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A. Measure of last resort
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Among the mechanisms to provide protection to children without appropriate parental care is the option of residential care in care centers adapted to the attention and care of children. Article 20(3) of the Convention on the Rights of the Child refers to this type of special protective measures but as a secondary measure, relegating it to the category of last resort while giving priority to the options that provide care in a family setting. In this sense, Guideline 21 of the United Nations Guidelines for the Alternative Care of Children establishes that:
“Use of residential care should be limited to cases where such a setting is specifically appropriate, necessary and constructive for the individual child concerned and in his/her best interests.” Meanwhile Guideline 125 establishes that: “The competent national or local authority should establish rigorous screening procedures to ensure that only appropriate admissions to such facilities are made.”
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Article 23(5) of the United Nations Convention on the Rights of Persons with Disabilities also gives priority to the care of children in a family setting:
States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.
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The Committee on the Rights of the Child has emphasized on several occasions the exceptional and subsidiary nature of measures that imply the institutionalization of children, and has established that, in general terms, the admission of a child to an alternative care center should be considered “as a last resort, with the exclusive objective of protecting the best interests of the child,”377 when the implementation of any other type of special measure of protection is impossible or inappropriate. The justification for this general order of priorities is based on the right of the child to grow , develop and be cared for in a family setting that is conducive, appropriate and safe and which provides the child the affection, attention and care necessary for his/her comprehensive development. When the child’s parents or extended family are temporarily unable to provide those conditions, foster carers should play a role in providing a safe and caring environment in a family setting.
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The ample evidence collected during the past decades regarding the negative impact residential institutions have on children, sparked a position of criticism on the suitability of this type of protection measure. Probable negative consequences, although not always automatic, are particularly manifest in large institutions with little capacity for individualized attention. The World Health Organization, for instance, has stated that residential care institutions have a negative impact on the health and development of children and that they must be substituted by other mechanisms able
to provide high quality care.378 According to the Independent Expert for the U.N. Study on Violence against Children, “[t]he overuse of institutions for children exacts enormous costs on children, their families, and society. Extensive research in child development has shown that the effects of institutionalization can include poor physical health, severe developmental delays, disability, and potentially irreversible psychological damage. The negative effects are more severe the longer a child remains in an institution and in instances where the conditions of the institution are poor.”379 The possible long-term detrimental impact on children living in those institutions is attributed to several factors, among them, the absence of a primary caregiver with whom the child can develop a positive and relevant emotional tie, lack of stimulation and constructive activities, limited access to basic services, and isolation from the family of origin and the community.
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Other of the main effects is the situation of vulnerability in which children in institutions are exposed to risks of suffering different forms of violence or exploitation. The Study carried out by the Independent Expert clearly showed an abundance of evidence from all regions of the world that indicates that children and adolescents living in institutions are generally exposed to a type of structural violence that is the result of the operating conditions of care in these institutions. According to the aforementioned U.N. Study, violence in the institutions is the result of a number of factors associated with the normal operation of these institutions, such as the precariousness in sanitary and security conditions of the facilities, overcrowding, insufficient staff to provide adequate care to the children, social isolation and limited access to services, the implementation of disciplinary or control measures that involve violence, the use of force or treatments that, themselves, constitute a form of violence, such as unnecessary psychiatric medications, among others.380 The U.N. Study has documented that violence in residential institutions is six times more frequent than in foster homes, and that children in institutions are four times more likely of being the victims of sexual abuse than children who have access to alternative care in a family setting.381 That is why the Independent Expert strongly recommends that placement in residential institutions be used as a last resort and only in those cases in which it is the most appropriate measure, in addition to recommending a series of actions to overcome the problems detected and improve the quality of care in residential care centers and institutions. 382
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With regard to the cost of institutional care compared to other types of care, research conducted in the United States showed that institution-provided care could be between two and ten times more costly than care provided in family-based settings.383
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Based on the preceding, the Commission concludes that full-time placement in a residential should be reserved for those cases in which it is determined that it is the most suitable measure to meet the child’s specific needs for protection and care, taking into account the particular circumstances of the child,384 as well as following established legal criteria and procedures for admission to those s, and implementing the measure for the shortest possible period of time. Furthermore, residential centers must be structured and operated in a way that it ensures the effective protection of the rights of the children placed under their care. Based on existing evidence, and just as it will be adressed more in-depth in a subsequent moment, the model of care in large residential institutions must be substituted by a residential care model based on smaller care centers with placement of fewer children, and which are able to provide children with quality and individualized care.
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The information and data available to the Commission show that a high percentage of children involved in protection proceedings are placed full-time in residential institutions.
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Thus, in most of the countries in the region there is a high use of institutionalization of children for protection reasons, even though it should be used only as an exceptional measure. In addition, in the majority of cases it is difficult to establish precisely the number of children who live in that situation given the lack of data on the various institutions. Several countries in the region lack accurate and updated information. As a result, it is difficult to determine with any degree of accuracy and reliability whether there has been advancement or decline in the number of children being placed in institutions, due to the fact that in many of the countries in the region, that kind of systematic monitoring is also not being done.
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Although there are no precise and exact numbers, based on the information that is effectively available, the Commission is concerned with the number of children in the region who are under special measures of protection that imply admission to residential institutions. For instance, a recent survey conducted in Argentina by the National Secretariat for Children Adolescents and Family (Secretaría Nacional de Niñez, Adolescencia y Familia, “SENNAF”) together with UNICEF, found that there were 14,675 children in the country in alternative care, most of whom were in institutions; more precisely, 71% of the children (10,488) were institutionalized, while, according to the data, only 29% (4,187) of the children in alternative care have been placed with foster families.385 In Grenada, according to the information provided in response to the questionnaire, aproximately 197 children and adolescents lived in residential institutions, while 91 were placed in alternative family programs or whose families receive support from State. Meanwhile the information available shows that in Brazil, 36,929 children were placed in residential institutions and only 932 were in foster care programs.386
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On this subject, the Committee on the Rights of the Child has expressed its opinion with regard to the situation in several States in the region and recommended the return of children who are living in institutions to their families as soon as possible, or that they be placed in some form of family-based care, as is the cases; in Bolivia387, Costa Rica388, Ecuador389,
Guatemala390, Nicaragua391, Paraguay392 and Saint Lucia.393 The Committee on the Rights of the Child has also made several recommendations to various States in the region several times, as in the case of Bolivia394, Brazil395, El Salvador396, Guatemala397, Nicaragua398, Peru399, Dominican Republic400 and Uruguay,401 with regard to the excessive utilization of institutionalization of children. In certain cases, such as in Chile, the Commission took note of the efforts being made to improve the foster care system, and of the small reduction in the number of children in institutions.402 Likewise, as a way to confront this phenomenon, the Committee has recommended that certain States, such as Nicaragua, develop “public awareness campaigns on the negative impact of institutionalization in the development of the child.”403
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In brief, although admission to residential care arrangements should be a measure of last resort, the information gathered by the Commission shows that the numbers of children and adolescents entering residential alternative care remain disproportionately high. In addition, children stay long time in some of these institutions, although their stay should be for the shortest time necessary. Moreover, the material and operating conditions in which the placement occurs is of concern in all countries of the region. This part of the report will address the alternative care arrangements of residential character and how to organize this form of alternative care to adequately serve its purpose and give satisfaction to the protection of human rights of children and adolescents deprived of parental care.
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