The Superior Interest of the Minor is a principle that currently requires the search for the satisfaction of all the needs of girls, boys and adolescents, based on an approach of respect and legitimation of their human rights, this must be exercised by the responsible persons of their care, dative guardians and the various jurisdictional bodies, however this circumstance may limit their possibilities to defend their interests.
Keywords: Superior Interest of the Minor, human rights, dative guardian, jurisdictional bodies.
Introduction
At present, due to the social and economic problems through which Mexico crosses, it is necessary that the best interests of the minor be more taken into account, since it focuses on ensuring that the living conditions of a child are as dignified as possible Within the scope of its existence, for this there are institutions and organizations in charge of making this principle known and the human rights it encompasses, however, its application in the various jurisdictional bodies becomes different.
The best interests of the minor is a principle that is incorporated in the Convention on the Rights of the Child (CRC), but it was not until 2011 that it was incorporated in Article 4. of the Political Constitution of the United Mexican States. This focuses on preserving the integrity of children's dignity, however, sometimes it is not fully safeguarded during procedural acts.
This happens in the first part that from the obligation that has been imposed on the judges that, when deciding, they carry out an ex officio control of conventionality and constitutionality, it has produced as a consequence that in these procedures the judge no longer have the role of impartial arbitrator, but must take the side of minors, which means that, first of all, you have to determine which of the litigants defends the interest of the minor, if there is one who does, or what aspects of the best interests of the minor are defended by each litigant; In doing so, secondly, it must complete, correct, and even supply the interventions of the parties in court to protect that interest, generating a situation of procedural disparity, in which one party, or both in some aspects,has the judge as an adjunct.
This leads to the question of who is litigated in these proceedings, if the judge is entrusted with the action together with the parties, although for the defense of minors, this new condition requires that, to avoid situations that could be classified as partial, the division of functions between the investigating judge and the adjudicating judge is introduced into family procedural law, as has already been done with regard to criminal proceedings, to harmonize the protection of the rights of the accused with the rights of the victims.
In addition to the above, in the second part, the limitation imposed on a dative guardian to exercise the means of challenge against the decisions issued by judges during a judicial process, in reality restricts this principle even more, since on occasions These resolutions are not entirely in accordance with the law and could be seriously damaging their human rights, in that sense the incorporation of said capacity is feasible, which is currently limited, because sometimes the person who violates the resolution does not know about the means it has to protect its legal sphere, in the face of these acts or omissions of the authority.
In this regard, by conferring this power, to disagree before an instance against the decision issued by the judge, in the first point it would be possible to fully safeguard the guarantees of hearing, legality and legal certainty, in the sense that in said procedural acts the judge must take into account the psychological and social assessment, but it happens that when making the decision that most guarantees the best interests of the minor, it does not carry out the correct analysis at the time of issuing its resolution and that is where the predicted hypothesis of fallibility is updated human rights, which gives rise to a judgment with defects that can be challenged, therefore it is essential that the dative guardian can challenge, so that in this way the greatest satisfaction of each and every one of the needs of children,girls and adolescents.
Conclusion.
It is unquestionable that in reality, reaching the Higher Interest of the Minor, as ordered in the various legal systems, is complicated due to various jurisdictional factors that limit it and the series of legal loopholes regarding the realization of Aspects referring to their practical application, because in the procedural aspects related to the protection of the minor, they show that the judicial protection of the fundamental rights involved in the matter, among which the Best Interest of the Minor stands out, would be better protected with different procedures those established, according to the nature of the interest at stake. Being this preponderant interest, from the legal point of view, it depends on the will or possibilities of the people responsible for their care,dative guardians and jurisdictional bodies, which means that it is not an interest that can be protected and judicially autonomous, but is dependent. Which implies that reforms are carried out in order to provide all the legal tools necessary for its full exercise.
References
-Martha Isabel Villar Torres (2008), Judicial Branch. Guanajuato. Retrieved from http://www.poderjudicial–gto.gob.mx/pdfs/255.pdf (torres, 2008) .
-Nuria gonzalez / sonia rodriguez, (2008), UNAM. Virtual Legal Library of the
Institute of Legal Research of the
UNAM.recuperado https://archivos.juridicas.unam.mx/www/bjv/libros/6/2961/3.pdf (Rodriguez, 2008)
-Sandra Serrano / Daniel Vázquez (s / f), CNDH. Theoretical Foundations of Human Rights. Characteristics and Principles., Professional Services. Recovered from https://cdhdf.org.mx/serv_prof/pdf/fundamentosteoricosdelosderechos.pdf (Vázquez, S / F)
Abramovich, Víctor and Christian Courtis, “Towards the enforceability of economic, social and cultural rights. International standards and application criteria before local courts ”, in Carbonell Miguel et al., Social rights and minority rights, 2nd ed., Mexico, Porrúa / unam, 2001.
