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INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
OEA/Ser.L/V/II.
Doc. 54/13
17 October 2013
Original: Spanish
THE RIGHT OF GIRLS AND BOYS TO A FAMILY.
ALTERNATIVE CARE.
ENDING INSTITUTIONALIZATION IN THE AMERICAS.
2013
Internet: http://www.cidh.org
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OAS Cataloging-in-Publication DataInter-American Commission on Human Rights. Rapporteurship on the Rights of the Child.
The right of girls and boys to a family. Alternative care. Ending institutionalization in the Americas.
p. ; cm. (OAS. Official records ; OEA/Ser.L)
ISBN 978-0-8270-6210-8
1. Children's rights--America. 2. Children--Legal status, laws, etc.--America. 3. Child welfare--America. 4. Human rights. 5. Domestic relations--America.
6. Parent and child (Law)--America. I. Title. II. Title: Alternative care. III. Title: Ending institutionalization in the Americas. IV. Series: OAS. Official records ; OEA/Ser.L.
OEA/Ser.L/V/II. Doc.54/13
Approved by the Inter-American Commission on Human Rights on October 17, 2013
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INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
MEMBERS
José de Jesús Orozco Henríquez
Tracy Robinson
Felipe González
Dinah Shelton
Rodrigo Escobar Gil
Rosa María Ortiz
Rose-Marie Belle Antoine
******
Executive Secretary: Emilio Álvarez-Icaza L.
Assistant Executive Secretary: Elizabeth Abi-Mershed
This report was prepared within the framework of an agreement between the IACHR and UNICEF. Its preparation and publication was made possible through the financial support of UNICEF and the translation to English thanks to the support of SOS VILLAGES. The Inter-American Commission on Human Rights wishes to thank the attorney and consultant Angels Simon for drafting this report, as well as staff attorney Marisol Blanchard Vera for her contributions. In addittion, the IACHR wishes to recognize the contributions of consultant Javier Palummo in the systematization of the information collected through the questionnaires and in the consultation processes, and preparing the first draft of Chapter VI of the report. The process of preparing this report began under Commissioner and Rapporteur on the Rights of the Child, Prof. Paulo Sergio Pinheiro, and was completed under the direction and technical supervision of the Commissioner and Rapporteur on the Rights of the Child, Mrs. Rosa Maria Ortiz.
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Prologue
More than two decades after the entry into force of the United Nations Convention on the Rights of the Child (CRC), there is no doubt that this international instrument exemplified one of the greatest transformations in the perception of childhood from the legal standpoint, while it also brought about profound implications for the social and cultural attitudes towards children. The most significant transformation operated by the CRC was the recognition of every girl and boy as subject of rights, in addition to recognizing their right to special and enhanced protection due to their condition of being persons in growth and development.
Within the Inter-American System of Human Rights, the Inter-American Commission and Court of Human Rights have extensivelydeveloped the concept of corpus juris of the rights of children in order to establish a holistic protection framework under Articles 19 of the American Convention on Human Rights and VII of the American Declaration of the Rights and Duties of Man, which includes the international standards of human rights developed in the area of children, including the CRC.
The positive developments brought about by the CRC are outstanding, in particular the progress achieved with the development of legal frameworks to ensure implementation of the CRC. Another important development is the progressive adoption of public policies, programs and services, and the allocation of financial and human resources to promote and protect the rights of boys and girls under the holistic perspective of the rights of the child promoted by the CRC. The Committee on the Rights of the Child emphasizes that States must design their interventions in a comprehensive, coordinated and complementary manner, in order to effectively guarantee all the rights of children. Therefore, CRC requires States to ensure the necessary conditions for the effective exercise, enjoyment and respect of all the rights for every child, and that the interventions are not limited to offering isolated and unconnected responses, or focus only on offering a reactive response to existing violations of rights. The establishment of National Systems for the Promotion and Protection of Children’s Rights in the States is a response to those requirements of the CRC.
The CRC, the American Declaration of the Rights and Duties of the Man, as well as the American Convention on Human Rights, confer a fundamental role to families in guaranteeing the care, well-being and protection of children, because family is the natural environment for the growth and development of children, particularly in their first stages of life. In this way, the CRC establishes that the State has the obligation to promote and favor an adequate support to the families so that they can fulfill their shared parental responsibilities to care for and raise their children, and in this way ensure the protection of children and their rights. Nevertheless, the persons closest to children, who should protect them and take care of them, may in some instances expose children to situations that threaten their personal integrity and development. In order to prevent violations of the rights of children from occurring and to guarantee effective protection for children, States should devote efforts in strengthening the family and community settings.
One of the States’ duties, which is imperative to reflect in the National Systems for the Promotion and Protection of Children’s Rights, is to ensure the right of the child to be raised in his or herfamily and community environment, and to give adequate attention to children who lack, or are at risk of losing, parental care. However, reality differs from the standards that have been established in international human rights law. First, it is a matter of concern that it is not possible to accurately establish how many boys and girls in the region are under alternative residential care in centers or institutions, and how they are being taken care of. Despite the lack of accurate data, the available information shows that there are many children who are unnecessarily institutionalized, and who, with the adequate support to their families, could be cared for and raised by them. It is necessary that the National Systems for the Promotion and Protection of Children’s Rights place greater efforts in strengthening the capacity of the families to raise their children, and for prevention as well as early detection of situations of violence, abuse and neglect against girls and boys. A second aspect observed refers to the absence or deficit of regulations on the functioning of centers and institutions that care for children who require special protection. The regulations should ensure an adequate functioning of these facilities that respects and protects the rights of children. Thirdly, and related to the above-mentioned, the operational structure of residential institutions, especially those of large dimensions that cannot provide personalized attention, exposes boys and girls to other severe violations of their rights, such as violence, abuse and neglect which impact their development.
For this reason, the Study of the Secretary General of the United Nations on Violence Against all Children, which was presented in 2006, evidenced the high rates of violence to which children could be exposed to, who lacked parental care and were admitted in a residential institution, in comparison to children who were in family-based alternative care. The recent Global Survey “Toward a world free of violence”, developed by the Special Representative of the United Nations’ Secretary General on Violence against Children, as a follow up to the U.N. Study of 2006, shows that despite some positive developments promoted over the last years, there are still serious challenges for the protection of children without parental care. The recent Global Survey also confirms that the boys and girls in institutions, in all the regions of the world, are among the most vulnerable groups at risk of being victims of violence and stigmatization.
The United Nations Guidelines for the Alternative Care of Children, of 2009, established a series of general principles, in order to promote public policies which strengthen the families’ possibilities to care for and raise their children, meanwhile setting the minimum standards of the forms of alternative care in those cases which require the separation of the child from his or her parents, based on reasons of protection and best interests of the child.
Within the strategic partnership in the Americas, we, the Special Representative of the United Nations’ Secretary General on Violence against Children and the Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights, have identified that an urgent need remains to promote changes in order to transform the current overall state in this field, in the region.
This Thematic Report further develops the analysis of the regional context and reiterates the grave concern for the situation in which thousands of children still live, in the hemisphere. To revert this state of things, and prevent children from being deprived of their right to live and grow in their family and to be cared for and raised in a family-based environment, and at the same time to ensure their right to a dignified life free from all forms of violence, this Report sets out the applicable standards and makes a number of concrete recommendations to States to support the families in their parenting responsibilities. The Report also identifies what the principles and guarantees for adequate protection should be, in the event that alternative care is necessary, and urges the States to end the institutionalization of children through a planned process permitting adecuate care in response to the needs of protection and best interests of children.
The Report of importance that we have the honor to present, symbolizes a major contribution from the Inter-American System of Human Rights in this subject. We are convinced that this Report will be a substantive resource to accelerate progress in the national implementation of the standards of children's rights and in the protection of human rights of boys and girls who are particularly vulnerable to the violation of their rights and to violence.
Marta Santos Pais
Special Representative of the United Nations’ Secretary General on Violence against Children
Rosa María Ortíz
Commissioner and Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights
Washington, December 2013.
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THE RIGHT OF GIRLS AND BOYS TO A FAMILY.
ALTERNATIVE CARE.
ENDING INSTITUTIONALIZATION IN THE AMERICAS
TABLE OF CONTENTS
I. EXECUTIVE SUMMARY 1
II. INTRODUCTION 5
III. THE RIGHT OF BOYS AND GIRLS TO A FAMILY 8
A. The corpus juris of the human rights of children and adolescents 8
B. The duty of special protection of children and adolescents 12
C. The right of the child to a family 16
D. Measures that imply family separation: principle of necessity, exceptionality and temporal determination (transiency) 24
E. Laws, policies and practices to support and protect families 29
1. Material Conditions for a dignified life 42
2. Prevention of violence against children 53
3. Prevention of relinquishment and abandonment
of children 61
IV. PRINCIPLES APPLICABLE TO DECISIONS ON ALTERNATIVE CARE;
DUE PROCESS GUARANTEES AND ESPECIALLY PROTECTED RIGHTS 66
A. Objective of the preservation and restitution of rights 66
B. The principle of the best interests of the child 67
C. Principles for determining and implementing special measures of protection involving separation from the family 75
1. Principles of exceptionality and temporal determination 76
2. Principles of legality and legitimacy 78
3. Principles of necessity and appropriateness 85
4. Principle of exceptional diligence 87
5. Principles of specialization and professionalization 88
6. Differentiation with punitive interventions 93
7. Due process guarantees and judicial protection 96
a. Procedure established by law and competent authority 99
b. Reasonableness of the time 102
c. Review of the special measures of protection 104
d. The child’s right to be heard 105
e. The right to legal representation and counsel 113
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V. FAMILY CARE 119
A. Extended family and foster care 119
B. Pre-adoption foster care 122
C. Informal care 124
VI. RESIDENTIAL CARE 128
A. Measure of last resort 128
B. Early Childhood 134
C. Terminology 137
D. The duty to regulate: public and private centers and institutions 138
E. Residential care centers and institutions of public, private
or mixed nature 143
F. Requirements and procedures for admission and departure
of children from residential care centers and institutions 145
G. Licensing, authorization to operate, and administrative
registration 149
H. Duty to supervise and inspect 153
I. Independent monitoring mechanism 158
J. Submission of complaints, claims, and petitions 165
K. Prevention, investigation, punishment and reparation
for rights violations 174
L. The establishment of minimum standards for the delivery
of services in residential care 178
1. System of operation 181
2. Location and dimensions 183
3. Physical space and infrastructure 188
4. Individualized attention and stable bonds 191
5. Individual care plan 193
6. Aspects pertaining to staff 194
7. Separation based on age and on protection and care
needs 200
8. Maintaining records , personal files and other
documentation 204
9. Mechanisms for participation 206
10. Regulation of disciplinary systems and the use of force 208
11. Re-attachment to family and social reintegration 219
12. Data and information gathering and analysis systems 221
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M. Applicability of the rights of boys, girls and adolescents 223
1. Right to life and personal integrity 223
2. Right to personal liberty 233
3. Right to physical and mental health 239
4. Right to food 253
5. Right to education and recreation 255
VII. CONCLUSIONS AND RECOMMENDATIONS 261
Annex 283
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THE RIGHT OF BOYS AND GIRLS TO A FAMILY.
ALTERNATIVE CARE.
ENDING INSTITUTIONALIZATION IN THE AMERICAS. [1]
I. EXECUTIVE SUMMARY
1. The Inter-American Commission on Human Rights (hereinafter, the “Inter-American Commission”, “the Commission”, or “the IACHR”) presents this report which analyzes the obligations of the States derived from the right of the child to a family, and makes recommendations aimed at strengthening the protection of children and adolescents who are without, or at risk of losing, parental care. In this regard, it provides a detailed analysis of the States’ obligations to strengthen the possibilities of the families to care for and raise their children through the development of appropriate programs and services, within the National Systems for the Promotion and Protection of Children’s Rights with special focus on those families who are in a particularely vulnerable condition, in the enjoyment of their rights.