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

240 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 78.

241 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 79, and Mutatis mutandis, IACHR, Juvenile Justice and Human Rights in the Americas, paragraph 85.

242 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 79.

243 Mutatis mutandis, “The Beijing Rules,” Rule No. 6.

244 Committee on the Rights of the Child Day of General Discussion on Children without Parental Care,’ 2005, Report of the Fortieth session of the Committee on the Rights of the Child, CRC/C/153, para. 677.

245 Similar observations were made with respect to another specialized system like that of juvenile justice; in its report on Juvenile Justice and Human Rights in the Americas, the IACHR made observations and recommendations regarding the need to deepen specialization in public entities and ensure adequate geographic coverage. IACHR, Juvenile Justice and Human Rights in the Americas, paragraphs 84 and 89.

246 Committee on the Rights of the Child, General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, 27 November 2003, Thirty-fourth session, paras. 53, 54 and 55.

247 In the same sense see the U.N. Guidelines for the Alternative Care of Children, Guideline 46: “Specific training should be provided to teachers and others working with children in order to help them to identify situations of abuse, neglect, exploitation or risk of abandonment and to refer such situations to competent bodies.” Day of General Discussion of the Committee on the Rights of the Child on children without parental care, 2005, Report of the Fortieth Session of the Committee on the Rights of the Child, CRC/C/153, para. 676.

248 Code of Children and Adolescents [Código de la Niñez y la Adolescencia de la República Oriental del Uruguay], Art. 126. Law No. 18.315 of July 5 2008 on police procedures [Ley No. 18.315 de 5 de julio de 2008 de Procedimientos Policiales], Article 5 section (b).

249 Judicial System Observatory, “Judicial Protection of Rights: Reality, perspectives, and changes in the framework of application of the Code of Children and Adolescents. in Maldonado, Montevideo, Paysandú, and Salto”, Fundación Justicia y Derecho, Montevideo [Observatorio del Sistema Judicial, La protección judicial de derechos. Realidad, perspectivas y cambios en el marco de la aplicación del Código de la Niñez y la Adolescencia en Maldonado, Montevideo, Paysandú y Salto, Fundación Justicia y Derecho], 2010.

250 RELAF - Latin American Foster Care Network, “Institutionalized children and adolescents: appearance of serious human rights violations.” Series: Publications on children without parental care in Latin America: Context, causes and responses, 2011.

251 IACHR, Report No. 16/08, Case 12.359, Admissibility, Cristina Aguayo Ortiz et al, Paraguay, March 6, 2008. The Commission has considered previous cases involving similar procedures.

252 IACHR, Juvenile Justice and Human Rights in the Americas.

253 IACHR, Report No. 41/99, Case 11.491 Detained Minors, Honduras, March 10, 1999; IACHR, Third Report on the Situation of Human Rights in Colombia 1999, Chapter XIII, paras. 41 ff.; IACHR, Report No. 9/00, Case 11.598, Alonso Eugénio Da Silva, Brazil, February 24, 2000; IACHR, Justice and Social Inclusion: The Challenges to Democracy in Guatemala 2003, para. 366. 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. 79.

254 IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II., doc. 57, December 31, 2009, para. 89.

255 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, concluding paragraph No. 112; IACHR, Juvenile Justice and Human Rights in the Americas, para. 70.

256 Committee on the Rights of the Child, analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Bahamas, CRC/C/15/Add.253, March 31, 2005,
para. 37.

257 Committee on the Rights of the Child, Analysis of the Reports Presented by States Parties under Article 44 of the Convention. Concluding Observations: Belize, CRC/C/15/Add.252, March 31, 2005, para. 42.

258 Information gathered in the consultation for the Caribbean region, Trinidad & Tobago, 2011. Cts report on cstitutions, ctes] icia y Derchos, Monicacion del Codigo de la Ninhez y la Adolescencia en Maldonado, Montevideo,

259 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.

260 In that regard see: IACHR, Report on Juvenile Justice and Human Rights in the Americas. Committee on the Rights of the Child, General Comment No. 10, Children’s Rights in Juvenile Justice, CRC/C/GC/10, April 25, 2007, 44^th Regular Session, para.8.

261 Committee on the Rights of the Child, General Comment No. 10, Children’s Rights in Juvenile Justice, CRC/C/GC/10, April 25, 2007, paragraph 9. Also see: IACHR, Report No. 41/99 Case 11.491, Minors in detention against Honduras, March 10, 1999, paragraphs 109 and 110.

262 IACHR, Report on Juvenile Justice and Human Rights in the Americas, para. 51.

263 IACHR Report, Juvenile Justice and Human Rights in the Americas, paragraph 70. 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.113. Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, April 25, 2007, 44^th Regular Session, para. 31; Committee on the Rights of the Child, General Comment No. 7, Implementing children’s rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, 40^th Regular Session, para. 36(i); 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. 79(g)

264 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. 110. IACHR, Juvenile Justice and Human Rights in the Americas,
para. 69.

265 IACHR, Report No. 41/99, Case 11.491, Admissibility and Merits. Minors in detention, Honduras, March 10, 1999, paras. 109 and 110. IACHR, Juvenile Justice and Human Rights in the Americas, paras. 66 and 73.

266 ^ IACHR, Juvenile Justice and Human Rights in the Americas, para. 73.

267 IACHR, Juvenile Justice and Human Rights in the Americas, paragraph 73. See also: U.N. Study on Violence Against Children, p. 209. 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, paragraph 31.

268 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, para. 114.

269 Article 8. Right to a fair trial: (1) Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. (2) Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. (3) A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. (4) An accused person acquitted by a no appealable judgment shall not be subjected to a new trial for the same cause. (5) Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

“Article 8 of the American Convention establishes the standards of due process of law, which consists of a series of requirements that must be observed by the procedural instances, so that every person may defend his rights adequately when faced with any type of act of the State that may affect them.” I/A Court H.R., Case of Barbani Duarte et al v. Uruguay. Merits, Reparations, and Costs. Judgment of October 13, 2011. Series C No. 234. para. 116.

Article 25(1) Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. (2) The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.

270 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17. paras. 95 and 96.

271 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17. para. 96, and IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 75.

272 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17. para. 98, and IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 75.

273 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17. paras. 94, 103, and 117.

274 I/A Court H.R., Case of Ivcher Bronstein v. Peru. Merits, Reparations, and Costs. Judgment of February 6, 2001. Series C No. 74, para. 105; I/A Court H.R., Case of the Constitutional Court v. Peru. Merits, Reparations, and Costs. Judgment of January 31, 2001. Series C No. 71, paras. 69 to 71.

275 Office of the Ombudsman of the State of Peru, Advocacy Report No. 153, “Niños, niñas y adolescentes en abandono: aportes para un nuevo modelo de atención” [Abandoned Children and Adolescents: Input for a New Care Model], Lima, 2011, p. 15.

276 Sub-regional consultation made in the framework of this report for the Caribbean, Trinidad & Tobago.

277 Disability Rights International, response to the questionnaire, 2011. Disability Rights International and Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, “Abandonados y Desaparecidos: “Segregación y Abuso de Niños y Adultos con Discapacidad en México” Printed versión from June 2011. Available at http://www.disabilityrightsintl.org/wordpress/wp-content/uploads/1._Informe_final_Abandonmados_y_Desaparecidos_merged.pdf

278 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, para. 103, and, I/A Court H.R., Case of Barbani Duarte et al v. Uruguay. Merits, Reparations, and Costs. Judgment of October 13, 2011. Series C No. 234, paras. 116 to 119.

279 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, para. 113. IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 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, paras. 116 and 117. See Day of General Discussion of the Committee on the Rights of the Child on children without parental care, 2005, Report of the Fortieth Session of the Committee on the Rights of the Child, CRC/C/153, para.655.

280 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, para. 135.

281 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, para. 103.

282 The 47^th directive sets that: “Any decision to remove a child against the will of his/her parents must be made by competent authorities, in accordance with applicable law and procedures and subject to judicial review, the parents being assured the right of appeal and access to appropriate legal representation.”.”

283 I/A Court H.R., Juridical status on Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Serie A No. 17, para. 113. In the same sense, the Guideline 57 of the United Nations Guidelines for the Alternative Care of Children establishes that: “Decision-making on alternative care in the best interests of the child should take place through a judicial, administrative or other adequate and recognized procedure, with legal safeguards, including, where appropriate, legal representation on behalf of children in any legal proceedings.”

284 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. 66.

285 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. 66, and I/A Court H.R., Case of González Medina and family v. Dominican Republic, Preliminary objections, Merits, Reparations, and Costs. Judgment of February 27, 2012 Series C No. 240, para. 257

286 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. 66; I/A Court H.R., Case of Genie Lacayo V. Nicaragua. Merits, Reparations, and Costs. Judgment of January 29, 1997. Series C No. 30, para. 77, and I/A Court H.R., Case of González Medina and family v. Dominican Republic, Preliminary objections, Merits, Reparations, and Costs. Judgment of February 27, 2012 Series C No. 240, para. 255.

287 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. 67

288 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. 69.

289 IA Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012 Series C No. 242, paras. 69 and 70.

290 Inter-American Court of Human Rights Order of July 1, 2011, Provisional Measures with Respect to Paraguay, Matter of L.M., “Considering that”, para. 16; 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, para. 127. In similar contexts to those of the present case, the European Court has established that in cases involving civil status, the nature of the rights discussed, and the consequences that excessive delay may have, especially as regards the right to a family, require the Courts to act with exceptional diligence in determining those rights. The same Court has established the obligation of Courts to act with exceptional diligence in processing cases where the subject is child custody. (European Court of Human Rights, Case of V.A.M. v. Serbia, Judgment March 13, 2007, paras. 99 and 101). The European Court of Human Rights has ruled that cases that could affect the enjoyment of rights related to respect for family life, should be handled with exceptional diligence and relevant consideration, so that States should organize their judicial systems so that they can comply with the requirements of due process, including the obligation to hear cases in a reasonable time.

291 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, and Inter-American Court of Human Rights Order of July 1, 2011, Provisional Measures with Respect to Paraguay, Matter of L.M., Considerative paragraph. 18.

292 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. 123, and Inter-American Court of Human Rights Order of July 1, 2011, Provisional Measures with Respect to Paraguay, Matter of L.M., Consideratie paras. 16 and 19.

293 In 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, the Inter-American Court concluded that judicial authorities in charge of the custody proceeding failed to exercise due diligence and therefore the State violated the rights to judicial guarantees established in Article 8(1) of the American Convention, in relation to Articles 17(1) and 1(1) of the same instrument, to the detriment of the father and daughter, and in relation to Article 19 of the Convention with respect to the latter.

294 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. 74; I/A Court H.R., Case of Garibaldi v. Brazil. Preliminary objections, Merits, Reparations, and Costs. Judgment of September 23, 2009. Series C No. 203, para. 137. In a similar vein, the European Court of Human Rights has concluded that a chronic backlog of cases it not a justification for excessive delay. ECHR Case of Probstmeier v. Germany (No. 20950/92), Judgment of July 1, 1997, para. 64, and Case of Samardžić and AD Plastika v. Serbia (No. 2844/05), Judgment of July 17, 2007, para. 41.

295 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. 75; I/A Court H.R., Case of Valle Jaramillo et al v. Colombia. Merits, Reparations, and Costs. Judgment of November 27, 2008. Series C. No. 192, para. 155; and, I/A Court H.R.,Case of Kawas Fernández v. Honduras. Merits, Reparations, and Costs. Judgment of April 3, 2009, Series C No. 196, para. 115.

296 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. 196; 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, para. 228; and I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, series A No. 17, para. 99.

297 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, paras. 94 and 117. On the same matter, United Nations, Committee on the Rights of the Child, General Comment No. 12 (2009). The right of the child to be heard, CRC/C/GC/12, July 20, 2009, para. 32.

298 I/A Court H.R., Juridical status and human rights of the child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17. paras. 96 and 98. IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 75.

299 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, para. 2.

300 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 17 and 74.