The right of girls and boys to a family. Alternative care. Ending institutionalization in the americas

paras. 46 to 48.

362 Committee on the Rights of the Child, General Comment No.7, Implementing the child’s rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, 40^th Regular Session, para. 36.

363 These international instruments help States make progress in complying with the obligations contained, specially, in Articles 35 and 36 of the CRC and others of similar scope.

Article 35 of the CRC establishes that: “States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”

Article 36 of the CRC establishes that: “States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.”

364 For a definition, see the U.N. Guidelines for the Alternative Care of Children, Guideline 29(b)(i).

365 “Children in informal alternative care,” Jini L. Roby. UNICEF, Child Protection Section, New York, 2011. One of the proposals the study makes is that the State should provide incentives for formalizing these private arrangements in order to have an accounting thereof that makes it possible to monitor and adopt special measures of protection where necessary, with the child’s best interests and respect for the child’s rights always being the priority whenever any type of decision is made by the State. This study is available in: http://www.unicef.org/protection/Informal care discussion paper final.pdf

366 Along the same lines, the U.N. Guidelines for the Alternative Care of Children state that: “States should devise special and appropriate measures designed to protect children in informal care from abuse, neglect, child labour, and all other forms of exploitation, with particular attention to informal care provided by non-relatives, or by relatives previously unknown to the children or living far from the children’s habitual place of residence”, Guideline 79.

367 IACHR, 2010 Annual Report, Chapter V, paragraphs 52 to 56. The Special Rapporteur on contemporary forms of slavery affirms that most of the between 150,000 and 500,000 Restavèk children of Haiti are allegedly being exploited in domestic servitude, often working long hours with no type of remuneration, denied education, medical care, and adequate food or accommodation and they are often physically and sexually abused. Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Mrs. Gulnara Shahinian, Report on Domestic Servitude, A/HRC/15/20, June 28, 2010, Human Rights Council, Fifteenth session, paragraph 38. See also, A/HRC/12/21/Add.1, September 4, 2009, Human Rights Council, Twelfth session, Mission to Haiti.

368 Report of the Special Rapporteur on contemporary forms of slavery, Mrs. Gulnara Shahinian, A/HRC/18/30/Add.2, August 15, 2011, Human Rights Council, Eighteenth session, Mission to Peru. Based on a recent census conducted among Peruvian households, the number of domestic workers is estimated at 300,000, of whom, 110,000 are said to be girls under 18, Instituto Nacional de Estadística e Información [National Institute of Statistics and Data], 2011 census, see paragraph 44.

369 Committee on the Rights of the Child. Consideration of the Reports Submitted by the States Party Under Article 44 of the Convention. Concluding observations: Paraguay, CRC/C/15/Add.166, November 6, 2001, paragraph 47.

370 Committee on the Rights of the Child, Consideration of the Reports submitted by the States Party under Article 44 of the Convention. Concluding observations: Suriname, CRC/C/SUR/CO/2, June 18^th 2007, para. 42. Committee on the Rights of the Child, Consideration of the Reports submitted by the States Party under Article 44 of the Convention. Concluding observations: Suriname, CRC/C/15/Add.130, June 28^th 2000, paras. 37 and 38.

371 According to the ILO, 175,000 children under 18 work in domestic service in Central America–38,000 children between the ages of 5 and 7 in Guatemala. See ILO, "Domestic labour: Global facts and figures in brief." Available at: http://www.ilo.org/ipec/areas/Childdomesticlabour/lang--en/index.htm.

372 Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Mrs. Gulnara Shahinian, Report on Domestic Servitude, A/HRC/15/20, June 28, 2010, Human Rights Council, Fifteenth session, paragraph 35, see specifically paragraphs 35 to 42. The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery specifically bans "[a]ny institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour." (Article(1)(d)). See also, Convention 182 of the International Labour Organization (ILO): the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, adopted by the General Conference of the International Labour Organization at its Eighty-seventh Session, which was held in Geneva and adjourned on June 17, 1999.

373 Guideline 18.

374 Guideline 56.

375 With regard to the importance of having statistical data and reliable information on hand when developing public policies to effectively protect children not being cared for by their parents, see the U.N. Guidelines for the Alternative Care of Children, Guideline 69.

376 See also the U.N. Guidelines for the Alternative Care of Children:

Guideline 76: "With a view to ensuring that appropriate conditions of care are met in informal care provided by individuals or families, States should recognize the role played by this type of care and take adequate measures to support its optimal provision on the basis of an assessment of which particular settings may require special assistance or oversight.”

Guideline 77: “Competent authorities should, where appropriate, encourage informal carers to notify the care arrangement and should seek to ensure their access to all available services and benefits likely to assist them in discharging their duty to care for and protect the child.”

Guideline 78: “The State should recognize the de facto responsibility of informal carers for the child.”

377 Committee on the Rights of the Child, General Comment No. 13, The right of the child to freedom from all forms of violence, CRC/C/GC/13, April 18, 2011, para. 47 (d) (iii). Day of General Discussion of the committee on the Rights of the Child on the topic of Children without parental care, 2005, Report of the 40^th Regular Session of the Committee on the Rights of the Child, CRC/C/153, paragraphs 654, 665 and 666.

378 World Health Organization, Regional Office for Europe, “Better health, better lives: children and young people with intellectual disabilities and their families. Transfer care from institutions to the community”, EUR/51298/17/PP/3, 8 November 2010. http://www.euro.who.int/__data/assets/pdf_file/0008/126566/e94426.pdf

379 U.N. Study on Violence against Children, page 189.

380 See Chapter 5, Violence against children in care and justice institutions of the cited U.N. Study on Violence against Children, available at: http://www.unicef.org/lac/Informe_Mundial_Sobre_Violencia_1(1).pdf.

381 See: U.N. Study on Violence against Children. Available at http://www.unicef.org/lac/Informe_Mundial_Sobre_Violencia_1(1).pdf Pages 183 and 189.

382 U.N. Study on Violence against Children.

383 Barth, Richard P., “Institutions vs. foster homes: The empirical base for the second century of debate”, Chapel Hill, NC: UNC, School of Social Work, Jordan Institute for Families, 2002, p. ii. Available at: http://www.dbhds.virginia.gov/documents/cFS/cfs1-9refDocs-rPBarth-vs-FosterHome.pdf. See also Commission to Promote Sustainable Child Welfare Canada, “Strengthening Family-Based Care in a Sustainable Child Welfare System. Final Report and Recommendations. June 29, 2012”, p. 10, 11 y 12. The document can be consulted at: http://www.sustainingchildwelfare.ca/assets/CPSCW_SFBC-Final-Report-Recommendations_FINAL_ENGLISH.pdf Report of the Independent Expert for the U.N. Study on Violence against Children, August 29, 2006, A/61/299. Likewise, the U.N Study on Violence against Children found that, depending on the particular cases, institutional care can be between six and one hundred times more expensive than family-based alternative care in the community, see page 184, http://www.unviolencestudy.org/spanish/index.html. UNICEF, “The framework for the protection, care and support of orphans and vulnerable children living in a world with HIV and AIDS”, July 2004, p. 37. International Save the Children Alliance, “A Last Resort. The growing concern about children in residential care, London, 2003, pp. 9 et seq.. Save the Children, Keeping Children Out of Harmful Institutions Why we should be investing in family-based care”, London, 2009. World Health Organization, Regional Office for Europe, “Better health, better lives: children and young people with intellectual disabilities and their families. Transfer care from institutions to the community”, EUR/51298/17/PP/3, 8 November 2010. Children’s Rights (USA), “What Works in Child Welfare reform: Reducing Reliance on congregate care in Tennessee”, July 2011.

384 CRC Article 20(3). The Committee on the Rights of the Child has expressed its opinion in several decisions regarding the placement of children in institutions as a form of alternative care, as a measure of last resort. In that regard see, General Comment No. 13, The right of the child to freedom from all forms of violence, CRC/C/GC/13, April 18, 2011, para. 47(d)(iii), and Committee on the Rights of the Child, General Comment No. 3on HIV/AIDS and the Rights of the Child, Doc. CRC/GC/2003/3 (2003), March 17, 2003,
paras. 34 and 35.

385 “Situación de Niños, Niñas y Adolescentes sin Cuidados Parentales en la República Argentina. Relevamiento Nacional y Propuestas para la Promoción y el Fortalecimiento del Derecho a la Convivencia Familiar y Comunitaria.” Secretaría Nacional de Niñez, Adolescencia y Familia de la SENNAF y Fondo de las Naciones Unidas para la Infancia (UNICEF) [Situation of Children and Adolescents without Parental Care in Argentina. National Survey and Proposals for the Promotion and Strengthening of the Right to Family and Community Living. National Secretariat for Children, Adolescents and Family (SENNAF) and the United Nations Children’s Fund (UNICEF)]. June 2012. Document available at: http://www.unicef.org/argentina/spanish/C_Parentales_final.pdf

386 Secretaria Nacional de Assistência Social, Ministério de Desenvolvimiento Social – Fundação Oswaldo Cruz, “Levantamento Nacional das Crianças e Adolescentes em Serviços de Acolhimento” [National Social Assistance Secretariat, Ministry of Social Development – Oswaldo Cruz Foundation, National Survey of Children and Adolescents in Alternative Care], 2010.

387 Committee on the Rights of the Child, Analysis of the Reports presented by States Parties under Article 44 of the Convention. Concluding Observations: Bolivia, CRC/C/BOL/CO/4, October 16, 2009, para. 46.

388 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Costa Rica, CRC/C/CRI/CO/4, June 17, 2011, para. 50.

389 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Ecuador, CRC/C/ECU/CO/4, January 29, 2008, para. 51.

390 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4, October 25, 2010, para. 55.

391 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Nicaragua, CRC/C/NIC/CO/4, October 1, 2010, para. 55.

392 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Paraguay, CRC/C/PRY/CO/3, February 10, 2010,
para. 41.

393 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Saint Lucia, CRC/C/15/Add.258, September 21, 2005, para. 44.

394 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Bolivia, CRC/C/BOL/CO/4, October 16, 2009, para. 45.

395 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Brazil, CRC/C/15/Add.241, November 3, 2004,
para. 44.

396 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, February 17, 2010, para. 48.

397 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4, October 25, 2010, para. 58.

398 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Nicaragua, CRC/C/NIC/CO/4, October 1, 2010, para. 54.

399 Committee on the Rights of the Child, Analysis of the Reports Presented by States parties under Article 44 of the Convention. Concluding Observations: Peru, CRC/C/PER/CO/3, March 14, 2006, para. 37.

400 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Dominican Republic, CRC/C/DOM/CO/2, February 1, 2008, para. 52.

401 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Uruguay, CRC/C/URY/CO/2, July 5, 2007, para. 40.

402 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Chile, CRC/C/CHL/CO/3, April 23, 2007, para. 44.

403 Committee on the Rights of the child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Nicaragua, CRC/C/NIC/CO/4, October 1, 2010, para.55.

404 Committee on the Rights of the Child, General Comment No. 7, Implementing child’s rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, 40^th Regular Session, paragraphs 6, 8 and 36. Specifically para. 36(b): “[R]esearch suggests that low quality institutional care is unlikely to promote healthy physical and psychological development and can have serious negative consequences for long term social adjustment, especially for children under 3 but also for children under 5 years old. To the extent that alternative care is required, early placement in family based or family like care is more likely to produce positive outcomes for young children.”

405 U.N. Study on Violence against Children, paragraphs 189 and 190.

406 Guideline 22.

407 Presentation by Byron Velásquez Acosta, Director of the Central Registry Authority of Institutionalized Children, National Council on Adoptions, [Director de la Autoridad Central del Registro de niñez institucionalizada, Consejo Nacional de Adopciones], during the sub-regional consultation for the report on the situation of institutionalized children and adolescents in the Americas of the IACHR jointly with UNICEF, Guatemala City, July 25, 2011. This situation has been addressed specifically by the Committee on the Rights of the Child (Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4, October 25, 2010, para. 55).

408 Secretaria Nacional de Assistência Social, Ministério de Desenvolvimiento Social – Fundação Oswaldo Cruz, “Levantamento Nacional das Crianças e Adolescentes em Serviços de Acolhimento” [National Secretariat for Social Assistance, Ministry of Social Development – Oswaldo Cruz Foundation, National Survey of Children and Adolescents in Alternative Care], 2010.

409 RELAF - Latin American Foster Care Network, “Institutionalized children and adolescents: evidence of serious human rights violations.” Series: Publications on children without parental care in Latin America: Contexts, causes and answers, 2011.

410 Boletín estadístico Nacional de Protección de Derechos y Primera Infancia. Segundo trimestre año 2011 [National Statistical Report on the Protection of Rights and Early Childhood. Second Quarter of 2011] Available at: http://www.sename.cl/wsename/estructuras.php?name=Content&pa=showpage&pid=153

411 I/A Court H.R., Case Fornerón and daughter v. Argentina. Merits, Reparations and Costs. Sentence of April 27, 2012 Series C No. 242. para. 51; I/A Court H.R., Order of the Inter-American Court of Human Rights of July 1, 2011. Matter of L.M. Provisional Measures with regard to Paraguay, . Considerative paragraph 16; I/A Court H.R., Case Furlan and Relatives vs. Argentina. Preliminary Exceptions, Merits, Reparations and Costs. Sentence of August 31, 2012. Series C No. 246, para. 127. In a similar sense, Committee on the Rights of the Child, General Comment No. 7, Implementing child’s rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, 40^th Regular Session, para. 18.

412 In the context of this process, a “nursery home” called “Hogarcito” was closed and the 22 babies who were there were placed with foster families and the process of returning them to their biological families or identifying adoptive families in cases where return to biological families was not possible was initiated.

413 The U.N. Guidelines for the Alternative Care of Children make a similar recommendation in Guideline 8: “States should develop and implement comprehensive child welfare and protection policies within the framework of their overall social and human development policy, with attention to the improvement of existing alternative care provision, reflecting the principles contained in the present Guidelines.“

414 See Guideline 23 of the U.N. Guidelines for the Alternative Care of Children. Additionally, references to the terms used under the U.N. Guidelines for the Alternative Care of Children can be found in “Moving Forward: Implementing the Guidelines for Alternative Care of Children,” Centre for Excellence for Looked After Children in Scotland (CELCIS) of the University of Strathclyde; International Social Services (ISS); Oak Foundation; SOS Children’s Villages International; and the United Nations Children’s Fund (UNICEF) 2012, pages 34 and 35.

415 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17.

416 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 August 28, 2002, series A No. 17, para. 78 and resolutive para. 6.

417 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 79.

418 I/A Court H.R., Case of Chitay Nech et al v. Guatemala. Preliminary Objections. Merits, Reparations and Costs. Judgment May 25, 2010. Series C No. 212, para. 164. Also see, I/A Court of H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 August 28, 2002, Series A No. 17, paras. 56 and 60. See also, I/A Court H.R., Decision of January 27, 2009 with regard to the Request for an Advisory Opinion made by the Inter-American Commission on Human Rights. Available at: http://www.corteidh.or.cr/docs/asuntos/opinion.pdf ‘considering’ clause 14; I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, para. 196; I/A Court H.R., Case of Bulacio v. Argentina, Merits, Reparations, and Costs. Judgment of September 18, 2003. Series C No. 100, paras. 126 and 134; I/A Court H.R.,Case of the Gómez Paquiyauri Brothers v. Peru, Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, paras. 124, 163 and 164; and I/A Court H.R., Case of the “Juvenile Reeducation Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment September 2, 2004. Series C No. 112, para. 160.

419 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment July 4, 2006. Series C No. 149, paras. 103 and 88. See also Case of Baldeón-García v. Peru, Merits, Reparations and Costs, Judgment of April 6, 2006, series 147, para. 81; I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment March 29, 2006, para. 154; and the Case of the Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, Judgment of January 31, 2006, para. 111.

420 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment July 4, 2006. Series C No. 149, paragraphs 94, 96, 99. I/A Court H.R., Case of Albán Cornejo et al v. Ecuador. Merits Reparations and Costs. Judgment November 22, 2007. Series C No. 171, para. 119. Also see IACHR, Report on corporal punishment and human rights of children and adolescents, para. 69.