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

683 In its General Comment 10, Children’s Rights in Juvenile Justice, CRC/C/GC/10, April 25, 2007, the Committee on the Rights of the Child stressed that punishment involving isolation and solitary confinement in cells must be strictly forbidden, paragraph 89; moreover, the Committee has urged the States Parties to forbid and abolish the use of isolation in children (see as examples: CRC/C/15/Add.151, paragraph 41; CRC/C/15/Add.220, paragraph 45 d); and CRC/C/15add.232, paragraph 36.a)). Also see Havana Rules, Rule 67. Rapporteur on Torture A/66/268, paragraphs 29, 33, 42, 66, 67, 77, 81 and86. The Committee against Torture recommended that people under 18 years of age not be subjected to isolation (CAT/C/MAC/CO/4, paragraph 8). The Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment repeated that prolonged isolation can be a form of torture or other cruel, inhuman or degrading treatment and recommended that isolation not be used against people under 18 years of age nor for persons with mental disabilities (CAT/OP/PRY/1, paragraph 185, Istanbul Statement on the Use and Effects of Solitary Confinement, adopted on 9 December 2007 at the International Psychological Trauma Symposium).

Under the umbrella of the Inter-American Human Rights System see: IACHR, Juvenile Justice and Human Rights in the Americas, para. 14, 262, and 548. IACHR Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, IACHR Report on the human rights of persons deprived of liberty in the Americas, paragraphs 397 to 418. As for judgments by the Inter-American Court on the general subject of solitary confinement, see, Velazquez-Rodríguez v. Honduras, Judgment of 29 July 1988, series C, numb. 4, paragraph 156,; I/A Court H.R., Loayza-Tamyo v. Peru, Judgment of 27 November 1998, series C, number 33, paragraph 58; I/A Court H.R., Cantoral-Benavides v. Peru, Judgment of 18 August 2000, series C, num. 69; I/A Court H.R., Suárez-Rosero v. Ecuador, Judgment of 12 November 1997, series C, number 35; I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006.

684 The Rapporteur on torture found that the isolation system was also used to segregate vulnerable persons, including children, persons with disabilities, as well as lesbians, gays, bisexuals and transsexuals, for their own protection. They may be isolated at their own request or as decided by officials. A/66/268, para. 42.

685 Report of the Rapporteur on Torture A/66/268, para. 77.

686 Report of the Rapporteur on Torture A/66/268, para. 86.

687 This occurred in Peru in the aftermath of episodes discovered at the Ermelinda Carrera Home for young girls and adolescents. In 2006 an adolescent reported the existence of a punishment cell at the home where girls were locked up for bad behavior. The cell was a “very small room, 1.20 high by 1.50 wide, dark, dirty and foul smelling, with insects and spiders (...). In the cell –it is not known how long it had been in use – adolescents who misbehaved were locked up for days or weeks for them to ‘reflect on their misbehavior.’” 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.

688 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Trinidad and Tobago, CRC/C/TTO/CO/2, 17 March 2006, para. 43.

689 IACHR, Juvenile Justice and Human Rights in the Americas, paras. 559 and 563.

690 Committee on the Rights of the Child, General Comment No. 8, The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (Article 19, paragraph 2 of Article 28 and Article 37, inter alia), CRC/C/GC/8, 21 August 2006, para. 43.

691 IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, para. 381.

692 U.N. Guidelines for the Alternative Care of Children, Guideline 131.

693 U.N. Guidelines for the Alternative Care of Children, Guideline 134.

694 U.N. Guidelines for the Alternative Care of Children, Guideline 132.

695 U.N. Guidelines for the Alternative Care of Children, Guidelines 135 and 136.

696 Committee on the Rights of the Child, General Comment No. 9, The Rights of Children with Disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 49. Also see: U.N. Guidelines for the Alternative Care of Children, Guideline 132.

697 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Belize, CRC/C/15/Add.252, 31 March 2005,
para. 43.

698 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Bolivia, CRC/C/BOL/CO/4, 16 October 2009, para. 46.

699 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4, 25 October 2010, para. 12.

700 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Nicaragua, CRC/C/NIC/CO/4, 1 October 2010, para. 54.

701 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Uruguay, CRC/C/URY/CO/2, 5 July 2007,
para. 41.

702 As regards the importance of having data gathering and analysis systems for the purpose of designing laws and regulations and for policy-making, also see General Recommendation 11 in the Report of the Independent Expert for the U.N. Study on Violence against Children (see paragraph 107). 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, 34th session, paras. 48 to 50.

703 We recommend consulting: UNICEF - Better Care Network, Manual for the Measurement of Indicators for Children in Formal Care, January 2009. Available at: http://www.unicef.org/protection/Formal_Care20Guide20FINAL(1).pdf , as well as the Manual for implementation of the United Nations Guidelines for the Alternative Care of Children, “Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children’”, Centre for Excellence for Looked After Children in Scotland (CELCIS) of the University of Strathclyde; International Social Service (ISS); Oak Foundation; SOS Children’s Villages International; and the United Nations Children’s Fund (UNICEF) 2012.

704 National Census of Children and Adolescents Institutionalized in Governmental and Non-Governmental facilities, conducted in 2010. Government of Dominican Republic, Answer to the Questionnaire, 2011. Government of Dominican Republic, State’s Periodic Report on the implementation of the Convention on the Rights of the Child, delivered to the Committee on the Rights of the Child, 2010.

705 The survey in question was completed in June 2012 by the Secretaría Nacional de Niñez, Adolescencia y Familia (SENAME), with the backing of the UNICEF office in Argentina.

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

707 I/A Court H.R., Case of the Gómez Paquiyauri Brother v. Peru, Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, para. 128; I/A Court H.R., Case of Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of 25 November 2003. Series C No. 101, para. 152; and I/A Court H.R., Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of 7 June 2003. Series C No. 99, para. 110. IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, paragraph 266. IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002, para. 81.

708 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. 144. IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, para. 266.

709 I/A Court H.R., Case of “Juvenile Re-education Institute” v. Paraguay. Judgment of 2 September 2004. Series C No. 112, para. 156. IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, paragraph 266. See also, I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, para. 128; I/A Court H.R., Case of Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of 25 November 2003. Series C No. 101, para. 152; and I/A Court H.R., Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of 7 June 2003. Series C No. 99, para. 110.

710 IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, para. 328. IACHR, Democracy and Human Rights in Venezuela, Cap. VI, para. 667.

711 American Convention, Articles 4(1), 5(1) y 5(2).

712 American Convention, Articles 5 and 27.

713 I/A Court H.R., Case of Juvenile Re-education Institute v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, para. 158; I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru, Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, para. 129; I/A Court H.R., Case of 19 Merchants v. Colombia, Merits, Reparations and Costs, Judgment of July 5, 2004, para. 153; and Case of Myrna Mack Chang v. Guatemala, Merits, Reparations and Costs. Judgment of 25 November 2003. Series C No. 101, para. 153; IACHR, Juvenile Justice and Human Rights in the Americas, para. 455.

714 I/A Court H.R., Judicial Status and Human Rights of the Child. Advisory Opinion OC-17/02 of 28 August 2002, series A No. 17, para. 80; and 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. 144.

715 I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, paras. 124, 163, 164, and 171; I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of 18 September 2003. Series C No. 100, paras. 126 y 134; and I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, paras. 146 and 191. In this same sense, I/A Court H.R., Judicial Status and Human Rights of the Child. Advisory Opinion OC-17/02 of 28 August 2002. Series A No. 17, paras. 56 and 60. IACHR, Juvenile Justice and Human Rights in the Americas, para. 456.

716 For more on the special guarantor status that the State assumes in the case of people under a system of special subjection, see mutatis mutandi Inter-American Court of Human Rights, Case of the “Juvenile Re-education Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, paras. 152 and 153.

717 Mutatis mutandi, Inter-American Court of Human Rights, Case of “Juvenile Re-education Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, paras. 159 and 160.

718 The interpretation of the Committee on the Rights of the Child, linking the right to life with the idea of “comprehensive development” and “a decent life” can be found in the 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, 34^th session, para. 12 and Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, 40th session, paragraph 10. In the case of case law of the Inter-American Court of Human Rights that include these concepts as developed by the Committee on the Rights of the Child, see: I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, paras. 144 and 191; I/A Court H.R., Case of Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of 25 May 2010. Series C No. 212. para. 169; I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006, paras. 161, 172 and 176. Also see I/A Court H.R., Judicial Status and Human Rights of the Child. Advisory Opinion OC-17/02 of 28 August 2002, series A No. 17. paras. 67, 80, 84 and 86.

719 I/A Court H.R., Case of “Juvenile Re-education Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, para. 172.

720 I/A Court H.R., Case of “Juvenile Re-education Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, para. 176.

721 I/A Court H.R., Case of 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; I/A Court H.R., Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of 17 September 2003. Series A No. 18, para. 141. IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, paragraph 74.

722 In general, with regard to the various types of measures and specific actions that can be taken for the purpose of preventing violence in different settings or contexts, including residential institutions, see Committee on the Rights of the Child, General Comment No. 13, Right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011, paragraphs 38 to 58.

723 The General Comment No. 13, of the Committee on the Rights of the Child defines the concept of “neglect or negligent treatment” covered in Article 19 of the CRC as a form of violence against children. See Committee on the Rights of the Child, General Comment No. 13, Right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011, paragraphs 4 and 20 and Article 19 of the CRC; Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 42.

724 U.N. Study on Violence against Children, pgs. 187, 188 and 189.

725 The Independent Expert for the U.N. Study on Violence against Children stated that “[i]n rehabilitation centers for children with mental disabilities bedridden children emaciated from starvation and dehydration have been found. Bottles of food were provided by staff, but children who were unable to pick up the bottles due to their disability got no nourishment. In many facilities for children with disabilities, the children have no access to education, recreation, rehabilitation or other programmes. They are often left in their beds or cribs for long periods without human contact or stimulation. Such deprivation often leads to severe negative physical, mental and psychological damage, and in many instances to death”, U.N. Study
p. 189.

726 The Court has reminded the States that the adoption of legislative measures and measures of other kinds becomes even more necessary when there is evidence of practices that are contrary to the American Convention on any matter: See Inter-American Court of Human Rights Resolution dated 27 January 2009, Request for an Advisory Opinion presented by the Inter-American Commission on Human Rights, resolution 12. The Special Rapporteur on Torture expressed the same opinion when saying that “[e]nsuring special protection of minority and marginalized groups and individuals is a critical component of the obligation to prevent torture and ill-treatment. Both the Committee against Torture and the Inter-American Court of Human Rights have confirmed that States have a heightened obligation to protect vulnerable and/or marginalized individuals from torture, as such individuals are generally more at risk of experiencing torture and ill-treatment,” A/HRC/22/53, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman of Degrading Treatment , paragraph 26. Committee against Torture, General Comment No. 2, Implementation of Article 2 by States parties, CAT/C/GC/2, 24 January 2008, para. 21; I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149,
para. 103.

727 I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, para. 170.

728 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. 269.

729 IACHR, Report No. 33/04, Case 11.634, Merits, Jailton Neri Da Fonseca, Brazil, 11 March 2004, para. 64.

730 I/A Court H.R., Case of the Gómez Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of 8 July 2004. Series C No. 110, para. 170.

731 I/A Court H.R., Case of “Juvenile Re-education Institute” v. Paraguay. Preliminary Objections, Merit, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, para. 167; I/A Court H.R., Case of 19 Merchants v. Colombia, Merits, Reparations and Costs, Judgment of July 5, 2004, para. 149; and 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. 165. See also European. Court. H. R, Campbell and Cosans, judgment of 25 February 1982, Series A, no. 48, p 26.

732 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 42.

733 In this regard the Committee on the Rights of the Child considers that “[t]heir particular vulnerability may be explained inter alia by the following main reasons: a) Their inability to hear, move, and dress, toilet, and bath independently increases their vulnerability to intrusive personal care or abuse; b) Living in isolation from parents, siblings, extended family and friends increases the likelihood of abuse; c) Should they have communication or intellectual impairments, they may be ignored, disbelieved or misunderstood should they complain about abuse; d) Parents or others taking care of the child may be under considerable pressure or stress because of physical, financial and emotional issues in caring for their child. Studies indicate that those under stress may be more likely to commit abuse; e) Children with disabilities are often wrongly perceived as being non-sexual and not having an understanding of their own bodies and, therefore, they can be targets of abusive people, particularly those who base abuse on sexuality.” Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 42.

In the case of small children, the Committee has stated that when it comes to violence and abuse, they “are least able to avoid or resist, least able to comprehend what is happening and least able to seek the protection of others.” Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, 40^th session, para. 36.a), also see 36.b)

734 Joint Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography and the Special Representative of the Secretary-General on Violence against Children, A/HRC/16/56, 7 March 2011, para. 112.

735 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149,
para. 106.

736 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149,
para. 107.

737 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149,
para. 108.

738 Report of the Rapporteur on Torture, A/66/268, para. 67.

739 See Report of the Rapporteur on Torture, A/66/268, para. 68. Also see American Civil Liberties Union, “Abuse of the Human Rights of Prisoners in the United States: Solitary Confinement” (2011).

740 Report of the Rapporteur on Torture, A/66/268, para. 68 and 69.

741 Report of the Rapporteur on Torture, A/66/268, para. 63.

742 Mental Disability Rights International, “Vidas arrasadas, La segregación de las personas en los asilos psiquiátricos argentinos”, 1a ed., Siglo XXI Eds., Buenos Aires, 2008, pgs. 15 to 21, available at; http://www.cels.org.ar/common/documentos/vidas_sxxi.pdf; 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 Mexico”, 2010, pgs. 18 to 21.