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

136 With regard to the definition of the concept of violence, the Committee on the Rights of the Child has been very precise in pointing out that: The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.”, General Comment No. 13, The right of the child to freedom from all forms of violence, CRC/C/GC/13, April 18, 2011, paragraph 17. The Commission expressed a similar opinion in the Report on corporal punishment and human rights of children and adolescents, OEA/Ser. L/V/II. 135, August 5, 2009.

137 The Commission and the Court have had the opportunity to state their views on the various forms of violence, the impact it has on human rights, the various contexts and environments in which it may take place, as well as the obligations States have as a result. With regard to the contexts or environments in which violence may take place, the Commission has drawn a distinction between violence that occurs in a public setting from violence in a private setting; the Commission has made it clear to States that they have obligations in both settings in terms of prevention and response to violence, but it has made some specific observations and established distinctions depending on the context. See, IACHR, Report on corporal punishment and human rights of children and adolescents. I/A Court H.R., Case González et al (“Cotton Field”) v. Mexico. Preliminary Exception, Merits, Reparations and Costs. Sentence dated November 16, 2009. Series C No. 205.

138 IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, para. 69.

139 IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, para. 70.

140 IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, para. 74.

141 IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, para. 77. A similar opinion was expressed by the Committee on the Rights of the Child, General Comment No. 8, Right of the child to protection from corporal punishment and other forms of cruel and degrading punishment (Article 19, paragraph 2 of Article 28 and Article 37, among others), CRC/C/GC/8, August 21, 2006, 42^nd Regular Session.

142 IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents.  Committee on the Rights of the Child, United Nations, General Comment No.8, Right of the child to protection from corporal punishment and other forms of cruel or degrading punishment (Article 19, paragraph 2 of Article 28 and Article 37, among others), CRC/C/GC/8, of August 28, 2006, 42^nd Regular Session; I/A Court H.R., Case Ximenes Lópes vs. Brazil, Sentence dated July 4, 2006. Series C No. 149, para. 88.

143 I/A Court H.R., Case of the Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, Judgment of January 31, 2006, para. 113; I/A Court H.R., Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005. Series C No. 134, para. 111; and I/A Court H.R., Juridical Condition and  Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18,
para. 140.

144 IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, para. 92. With regard to corporal punishment, as a form of violence against children, the commission has already indicated in its report on Corporal punishment and human rights of children and adolescents that, “the obligations assumed by the States to respect and ensure rights in order to protect children and adolescents against corporal punishment, demands the implementation of all types of measures whose objective must be the eradication of this practice.” But that, even taking into account the urgent nature of the legal prohibition of corporal punishment against children, “the legal prohibition must be complemented with other types of measures, whether judicial, educational, financial, among others, that, together, will make it possible to eradicate the use of that punishment in the everyday life of children and adolescents.” IACHR, Report on corporal punishment and human rights of children and adolescents, paragraphs 92 and 116. Also see, I/A Court H.R., Resolution of January 27, 2009, with regard to the Petition for Advisory Opinion filed by the Inter-American Commission on Human Rights, paragraphs 7, 11 and 12, available at: http://www.corteidh.or.cr/docs/asuntos/opinion.pdf . Similar to the opinions expressed by the Court and the Commission, see opinion of the Committee on the Rights of the Child, General Comment No.8, Right of the Child to Protection from corporal punishment and other forms of cruel or degrading punishment (Article 19, paragraph 2 of Article 28 and Article 37, among others), CRC/C/GC/8, of August 21, 2006, 42^nd Regular Session.

145 I/A Court H.R., Case González et al (“Cotton Field) v. Mexico. Preliminary Exception, Merits, Reparations and Costs. Sentence of November 16, 2009. Series C No. 205, para. 252. In a similar sense see, IACHR, Report on corporal punishment and human rights of children and adolescents, paragraph 75.

146 I/A Court H.R., Case González et al (“Cotton Field”) v. Mexico. Preliminary Exception, Merits, Reparations and Costs. Sentence of November 16, 2009. Series C No. 205, para. 258.

147 I/A Court H.R., Case González et al (“Cotton Field”) v. Mexico. Preliminary Exception, Merits, Reparations and Costs. Series C No. 205, para. 252. I/A Court H.R., Case Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,, para. 175; I/A Court H.R., Case Perozo et a v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs. Judgment of January 28, 2009, series C, No. 195, para. 149, and I/A Court H.R., Case Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations, and Costs. Judgment of September 22, 2009, series C, No. 202, para. 63.

148 I/A Court H.R. Juridical Condition and the Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 002, series A No. 17, para. 87. Also see, IACHR Report on Corporal Punishment and Human Rights of Children and Adolescents, OEA/Ser.L/V/II.135, August 5, 2009, pointing out the duty of prevention as part of the obligations established under the provisions of Article 1 and 2 of the ACHR, paragraph 92, and the recommendation contained in paragraph 119(4).

149 In 2001, after holding two days of general discussion in 2000 and 2001, on the topic of violence against children, the Committee on the Rights of the Child recommended in its annual report to the United Nations General Assembly, to conduct a study to analyze this problem. The General Assembly, through resolution 56/138, requested the Secretary General to conduct a detailed study of the issue of violence against children and to present recommendations for consideration by Member States in order to take appropriate action. In 2003, an Independent Expert is named to head this Study. The U.N. Study was concluded in 2006. The official report of the Study, with main findings and recommendations, was adopted in 2006 by the General Assembly of the United Nation, Resolution A/61/299 of August 29, 2006. The U.N. Study on Violence against Children is available at: http://www.unviolencestudy.org/spanish/index.html The report presented by the Independent Expert before the United Nations General Assembly, adopted by resolution A/61/299 of August 29, 2006, is available at: http://www.unicef.org/violencestudy/reports/SG_violencestudy_en.pdf

The U.N. Study on Violence against Children marks the first global, holistic and exhaustive effort to identify, document and characterize the true scope of violence against children in all its forms across the world and identify what efforts are being made to prevent it, respond to it and eradicate it. The U.N. Study concludes with a series of recommendations to Member States based on the findings. In 2009, the Secretary General of the United Nations named a Special Representative on Violence against Children with the mandate to promote and implement the recommendations contained in the U.N. Study. That mandate was renewed in 2012.

150 Report of the Independent Expert for the U.N. Study on Violence against Children to the United Nations General Assembly, resolution A/61/299 of August 29, 2006, paragraph 93(b) and (c), with regard to the principles that inspired the undertaking of the U.N. Study and the recommendations therein.

151 The Report states the following: “Every society, no matter its cultural, economic or social background, can and must stop violence against children. This does not mean sanctioning perpetrators only, but requires transformation of the “mindset” of societies and the underlying economic and social conditions associated with violence”, Independent Expert’s Report to the General Assembly, adopted by Resolution A/61/299 of August 29, 2006, paragraph 3.

152 With regard to the general and specific recommendations contained in the Report, it states the following: “My recommendations consist of a set of overarching recommendations which apply to all efforts to prevent violence against children and to respond to it if it occurs, and specific recommendations which apply to the home and family, schools and other educational settings, institutions for care or detention, the workplace and the community. They are addressed primarily to States and refer to their legislative, judicial, administrative, policymaking, service delivery and institutional functions. (…)”, paragraphs 94 and 95 of the Independent Expert’s Report to the General Assembly, Resolution A/61/299 of August 29, 2006.

153 General Recommendation No.3 is included in paragraph 99 of the Independent Expert’s Report to the General Assembly, adopted by Resolution A/61/299 of August 29, 2006.

154 Report of the Independent Expert for the U.N. Study on Violence against Children to the United Nations General Assembly, resolution A/61/299 of August 29, 2006, paragraph 110.

155 Report of the Independent Expert for the U.N. Study on Violence against Children to the United Nations General Assembly, resolution A/61/299 of August 29, 2006, paragraph 96.

156 General Comment number 13, The right of the child to freedom from all forms of violence CRC/C/GC/13, April 18, 2011.

157 General Comment number 13, The right of the child to freedom from all forms of violence CRC/C/GC/13, April 18, 2011, paragraph 11(c).

158 General Comment number 13, The right of the child to freedom from all forms of violence CRC/C/GC/13, April 118, 2011, paragraph 11(d).

159 The Committee adds that: “Article 4 [of the CRC] obliges States parties to undertake all appropriate measures to implement all the rights in the Convention, including Article 19. In applying Article 4 of the Convention, it must be noted that the right to protection from all forms of violence outlined in Article 19 is a civil right and freedom. Implementation of Article 19 is therefore an immediate and unqualified obligation of States parties. In the light of Article 4, whatever their economic circumstances, States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups (see the Committee’s general comment No. 5, para. 8). The article stresses that available resources must be utilized to the maximum extent.” Committee on the Rights of the Child, General Comment number 13, The right of the child to freedom from all forms of violence, CRC/C/GC/13, April 18, 2011, paragraph 65.

160 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. 119. “the Court considers, as indicated by expert witness García Méndez during the public hearing in this case, that the right of the child to grow up with his or her family of origin is of fundamental importance and is one of the most relevant legal criteria derived from Articles 17 and 19 of the American Convention, as well as from Articles 8, 9, 18 and 21 of the Convention on the Rights of the Child. Hence, the family to which every child has a right is, first and foremost, the biological family, which includes the closest family members, who should provide protection to the child and, in turn, should be the principal subject of measures of protection by the State. Consequently, in the absence of one of the parents, the judicial authorities are obliged to seek the father or mother or other members of the biological family. ”

161 Guideline 44.

162 Guideline 45.

163 In a similar sense, U.N. Guidelines for the Alternative Care of Children, Guideline 41.

164 Committee on the Rights of the Child, General Comment 4, Adolescent health and development in the context of the Convention on the Rights of the Child, CRC/GC/2003/4, July 21, 2003, 33^rd Regular Session, para. 28, also see paras. 16, 20, 26, 30, 31 and 35. Committee on the Rights of the Child, General Comment No.15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, of May 14, 2013, paras.24, 31, 56, 59, 60 and 70. With regard to the obligation of the States in relation to access to information on reproductive health, see IACHR report: Access to information on reproductive health from a human rights perspective (2011). U.N. Guidelines for the Alternative Care of Children also include a reference to policies on sexual and reproductive health aimed at young people, as an appropriate measure to prevent the abandonment or relinquishment of the child, see Guideline 34 (c). In addition, United Nations, Committee for the Elimination of Discrimination against Women, General Recommendation no. 24, Women and Health, para. 28.

165 In a similar sense, see Guideline 41 of the U.N. Guidelines for the Alternative Care of Children.

166 General Comment number 13, The right of the child to freedom from all forms of violence CRC/C/GC/13, April 18, 2011, para. 20(e).

167 U.N. Study on Violence against Children, p. 175.

168 United Nations Convention on the Rights of Persons with Disabilities, adopted by the General Assembly of the United Nations in Resolution 61/106, December 13, 2006, Article 23(2).

169 United Nations Convention on the Rights of Persons with Disabilities, adopted by the General Assembly of the United Nations in Resolution 61/106, December 13, 2006, Article 23(3).

170 Disability Rights International, Response to questionnaire. Disability Rights International y la Comisión Mexicana de Defensa y Promoción de los Derechos Humanos. “Abandonados y Desaparecidos: Segregación y Abuso de Niños y Adultos con Discapacidad en México.” [Disability Rights International and the Mexican Commission for the Defense and Promotion of Human Rights of Abandoned and Disappeared Persons: Segregation and Abuse of Children and Adults with Disabilities in Mexico}. Printed Edition updated to June 2011.

171 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, , is especially relevant in this regard and paragraph 44 specifically establishes that, “Children with disabilities are best cared for and nurtured within their own family environment provided that the family is adequately provided for in all aspects. Such support to families includes education of parent/s and siblings, not only on the disability and its causes but also on each child’s unique physical and mental requirements; psychological support that is sensitive to the stress and difficulties imposed on families of children with disabilities; education on the family’s common language, for example sign language, so that parents and siblings can communicate with family members with disabilities; material support in the form of special allowances as well as consumable supplies and necessary equipment, such as special furniture and mobility devices that is deemed necessary for the child with a disability to live a dignified, self-reliant lifestyle, and be fully included in the family and community. […] Support services should also include different forms of respite care, such as care assistance in the home and day-care facilities directly accessible at community level. Such services enable parents to work, as well as relieve stress and maintain healthy family environments.” Committee on the Rights of the Child, General Comment No. 9, Rights of children with disabilities, CRC/C/GC/9, February 27, 2007, 43^rd Regular Session.

172 U.N. Study on Violence against Children, page 209, citing the data collected during two decades by analyzing the cases of the United States and Canada.

173 Office of the Ombudsman of Peru, Report No. 150, “El derecho de los niños, niñas y adolescentes a vivir en una familia: la situación de los Centros de Atención Residencial estatales desde la mirada de la Defensoría del Pueblo” [The Right of Children and Adolescents to Live in a Family: The Status of State Residential Care Centers from the Viewpoint of the Office of the Ombudsman], Lima, 2010, page 246.

174 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 40th Regular Session of the Committee on the Rights of the Child, CRC/C/153, paras. 667, 668 and 669.

175 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, para. 654.

176 See U.N. Guidelines for the Alternative Care of Children, Guideline 67.

177 Committee on the Rights of the Child, General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child (Articles 4 and 42 and paragraph 6 of Article 44), CRC/GC/2003/5, November 27, 2003, paragraph 12; Committee on the Rights of the Child, General comment No. 14 (2013), The right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/GC/14, May 29, 2013, sixty-second session, para. 1 and Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, Series A, No. 17, paragraphs 59 and 65.

178 Committee on the Rights of the Child, General comment No. 14 (2013), The right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), para. 4, and Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, Fortieth session, paragraph 13.

179 I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012, Series C, No. 242, paragraph 49; See also Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, Series A, No. 17, paragraphs 56 and 60; Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 108; I/A Court H.R., Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2012. Series C No. 246, paragraph 126.

180 See 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, paragraph 59. IACHR, Juvenile Justice and Human Rights in the Americas, para. 22.

181 I/A Court H.R., Case of the Yean and Bosico Children v. the Dominican Republic. Preliminary Objections, Merits, Reparations, and Costs. Judgment of September 8, 2005, Series C, No. 130, para. 134. IACHR, Juvenile Justice and Human Rights in the Americas, para. 22.

182 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, paragraph 59.

183 I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012, Series C, No. 242, paragraph 48; I/A Court H.R., Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2012. Series C No. 246, paragraph 126; 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, paragraph 65.

184 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, paragraph 61, and Inter-American Court of Human Rights, Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012, Series C, No. 242, paragraph 45.