Balancing the Right to Defense and the Best Interests of the Child in Institutional Care Proceedings. Case: Subpoenas to Homeless Parents.

Abstract

This analysis addresses a legal issue of substantial relevance, which revolves around the tension between the parents' right to defense and the prevalence of the child's best interests, principles recognized both in the Constitution of the Republic of Ecuador (2008) and in the Organic Code on Children and Adolescents (2003). Our Constitution, in its Article 44, expressly establishes that in all proceedings in which measures are adopted involving children and adolescents, their best interests must be given priority consideration, thus guaranteeing the comprehensive protection of their rights (Article 45 of the Constitution). Accordingly, the Organic Code on Children and Adolescents, in its Article 11, reinforces this principle by stating that the best interests of the child must guide all judicial and administrative decisions, prevailing over other principles in the event of a conflict. However, this approach cannot circumvent the parents' right to defense, which is also enshrined in the same Constitution. Indeed, Article 76 of our Constitution establishes that all persons have the right to a defense and to be heard at any stage of the proceedings. In the procedural sphere, the General Organic Code of Procedure, in Article 54, establishes that summons constitutes the act by which the defendants' right to defense is guaranteed, ensuring their knowledge of the proceedings. However, in the case of homeless parents, formal summons becomes a significant procedural obstacle, which can result in judicial decisions being made without their effective participation