Ineficacia del proceso verbal sumario para el trámite del restablecimiento de derechos de los niños, las niñas y los adolescentes, ante la pérdida de competencia de la autoridad administrativa por el vencimiento del término para fallar

Abstract

The restoration of child and adolescent rights is one of n State´s capabilities which is execute by the Judicial Power of Colombia in such way that the judicial proceeding to guarantee the restoration in mention is regulated in Articles 99 and 100 of Law 1098 of 2006, which was modified by Law 1878 of 2018. In accordance to the aforementioned Laws, the Administrative Authority, the Family Rights Defender or the Family Commissioner, who are the State Officers responsible for initiating the restoration proceeding which has a maximum term of six months to be resolved by restoring the affected rights and imposing the applicable and effective injunctive reliefs . In the event that the State Officials do not resolve the restoration of rights proceeding within the term stated by law, the jurisdictional competence is assigned, by law, to the Judge in charge of Family matters, who shall acknowledge the matter and resolve the process within a maximum period of two months. Once the restoration proceeding is assigned to the Judge in charge of Family matters, the Judge, in absence of a special rule applicable to the judicial proceeding of restoration of rights, the Judge shall process the restorations of rights claim as a summary verbal process in accordance to the procedural rules stablished in Articles 1, 21 and 390 numeral 3 of Colombia´s General Code of the Process. The procedure in mention usually becomes inefficient due to its adversarial nature, procedural terms, and the fact that a new State Officer, in this case a Judge, that is compelled to initiate a new process from the very beginning, which consist in the verification of the guarantee of the child or adolescent rights (Art. 138.L.1098.2006); fact that prolongs and delays the imposition of an injunctive relief for the restoration of rights, consequently making the situation of the child or adolescent more burdensome.