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G. Licensing, authorization to operate, and administrative registration
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The duty of the State to regulate includes instituting a procedure for the licensing and authorization to operate of public, private, and mixed nature residential care centers. The purpose of the licensing and authorization procedure is to ensure compliance with the standards of the provision of the service and proper operation of alternative residential care centers and, consequently, make sure as well that these facilities are qualified to serve the purpose of guaranteeing applicability and restoration of children’s rights. The special nature of the activities performed by these facilities means that the State’s duty as a guarantor is heightened and, therefore, the Commission holds that such establishments may not operate without prior authorization, issued by the competent public authorities in order to engage in this activity.
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In order to license and authorize to operate, the State must first establish, by means of a regulation or other legal provision, the technical criteria and standards that will be used to evaluate the characteristics and operating conditions of alternative care centers. The technical criteria to open and operate a residential care facility must be established in keeping with the objective of protecting and restoring the rights of the children requiring alternative care. Consequently, at minimum the following aspects must be taken into account : i) the type and characteristics of the physical premises and infrastructure in order to adequately serve the children, ii) the standards of care, iii) the profile and qualifications of the staff and specialized professionals linked to the facility, iv) the care program and objectives governing operation of the facility, v) specialized services provided at the facility, such as medical-psychiatric care, or any other type of care that requires special authorization, vi) the registries, files, accounting ledgers and other documentation that must be kept at the licensed facilities. Minimum requirements with regard to each of these aspects listed above are explained in detail in subsequent sections of this report.
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In order to be granted a license and authorization to operate, the requirements listed in the foregoing paragraph apply, notwithstanding fulfillment of other requirements such as certifications pertaining to the physical safety of the instalation and to security and emergency protocols in the event of disasters, or other specific certification as required under other applicable regulations, in addition to complying with renewal prior to expiration of such certificates.
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Regulations must also identify the authority in charge of granting licenses and authorization to operate. The Commission finds that based on the principle of specialization and professionalization, the competent authority must be specialized in the subject of the rights of the child and have adequate staffing available to it in order to carry out the necessary evaluations to grant licenses, as well as perform subsequent oversight and supervision duties. Evaluations must include an on-site inspection visit of the premises, in addition to a review of the requisite documentation.
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The obligations of the State is not exhausted at the moment of licensing and authorization for operation of the residential care center, but is extended throughout the time of functioning and delivery of service of the facility. To this end and for the purpose of fulfilling the duty to supervise, public and private alternative care facilities, regardless of whether or not they receive public funding, must be entered into a specific registry of entities providing services of protection of a residential nature to children without parental care. The facilities must inform the authorities of any change or modification in their characteristics or operations from the time when they were originally licensed and registered.
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The Commission notes that it is the duty of the State to make sure that residential care centers comply at all times with the regulations governing service provision conditions, and the criteria and standards set forth therein. In view of the type of duties performed by these facilities, and the direct bearing that it has on the rights of the child, the Commission considers that adequate compliance with the aforementioned obligation implies that authorizations to operate be in effect for a limited time period, at the end of which they must be renewed. Additionally, the duty to supervise this type of residential facilities means that the competent authorities must conduct regular inspection and control visits to evaluate compliance with operating requirements. The regulations must also provide for sanctions in those instances when such facilities operate without the respective license or authorization to operate or without being recorded in the registry.
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On this score, the U.N. Guidelines for the Alternative Care of Children establish:
All providers should be appropriately qualified or approved in accordance with legal requirements to provide alternative care services.438
Legislation should stipulate that all agencies and facilities must be registered and authorized to operate by social welfare services or another competent authority, and that failure to comply with such legislation constitutes an offence punishable by law. Authorization should be granted and be regularly reviewed by the competent authorities on the basis of standard criteria covering, at a minimum, the agency’s or facility’s objectives, functioning, staff recruitment and qualifications, conditions of care and financial resource management.439
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Notwithstanding the existence of variation among the States in the region regarding procedures for facility registration and licensing, the Commission has received reports on instances of shortcomings in the licensing and authorization and oversight processes for residential care facilities.
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In this regard, the Commission notes that several States of the region are in the process of adopting or revising the legislative framework for operation of this type of facilities and implementing a single registry thereof. This implies that not all residential care centers and institutions that are currently operating have been licensed to do so by the public authority. This type of situation has been reported in Chile, Colombia, El Salvador, Nicaragua and Paraguay, among other States. When the survey was being conducted, in Bolivia for example, based on the information reported by the State, it is estimated that 60% of the centers and institutions are accredited, while 40% were in the process of applying for accreditation. The Commission received information in the context of the sub-regional consultations with regard to Guatemala; even though a registry of facilities, mostly private, has recently begun to be implemented in that country, not all of these establishments have completed the accreditation process because many are facilities that are not in compliance with the standards in force.440
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The Commission notes with concern that, in many instances, the mechanisms of licensing and registration are linked exclusively to State funded private residential care facilities. As was discussed above, this is especially problematic because in many States of the region a significant percentage of alternative care centers and institutions are private, which, because they do not receive public funding, could fall outside the control and supervision of the regulating authorities.
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Another difficulty reported to the Commission is that some specific registries exist, but do not include all type of alternative residential care facilities and institutions, as well as the existence of very general registries which list a broad range of social organizations without specifically distinguishing the organizations that are running care facilities and institutions for children without parental care. For example, in Uruguay, even though a public registry of non-governmental organizations exists, it is a general registry for every type of organization and not a specific registry of residential care facilities.
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Additionally, for purposes of ensuring transparency in the system and the oversight thereof, the Commission recommends making public and periodically updating the full roster of accredited facilities, the maximum capacity at each one and the actual occupation ratio in each facility. The occupation of a facility over its maximum capacity shall be prohibited by law.441
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The Commission urges the States of the region that have still not done so, to regulate as soon as possible the criteria and minimum requirements for operation of residential care centers in accordance with the standards prescribed in international human rights law and in keeping with the objective of protection and restoration of the rights of the child; and also to regulate the procedure for granting licenses and for the corresponding registration.
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As a complement to the foregoing, in view of the fact that protection of children without parental care is a service in the public interest, the Commission finds that it is the duty of States to engage in adequate planning of the alternative care services, providing in said context, as a complementary to thefamily-based care, for the alternative care in small centers of personalized care for the boys and girls that so require. Specifically, pursuant to the objective of the special measures of protection, States should consider implementing a decentralized, small facility-based model, which can provide individualized quality care to the child, nearby and culturally adapted, in order to facilitate maintaining family and community ties and reuniting the child with his or her family.
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Being that a high number of both public and private residential care centers and institutions currently functioning in the region, that started operating prior to the coming into effect of a regulatory legislation framework in line with the principles and standards of international human rights law, the Commission recommends that States consider reviewing the existent centers and institutions and the conditions in which provide services to children and adolescents, particularly large institutions serving a high number of children. In those instances where the State’s available alternative residential care facilities do not conform to the aforementioned principles and standards, the Commission concurs with the recommendations put forth by the Committee on the Rights of the Child and the Independent Expert for the U.N. Study on Violence against Children, that a deinstitutionalization strategy for children living in such institutions must be pursued.442
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Deinstitutionalization strategies must be based on adequate planning and go hand in hand with an effort to strengthen family support programs and services in order to create favourable conditionsfor reintegration into the family, when possible and in the best interests of the child. In addition, it must be accompanied by an increase in the availability of family-based alternative care, or in facilities of small dimensions with a functioning similar to that of a family, for any children requiring alternative care.443 The success of deinstitutionalization plans must not just be measured in terms of a reduction in the total number of children living at institutions but must also measure, among other indicators, the quality of life of the children who have been transferred from the institutions, and the effects that process of deinstitutionalization has on them.444 In this sense, it is fundamental that these measures are adopted within a comprehensive policy of protection, to avoid possible collateral damages that can derive from deinstitutionalization without planification.
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In that regard, review of the legislative framework and of the current operation of residential institutions in the countries of the region represents a unique opportunity for States to redesign national plans and policies for the protection of children at risk of losing parental care and bring these plans and policies in line with the principles and standards of international human rights law. Accordingly, the Commission encourages States to take advantage of the opportunity to reinforce programs and services aimed at strengthening families in order to get them to fulfill their parental functions, as well as promoting family-based care alternatives, when it is not an option for the child to remain within his or her family, ensuring that care at residential centers is used as a last resort and only when it is the most favorable and positive measure for the child.
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