Procedural Posture

The appellant installed an action of protection (Acción de Tutela) against the Instituto Colombiano de Bienestar Familiar (ICBF) at the Constitutional Court of Colombia after the Superior Tribunal of Bogota affirmed the decision of the first instance court that the omission of crucial information on the sexual orientation of the father required the imposition of measures to protect the rights of the adopted children.

Facts

After following all steps of the adoption process, a family judge handed down the judgment that declared the appellant, a gay American man, the adoptive father of two Colombian brothers who were 9 and 13 years old. When this decision became final, the appellant travelled to Colombia to accompany his sons to the United States. During his stay in Colombia, the appellant communicated about his sexual orientation in an informal conversation with one of the officials of the Instituto Colombiano de Bienestar Familiar (“ICBF”).  When the ICBF took notice of this fact, it immediately denied the children their passport and began administrative procedures to “restore the rights” of the children. This procedure is a protection mechanism before the “Defensor de Familia” prescribed by Colombian law to protect the rights of minors. The ICBF argued that the appellant had omitted important information about his sexual orientation in the course of the adoption process, which could affect his sons. During this process, the children were taken away from their father and were placed in a foster home.

Issue

Whether the ICBF had violated the fundamental rights of the applicant and the adopted children by starting the process of restoration of the children’s rights and separating them from their father after taking notice of the sexual orientation of the father.

Domestic Law

Codigo de infancia y adolescencia.

Constitucion Politica, Articles 86 and 241-9.

Sentencias T-572/09, T-572/10, T-671/10, T-502/11, T-580A/11 and T-844/11, Constitutional Court of Colombia. (on proportional protection measures)

International Law

International Convention of the Rights of the Child.

Reasoning of the Court

The Constitutional Court found that the ICBF did not demonstrate that there was a real threat to the rights of the children. According to the Court, “the ICBF did not prove the existence of a threat to the emotional health of the children at the moment when the Defensora de Familia decided to initiate the process and place the children in a different foster home ”.  The Court underlined that protection measures should only be adopted after conducting an objective and comprehensive study of the situation to which the child is confronted and they can never be based on prejudices or preconceptions. No evidence had been given that confirmed the alleged threat.

Even if it had been proven that there was a threat, the Court argued that the ICBF did not prove in any way that there was a causal relation between the lack of information on sexual orientation of the appellant during the adoption process, and the said risk. To the contrary, the threat was examined by psychosocial professionals of the ICBF who indicated that “the only risk to the emotional health of the children was due to the consequences of the separation of the children and their father and the interruption of their travel to the United States.” According to the psychologists, the threat was not attributable to the lack of information on the sexual orientation of the appellant.

Furthermore, the threat did not reach a degree of severity in order for such drastic measures to be appropriate. The separation of children from their parent is an exceptional and preferably temporary measure, based on evidence that the parent is not able to comply with the basic functions of parenthood. As this is not the case, the Court considered the adopted measures unjustified and disproportionate.

In addition, the Court noted that the defensora de familia did not take into account the opinion of the children at the moment of issuing the restoration measures. The children had manifested several times their desire to live with the appellant and not to be separated from him. The defensora de familia not only placed the children in a foster home, she also demanded that the contact between the appellant and the children be suspended.  Therefore, the Court concluded that the rights of the children to be heard had been violated.

In the light of the above, the Court found a violation of the fundamental rights of equality, free development of personality, due process, as well as the right of the child to have a family, to be free from discrimination on the basis of family, and the right of the child to be heard.

The Constitutional Court overturned the judgment of the Superior Tribunal. It ordered the annulment of the decisions made in the context of the procedure to install protection measures, and gave the final custody of the two children to the appellant.

Sentencia T-276/12, Constitutional Court of Colombia (11 April 2012), (Full text of judgment in Spanish, PDF)