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

806 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, 1 February 2013, paras. 32 and 64. In these cases, the Rapporteur states, questionable reasons claiming medical necessity are usually used to justify invasive and irreversible procedures carried out on patients without their full, free and informed consent. He stresses that “[t]he doctrine of medical necessity continues to be an obstacle to protection from arbitrary abuses in health-care settings,” contrary to the provisions of the United Nations Convention on the Rights of Persons with Disabilities, paras. 34 and 35.

807 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, 1 February 2013, para. 80.

808 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, 1 February 2013, para. 32 and 64

809 ILO Convention No. 169, Art. 25(1) and (2).

810 Committee on the Rights of the Child, General Comment No. 11, Indigenous children and their rights under the Convention, CRC/C/GC/11, 12 February 2009, para. 51.

811 IACHR, Access to Information on Reproductive Health from a Human Rights Perspective, OEA/Ser.L/V/II. Doc. 61, 22 November 2011. See specially paras. 32, 38, 48, 59, 60, 90, and 91. Also see IACHR, Report No. 21/07, Petition 161/02, Friendly Settlement, Paulina del Carmen Ramírez Jacinto (Mexico), 9 March 2007.

812 Special attention has also been paid to this subject by the Committee on the Rights of the Child in its General Comments and in the Concluding Observations to the States. In the case of the General Comments, see: Committee on the Rights of the Child, General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, CRC/GC/2003/4, 21 July 2003, paras. 16, 20, 26, 28, 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, 14 May 2013, most especially paras. 24, 31, 56, 59, 60 and 70. In the case of the Concluding Observations of the Committee on the Rights of the Child, in its Concluding Observations to the Peruvian State for 2000 and 2006, the Committee voiced its concern at the “high rate of teenage pregnancies and at the number of teenage girls dying as a result of abortions. Furthermore, the Committee is concerned about the lack of adequate sexual and reproductive health services” and recommends that the Peruvian State “ensure access to reproductive health services to all adolescents and conduct awareness-raising campaigns to fully inform adolescents of reproductive health rights, including prevention of Sexually Transmittable Diseases (STDs) and early pregnancies,” Committee on the Rights of the Child, Concluding Observations on Peru, Examination of the Reports Submitted by the States Members under Article 44 of the Convention, CRC/C/PER/CO/3, May 14^th 2006, 41o Period of Sessions. Additionally, the United Nations Committee on the Elimination of Discrimination against Women, General Recommendation 24, Women and Health, para. 28 .

813 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, 14 May 2013, paras. 24, 31, 56, 59, 60 and 70. 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, 21 July 2003, 33^rd session, paras. 26 and 28.

814 In this regard the Commission has already mentioned that early pregnancy poses a number of risks: in addition to health problems, a greater risk of abortions in unsafe conditions and the interruption of education. The Commission has stressed that the States must ensure that adolescents be in a position to receive information on such issues as, inter alia, the dangers of early pregnancy, family planning and contraceptives, prevention of venereal diseases such as HIV/AIDS, and proper sexual health and reproduction services. IACHR, Access to Information on Reproductive Health from a Human Rights Perspective, OEA/Ser.L/V/II. Doc. 61, 22 November 2011. Paras. 32 and 38.

815 IACHR Report Access to Information on Reproductive Health from a Human Rights Perspective, OEA/Ser.L/V/II. Doc. 61, 22 November 2011.

816 The nature and profile of private care centers vary from country to country. In Brazil, for example, 67.2% of the private organizations in charge of care institutions are religious organizations. Instituto de Pesquisa Econômica Aplicada (Ipea), Levantamento nacional de abrigos para crianças e adolescentes da rede SAC, 2003, p. 2. The document can be accessed in Portuguese at http://www.mp.sp.gov.br/portal/pls/portal/docs/1/1665238.PDF

817 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. 99 and 100. 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 (Aarticle 24), CRC/C/CGC/15, 14 May 2013.

818 Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000, para. 23.

819 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 pp. 335 to 338.

820 Instituto de Pesquisa Econômica Aplicada (Ipea), Levantamento nacional de abrigos para crianças e adolescentes da rede SAC, 2003, p. 13.

821 Ministerio Público Tutelar de la Ciudad Autónoma de Buenos Aires, “La institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires” [The Institutionalization of Children and Adolescents in the City of Buenos Aires], March 2010, p. 14. The document is available at: http://asesoria.jusbaires.gob.ar/sites/default/files/DT%20N%C2%BA1_0.pdf; 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, p. 338.

822 Ministerio Público Tutelar de la Ciudad Autónoma de Buenos Aires, “Puertas adentro. La política de institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires (2007-2011)” [Indoors. The Policy of Institutionalization of Children and Adolescents in the City of Buenos Aires], pages 48 to 50. In the same token, Ministerio Público Tutelar de la Ciudad Autónoma de Buenos Aires, “La institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires”, March 201) [The Institutionalization of Children and Adolescents in the City of Buenos Aires].

823 With regard to the obligation of access to mental health services, see: IACHR, Report 63/99, Case 11.427. Víctor Rosario Congo. Ecuador, 13 April 1999, paras. 63-69.

824 IACHR, Report on Juvenile Justice and Human Rights in the Americas, para. 469.

825 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. 27; 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, de 14 May 2013, para. 45.

826 World Health Organization, Resolution 54.2 of the 2001 World Health Assembly, document available at http://www.who.int/nutrition/topics/WHA54.2_iycn_sp.pdf Also see: 55^th World Health Assembly, WHA55.25, Agenda Item 13.10 for 18 May 2002, Infant and Young Children Nutrition, document available at http://www.who.int/nutrition/topics/WHA55.25_iycn_sp.pdf.

Most specifically, the Commission has borne in mind the indicator for breastfeeding exclusively up to the age of four months and up to the sixth month when proposing guidelines for preparing indicators regarding progress on Economic, Social and Cultural Rights in the Americas (OEA/Ser.L/V/II.132, Doc. 14 rev. 1, 19 July 2008).

827 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, series C, No. 125.

828 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. 27.a).

829 See also U.N. Guidelines for the Alternative Care of Children, Guideline 87, regarding the specific nutritional and other needs of babies, small children and those with special needs. Rule 37 of the Havana Rules contains similar provisions.

830 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, de 14 May 2013, para. 43; See also Committee on Economic, Social and Cultural Rights, General Comment No. 12, on the right of adequate food, E/C.12/1999/5 of May 12^th 1999.

831 The Convention on the Rights of the Child dedicates Article 28 to recognition of children’s right to education, and Article 29 to describing the aims and goals that education should have. With regard to the aims and goals of education: Committee on the Rights of the Child, General Comment No. 1, “Article 29(1): The Aims of Education”, CRC/GC/2001/1, 17 April 2001.

832 I/A Court H.R., Judicial Status and Human Rights of the Child. Advisory Opinion OC-17/02 de 28 August 2002. Series A No. 17, para. 84.

833 Much the same is found in the Havana Rules with regard to the right to education of children in detention as part of the juvenile justice system, where Rule 38 states that: “Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. Special attention should be given by the administration of the detention facilities to the education of juveniles of foreign origin or with particular cultural or ethnic needs. Juveniles who are illiterate or have cognitive or learning difficulties should have the right to special education.”

834 Committee on the Rights of the Child, General Comment No. 1, ”Article 29(1): The aims of education”, CRC/GC/2001/1, 17 April 2001, para. 2.

835 The Convention on the Rights of the Child recognizes children’s right to recreation, culture, play and leisure activity in Article 31, which states: “1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.” In addition, the Committee on the Rights of the Child has adopted General comment No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts (Art. 31), Adopted by the Committee at its sixty-second session (14 January – 1 February 2013). CRC/C/GC/17.

836 For example, see Havana Rules, Rule No. 41.

837 U.N. Guidelines for the Alternative Care of Children, Guideline 85.

838 U.N. Guidelines for the Alternative Care of Children, Guideline 86.

839 Havana Rules, Rules 38 to 48. Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, 44^th session, para. 89, “Every child of compulsory school age has the right to education suited to his/her needs and abilities, and designed to prepare him/her for return to society; in addition, every child should, when appropriate, receive vocational training in occupations likely to prepare him/her for future employment.”

840 The Havana Rules include similar recommendations for adolescents who are in a juvenile justice facility, namely: Rule 39: “Juveniles above compulsory school age who wish to continue their education should be permitted and encouraged to do so, and every effort should be made to provide them with access to appropriate educational programmes (...).” Ruel 42:”Every juvenile should have the right to receive vocational training in occupations likely to prepare him or her for future employment (...).” Rule 45: “Wherever possible, juveniles should be provided with the opportunity to perform remunerated labour, if possible within the local community, as a complement to the vocational training provided in order to enhance the possibility of finding suitable employment when they return to their communities. The type of work should be such as to provide appropriate training that will be of benefit to the juveniles following release. The organization and methods of work offered in detention facilities should resemble as closely as possible those of similar work in the community, so as to prepare juveniles for the conditions of normal occupational life.”

841 For example, in Peru, according to surveys conducted by the Office of the Ombudsman in protection institutions, 9.5% of the total residents expressed in maternal language other than Spanish. 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, p. 238.

842 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. 2.

843 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. 8.

844 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. 65.

845 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. 66.

846 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. 66.

847 Rizzini, Irene; Diniz de Menezes, Cristiane, “Crianças e adolescentes com deficiência mental no Brazil: um panorama da literatura e dos dados demográficos”, CIESPI: PUC-Rio, Rio de Janeiro, 2010, p. 67.

848 Mental Disability Rights International/Asociación Pro Derechos Humanos, “Derechos Humanos & Salud Mental en el Perú”, Lima, 2004. In the same vein: 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, p. 345.

849 Some of the problems encountered regarding enjoyment of the right to education are described in, 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, 201,0 pgs. 344 to 346; and, Ministerio Público Tutelar de la Ciudad de Buenos Aires, “La institucionalización de niños y adolescentes en la Ciudad de Buenos Aires”, [The Institutionalization of Children and Adolescents in the City of Buenos Aires], March, l 2010, p. 15.

850 Público Tutelar de la Ciudad Autónoma de Buenos Aires, “Puertas adentro. La política de institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires (2007-2011)” [Indoors. The Policy of Institutionalization of Children and Adolescents in the City of Buenos Aires], pgs. 50 to 52

851 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, pp. 344 to 346

852 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“Rules of Havana”), adopted by the United Nations General Assembly in Resolution 45/113, December 14, 1990.

853 When the questionnaire requests legislation, all applicable legislation should be included to the extent possible, whether it is national or belongs to a different level of government of a federal State.

854 The World Report on Violence against Children was prepared by Inter-American Commission on Human Rights (hereinafter “The Commission” or “IACHR”) Commissioner Paulo Sergio Pinheiro, who is also the Rapporteur on the Rights of the Child of this same institution, during his prior position as Independent Expert appointed by the UN Secretary General for the Study of Violence against Children. See http://www.unicef.org/lac/Informe_Mundial_Sobre_Violencia_1(1).pdf

855 United Nations Guidelines on Alternative Care for Children, adopted at the United Nations General Assembly on November 20, 2009. The universal system features a number of international instruments pertaining to the topic under examination in this paper, such as the reports of the Special Rapporteur on the Right to Health (E/CN.4/2005/51) or General Comment No 21 on Humane Treatment of Persons Deprived of Liberty, adopted by the Human Rights Committee.

856 Report on Corporal Punishment and Human Rights of Children and Adolescents, OAS/Ser.L/V/II.135, doc. 14, August 5, 2009. Available at: http://www.cidh.org/ninez/castigocorporal2009/castigocorporal.indice.htm

857 Report on Citizen Security and Human Rights. OAS/Ser.L/V/II, doc. 57, December 31, 2009. Available at: http://www.cidh.org/countryrep/Seguridad/seguridadindice.sp.htm

858 IA Ct. Of HR. Case of the “Street Children” (Villagrán Morales et al), Guatemala. Merits. Judgment November 19, 1999. Series C No. 63, par. 194.

859 IACHR, Report No. 41/99, Case 11.491, Admissibility and Merits. Minors in Detention. Honduras, March 10, 1999, par. 72.

860 Also see: IA Ct. of HR. Case of Juvenile Reeducation v. Paraguay. Preliminary Objections, Merits, Reparation and Costs. Judgment September 2, 2004. Series C no. 112, par. 148; and the Case of the Gomez Paquiyauri Brothers v. Peru. Merits, Reparation and Costs. Judgment July 8, 2004. Series C No. 110, par. 166. It reads verbatim:

Both the American Convention and the Convention on the Rights of the Child are part of a broad international corpus juris for protection of children that aids this Court in establishing the content and scope of the general provision defined in Article 19 of the American Convention.

861 IA Ct. of HR. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 August 28, 2002. Series A No. 17, par. 62. It reads verbatim:

Adoption of special measures to protect children is a responsibility both of the State and of the family, community, and society to which they belong.

862 IA Court of HR. Case of the Juvenile Reeducation Institute v. Paraguay. Preliminary Objections, Merits, Reparation and Costs. Judgment of September 2, 2004. Series C No. 112, par. 147 and the Case of Servellon Garcia et al v. Honduras. Merits, Reparation and Costs. Judgment September 21, 2006. Series C No. 152, par. 113.

863 IA Ct. of HR. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 August 28, 2002. Series A No. 17, par. 59.

864 IA Ct. Of HR. Case of the Yean and Bosico Girls v. Dominican Republic. Preliminary Objections, Merits, Reparation and Costs. Judgment of September 8, 2005. Series C No. 130, par. 134. Corte IDH.

865 The legal basis for this type of special measure is rooted in the principle of equality and non-discrimination as set forth in the Court’s own Advisory Opinion OC-17/2002. IA Ct. of HR. Juridical Status and Human Rights of the Child. OC-17/02 of August 28, 2002. Series A No. 17, par. 55.

866 IA Court of HR. Case of the Juvenile Reeducation Institute v. Paraguay. Preliminary Objections, Merits, Reparation and Costs. Judgment of September 2, 2004. Series C No. 112, par. 160; Case of the Gomez Paquiyauri Brothers v. Peru. Merits, Reparation and Costs. Judgment July 8, 2004. Series C No. 110, pars. 124,163-164 and 171; Case of Bulacio v. Argentina. Merits, Reparation and Costs. Judgment of September 18, 2003. Series C No.100 pars. 126 and 134; and IA Ct. Of HR. Case of the “Street Children” (Villagrán Morales et al), Guatemala. Merits. Judgment November 19, 1999. Series C No. 63, pars. 146 and 191. Additionally, Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, pars. 56 and 60.

867 Cfr. IA Ct. Of HR. Case of Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, par. 154. Corte IDH.

868 IA Ct. of HR. Juridical Status and Human Rights of the Child. OC-17/02 of August 28, 2002. Series A No. 17, par. 53.

869 IA Ct. of HR. Juridical Status and Human Rights of the Child. OC-17/02 of August 28, 2002. Series A No. 17, par. 71.

The child has the right to live with his or her family, which is responsible for satisfying his or her material, emotional, and psychological needs. Every person’s right to receive protection against arbitrary or illegal interference with his or her family is implicitly a part of the right to protection of the family and the child, [...]

870 IA Ct. of HR. Juridical Status and Human Rights of the Child. OC-17/02 of August 28, 2002. Series A No. 17, pars. 75 and 77.

871 Cf. United Nations Guidelines for the Prevention of Juvenile Delinquency. Adopted under resolution 45/112 of the United Nations General Assembly, December 14, 1990, guideline 13.

872 See IACHR, Report on Corporal Punishment and Human Rights of Children and Adolescents, OAS/Ser.L/V/II.135., doc. 14, August 5, 2009.

873 Other aspects to be addressed include those pertaining to the legal framework, application of the measure of institutionalization as a last resort, human resources available to institutions, counseling mechanisms, complaints on and reporting of alleged human rights violations of persons under 18 years of age at institutions, and reliable statistics thereon.