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

301 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. 19.

302 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. 20.

303 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. 21.

304 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. 229; Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, Forty-third session, para. 32: “It is essential that children with disabilities be heard in all procedures affecting them and that their views be respected in accordance with their evolving capacities,” and para. 48:”[t]he Committee is concerned at the fact that children with disabilities are not often heard in separation and placement processes. In general, decision-making processes do not attach enough weight to children as partners even though these decisions have a far-reaching impact on the child’s life and future. Therefore, the Committee recommends that States parties continue and strengthen their efforts to take into consideration the views of children with disabilities and facilitate their participation in all matters affecting them within the evaluation, separation and placement process in out-of-home care, and during the transition process. The Committee also emphasizes that children should be heard throughout the protection measure process, before making the decision as well as during and after its implementation.’ In the same sense, Articles 5, 12, and 13 of the United Nations Convention on the Rights of Persons with Disabilities.

305 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. 21.

306 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. 16.

307 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, paras. 11, 22, and 23.

308 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. 25.

309 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. 21.

310 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. 16; 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. 198.

311 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. 34.

312 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. 21.

313 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. 43. Concerning children who have been victims or witnesses of crime, see "Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime,” approved by the Economic and Social Council in Resolution 2005/20 and included as Appendix III. 1. Especially see Guideline 23, which states: “[In assisting child victims and witnesses, professionals should make every effort to coordinate support so that the child is not subjected to excessive interventions.”

314 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. 24.

315 Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, approved by the Economic and Social Council in Resolution 2005/20. Guideline 23.

316 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. 205.

317 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. 206.

318 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. 29.

319 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. 30.

320 Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood. CRC/C/GC/7/Rev.1, of 20 September 2006, Fortieth session, para. 17. 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. 199.

321 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. 102; 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. 199.

322 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. 15. 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. 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, para. 230.

323 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, paras. 28 and 29. 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. 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, para. 230.

324 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. 44. 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. 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, para. 230.

325 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, paras. 28 and 29. 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. 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, para. 230.

326 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, paras. 663 and 664.

327 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. 208.

328 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. 206, see also para. 207 and the opinion of the expert cited in the Court’s decision: “[There is] an obligation [on the part of the state authorities] to consider their opinion in deliberations that lead to a decision that affects children. […] [T]he adults responsible for the decision must not decide arbitrarily when the child says something relevant to the decision […].If the children are sufficiently developed in their opinions and points of view, these must prevail in matters affecting them, unless there are very serious reasons against them. This means that if the children’s opinions are well-based, precise, with sufficient knowledge of the facts and the consequences they imply, they must prima facie prevail over other arguments to determine the decision that will affect the child in what refers to the facts and states that involve him. This priority is demanded by the principle of the best interest of the child of Article 3 of the [Convention on the Rights of the Child]. The foregoing does not mean that the determination of the child’s best interest is always going to coincide in the specific case with the child’s opinions, even when the child has the required age and maturity to have his own opinion […] The judge or person responsible for the proceedings must reasonably assess the weight of the child’s opinions, in relation to their consequences for the totality of their fundamental rights, as well as with regard to the level of maturity of the child, but this assessment […] demands a superior argumentative burden for the decision that is different from the child’s opinion.”

329 In the same sense Article 9(2) of the Convention on the Rights of the Child has this to say regarding proceedings for separation of children from their parents: “In any proceedings pursuant to paragraph 1 of the present Article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” 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, paras. 663 and 664

330 As is the case reported by Grenada in its reply to the questionnaire, views of children aged 12 years and over are sought and taken into account.

331 Office of the Ombudsman of the State of Peru, Ombudsman’s 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,[Abandoned children and adolescents: contributions for a new model of care], Lima. 2011, p. 158. Judicial System Observatory, “Judicial Protection of Rights: Reality, perspectives, and changes in the framework of applicaton of the Code of Children and Adolescents. in Maldonado, Montevideo, Paysandú, and Salto”, Fundación Justicia y Derecho, Montevideo, 2010 [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].

332 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, Forty-third session, para. 48.

333 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. 241

334 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. 241

335 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. 68.

336 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. 199.

337 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. 67.

338 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. 199.

339 Mutatis mutandi 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, paras. 234 to 243

340 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. 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, para.98

341 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. 242, and, mutatis mutandi, 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. 199. See also the “Brasilia Regulations Regarding Access to Justice for Vulnerable People,” which expand on the principles included in the “Charter of Rights of the People before the Judiciary in the Ibero-American Judicial Space” (Cancun, 2002).

342 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. 242.

343 Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood. CRC/C/GC/7/Rev.1, of 20 September 2006, Fortieth session, para. 13 a).

344 In the same sense, Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on November 17, 2010 at the 1098th meeting of the Ministers’ Deputies. Version edited May 31, 2011, Guideline 37. Available as an Annex in the document “Childhood and Justice: A Matter of Rights, children in the justice administration in Spain.” Save the Children, Noviembre de 2012, p. 135 http://plataformadeinfancia.org/system /files/informe_infancia_y_justicia.pdf 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. 90 and 96.

345 In the same sense, Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on November 17, 2010 at the 1098th meeting of the Ministers’ Deputies. Version edited May 31, 2011, Guideline 42. 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. 90 and 96.

346 In the same sense, Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on November 17, 2010 at the 1098th meeting of the Ministers’ Deputies. Version edited May 31, 2011, Guideline 38. 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.90 and 96.

347 Committee on the Rights of the Child, General Comment 12, The right of the child to be heard, Doc. CRC/C/GC12 July 20^th, 2009, paras. 36 and 37. In para. 37 the Committee says the representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons, and codes of conduct should be developed for representatives who are appointed to represent the child’s views. 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. 90 and 96.

348 In the same sense, Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on November 17, 2010 at the 1098th meeting of the Ministers’ Deputies. Version edited May 31, 2011, Guideline 39.

349 In the same sense, Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on November 17, 2010 at the 1098th meeting of the Ministers’ Deputies. Version edited May 31, 2011, Guidelines 40 and 41.

350 In the case of Bolivia see Law No. 2026 of October 27, 1999, Articles 196 and 216.

351 In the same sense, U.N. Guidelines for the Alternative Care of Children, Guideline 47.

352 Human Rights Committee of the United Nations, General Comment No. 32. Article 14. Right to equality before Courts and Tribunals and to a Fair Trial CCPR/C/GC/32, August 23, 2007, Ninetieth, para. 10: “The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While Article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so.”

353 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, 96, and 98. IACHR, Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 75, I/A Court H.R., Case of Furlan and Family vs. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 31, 2012. Series C No. 246, paras. 196, 241, and 242

354 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, 96, and 98. IACHR Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 75. I/A Court H.R., Case of Furlan and Family vs. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 31, 2012. Series C No. 246, paras. 196, 241, and 242.

355 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, 96, and 98. IACHR Report No. 83/10, Case 12.584, Merits, Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 75; I/A Court H.R., Case of Furlan and Family vs. Argentina. Preliminary objections, Merits, Reparations, and Costs. Judgment of August 31, 2012. Series C No. 246, paras. 196 and 241. In this sense see also the United Nations Convention on Persons with Disabilities, which has a specific Article on the scope of the right of access to justice that says States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants. See Article 13 of the Convention on Persons with Disabilities.

356 Resolution of the OAS, AG/RES 2656 (XLI-O/11), “Guarantees for Access to Justice: The role of official public defenders,” adopted at the forty-first regular session on June 7, 2011; and Resolution of the OAS, AG/RES. 2714 (XLII-O/12), “Official Public Defenders as a Guarantee of Access to Justice for Persons in Situations of Vulnerability,” (Adopted at the second plenary session, on June 4, 2012).

357 Resolution of the General Assembly of the OAS AG/RES. 2714 (XLII-O/12), “Official Public Defenders as a Guarantee of Access to Justice for Persons in Situations of Vulnerability,” (Adopted at the second plenary session, on June 4, 2012).

358 U.N. Guidelines for the Alternative Care of Children, Guideline 14: “Removal of a child from the care of the family should be seen as a measure of last resort (…)”

359 The purpose of this report is not to analyze the types of special measures of protection that imply the placement of the child with a foster family, but, rather, it focuses on those measures that imply the admission of the child in alternative residential care, in residential alternative care centers or residential institutions. However, the obligations imposed upon the State, especially with regard to regulation, control and oversight, including setting minimum standards of care, also apply in the case of foster families.

Guideline 14 of the Riyadh Guidelines establishes that: Where a stable and settled family environment is lacking and when community efforts to assist parents in this regard have failed and the extended family cannot fulfil this role, alternative placements, including foster care and adoption, should be considered. Such placements should replicate, to the extent possible, a stable and settled family environment,while, at the same time, establishing a sense of permanency for children, thus avoiding problems associated with "foster drift."

360 See U.N. Guidelines for the Alternative Care of Children, Guideline 60.

361 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. 673. Also see Committee on the Rights of the Child, General Comment No. 11, Indigenous children and their rights under the Convention, CRC/C/GC/11 of February 12, 2009, 50^th Regular Session,