CRC/C/100/D/205/2022

GE.26-03153 (E) 190326 190326

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child

on a communications procedure, in respect of

communication No. 205/2022*, **, ***

Communication submitted by:

C.M.V.G. (represented by counsel, Dayana

Gallardo Cabrera and Branislav Marelic Rokov)

Alleged victim:

B.V.F.

State Party:

Chile

Date of communication:

26 December 2022

Date of adoption of Views:

30 January 2026

Subject matter:

Right to maintain personal relations and direct

contact with the father

Procedural issues:

Failure to exhaust domestic remedies; lack of

substantiation

Articles of the Convention:

3, 4, 6, 9, 19 and 28

Article of the Optional Protocol:

7 (e) and (f)

1.1

The author of the communication is C.M.V.G., a citizen of Chile born on 27 March

1989. He submits the communication on behalf of his son, B.V.F., who was born on 4 July

2017 and is also a national of Chile. The author claims that the State Party has violated his

son’s rights under articles 3, 4, 6, 19 and 28 of the Convention. The author is represented by

counsel. The Optional Protocol entered into force for the State Party on 1 September 2015.

1.2

On 29 December 2022, in accordance with article 6 of the Optional Protocol, the

Working Group on Communications, acting on behalf of the Committee, requested the State

Party to take all necessary urgent measures to search for and locate B.V.F. and deliver him

to his father, in compliance with the decision issued on 14 June 2021 by the Protective

Measures Centre of the Family Courts in Santiago.

* Adopted by the Committee at its 100th session (12–30 January 2026).

** The following members of the Committee participated in the consideration of the communication:

Suzanne Aho, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff, Rinchen Chophel, Rosaria

Correa, Timothy Ekesa, Bragi Gudbrandsson, Mariana Ianachevici, Philip Jaffé, Sophie Kiladze,

Cephas Lumina, Faith Marshall-Harris, Benyam Dawit Mezmur, Juliana Scerri Ferrante, Aissatou

Alassane Sidikou, Zeinebou Taleb Moussa and Benoit Van Keirsbilck.

*** An individual opinion by Committee member Benoit Van Keirsbilck (partially dissenting) is annexed

to the present Views.

United Nations

CRC/C/100/D/205/2022

Convention on the

Rights of the Child

Distr.: General

12 March 2026

English

Original: Spanish

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Facts as submitted by the author

Events prior to the submission of the communication

2.1

Shortly after B.V.F.’s birth, his parents’ relationship ended, and B.V.F. remained in

the care of his mother.

2.2

On an unspecified date, B.V.F.’s mother began to prevent contact between the author

and his son, leaving the author unable to maintain direct and regular communication with the

boy. The author claims that, as far as possible, he nevertheless continued to remain part of

his son’s life and made the necessary alimony and maintenance payments.

2.3

On an unspecified date, the author initiated a family mediation process to agree on

arrangements for his relationship with his son and the relevant maintenance payments. As

B.V.F.’s mother did not attend the mediation meetings, a certificate was issued on 10 August

2018 stating that attempts at mediation had been unsuccessful, which enabled the author to

initiate legal proceedings. On 9 December 2018, the author filed a personal care motion

before Family Court No. 1 in Santiago in which he sought custody of his son. In response to

the motion, B.V.F.’s mother, P.C.F.B. filed a counterclaim for child support, alleging that

she had a prior claim to custody of B.V.F. and that his father’s involvement should be purely

financial. The case was adjourned on 29 November 2019 to allow the parents to attend

co-parenting therapy sessions. However, the child’s mother unilaterally decided to stop

attending the sessions.

2.4

On 6 May 2021, the Court issued a judgment granting custody (personal care) of

B.V.F. to the author, arguing that the father was better suited to caring for the boy and noting

his high levels of empathy and his ability to establish secure attachment and provide

emotional security. Father and son were shown to have a close and protective emotional

relationship, with the boy recognizing his father as a significant figure. Conversely, the Court

considered that the boy’s mother was not sufficiently nurturing, had a tendency toward

selfishness and, furthermore, had unilaterally abandoned the therapy sessions that had been

intended to improve the parents’ relationship, all of which made it difficult for her to interact

with the boy’s father. The Court established arrangements for direct and regular contact with

B.V.F.’s mother.

2.5

B.V.F.’s mother lodged an appeal against the judgment with the Appeals Court, which

upheld the decision of Family Court No. 1 on 9 February 2022. Subsequently, P.C.F.B. filed

a special remedy in cassation before the Supreme Court, which was rejected on 23 February

2023.

2.6

Following the judgment of 6 May 2021, the author attempted to contact B.V.F.’s

mother to arrange for the boy to move to his home. As she refused to cooperate, the author

requested Family Court No. 1 in Santiago to issue an order authorizing the Carabineros to

intervene to remove the child if his mother did not surrender him. On 14 May, Family Court

No. 1 ordered the enforcement of the judgment and the immediate surrender of B.V.F. to the

author and authorized the Carabineros to use force to uphold the child’s rights. B.V.F. was

taken to his father’s home, but on 13 June 2021, after a visit with his mother, she refused to

return him to the author.

2.7

On 14 June 2021, the author filed a request for protective measures with the Protective

Measures Centre (a court comprised of judges from the family courts in Santiago), in which

he asked the authorities to safeguard B.V.F.’s rights and to suspend direct and regular contact

between B.V.F. and his mother. On the same day, the judge ordered B.V.F. to be delivered

to the author and ordered the Carabineros to search for the child at the mother’s home or any

other location and to investigate his whereabouts if he was not found. The boy’s mother

appealed the ruling. The appeal was rejected on 9 February 2022.

2.8

On 14 August 2021, the author filed criminal proceedings against the boy’s mother in

connection with the offences of contempt of court and refusal to surrender a minor. The Local

Prosecutor’s Office for Gender Violence assigned to Guarantees Court No. 8 in Santiago

subsequently launched an investigation.

2.9

At the same time, the author requested the suspension of the contact order issued by

Family Court No. 1 and applied to the Protective Measures Centre for protective measures

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for B.V.F. The request was rejected. The author appealed the decision, which was upheld by

the Appeals Court in Santiago on 9 February 2022.

2.10

After several attempts to communicate with B.V.F.’s mother, on 12 November 2021

– 150 days after the author lost contact with his son – the Carabineros reported that they had

taken various actions, including conducting interviews with the mother’s relatives, who

denied that the child was at home and refused to disclose information on his location. The

Carabineros recommended that the author file a complaint of “presumed misadventure”. On

5 December 2021, P.C.F.B. informed the Family Court, without providing any evidence, that

B.V.F. was in perfect health. On 16 March 2022, the Protective Measures Centre requested

the criminal investigation police to search for B.V.F.1 On 28 April 2022, the Specialized

Search and Location Unit of the criminal investigation police reported that only B.V.F.’s

maternal grandfather was at the mother’s home and that he had reportedly provided false

information. The Unit concluded that B.V.F. was missing, because his whereabouts had been

unknown since June 2021, when his mother had withdrawn him from his educational

institution without enrolling him in a new one. Consequently, the Unit recommended that the

Protective Measures Centre should refer the case to the Public Prosecutor’s Office on charges

of contempt of court and refusal to surrender a minor.2 On 28 April 2022, the Protective

Measures Centre referred the case to the Public Prosecutor’s Office, where a complaint had

already been filed by the author in August 2021 (see para. 2.8). Subsequently, the police

requested the Public Prosecution Service to arrest P.C.F.B., but the duty prosecutor refused

and ordered the opening of an investigation for presumed misadventure. On 13 September

2022, an arraignment hearing was held, and P.C.F.B. was placed under night-time house

arrest and ordered not to leave the country. P.C.F.B. appealed the order, but the Appeals

Court rejected her appeal.

2.11

On 22 September 2022, the Carabineros conducted a check of the mother’s night-time

house arrest and requested information about B.V.F., who was not at home. In response, the

mother merely stated that he was “fine”, without providing any details. The Protective

Measures Centre initially refused to expand its investigation, as requested by the father, but

on 15 October, it granted an appeal and reissued the search order, which was valid for 60 days

and was accompanied by a warrant authorizing entry to the property. By that time, B.V.F.

had been missing for 488 days. On 20 October 2022, the criminal investigation police

reported that the child was not at his mother’s home and that the mother had refused to

provide information. Despite several reissuances and renewals of the search order, as of

5 December 2022, police action remained limited to visits to the mother’s home, with no

results.

2.12

Furthermore, according to the author, B.V.F. should have entered kindergarten, as he

would have turned 4 years old on 31 March 2022. Although kindergarten education, which

is not compulsory, is free in public institutions, the author had secured a place in a private

institutions. However, on 16 March, he made a request to the Ministry of Education regarding

his son’s enrolment. The Ministry confirmed that, as of 30 March 2022, B.V.F. was not

enrolled in any educational institution. On 12 April 2022, the Protective Measures Centre

ordered the ex officio opening of another case in connection with the violation of the child’s

right to education. P.C.F.B. argued that B.V.F. was not required to enter the school system

until he reached 6 years of age.

2.13

On 30 September 2022, the Protective Measures Centre ordered an expert evaluation

of the extent to which B.V.F.’s rights had been violated and indicated that it would disregard

any evidence provided by the parties. The waiting time for assignment of a State expert is 4

to 5 months.

1 According to the information provided, the criminal investigation police conducted surveillance at the

maternal grandparents’ home and at P.C.F.B.’s workplace but were unable to locate her or the child.

According to the maternal grandparents, B.V.F.’s mother had quit her job. Officers interviewed the

grandparents, the mother’s coworkers and school staff but did not obtain any further information.

2 Code of Civil Procedure, art. 240, and Criminal Code, art. 355.

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2.14

On 12 December 2022, a virtual criminal hearing was held. The judge asked P.C.F.B.

to give information about B.V.F. and to put him in front of the camera; the mother refused,

saying that he was not present.

2.15

The author indicates that both the first instance custody decision and the decision of

the Protective Measures Centre are immediately enforceable. The decision ordering the

immediate surrender of B.V.F. to his father is not subject to any appeal, as it is final and

enforceable. However, family judges have merely acknowledged the boy’s disappearance

and issued ineffective orders. The police have done nothing beyond visiting the mother’s

home, asking if the child was there and reporting to the court that he was not.

Events subsequent to the submission of the communication

2.16

On 3 February 2023, Guarantees Court No. 8 ordered the mother to be remanded in

custody, and the following day she was sent to San Miguel Women’s Prison. On 6 February

2023, after the mother was sent to prison, her relatives surrendered B.V.F. to his father in

compliance with the decision issued on 14 June 2021 by the Protective Measures Centre (see

para. 5.1). On 16 February 2023, the Appeals Court in Santiago revoked the remand order,

replacing it with night-time house arrest, and ordered her not to approach the victims and not

to leave the country.

Complaint

3.1

The author alleges that the lack of action by the police and the judiciary did not take

account of B.V.F.’s best interests and endangered his life, personal integrity and right to

education under articles 6, 19 and 28 of the Convention. According to the author, the State

Party’s authorities failed to take effective measures to ensure compliance with the decision

granting custody of B.V.F. to his father. He also points out that the authorities have not taken

sufficient steps to locate B.V.F. nor have they taken adequate measures in response to

P.C.F.B.’s non-compliance with the decision and the various protective measures issued. The

author claims that the search procedures were ineffective and that the orders of the Protective

Measures Centre were generic and issued only at the author’s request.

3.2

The author alleges that the State Party has violated article 4 of the Convention since,

despite the existence of a court judgment and legal orders supporting the boy’s relationship

with the father, the State Party’s judicial authorities have not taken the necessary measures

to uphold B.V.F.’s rights under the Convention.

3.3

In relation to articles 6 and 19 of the Convention, the author alleges that no evidence

of B.V.F.’s physical or mental state has been provided at any time and claims that there was

a risk to his life and integrity. According to the author, the fact that B.V.F. was missing and

in the custody of his mother, who had violated a court decision, put him at risk of neglect and

psychological violence. During B.V.F.’s custody hearing, it was established that P.C.F.B.

was not in a position to care for B.V.F.’s emotional needs. According to the author, B.V.F.

is suffering psychological violence insofar as he is deprived of contact and of any relationship

with his father’s side of the family. The author also alleges that, despite the existence of a

judgment ordering the immediate surrender of B.V.F. to his father and the fact that the boy’s

mother failed to comply with this judgment by hiding the child for months, the judiciary

considered that there was no risk and described a serious situation as simply “a problem

between the parents”. The author adds that the State Party has tolerated these violations of

B.V.F.’s rights by failing to search effectively for the boy. According to the author, the

criminal investigations were not aimed at finding B.V.F. but at punishing P.C.F.B. for

contempt of court and refusal to surrender a minor, and no criminal investigation was initiated

in connection with the complaint of alleged ill-treatment or “presumed misadventure”.

3.4

In relation to article 28 of the Convention, the author alleges that B.V.F. did not attend

school during the time he stayed with his mother.

3.5

At the time of submission of the communication, the author requested the following

reparation measures: (a) ensure the effective protection of B.V.F.; (b) provide rehabilitation

measures in health, education and other areas to repair the harm suffered due to State inaction;

(c) initiate ex officio the relevant criminal investigations against all those responsible for

mistreatment or other offences committed in connection with the boy’s disappearance;

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(d) compensate B.V.F. for the material and immaterial harm caused, depositing the funds in

an account to be made available to him when he reaches the age of majority; (e) train police

officers and family judges in the application of the principle of the best interests of the child;

and (f) reimburse the costs and expenses incurred by the author.

State Party’s observations on admissibility and the merits

4.1

In its observations of 29 June 2023, the State Party argues that, under article 7 (e) of

the Optional Protocol, the communication is inadmissible for failure to exhaust domestic

remedies. The State Party indicates that the criminal proceedings for contempt of court are

pending a decision before the Guarantees Court – the body competent to decide the case –

and that, in February 2023, the judgment handed down by the Family Courts was complied

with and B.V.F. was surrendered to the author. It adds that the child was delivered in good

health and is currently in the care of his father, which reflects a relevant change in

circumstances and the measures taken by the State to enforce the judgment of the Family

Court.

4.2

With regard to the author’s allegations that the State Party’s alleged inaction in the

search for the child put his life and personal integrity at risk, the State Party claims that there

is no record of the author initiating any criminal proceedings in respect of possible violations

of the child’s right to life and physical integrity, which would have allowed for an impartial

and independent investigation of the facts. This would have enabled the State Party to

establish the facts, identify those responsible and adopt the relevant measures.

4.3

With regard to the author’s allegations concerning B.V.F.’s right to education, the

State Party submits that on 11 April 2022, the Protective Measures Centre opened a

protection file in connection with B.V.F.’s removal from school. On 12 October, the court

referred the child and his mother to the Santiago Outpatients Programme to obtain a

psychological report, and the case is currently being processed.

4.4

The State Party emphasizes that throughout the proceedings before the Family Court,

the best interests of the child were taken into consideration. A guardian was appointed to

protect B.V.F. and represent his rights, in recognition of his status as a rights holder and

guaranteeing his fundamental right to participate in the proceedings; an opinion was sought

from a technical adviser, who is responsible for advising the courts on family and child

matters from a psychosocial perspective; and the author submitted documentary evidence,

including diagnostic reports and evaluations conducted by health professionals. The

proceedings culminated in a judgment granting custody to the father, and the Court ordered

the immediate surrender of the child, with the assistance of the public security forces. In view

of the lack of compliance with the decision issued by Family Court No. 1, a case was brought

before the Protective Measures Centre of the Family Courts. Initially, the Family Court

sought to avoid the involvement of the police and ensure that the child was surrendered safely,

thereby preventing any irreparable harm to him. Since the child had not been located, and

following the renewal of the order for his immediate surrender, the decision was taken to

refer the case to the Public Prosecution Service. These actions demonstrate that the authorities

acted in a diligent manner and took various measures to comply with the decision issued by

Family Court No. 1, and it is therefore not possible to argue that the best interests of the child

have been violated.

4.5

The State Party argues that the enforcement of the Family Court decision was hindered

by legal motions, disputes over its effects and the mother’s failure to cooperate. The

difficulties in locating the child were attributable to the actions of private individuals and not

to inaction or negligence by the State, as supported by a report dated 28 April 2022 prepared

by the criminal investigation police, which sets out the various steps taken and the difficulties

in locating the child owing to the existence of a “family protection network”.

4.6

The State Party maintains that, with regard to the case submitted to the Protective

Measures Centre, the judgment of 6 May 2021 was complied with, insofar as the child was

surrendered safe and well on 6 February 2023, which disproves the allegation of State

inaction and of a violation of article 4 of the Convention.

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4.7

In connection with the author’s allegations that B.V.F.’s life was put at risk, the State

Party notes that in the context of all the measures taken pursuant to the various judicial

proceedings relating to B.V.F., efforts have been made to respect his right to life and protect

him from any form of physical or mental harm or abuse. Although in its judgment, the Family

Court determined that, according to the available reports and background information, the

father had “a greater ability to engage in a healthy co-parenting relationship”, the State Party

clarifies that under Chilean law the granting of custody does not constitute a pronouncement

of a violation of rights; rather, it specifies who is responsible for the day-to-day decisions

relating to the care of the child. The ruling in favour of the father does not constitute a

pronouncement that the mother has committed any violations.

4.8

With regard to the possible violations that may have resulted from the child’s

separation from his father, the State Party acknowledges the impact it may have had on B.V.F.

and the suffering that the situation may have caused him. However, it maintains that there is

no information to indicate that there might have been a violation of the child’s right to life

and physical integrity, either in the custody case, in which arrangements were made for visits

with his mother, or in the case that was brought with a view to enforcing the custody decision.

It adds that the child’s mother participated throughout the judicial proceedings before the

national courts and that one of the arguments used by the mother in refusing to surrender the

child to his father was that, in her opinion, the judgment granting custody to the father was

not final and enforceable. As part of the proceedings dealt with by the Protective Measures

Centre, on 5 December 2021 and 15 December 2022, the mother reported that the child was

in good health. Although the child’s exact whereabouts were unknown, information about

the child’s health was available. In addition, according to the report dated 27 June 2023

prepared by the criminal investigation police, during a video call the child was identified as

being with his mother and her lawyer and was determined to be in good health. The report

shows that actions were taken to protect the child’s life and integrity and ensure his

well-being. Ultimately, B.V.F. was surrendered to his father in good health.

4.9

Lastly, the State Party notes that, as enrolment in kindergarten is not mandatory, the

failure to enrol the child does not constitute a violation of the right to education recognized

in article 28 of the Convention.

Author’s comments on the State Party’s observations on admissibility and the merits

5.1

In his comments of 3 September 2024, the author alleges that, thanks to the

Committee’s communication, on 9 January 2023, the Supreme Court requested information

from the judiciary, which took all necessary measures to protect B.V.F. On 3 February 2023,

the protective measures were reviewed and strengthened due to the mother’s lack of

cooperation. On 4 February 2023, the mother was sent to prison, and on 6 February 2023, her

relatives surrendered B.V.F. to the author.

5.2

The author claims that B.V.F.’s whereabouts and health status during the two years

he was separated from his father have not yet been ascertained. He alleges that, as a

consequence of the separation, B.V.F. required psychological support to re-establish the bond

with his father.

5.3

With regard to the exhaustion of domestic remedies, the author alleges that on

23 February 2023, the Supreme Court upheld the first instance ruling. With regard to the case

submitted to the Protective Measures Centre in connection with the search for the child, no

further action has been taken since B.V.F. was surrendered to his father. With regard to the

other case submitted to the Centre concerning violations of the child’s rights, the author

claims that once B.V.F. was surrendered, the expert evaluation of the family was resumed,

and a final judgment was handed down on 6 February 2023.3

5.4

The author reiterates the lack of effective enforcement of the custody decision and the

absence of effective measures to search for the child. Specifically, the State Party took only

three police actions (two by the criminal investigation police and one by the Carabineros),

which were not automatically renewed by the courts, and visited only locations in Santiago,

despite information having been uncovered relating to addresses in other cities in the country.

3 At that time, the mother’s direct and regular contact with the child was supervised and monitored by

psychologists.

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In addition, he alleges that the Protective Measures Centre sent generic search orders to the

police and was not proactive. It took action only at the author’s insistence and even refused

to renew one of the orders it had issued.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol,

whether the communication is admissible.

6.2

The Committee takes note of the State Party’s argument that the communication is

inadmissible on the ground of failure to exhaust domestic remedies, since the criminal

proceedings for contempt of court remain pending and because the author did not initiate any

criminal proceedings relating to complaints of possible violations of B.V.F.’s right to life and

physical integrity. The Committee also notes the author’s claims that he had filed a complaint

relating to ill-treatment and presumed misadventure and that there is no evidence to show

that the authorities had ascertained the state of B.V.F.’s physical and mental health. The

Committee considers that the author exhausted the appropriate remedies in connection with

the enforcement of the judgment through, in particular, the repeated requests for protective

measures and the filing of criminal complaints for contempt of court, with the aim of securing

B.V.F.’s return, preventing harm to his physical and psychological integrity and establishing

his whereabouts. These remedies ultimately appear to have allowed B.V.F. to be surrendered

to his father, and the protective measures that had been requested were consequently

suspended. With regard to the criminal proceedings pending against the mother for contempt

of court, the Committee notes that the purpose of those proceedings would be to find the

mother criminally responsible, rather than to protect B.V.F. and return him, and it therefore

would not be an effective remedy for the purposes of the present communication. In the light

of the foregoing, the Committee considers that the author has exhausted the domestic

remedies that were available to address the alleged violations put before the Committee and

accordingly considers that article 7 (e) of the Optional Protocol does not constitute an

obstacle to the admissibility of the present communication.4

6.3

The Committee considers that, for purposes of admissibility, the author has

sufficiently substantiated his claims under articles 3, 4, 6 (2), 19 (1) and 28 of the Convention,

in relation to the non-enforcement of the court judgment granting custody of B.V.F. to the

author, which affected B.V.F.’s right to maintain personal and direct contact with his father,

as well as his rights to development, to education and to State protection during the period of

almost two years during which his whereabouts were unknown. The Committee also

considers that the author has raised in substance before the Committee claims relating to

violations of article 9 of the Convention.5 Accordingly, the Committee finds the author’s

claims under articles 3, 6 (2), 9, 19 (1) and 28 of the Convention admissible and proceeds to

its consideration of the merits.

Consideration of the merits

7.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

7.2

In particular, the Committee must determine whether, in the circumstances of the

present case, the State Party has taken effective measures to uphold the right of the author’s

son to maintain, on a regular basis, personal relations and direct contact with his father. The

author has further alleged that the State Party’s authorities failed to take sufficient steps to

locate B.V.F., placing him at risk of ill-treatment or psychological violence.

7.3

In this connection, the Committee notes, in particular, the arguments put forward by

the author in his complaint, according to which, despite repeated requests for enforcement of

the judgment handed down by the Family Court and for the adoption of protective measures,

4 A.E.A. v. Spain (CRC/C/87/D/115/2020 and CRC/C/87/D/115/2020/Corr.1), para. 11.2.

5 Z.T. et al. v. Switzerland (CRC/C/92/D/101/2019), para. 8.3.

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the proceedings were limited to visits to the mother’s home, with no prompt or effective

measures being taken, such as an inspection of the home or a search in other parts of the

country in order to locate B.V.F. The author adds that no effective searches were carried out

and that the investigations were aimed more at punishing the mother for contempt of court

than at protecting B.V.F., even after the complaint of “presumed misadventure” was filed.

7.4

For its part, the Committee takes note of the State Party’s arguments that the

enforcement of the judgment of the Family Court was hindered by legal motions filed by the

boy’s mother and her lack of cooperation and that the difficulties in the search were due

mainly to the actions of private individuals and not to any inaction or negligence on the part

of the authorities. The Committee notes that, according to the State Party, B.V.F.’s mother

allegedly argued that the judgment relating to guardianship and custody was not final. The

Committee also notes that B.V.F. was reportedly surrendered safe and well and that, although

the situation might have had repercussions, the State Party maintains that there was no

information, either in the case file or in the custody proceedings, to indicate a possible

violation of the child’s right to life and integrity, even though his whereabouts were unknown.

7.5

The Committee recalls that during early childhood, which is characterized by rapid

development and a high degree of vulnerability, children require stable and loving

relationships with both parents to ensure their physical, emotional and social well-being.6

Anything that interferes with this essential bond and any exposure to secrecy and instability

gives rise to significant risks to their comprehensive development.7

7.6

The Committee notes that the judicial authorities had awarded custody of the child to

the author, after determining that the mother was not in a position to look after him. However,

the lack of diligence in the enforcement of this decision allowed the mother to keep B.V.F.

hidden for more than two years, which prevented him from having any contact with the author.

The Committee emphasizes that, although the child was surrendered to the author safe and

well on 6 February 2023, this does not constitute sufficient reparation for the irreparable harm

resulting from the prolonged separation from his father.

7.7

The Committee notes with particular concern that B.V.F. was kept in hiding by his

mother for a period of two years and that the competent authorities did not take immediate,

effective and appropriate measures to locate him, directly ascertain the state of his physical

and psychological health or ensure his return to the author as ordered by the courts. Such

inaction not only increased the child’s vulnerability but also constituted a lack of diligence

on the part of the State Party in its positive obligation to enforce judicial decisions ex officio.8

This obligation implies that States must act with due diligence to ensure the effective

enforcement of judicial decisions related to custody and family contact, avoiding delays that

compromise the best interests of the child. The Committee considers that the State Party’s

inaction cannot be justified by the actions of private individuals but falls under the State’s

mandatory duty to guarantee the effectiveness of its decisions and to protect the child’s

development.9 The Committee also considers that the right to effective judicial protection is

not limited to access to a remedy but also implies the obligation to ensure the enforcement of

judicial decisions. The lack of enforcement and the unwarranted delay in the child’s return

exposed him to risks that compromised his well-being and integrity.10

7.8

Consequently, the Committee concludes that the lack of diligence in the enforcement

of the judgments, in the context of which the action taken was formal and insufficient and

occurred only at the author’s request, violated B.V.F.’s right to maintain personal relations

and regular contact with his father and his right to development, in contravention of articles 3,

6 (2), 9 (1) and 19 (1) of the Convention.

6 Committee’s general comment No. 7 (2020), para. 6.

7 Ibid., para. 36.

8 C.R. v. Paraguay (CRC/C/83/D/30/2017), para. 8.3.

9 Inter-American Court of Human Rights, Furlan and family v. Argentina, Judgment of 31 August

2012, paras. 209–211.

10 European Court of Human Rights, Hokkanen v. Finland, Judgment of 23 September 1994,

Application No. 19823/92, paras. 58–60; and Ignaccolo-Zenide v. Romania, Judgment of 25 January

2000, Application No. 31679/96, paras. 102 and 103.

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7.9

Having reached that conclusion, the Committee does not deem it necessary to consider

separately the author’s claims under article 28, which are based on the same facts.

8.

The Committee, acting under article 10 (5) of the Optional Protocol, is of the view

that the facts before it disclose violations of articles 3, 4, 6 (2), 9 (1) and 19 (1) of the

Convention.

9.

Accordingly, the State Party should provide B.V.F. with an effective remedy for the

violations suffered, including adequate compensation for the harm suffered and any mental

health rehabilitation measures required. The State Party is also under an obligation to prevent

similar violations in the future.11 In this regard, the Committee recommends that the State

Party:

(a)

Adopt the necessary measures to ensure the immediate and effective

enforcement of court decisions suited to the needs of children, in order to re-establish and

maintain contact between children and their parents;

(b)

Develop intersectoral protocols to ensure that judicial decisions are translated

into concrete actions;

(c)

Guarantee the existence of reparation measures for children, in cases where

emotional or institutional damage has been caused by non-compliance with judicial decisions.

10.

In accordance with article 11 of the Optional Protocol, the Committee wishes to

receive from the State Party, as soon as possible and within 180 days, information about the

measures it has taken to give effect to the present Views. The State Party is also requested to

include information about any such measures in its reports to the Committee under article 44

of the Convention. The State Party is also requested to publish the present Views and to have

them widely disseminated.

11 C.R. v. Paraguay, para. 9.

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GE.26-03153

Annex

Individual opinion of Committee member Benoit Van

Keirsbilck (partially dissenting)

1.

I regret that, in paragraph 7.9 of this decision, the Committee did not consider it

necessary to examine the author’s complaints under article 28 of the Convention, which are

based on the same facts, despite having declared the allegation of a violation of that provision

admissible. It is true that this analysis would not have led to a different conclusion on the

main issue, but it could have resulted in norm clarification and a broader remedy.

2.

Article 28 (1) of the Convention declares that States Parties recognize the right of the

child to education and lists a set of specific obligations to give effect to this right. In particular,

it requires States to make primary education compulsory and free of charge. However, this

list is not exhaustive, as States are required to deploy many other means to ensure that this

right is effective in all its dimensions.

3.

Early childhood is the period of life from birth to the transition to school, during which

the human body and nervous system mature most rapidly and when mobility, communication

skills, intellectual abilities, interests and aptitudes develop the most. The growth and

development of young children vary according to their nature, gender, living conditions,

family structure, care environment and education system.1

4.

The link between education and development is made explicit in article 29 (1) (a) of

the Convention. Indeed, a child’s education should promote the development of their

personality as well as the development of their mental and physical abilities to their fullest

potential. The early years of a child’s life are crucial for their physical and mental health,

emotional security, cultural and personal identity, and cognitive and social development.

They enable children to become familiar with the school environment.

5.

Although education goes far beyond the boundaries of formal schooling and

encompasses the whole range of life experiences and learning processes that enable children,

individually and collectively, to develop their own personalities, talents and abilities and to

live a full and satisfying life within society,2 it remains true that much of this learning is an

integral part of the substantial contributions of preschool education that complies with the

provisions of article 29 of the Convention. Children’s early learning is fostered both by a

stimulating family environment and by participation in high-quality educational and

childcare programmes.3 It is therefore clear that we can no longer consider education to begin

only when children enter primary school.4

1 Committee on the Rights of the Child, general comment No. 7 (2005) on implementing child rights in

early childhood, para. 6.

2 Committee on the Rights of the Child, general comment No. 1 (2001) on the aims of education,

para. 2.

3 Linda M. Richter and others, “Measuring and forecasting progress in education: what about early

childhood?”, npj Science of Learning, vol. 6, No. 27 (September 2021), quoted by Sandra Fredman

and others and the Harnessing Global Data to Advance Young Children’s Learning and Development

Consortium, “Recognizing early childhood education as a human right in international law”, Human

Rights Law Review, vol. 22, issue 4 (December 2022), https://doi.org/10.1093/hrlr/ngac024.

4 Fredman and others and the Harnessing Global Data to Advance Young Children’s Learning and

Development Consortium, “Recognizing early childhood education as a human right in international

law”.

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6.

Numerous studies demonstrate the positive impact that high-quality educational

programmes can have on young children in terms of their successful transition to primary

education, their subsequent academic achievement and their long-term social integration.5 It

is for this reason that countries have committed to achieving Sustainable Development Goal

4.2, which aims to ensure that all boys and girls have access to quality early childhood

development, care and pre-primary education that prepares them for primary education, by

2030.

7.

Yet this right is guaranteed by the Convention. This is clear from a reading of

article 6 (2) of the Convention, which guarantees the right to maximum development,

together with the objective of education guaranteed by article 29 (1) (a). The Committee

recognizes this in its general comment No. 7 (2005) on the implementation of rights in early

childhood, in which it states that it considers that the right to education in early childhood

begins at birth and is closely linked to the right of young children to maximum development.

The Committee also frequently refers to this right in its reviews of States Parties. The

Committee on Economic, Social and Cultural Rights also has a detailed normative framework

aimed at ensuring that education is available, accessible, acceptable and adaptable, from early

childhood through to secondary school.6 This is also the conclusion reached by various

authors.7 Early childhood education must therefore be considered part of States’ legally

binding obligations regarding the right to education.

8.

By failing to consider the violation of article 28 of the Convention separately from the

other violations, the Committee missed an opportunity to clarify the existence and scope of

this right, in conjunction with article 6 (2) and article 29 (1) (a) of the Convention. The

Committee would then have been in a position to evaluate the appropriate remedy for this

breach.

9.

It is particularly interesting to note that, under Chilean law, the State provides early

childhood education. 8 Although this level of education is not compulsory, the right to

education is well recognized from that early age.

10.

In the present case, the lack of diligence and proactivity on the part of the national

authorities in identifying where B.V.F. was being held caused him to be deprived of

education during early childhood for a period of two years, which is likely to have had a

significant impact on his development. The finding of a violation of this right is insufficient

to redress this deprivation of education and to restore B.V.F.’s lost learning and

developmental stages in preparation for further schooling. However, the State Party could

have been required to provide support and assistance measures to mitigate the effects of this

violation.

5 Committee on the Rights of the Child, general comment No. 7 (2005), para. 30.

6 Fredman and others and the Harnessing Global Data to Advance Young Children’s Learning and

Development Consortium, “Recognizing early childhood education as a human right in international

law”.

7 Ibid.

8 Chile, General Law of Education, Law No. 20.370 (2009).