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H. Duty to supervise and inspect
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The Court has held that States must supervise and oversee the provision of services in the public interest, whether these services are provided by both public and private entities.445 Similarly, the Commission has held that this obligation to supervise is of the utmost importance when it involves the supervision of services provided by public or private facilities in charge of the protection, guardianship, care and education of children.446 The States Parties, therefore, have obligations of monitoring, supervision and inspection of public and private facilities, in order to ensure that all fundamental rights of children are respected and guaranteed and that they comply with the objective of restoring rights, pursuant to the special measure to protect.
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By the same token, Article 3(3) of the Convention on the Rights of the Child, cited above, is very clear in establishing the obligation of States to submit centers and institutions to adequate procedures of supervision.
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The Commission views that the content of the duty to supervise and inspect residential care centers and institutions has specific characteristics derived from the very activity that is performed by these centers and institutions, as well as from the special conditions of vulnerability of children living in such establishments. Regarding the conditions of vulnerability, the Commission underscores that several different factors have a direct bearing on vulnerability while the child is in an alternative care facility or residential institution: the absence of parents, family members or persons close to the child; the age and degree of the child’s individual development and his or her dependency on adults; and, the child’s lack or limitation of knowledge on his or her rights and how to assert them.
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Based on the foregoing and in order to adequately comply with the aforementioned obligation, the Commission believes that normative regulations must clearly establish the following aspects as a minimum: i) the authority to carry out supervision and inspection of the facilities, ii) the minimum frequency with which the competent authority must conduct oversight visits, iii) the way in which such visits are to be carried out, including interviewing the children cared for at the facility as well as the staff, iv) the elements to be inspected, v) applicable evaluation criteria for the conditions and operation of the facilities, and vi) procedures and methods to document the visit and the conclusions and recommendations put forward. The Commission finds that adequate compliance with the obligation to supervise and inspect requires on-site visits to be conducted to all public and private residential care facilities, within the territory of the State, and not be limited to a representative sampling of just a few selected facilities. The Commission also recommends that the report and the findings of the visits be made public and accessible.
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Consequently, States have the obligation to establish mechanisms of regular supervision, specifically with regard to the conditions of operation of these facilities, service quality, and compliance with measures of protection for the child, in keeping with applicable human rights principles. Supervision must address the physical and material conditions of the service, the number and suitability of the professionals engaged to serve the children, as well as programmatic aspects followed by the facility and the implementation by the same of individualized care plans to meet the protection needs of each child and to help maintain family ties and reintegrate the child back into the family. The Commission deems it absolutely essential for the State to have available to it at all times, at a minimum, complete and up-to-date information on how many residential care centers exist in its territory, types of facilities and specific descriptions, and the amount of children living therein.
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As to the way in which supervision must be conducted, the Commission concurs with the provisions of Guideline 128 of the U.N. Guidelines for the Alternative Care of Children, which establishes that there must be “frequent inspections comprising both scheduled and unannounced visits, involving discussion with and observation of the staff and the children.”447
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Regulations must clearly establish the consequences that may arise, in the event that in the context of one of these facility inspections, situations contrary to the criteria and standards of operation, or violations of the rights of the children living at the facility, are detected. In the event that deficient conditions in which the children and adolescents are living are serious and jeopardized their comprehensive development or safety, States must have the option to void the license of the center or institution and decide to close it down, notwithstanding the conducting of investigations of the case to determine liability and sanctions.
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In the context of fulfilling the obligation of supervision and oversight, authorities may issue recommendations to the care facilities when irregularities are detected, and set a deadline to rectify them, in order to improve the conditions of operation and care provided to the children, in keeping with the criteria established under the normative framework.
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Information received by the Commission enables it to identify several issues pertaining to the functioning of mechanisms of supervision in the States of the region. In most instances, even though States have delegated the legal authority to specific bodies to carry out the tasks of oversight, monitoring and supervision of residential care facilities, limitations as to the functioning thereof has been brought to the attention of the Commission.448 Often, supervision and inspection visits are not carried out on a regular basis, and do not usually cover all facilities. For example, in Paraguay, based on the responses to the questionnaire, the authority that performs these tasks inspected 21 institutions in 2010 of the total of 67 that are reported to exist.
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The Commission shares the concern of the Committee on the Rights of the Child as to the absence, in some instances, and the shortcomings, in others, of the supervision systems over private care facilities in several States of the region such as Brazil,449 Chile,450 Guatemala,451 Guyana,452 Santa Lucia,453 Trinidad and Tobago,454 and Uruguay.455 The Commission views as very positive that some States of the region, after receiving the above-cited observations, have begun to implement changes aimed at bringing standards and practices in line with the recommendations received by them.456
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According to information received by the Commission regarding several States, such as Chile, Colombia or Uruguay, mechanisms of supervision are closely linked to compliance with the conditions established in the framework of contracts and agreements under which the alternative care centers receive public funding. The Commission notes that in some of these cases, supervision is basically of an administrative and financial nature, and does not thoroughly address aspects pertaining to the conditions in which the residential care is provided. In the view of the Commission, with regard to private facilities that are publically funded, not only should the mechanisms of supervision address administrative and financial aspects of the facilities, but also compliance with regulations establishing the minimum standards of quality of service and the objectives in pursuit of which facilities’ efforts should be geared towards. For this purpose, States must establish appropriate evaluation and supervision criteria.457 For example, based on a UNICEF study, in some States, such as Saint Lucia or Saint Vincent, there is no specific legislation in place regulating residential institutions, and, therefore, supervision thereof cannot be carried out adequately.458
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Meanwhile, in other countries, regulations do establish minimum frequency of inspections, how inspections must be conducted, what elements or aspects are subject to inspection, in addition to establishing that inspections must be conducted on every center and institution in the territory. In Chile, for example, based on its response to the questionnaire, a supervision mechanism is in place for public and private facilities, which functions on a region-by-region basis and can be described as systematic and, among other items, covers programmatic aspects of the facilities. This system prescribes visits to facilities at least every two months for establishments located closest to the main office of the inspection team, and every three months for the more distant facilities. In the context of these supervision visits, interviews with the children and adolescents may be conducted in conditions which allow them to freely express themselves, in addition to responding to a survey on the care they receive. None of the aforementioned precludes visits and investigations that may be ordered by the authorities in response to complaints or when inspection visits detect breaches of the commitments set forth in the agreements between private facilities and said authority. Additionally, a national support team has been formed to assist regional teams; this team visits all regions at least twice per year. This mechanism also establishes deadlines for the submission of supervision reports and a procedure under which individuals in charge of residential care centers may have input or participate in the process.
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Additionally, in keeping with consistent positions held by the Court and the Commission on the special obligations of the State with regard to persons in a particularly vulnerable situation,459 the Commission infers that the aforementioned obligations to oversee and supervise must be taken into particular account in facilities where children with some type of disability, either physical, mental, sensorial or intellectual, are living.460 The Commission expresses concern that the level of quality of services provided at residential care centers and institutions to children with some type of disability requiring special treatment is often quite inferior to the standards of care needed by them. The Commission notes that this is either because of a lack of defined standards in this area or non-compliance with standards, but often it is also the result of a failure to adequately oversee the implementation of these standards, as well as for no having assigned sufficient human and material resources. The Commission agrees with the Committee on the Rights of the Child in urging States to draft “national standards for care in institutions and establishing rigorous screening and monitoring procedures to ensure effective implementation of these standards.”461
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The Commission was also advised that, in some instances, in light of deficiencies in the systems of monitoring and supervision by authorities, several private organizations that manage residential care centers have set up their own internal monitoring and supervision system.462 The Commission welcomes the incorporation of said practices, but reaffirms that it is an obligation of States to perform the duties of supervision and monitoring of care facilities.
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