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States must ensure that children placed in residential centers and institutions are able to bring complaints, claims, and petitions with regard to implementation of protection measures, quality of services and the treatment and care received by them, before the appropriate authorities with the legal authority to settle the issues that may be raised. All children and adolescents at residential care centers and institutions, either public or private, have the right to submit complaints, claims, or petitions.
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The Commission deems it necessary for the State to establish mechanisms of the submission of complaints, claims, and petitions, which are accessible, safe, trustworthy and effective in dealing with issues raised by the children regarding the conditions in which they live and how they are treated at within residential centers and institutions. The aforementioned mechanisms must enable the children to voice their concern or petition , engage in consultations and dispel any doubts they may have on their rights while, at the same time, provide for the filing of formal complaints or claims.
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In order for these mechanisms to be effectively accessible to all of the children, they must be simple, widely known by the children themselves, and be designed as child-friendly and child-sensitive.484 These mechanisms and procedures must be adapted to the needs of all children and be available in language children from different age groups and degrees of maturity can understand, taking young children and children with disabilities into particular consideration,485 in addition to adequately providing for cultural differences and language barriers.486 Furthermore, as has been stated earlier, the Commission deems it very important for a gender perspective to be taken in order to help make both boys and girls feel comfortable and in confidence to communicate their complaints, concerns or claims.487
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The Commission underscores that children must know their rights. In order to exercise and defend their rights, they must first be aware of and understand them. Much of the violence perpetrated against children goes unchallenged because certain forms of abusive behavior are viewed by children as accepted social practices and because of a failure to put child-friendly reporting mechanisms into place.488 Consequently, in order to adequately protect children, especially those placed in particularly vulnerable situations, such as children in alternative residential care, the Commission views that States must make sure that they are aware of and have access to information regarding their rights.489 Accordingly, the Commission recommends that, in residential centers and institutions, such information should be provided to the children and adolescents and that they should be educated about their rights, in general, and informed of complaint and reporting mechanisms available to them, specifically. When a child is admitted to the center or institution, he or she should be provided a document outlining his or her rights as well as standards governing operations of the facility, the objectives and organizational structure of the institution, the code of conduct and proper interpersonal relations, disciplinary procedures and any other relevant information, in clear language the child can understand. The United Nations Rules for the protection of Juveniles Deprived of their Liberty,490 also known as the Havana Rules, are similar in this regard in setting forth that:
All juveniles should be helped to understand the regulations governing the internal organization of the facility, the goals and methodology of the care provided, the disciplinary requirements and procedures, other authorized methods of seeking information and of making complaints and all such other matters as are necessary to enable them to understand fully their rights and obligations during detention.”491
Additionally, the U.N. Guidelines for the Alternative Care of Children provide that:
In each country, the competent authorities should draw up a document setting out the rights of children in alternative care in keeping with the present Guidelines. Children in alternative care should be enabled to understand fully the rules, regulations and objectives of the care setting and their rights and obligations therein.492
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Children should be able to address a readily accessible person, whose duty it is to help them bring their complaints, claims and petitions, as well as advise them on the rights they are entitled to and provide guidance to them. The children, as well as their parents, family members, or other individuals with ties to the child, must know who these persons are and how to access them.493 The persons in charge of taking and following up on the children’s complaints, claims and petitions must have received role-specific and comprehensive training in matters pertaining to the rights of the children, as well as to on how to undertake this type of procedure.494 Children, and their family members or representatives, must have immediate and confidential access to child-sensitive advice, including legal asistence to pursue action before the competent administrative or judicial authorities, as appropriate, as well as other assistance.495 The complaint or reporting claims processes shall ensure the children’s right to be heard and to receive legal counsel.496
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The Commission considers that under the principle of the best interests of the child and the duty of special protection laid out in Article 19 of the ACHR, in connection with Article 25 of the ACHR, the ability to submit complaints or claims must be extensive stakeholders. In that way, said ability to report complaints or claims may not be restricted to particular persons, the very staff members of the facility or institution, the child’s family members, civil society organizations, as well as any other person who becomes aware of a situation that warrants doing so, should be able to do so . There should also not be any restrictions either on what type of issues can be subject to complaints or reporting of claims, and mechanisms must be in place to allow anonymous reporting of petitions or complaints.497
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Moreover, the staff of the centers and institutions must be obligated to report any instances or circumstances that come to their attention, which may entail an infringement of children’s rights in the context of the care received by them at the center or institution, as well as setting forth the appropriate disciplinary or other sanctions in the legislation, when noncompliance of this obligation is proven.498 As for the mandatory requirement of center or institution staff to report misconduct, the Havana Rules, which address protection of children deprived of their liberty, state that “[a]ll personnel … [who] have reason to believe that a serious violation of the present Rules has occurred or is about to occur should report the matter to their superior authorities or organs vested with reviewing or remedial power.”499 Furthermore, the U.N. Guidelines for the Alternative Care of Children provides that all agencies and services for children requiring alternative care “should develop a staff code of conduct, consistent with the present Guidelines, that defines the role of each professional and of the carers in particular and includes clear reporting procedures on allegations of misconduct by any team member.”500 The Commission considers that standards establishing the obligation to report actual instances, suspicion or risk of violence, or any other violations of the rights of the child should be incorporated into the rules or regulations of conduct of all agencies or institutions that deal on a regular basis with children.501 Reporting this type of situation is particularly relevant to people who provide medical or psychological assistance at residential centers and institutions, because they are in the best position to identify incidents of violence, abuse and neglect; the failure of such personnel to report evidence of violent treatment contributes to creating an atmosphere of impunity, which can easily lead to a persistent pattern of violence.502 Normatives on the confidentiality of information regarding professionals working with children should not become an obstacle to reporting cases of violence or neglect.503 The Commission also notes that reporting by professionals who work with very young children and children with mental or intellectual disability, is especially important, because these children are at risk of being victims of different forms of violence, abuse and neglect; also they are more defenseless in these instances, and not capable, or else face major barriers, to voice complaints or report such misconduct. 504 When reports are made in good faith, processes must be in place to ensure the protection of the professional making the report. 505
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Alternative care centers and institutions must have clear and widely publicized protocols in place regarding reporting and complaint mechanisms and procedures. All communications, complaints and claims should be registered and be accessible to public authorities responsible for supervision of the facilities, as well as being subject to review by the independent monitoring mechanisms. The registry should include the course of action taken to adequately address the complaints and communications, in addition to the outcome of the action undertaken. Furthermore, the decision taken with regard to the complaint must be reasoned and well founded and complainants must have the chance to appeal that decision before an independent and impartial authority.506 In any case, claims, complaints or petitions made by children must be taken into account seriously and rigorously; review of all reports or complaints must be mandatory.507
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The person who responds to the child’s communication should have received clear instructions and explanation on the timing and way in which the matter should be referred to the competent administrative or judicial authority, to adequately address the complaint or claim and conduct whatever type of investigation appropriate to the situation.
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For children to feel safe to make a complaint or report an incident, it is necessary that they perceive the mechanisms as safe and trustworthy; otherwise, it is very unlikely that they will feel enough trust to talk about such incidents. The Commission considers that it is not enough for States to simply ensure the possibility of petitioning, complaining and reporting claims to the staff of the center or institution itself, or to the management thereof. Being that children cared for at a residential institution are placed in a situation of heavy dependence on their caretakers, who at the same time may be the offenders of violence against the children, it is advisable that external and independent complaint and reporting mechanisms be created, such as 24-hour toll-free hot lines.508 Likewise, the importance of independent monitoring and supervision mechanisms has been underscored, under which the opportunity to make a complaint, report misconduct or put forward any other aspect of concern should exist.
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The above-mentioned mechanisms and procedures should take into consideration the privacy of the child and the confidential nature of some of the communications, in addition to ensuring in all instances that the child will be protected and that he or she will not be subjected to retaliation for having submitted a complaint, reported an incident or petition with regard to the operations of the facility or institution and about the treatment received by him or her.509 The child must be informed about the scope and limits of confidentiality each time he or she makes a complaint. The child’s safety and guarantying that the best interests of the child are served should take precedence over everything else,510 and when necessary, the child should be moved to another location other than the center or institution. The child may not be subjected to discriminatory treatment, punishment or any other form of retaliation as a result of making a complaint, claim or petition; likewise, care must be taken so that the child is not re-victimized in the context of the investigation proceedings of the complaint or report.
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The Commission considers that the complaint or claim reporting procedure must be expeditious and conducted with celerity and due diligence. Moreover, in order for these procedures to be considered effective, they must also involve serious investigation into the complaint and, where appropriate, criminal, civil or administrative responsibilities should be established.511 Additionally, the child should be advised promptly of the reply to his or her request and the status of the processing of his or her complaint, claim or petition. When it is proven that rights have been violated, appropriate reparation must be provided, including compensation, and, when appropriate, the adoption of measures to promote the physical and psychological recovery, rehabilitation and reintegration, as provided under Article 39 of the Convention on the Rights of the Child.512
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In the judgment of the Commission, the children’s and adolescents’ opinion on how well the complaint, petition and claim mechanisms are working, should be heard and taken into account, in order to improve these mechanisms and make them more accessible and child-friendly.
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The Committee on the Rights of the Child has repeatedly pronounced on the obligation of States to ensure the availability of complaint and reporting mechanisms regarding the conditions in which children are treated in the sphere of the institutions in charge of or in contact with them, such as in schools, detention and penitentiary facilities, and residential institutions, among other places.513 Other human rights bodies of the United Nations system have voiced similar opinions on this topic, such as the Independent Expert for the U.N. Study on Violence against Children in the conclusions of the U.N. Study cited above,514 the Special Representative of the U.N. Secretary General on Violence against Children515 and the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. Accordingly, the Committee on the Rights of the Child has recommended emphatically and repeatedly that:
all States parties develop safe, well-publicized, confidential and accessible support mechanisms for children, their representatives and others to report violence (…). The establishment of reporting mechanisms includes: (a) providing appropriate information to facilitate the making of complaints; b) participation in investigations and court proceedings; c) developing protocols which are appropriate for different circumstances and made widely known to children and the general public; d) establishing related support services for children and families; and e) training and providing ongoing support for personnel to receive and advance the information received through reporting systems. Reporting mechanisms must be coupled with, and should present themselves as help-oriented services offering public health and social support (…). Children’s right to be heard and to have their views taken seriously must be respected.”516
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Pursuant to Guideline 99 of the U.N. Guidelines for the Alternative Care of Children:
Children in care should have access to a known, effective and impartial mechanism whereby they can notify complaints or concerns regarding their treatment or conditions of placement. Such mechanisms should include initial consultation, feedback, implementation and further consultation. (…) This process should be conducted by competent persons trained to work with children and young people.
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Information gathered by the Commission indicates that most States of the region do not have complaint, claim, and petition mechanisms in place, which meet the aforementioned requirements. Based on the States’ responses to the questionnaire, very few have evaluated how sensitive complaint and reporting procedures are to the special needs of children. For the most part, the only procedure States mention when answering the questionnaire on complaint and claim procedures pertains to the supervision system of institutions by the regulatory agencies in charge of the monitoring thereof. In many instances, no explicit mention is made about what concrete measures are taken to ensure the privacy and the safety of children and adolescents. However, in a few instances, mention is made of the requirement to inform those responsible of the institutions about any eventual child rights violations. States such as Chile have provided information on the amount of supervision but not about the amount of complaints or investigations opened as a result of documented reports of such situations in the context of said visits.
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Consistent with the position of the Commission, the Committee on the Rights of the Child expressed its concern and made specific recommendations as to the failure of several States of the region, such as, Bolivia517, Ecuador518,
El Salvador519, Nicaragua520 and Peru,521 to create complaint and reporting mechanisms for children that are respectful of the right of children to privacy and confidentiality. The Commission joins the Committee on the Rights of the Child in its satisfaction at the fact that the new Law on the Office of Child Protection of Trinidad and Tobago, provides for the creation of a body in charge of taking complains from children living in community residences, foster care homes and special child care institutions.522 In some States, legislation recognizes, in general, the right of the child to file complaints with public authorities, such as in Costa Rica, Paraguay or Uruguay, albeit the effectiveness of that legislation is strictly connected to access of children to information and the level of confidence and safety provided to the children by the mechanism.
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The Commission also views as positive that some States, such as Chile, Colombia or Honduras have established some mechanism to become aware of the opinion of children and adolescents regarding the treatment and services they receive at the institution, such as a “suggestion mailbox” or “satisfaction surveys.” But said instruments do not constitute complaint or reporting mechanisms that meet the aforementioned standards. Furthermore, the Commission deems it insufficient that the only mechanism provided for to submit complaints or claims is confined to doing so before the very same staff of the institutions that the complaints and reporting are about, or a specific staff member or to the management, without any opportunity to readily gain access to another mechanism, as was reported by several States.
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The Commission concurs with the findings of the Independent Expert for the U.N. Study on Violence against Children, where he asserts that there is still a persistent “culture of impunity and tolerance of violence against children”523 at residential institutions. A key indicator of the effectiveness of reporting claims and complaint mechanisms is whether or not they lead to legal action or another type of adequate measure. Unfortunately, we are still facing great difficulties in this regard, as information distinguishing between the number of incidents reported and number of cases heard by the courts or other competent authorities, and the outcomes of such proceedings, is chronically absent.
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In light of the foregoing, the IACHR reaffirms the obligation of States to ensure the opportunity of children living in care facilities and institutions to make complaints, claims and petitions regarding the treatment they receive, before the authorities vested with power to settle any issues that are raised by them. This type of mechanism must be accessible, safe, effective, and respectful of the right of children to privacy and confidentiality.
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