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D. Measures that imply family separation: principle of necessity, exceptionality and temporal determination (transiency)
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Likewise, obligations for the States arise in situations in which the capacity or ability of families to care and protect a child is limited, in practice. In the face of such particular circumstances of the family, it is the obligation of the State to take special measures of protection to support the family in order to recover said situation. However, if the best interest of child so warrants, the authorities can take special measures of protection involving the separation of the child from his or her family.
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One of the contents of the right to a family is the possibility of defense from any unlawful or arbitrary interference with family life. Article 11(2) of the American Convention and Article V of the American Declaration establish that no one may be the object of arbitrary or abusive interference with his or her private family life.56 The principles of necessity, exceptionality, and temporal determination in relation to special measures of protection that involve the separation of a child from his or her parents, for the purpose of protection, are derived from a necessary balance between the rights contained in Articles 17(1) and 11(2), and Article 19 of the Convention, and V and VI of the American Declaration with VII of the same instrument.
In this regard, the Court has stated that:
[t]he 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, and it is also explicitly recognized by Articles 12(1) of the Universal Declaration of Human Rights, V of the American Declaration of the Rights and Duties of Man, 17 of the International Covenant on Civil and Political Rights, 11(2) of the American Convention on Human Rights, and 8 of the European Human Rights Convention. These provisions are especially significant when separation of a child from his or her family is being analyzed.57
(…) the child must remain in his or her household, unless there are determining reasons, based on the child’s best interests, to decide to separate him or her from the family. In any case, separation must be exceptional and, preferably, temporary.58
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These principles of necessity, exceptionality, and temporal determination in relation to the possible separation of a child from his or her family, for reasons of protection, have also been established in the universal human rights system, particularly by the CRC, and by other international instruments and norms, such as the United Nations Guidelines for the Alternative Care of Children, and by the United Nations Committee on the Rights of the Child in many of their decisions. Precisely, the U.N. Guidelines for the Alternative Care of Children have set out orientations for policy and practice regarding the protection and well-being of children deprived of parental care or at risk of being so, based on the aforementioned principles.
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In that regard, Article 9 of the Convention on the Rights of the Child establishes that:
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
(…)
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (…).
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Guideline 14 of the U.N. Guidelines for the Alternative Care of Children specifies the following with regard to protection measures involving the separation of the child from his or her parents or family:
Removal of a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest possible duration. Removal decisions should be regularly reviewed and the child’s return to parental care, once the original causes of removal have been resolved or have disappeared, should be in the best interests of the child (…).
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Certain situations and circumstances require that the State take protective action involving the temporary separation of the child from his or her parents in order to protect the child’s rights and well-being, thus serving the best interests of the child. From the special duty of protection recognized in Article 19 of the Convention derives the obligation to establish special measures to protect children when it is deemed that they lack adequate parental care and that, based in their best interests, protection, and well-being, they must be separated temporarily from the family nucleus. In this matter, the CRC establishes expressly, in its Article 20, the duty of States to ensure special measures of protection and alternative care for children deprived of adequate parental care:
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. (…)”
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In their decisions, the Commission and the Court have reiterated that any protection measures involving the separation of a child from his or her family should be based on these principles of necessity, exceptionality, and temporal determination.59 For the interference to be consistent with the parameters set by the American Convention, the separation may only take place in exceptional circumstances, when there are determining reasons, based on the child’s best interests of the child. Furthermore, to give adequate fulfillment to Article 11(2) of the Convention and V of the Declaration regarding the prohibition of unlawful or arbitrary interference with family life, the decision concerning the set of circumstances justifying these alternative care measures must be made by a competent authority in accordance with applicable law and procedures, with strict respect for due process guarantees, and must be subject to judicial review.60 Moreover, in cases where a child is separated from the family nucleus, the State must do its utmost to preserve family ties by intervening on a temporary basis and directing its action toward the reintegration of the child into his or her family and community, as long as this is not contrary to the child’s best interests. The Inter-American Court has very clearly established that children must be returned to their parents as soon as circumstances allow.61
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Similarly, the purpose of the temporary special measures of protection involving the separation of the child from his or her parents may be inferred from the said principles of necessity, exceptionality, and temporality, stemming from a joint analysis of Articles 11(2), 17(1), and 19 of the Convention, and V,VI and VII of the Declaration. Hence, the special measures of protection entailing placement of a child under alternative care must be aimed, from their very design, determination, implementation, and review, at restoring rights, primarily in reestablishing family life and resolving the causes that led to adoption of the separation measure. The aforementioned is applied only in those cases when the child’s reintegration into the family of origin is not contrary to his or her interests. Consequently, the measure must come under periodic review in order to follow up on the child’s situation and well-being and enable appropriate action to be taken to bring about circumstances allowing the child to return to his or her family of origin and parental custody as soon as possible.
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The Commission considers that, in keeping with the requirements under Article 11(2) of the Convention and V of the Declaration, it should be possible at all times to verify the suitability and legitimacy of special measures of protection involving the separation of the child from his or her parents and biological family. The decision to apply this kind of measure, as well as its review, must meet the requirements of legitimacy and suitability and must therefore be founded on objective criteria previously set by law, be made by specialized technical personnel trained to conduct this type of evaluation, and be subject to review by a judicial authority.62
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However, in situations and cases in which it proves impossible to restore a child’s ties with his or her parents or extended family, special measures of protection of a permanent nature will be taken to bring about a definitive solution to the child’s situation, in keeping with the best interests of the child and, in particular, with his right to live, grow up, and develop within a family. Legal adoption facilitates a permanent solution in these cases. Due respect for rights under Articles 17(1) and 11(2) of the Convention, in relation to parental rights, implies that decisions on the definitive removal from parental custody and the ruling on a child’s adoptability should be made by a competent judicial authority, with strict respect for the law and procedural guarantees.63 Permanent special measures of protection are not the subject of this report, although some specific references will be made to adoption whenever relevant in the logical exposition of content of this report.
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In conclusion, States have the following obligations that derive from a joint analysis of Articles 11(2), 17(1), and 19 of the American Convention and Articles V, VI, and VII of the American Declaration: (i) first of all, the positive obligation of States to adopt measures to protect the family that enable and ensure the effective exercise of parental rights and responsibilities, thus preventing situations in which children are unprotected; (ii) likewise, the obligation of States to design and implement special measures of protection of a temporary nature to adequately meet the child’s needs for protection when the family, despite having received appropriate support, cannot effectively meet its obligations to provide care or when remaining in the family setting may be contrary to the best interests of the child, in which case protection measures must be adopted that involve separation of the child from his or her family and placement in an alternative care environment; and (iii) in light of the aforementioned articles, the alternative care measures must be duly justified by law, temporary in nature, and directed at restoring rights, reestablishing family ties, and reintegrating into a family environment as soon as possible, based on the best interests of the child and must be subject to judicial review.64
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