T-311/17. RIGHT TO LOVE


Mario interposed “acción de tutela” against the sentence of the 16th of May/2016, proffered by the “Juzgado Primero de Familia Oral de Barranquilla, in which the Judge didn’t order the custody and personal care of his minor child, Pedro, in his favor. He manifests that the commented providence incurred in a factual defect, inasmuch as, in the plaintiffs opinion, it was motivated without valuing all the elements of judgment that would have led to the determination that custody of the child should had been given to the solicitant. In this action, the Court studied: (i) the possibility of suing a judicial pronouncement by “acción de tutela”: (ii) the factual defect and its jurisprudential development; (iii) the family and its new realities, (iv) the jurisprudential rules relatives to the right to have a family and not be separated from it, (v) the right to love developed by the Law 1098 of 2006,  and (vi) the superior interest of the minors (“interés superior del menor”).

On the study of the case, the Reviewing Chamber determined that: (i) the right to love of the minors involves that the parents have to restrain themselves of mistreating their children, (ii)  the first manifestation of the right to love consists on the “duty of reception” of the parents in front of their children, meaning that the first ones have to be a role of life, assist them, give them special care and help; (iii) the family is a dignifying power, prior to any influence of the society, (iv) the contempt that a parent may come to feel about his children doesn’t release him of his constitutional or legal obligations.


With that in mind, the Court concluded that the fundamental rights to dignity, to love and to have a family of the minor had to be protected, and in that order disposed, even though the Tribunal didn’t evince that the questioned sentence incurred in a factual defect, to complement the judgement with a requirement to the “Instituto Colombiano de Bienestar Familiar” to do an adequate tracking to the present subject and to guarantee that the fundamental rights of the minor are being observed.