RIGHTS OF MINORS FROM INDIGENOUS COMMUNITIES
In 1999, were born two twins in the hospital of “Sarare de Saravena”, children of an indigenous couple that belonged to the U´WA Community. After the childbirth, the father manifested that he couldn’t take care of the kids because his community repudiates the multiple births for considering that they’re pollutant, being a tradition that once the delivery took place, the kids were abandoned so “mother nature could take care of them”. The health center handed the babies to the Colombian Institute of Family Welfare (“Instituto Colombiano de Bienestar Familiar” ICBF), after a series of administrative actions that involved the Family Defender, both the Sectional and General Directorate of the ICBF, the concept of the Direction of Indigenous Issues of the Ministry of Interior and a strong media pressure, the Traditional Authorities of the U´WA Community and the parents decided not to authorize the process of adoption of the minors, and requested to the ICBF of Saravena to keep the children for the term of 7 months, period in which they could complete a process of consultation to the community in order to make a definitive decision.
Given this context, the Director and legal representative of “Casa de la Madre y del Niño”, on her position of officious agent of the minors, interposed “acción de tutela”, requesting the immediate protection of the fundamental rights of the minors to life, health and to have a family, by not allowing the return of the babies to the U’WA community, which may, in her judgment, expose them to serious threats of torture, cruel and inhuman treatment and risk their life. The Court analyzed (i) the administrative process of protection of the minors in the Colombian legal system, its various forms and who has the duty to initiate it and perform it; (ii) the situation of abandonment and the situation of moral or physical danger and (iii) the principles established in the Law No. 1098 of 2006 “by means of which is issued the Code of Infancy and Adolescence”.
After this analysis, the Revision Chamber decided to confirm the decision of the Supreme Court of Justice that protected the fundamental rights of the minors in which was ordered to the ICBF to continue the corresponding administrative processes of protection. It also ordered the conformation of a group of specialists (doctors, psychologists, anthropologists and nutritionists), that would, under the coordination of the Sectional Directory of the ICBF Arauca, establish the adequate moment for relocation of the children, recommend the treatments that must be carry on and illustrate the family and the community about the proper care of the kids.