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E. Residential care centers and institutions of public, private or mixed nature
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The State may decide to provide the service of residential care and protection to children without parental care directly, through facilities managed by public entities. However, private initiative may also provide these services of residential protection and care under state regulations on the subject matter. The Commission has noted that in several countries of the region, there are a considerable number of private establishments, which provide services of residential alternative care and protection to children without parental care, and that the number very well may surpass the number of public establishments providing this service. The Commission has also learned that most States in the region opt for entering into contracts or agreements with a certain number of private care centers or institutions providing these services, which are generally known as facilities of a mixed public/private nature.
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In Chile, for example, according to the response to the questionnaire, there are 332 privately managed facilities, known as “collaborating agencies” [organismos colaboradores], while 10, which are directly under public agencies. Likewise, based on the information provided, in El Salvador there are 13 public facilities, 65 private ones and 6 of a mixed nature.428 Also, in Paraguay, it has been reported that 6 care facilities are public, while 63 are exclusively run by private organizations. Similar situations have been reported in Argentina,429 Costa Rica, Ecuador, Guyana, Honduras, Jamaica and the Dominican Republic. Additionally, according to the information gathered in the sub-regional consultation process, in some States like Haiti, all residential alternative care institutions are run by private organizations.
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Regarding the aspect of procurement or entering into contracts for the financing and provision of the service by private entities , differences between countries are evident; in some States such as Argentina,430 Brazil, Chile, Uruguay or Saint Vincent, the vast majority of facilities receive public funding. While in other cases, such as Venezuela, financing of most care facilities is private, with the presence of religious organizations and non-governmental organizations being particularly significant.
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Likewise, based on the information received by the Commission, it can be surmised that in some instances, even though States have a number of public residential care centers in place, when specialized care is required, they resort to specialized private facilities or institutions, such as the case of institutions for children with disabilities in Colombia and Honduras, or institutions for the treatment of adolescents with addictions in Uruguay.
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As for the provision of public services linked to the guarantee and applicability of fundamental rights, the Court has held that:
Rendering public services implies the protection of public interests, which is one of the objectives of the State. Though the States my delegate the rendering of such services through the so-called outsourcing, they continue being responsible for providing such public services and for protecting the public interest concerned. Delegating the performance of such services to private institutions requires as an essential element the responsibility of the States to supervise their performance in order to guarantee the effective protection of the human rights of the individuals under the jurisdiction thereof and the rendering of such services to the population on the basis of non-discrimination and as effectively as possible.431
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In the Commission’s view the fact that the private sector is in charge of care centers and institutions does not diminish in any way the obligation of the State to ensure recognition and full enjoyment of all rights of children and adolescents under the State’s jurisdiction. Accordingly, the Committee has recommended that a permanent mechanism or process of supervision be put into place to make sure that all public and private service providers respect the applicable norms, irrespective of the existence of a contract or agreement for the provision of the service and/or its public financing.
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The Committee on the Rights of the Child has held forth, with regard to the provision of services by private parties, that States:
[…] have a legal obligation to respect and ensure the rights of children as stipulated in the Convention, which includes the obligation to ensure that non-State providers operate in accordance with its provisions.432
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As for provision of the service by the so-called facilities of a mixed nature , which are private but receive public funding for operation of their establishment, the Commission specifically sets forth that, even though the provision of the service is governed in these instances by service provision contracts or agreements, the Commission finds that this is insufficient when it is not accompanied by an adequate regulation of the operations of these establishments , which must be consistent with the objective of the protection of the rights of the child. In this regard, based on the information that has been submitted to the Commission, in some instances, the regulation of the service is reportedly confined to administrative and financial requirements; however, aspects pertaining to quality and standards of service and compliance thereof , are not sufficiently taken into account.
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Lastly, the Commission is concerned that there may be forms of financing that provide incentives for the holding or prolonged stay of children in alternative residential care centers or institutions longer than necessary. In this regard, it urges States to establish a legal framework and conduct adequate oversight to make sure that no child will be placed or held needlessly at a facility or institution.433
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