Argentina, 4th Civil Court of the City of Buenos Aires, 12 May 2020, Case 30917/2019
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Freedom of movement of people
- Healthcare management (Covid related, excluding vaccination)
Vulnerability groups
Outcome of the decision
General Summary
This case involved a claim for the recognition of shared responsibility of two children. The daughters of the claimant were minors as of March 2020, at which time a measure of preventive and mandatory isolation in the city of Buenos Aires was decreed. From that moment on, the girls did not see their father again. This seriously affected the health of the mother, who had a crisis of anguish due to working from a distance while having to take care of the children. Thus, the interests of the minors, the mental health of the mother, the father’s work, the health of all due to the pandemic, the freedom of movement, and the restrictive measures of movement in Buenos Aires were in dispute. The Court upheld the claim, considering the children’s best interests and the shared responsibility of the parents.
Facts of the case
Mrs. V and Mr. F had two daughters, who were minors in March 2020, at which time a measure of preventive and mandatory isolation in the city of Buenos Aires was decreed. From that moment on, the girls did not see their father. Mrs. V stated that her daughters were significantly affected by the estrangement from their father, that they indicated that they missed him and were distressed. In addition, she noted that she had a crisis of anguish due to having to work at a distance while having the burden of caring for the children and accompanying them in their virtual education. Due to the above, Mrs. V requested that an alternation in co-parenting be authorized for the duration of the preventive isolation. Mr. F requested that the petition be rejected. He indicated that in his work in the agricultural sector, he was exposed to being infected with Covid-19 and that this would pose a risk to the children. He assured the Court that from a distance, he had accompanied his daughters in their daily chores (such as schoolwork) and affirmed that for a long time, the girls’ mother did not allow him to have contact with them through technological devices. Mr. F also requested that a psychological test be performed on the children. The Court upheld the claim because it considered that this decision was consistent with the children’s best interests and the parents’ shared responsibility.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
First, the Court indicated that its decision should be based on different international instruments that protect family life and especially children and the best interests of minors (such as the American Declaration of the Rights and Duties of Man; Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child; and the Convention on the Elimination of all Forms of Discrimination against Women). In this regard, it indicated that it was essential to consider the statements made by Mrs. V related to the fact that her daughters were quite affected by the absence of their father and indicated that due to the context of the quarantine and the type of process it was not appropriate to carry out a psychological evaluation to corroborate this. In addition, the Court mentioned that it was essential to consider the provisions of the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination against Women, which states that States must take appropriate measures to “Ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children...”. It indicated that in the specific case, it was evident that the burden was disproportionately on the mother, who suffered a crisis of anguish. Therefore, the Court argued that it was necessary to make a more equitable distribution of household chores, applying the principle of family solidarity. It indicated that they should maintain this distribution during the preventive isolation and in case the children’s education continued to be virtual. Thus, the Court decided that the girls would spend the first half of each week with their mother and the rest with their father. It also indicated that all biosecurity measures to prevent Covid-19 infection should be considered in the transfers to be carried out and that while they were with the other parent, the children should maintain contact by telephone or electronic means with their other parent.
Conclusions of the deciding body
The Court upheld the claim in consideration of the children’s best interests and the shared responsibility of the parents.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to private and family life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 42, Argentinian Constitution (not explicitly mentioned)
- Freedom of movement of people, Art. 14, Argentinian Constitution (not explicitly mentioned)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. right to privacy (private and family life)
- children’s rights
General principle applied
- Equality
- Family solidarity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court mentioned the principle of family solidarity to indicate that the burdens of care and upbringing of the daughters should be shared equally between both parents. In addition, although it did not explicitly refer to the principle of equality, it can be deduced that the Court took it into consideration due to the same argument.
