defender, jointly, inform the public about the service that the latter provides in matters of childhood and adolescence.
In addition, it requests that the Ombudsman’s Office and the Judicial Council, jointly, develop a training plan for judicial officials to resolve cases related to children and adolescents, so that training is provided regarding the application of the legal framework in the fight against violence.
