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

185 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 73.

186 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, paragraphs 56 and 59.

187 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.

188 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, paras. 22 and 23.

189 See, 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, Thirty-forth session, paragraph 12; 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, Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 72.

190 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, paragraph 134. In this regard, the Commission has stated that based on the doctrine of integral protection set forth in the CRC itself, the best interests of the child must be construed as meaning the effective enjoyment of each and every one of their human rights (See IACHR, Report on corporal punishment and human rights of children and adolescents, OEA/Ser.L/V/II.135, August 5, 2009, paragraph 25; and IACHR, Juvenile Justice and Human Rights in the Americas, para. 23. See also: 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, paragraphs 56 to 61.

191 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. 6: The Committee underlines that the child's best interests is a threefold concept: a) a substantive right, b) a fundamental, interpretative legal principle, c) a rule of procedure. Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 70.

192 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. 85.

193 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, paras. 48-51, and in addition paras. 52-84.

194 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraphs 109 and 110.

195 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, paragraph 61.

196 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, paras. 47, 92, 94 and 95.

197 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 109; 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 50.

198 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 100.

199 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 110.

200 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 111. Regarding the concept of stereotypes, mutatis mutandis, Inter-American Court of Human Rights, Case of González Et. Al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 16, 2009, Series C, No. 205, paragraph 401.

201 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 76.

202 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 74. 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. 43.

203 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 53.

204 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 54.

205 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 74.

206 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. 44; Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraphs 84 and 85; Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, of September 20, 2006, Fortieth session, paragraph 17.

207 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 200; 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 230. See also, 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. 97 and Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paragraph 44.

208 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 164; Inter-American Court of Human Rights, Case of Tristán Donoso v. Panama. Preliminary Objection, Merits, Reparations, and Costs. Judgment of January 27, 2009, Series C, No.193, paragraph 56, and, Inter-American Court of Human Rights, Case of Escher Et. Al. v Brazil. Preliminary Objections, Merits, Reparations, and Costs. Judgment of July 6, 2009, Series C, No. 200, paragraph 116.

209 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, paragraphs 51 to 54, 56, 59, and 60; I/A Court H.R., Case of Servellón García v. Honduras. Merits, Reparations, and Costs. Judgment of September 21, 2006, Series C, No. 152, paragraph 116; I/A Court H.R., Case of Chitay Nech Et. Al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 25, 2010, Series C, No. 212, paragraph 164.

210 IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, paragraph 108; and 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 73.

211 IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, paragraph 110; 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 116; 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 77, and I/A Court H.R., Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011, Series C, No. 221, paragraph 125.

212 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, para. 52; Inter-American Court of Human Rights Order of July 1, 2011. Provisional Measures with Regard to Paraguay, Matter of L.M., “Considering that” para. 18.

213 The doctrine of “irregular situations” or “titulary protection” was based on a differentiation made between children whose needs for protection and care were covered by their families and those who were in a situation of “abandonment” or “neglect,” which led to different legal treatment for the latter; to that end, a paternalistic or philanthropic discourse was used that was inconsistent with a human rights approach. The doctrine of “comprehensive protection” is based on the fundamental premise of recognizing children as subjects of rights, who, because of their special status in terms of growth and development, should enjoy protection that is reinforced by the State, the community, and the family. State intervention is organized and justified to completely ensure all of a child’s rights and is undertaken with respect for all legal and procedural rights recognized in international human rights law.

214I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012, Series C, No. 242, para. 117.

215 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, paras. 103 and 113.

216 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paras. 109 to 111, 121, and 124 to 127.

217 Office of the Ombudsman of the State of Peru, Report No. 153, Niños, niñas y adolescentes en abandono: aportes para un nuevo modelo de atención [Neglected Children and Adolescents: Input for a New Care Model], Lima, 2011, p. 113.

218 Office of the Ombudsman of the State of Peru, Report No. 153, Niños, niñas y adolescentes en abandono: aportes para un nuevo modelo de atención [Neglected Children and Adolescents: Input for a New Care Model], Lima, 2011, p. 136.

219 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, para. 99, and I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, para. 111.

220 I/A Court H.R., Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011, Series C, No. 221, para. 125. See also, 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, para. 116; 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. 77.

221 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, para. 109; 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 50.

222 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 125.

223 I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012, Series C, No. 239, paragraph 131.

224 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 76.

225 Article 23(4) of the UN Convention on the Rights of Persons with Disabilities provides that: “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.”

226 This is the case, for example, as provided for under legislation in Argentina (Law 26.061, Article 33), Brazil (Statute on Children and Adolescents [Estatuto del Niño y del adolescente], Article 23), Ecuador (Code of Childhood and Adolescence [Código de la Niñez y la Adolescencia], Article 221), or Nicaragua (Code of Childhood and Adolescence [Código de la Niñez y la Adolescencia], Article 22), among other States in the region.

227 UNICEF Submission to the Committee on the Rights of the Child Day of General Discussion on Children without Parental Care, Geneva, 16 September 2005. Ministry of Labour, Human Services and Social Security, Assessment of procedural and physical standards in children’s residential care institutions in Guyana. Summary and Recommendations, August 2006; RELAF - Latin American Foster Care Network, “Niñez y adolescencia institucionalizada: visibilización de graves violaciones de DDHH” [Institutionalized Childhood and Adolescence: Raising the Profile of Serious Human Rights Violations]. Series: Publications on childhood without parental care in Latin America: Contexts, causes, and responses, 2011.

228 Committee on the Rights of the Child, Consideration of the Reports Submitted by the States Party under Article 44 of the Convention. Concluding Observations: Panama, CRC/C/15/Add.233, June 30, 2004, paragraphs 35 and 36.

229 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/PRY/CO/3, February 10, 2010, paragraph 40.

230 Committee on the Rights of the Child, Consideration of the Reports Submitted by the States Party under Article 44 of the Convention. Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, February 17, 2010, paragraph 49.

231 The Independent Expert for the United Nations Study on Violence against Children reaches similar conclusions when indicating that: “Historically, children from racial and ethnic minorities tend to be over-represented in care (for example, in Australia, Brazil, and Canada as mentioned above), and in many cases, this trend persists,” and “[i]n Australia and Canada, for example, entire generations of such children were removed from their families and send to residential schools, and denied their own culture, clothing and language.” […] [P]rejudice against ethnic minorities is reported to have led staff in residential institutions to discourage contact between parents and their institutionalized children,” pages 179, 180 and 1845, http://www.unviolencestudy.org/spanish/index.html. You may also find an historical perspective on the overrepresentation of indigenous groups in residential schools in the study: “Indigenous Peoples and Boarding Schools” prepared by the Boarding School Healing Project. Available at: http://www.boardingschoolhealingproject.org/files/bshpreport.pdf. See, Smith, Andrea, “Indigenous Peoples and Boarding Schools: a comparative study”, Permanent Forum on Indigenous Issues, E/C.19/2009/CRP. 1, 2009, pages 4–8. Available at: http://www.un.org/esa/socdev/unpfii/documents/E_C_19_2009_crp1.pdf; see also the hearing on the “Situation of Indigenous Children in Schools in the United States” presented by the Boarding School Healing Project during the 140^th period of sessions of the IACHR. Available at: http://www.oas.org/es/IACHR/audiencias/Hearings.aspx?Lang=es&Session=120&page=2

232 Children’s Rights (USA), “What Works in Child Welfare Reform: Reducing Reliance on Congregate Care in Tennessee”, July 2011, p. 173. Available at: http://www.childrensrights.org/wp-content/uploads/2011/07/2011-07-25_what_works_reducing_reliance_on_congregate_care_in_tn_final-report.pdf

233 Applied Economic Research Institute (IPEA), National study on SAC network shelters for children and adolescents, 2003 [Instituto de Pesquisa Econômica Aplicada (Ipea), Levantamento nacional de abrigos para crianças e adolescentes da rede SAC].

234 Blackstock, C. and Alderman, J. A., “The Untouchable Guardian: The State and Aboriginal Children in the Child Welfare System in Canada. “Children without parental care: Qualitative alternatives, Early Childhood Matters,” Bernhard van Leer Foundation, 2005. Available at: http://www.crin.org/docs/Children%20Without%20Parental%20Care.pdf ; see also, Trocme, Nico; Knoke, Della and Blackstock, Cindy, “Pathways to the Overrepresentation of Aboriginal Children in Canada’s Child Welfare System,” in: Social Service Review, University of Chicago, December 2004, available at: https://www.mcgill.ca/crcf/sites/mcgill.ca.crcf/files/2004-Overrepresentation_Aboriginal_Children.pdf

In addition, in Canada, in 2008, the Indian Residential Schools Truth and Reconciliation Commission was created, and given a five-year mandate, to inform the people of Canada about what had occurred in residential schools for indigenous children and adolescents. According to the Commission, from the late 19^th century through the late 1990s, more than 150,000 indigenous children and adolescents were placed in more than 130 institutions. In these, the majority of which were run by religious institutions, they were prohibited from speaking their language and practicing their customs. For more information, visit the official website of the Indian Residential Schools Truth and Reconciliation Commission of Canada: http://www.trc.ca

235 Fowler, Ken, “Children in care in Newfoundland and Labrador. A review of issues and trends with recommendations for programs and services,” Department of Psychology, Memorial University of Newfoundland, September 2008, p. 1; available at: http://www.gov.nl.ca/cyfs/publications/childcare/InCareReport.pdf See also, Bernhard van Leer Foundation, “Children without parental care: Qualitative alternatives, Early Childhood Matters,” Bernhard van Leer Foundation, 2005.

236 Committee on the Rights of the Child, General Comment No. 11, Indigenous children and their rights under the Convention, CRC/C/GC/11, February 12, 2009, Forty-fourth session, paragraphs, 18, 48 and 56. See also: Committee on the Rights of the Child, Consideration of the Reports Submitted by the States Party under Article 44 of the Convention. Concluding observations: Chile, CRC/C/CHL/CO/3, April 23, 2007, paragraph 45. Similarly, the Independent Expert for the United Nations Study on Violence against Children, in his report to the United Nations General Assembly, indicated that: “Acknowledging the special vulnerability of indigenous children and children belonging to minorities, States should ensure that these children and their families are provided with culturally based support and care services and that social workers have adequate training to work effectively with them.”, Resolution A/61/299, August 29, 2006, paragraph 112(a).

237 Inter-American Court of Human Rights Order of July 1, 2011, Provisional Measures with Respect to Paraguay, Matter of L.M., Considerative paragraph 16; 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 51.

238 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 51; Inter-American Court of Human Rights Order of July 1, 2011, Provisional Measures with Respect to Paraguay, Matter of L.M., Considerative paragraph 16.

239 See, specifically, Committee on the Rights of the Child, General Comment No. 5, General measures of implementation for 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, Thirty-fourth session; Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, of September 20, 2006, Fortieth session; and Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, April 25, 2007, Forty-fourth session.