The right of girls and boys to a family. Alternative care. Ending institutionalization in the americas

7. Duty of prevention, investigation, sanction and reparation
Take the necessary measures to assure the prevention, investigation, sanction and reparation in relation to a violation of rights in any alternative care center or residential institution. On that effect, the Commission recommends to the States:
a. To determine the obligations of the public authorities to act ex oficio in order to prevent, investigate, prosecute, punish and redress any human rights violation of human rights of children in residential care centers or institutions. In this regard, determine the obligation of the public authorities to initiate ex officio and with no delay, a serious, impartial and effective investigation when become aware of any possible violation to the rights of a child in alternative residential care; this investigation must be conducted through all legal means available and be aimed at finding out the truth and the investigation, prosecution and punishment of all persons responsible for the acts.
b. Establish in the legislation the duty to inform public authorities of any violation to the right to life and to personal integrity of a child which occur in alternative residential facilities, and of any other violation to his or her rights.
c. Give adecuate consideration to the best interests of the child in all investigation procedures, in particular, consider the need to avoid subjecting the child to a re-victimizing process or place the child’s safety at risk; in this regard, the child’s opinion should be obtained and be given due weight. Such investigations must be conducted by qualified professionals who have received role-specific and comprehensive training for this purpose.
d. Regulate appropriate sanctions for those responsible, which may be of administrative, criminal and/or civil nature, taking into account the seriousness of the misconduct. In addition, States must focus their efforts on avoiding the repetition of reported incidents, which may entail taking administrative measures with regard to the alternative care center or institution, as well as conducting an adequate supervision afterwards.
e. Strive to restore the violated right as well as provide reparation for the damage caused. The Commission highlights the obligation to ensure the suitable measures of recovery and rehabilitation required for the child who has been a victim of violence or any other violation of rights.
8. Minimum standards of operation
The Commission urges the States of the region which still have not done so to adopt, in the shortest time possible, the criteria, requirements and minimum standards of operation of residential care facilities in accordance with the standards set in the international human rights law and attending to the objective of protection and restitution of rights of the child. The requirements and minimum standards of operation f must be applied to public and private centers. Regarding this matter, the Commission recommends:
a. Consider in the regulatory frameworK at minimum the following aspects: i) the type and the characteristics of the installations and equipment, ii) standards of care, iii) staff employment , iv) the care program and objectives governing operation of the facility, v) in the case of specialized care centers, include the characteristics of the additional services that this type of centers are obligated to have, for example, medical-psychiatric attention, or any other that requires special authorization, and vi) the records , files, accounting books and any other documentation that each licensed care facility should have.
b. Take in special consideration the objective of protection and restitution of rights that the special measures of protection have, when regulating the criteria and standards of f operation and the provision of services in residential care centers.
c. Require that all alternative care centers produce an intervention program, document in which the theoretical and practical operational criteria of the facility, as well as the plans and methods of intervention, are explicitly laid out.
d. Guarantee that children and adolescents in residential alternative care will not be unreasonably restricted in the exercise of their rights, except for any limitations or restrictions that are strictly necessary to ensure the protection and safety of the child or adolescent. The Commission considers that the operation of an institution under a closed system, which unnecessarily restricts contact of children with the outside world, is inconsistent with respect for the human rights of children and adolescents, including the right to maintain ties to their family, to the full and comprehensive development of their personality, the right to identity and the right to personal liberty.
e. The system for receiving visits as well as for leaving the center , must be adapted to the personal circumstances and conditions of each child, after having conducted an appropriate, individualized evaluation of the child and his/her environment, taking into account his/her best interests, the child’s particular protection and care needs, and also considering the child’s opinion.
f. Ensure that the physical space of institutions and their size are aimed at ensuring conditions of protection, safety, sanitation and privacy, which are consistent with the protection of the rights of children, as well as allowing for the exercise and enjoyment of children’s rights and for conducting age-appropriate activities. Provide the centers and institutions with sufficient equipment and technical, human and financial resources. Strict compliance with these conditions must be taken into consideration by States when granting a license and authorization for operation, as well as within the framework of subsequent reviews.
g. Ensure that residential institutions have separate areas, such as, for example, bedrooms, hygienic services, among others, for the different groups of children and adolescents and, at the same time, common areas for socialization and community life under the proper supervision of the staff. Areas for the staff have to be clearly marked and separated from those of the children.
h. Contemplate that the facilities are perfectly adapted to the profile of the population group receiving care in them, and that the staff have the adequate experience and training required to attend the protection and care needs of the children, taking into especially taking into account the situation of the most vulnerable children, like children with disabilities, with a medical condition or special requirement, and very young children.
i. The Commission recommends the residential care centers to be of such dimensions that allow for an individualized attention and care, and be organized according to the rights and needs of children, in an environment as similar as possible to a family, and with a reduced group of children. The objective should be, in general, to provide temporary care to the child and to actively contribute to his/her reintegration into his/her family.
j. Determine the maximum number of children that can be cared for in this type of s, being recommended that the number should be as l low as possible. No institution should surpass its installed capacity and every institution or facility should accommodate a reasonable number of children in keeping with its dimensions, avoiding the threshold of overcrowding, and observing conditions that allow respect for the privacy of the children.
k. Garantee that residential care centers are located in establishments in such a way that ensures close proximity to the habitual residence of the child and to his/her family and community. This is essential in order to effectively ensure that ties with the family are maintained and prevent the child’s ties and connections with his or her environment and community from severing, in addition to contributing to support the reintegration of the child into his or her family when conditions are given for so doing. In the case of indigenous children, or belonging to to other groups, it must be ensured that the child will be able to keep his or her cultural identity and ties with his or her community.
l. Ensure that alternative care centers are physically located in places with ready access to public transportation and to services of education, health, leisure, recreation and cultural activities, as well as employment, depending on the age of the adolescent.
m. Ensure a stable setting for the children and satisfy their basic need for continuous and safe bonding with the setting where they are being cared for and the people directly responsible for their care; avoiding unnecessary transfers or those that are motivated by mere administrative reasons.
n. Establish in the regulation that it must be mandatory to create a record or file and draw up an individualized care plan for each and every child or adolescent entering a residential care center or institution. The files of children in care centers and institutions must be complete, up-to-date, confidential and secure. The child’s file must include information concerning his/her family, as well as reports and complete evaluations performed when the protection measure began, together with periodic follow-up evaluations, with the individual care plan for the care of the child as a major component of the record.
o. Establish that medical and psychological records, as well as information regarding treatments of any kind and its evolution must also be included in the record, together with information on his/her education and training. This record should follow the child throughout the period he/she is in alternative care and be consulted by duly authorized professionals , responsible for his/her current care.
p. Contemplate within the norm, the purpose which the individualized care plan must have, its minimum content and the need for its periodic updating. The individualized plan must gather all pertinent information that will enable the professionals in charge of the child to make appropriate and well-informed decisions regarding the care of the child, in addition to providing a record of all actions taken with regard to the child. The plan is not circumscribed to the child and his/her care, but must also include all aspects related with reattachment to his/her family; for example the evaluations of the child’s family and environment, interventions with the family and recommendations concerning the course of action to be taken with the family and the child. The child and his family must participate in this planning, unless that is against the child’s best interests.

q. Establish the obligation that in the periodic reviews of the special measures of protection, to be carried out by the competent authority, the child’s individualized care plan must be taken into due consideration as part of the information that is important for the evaluation of the current situation of the child and the family, for the purpose of reaching a decision regarding continuation, modification or cessation of the special measure of protection.

r. Regulate the basic staffing and employment criteria to be required of centers and institutions, both public and private. In this regard, the legislation must contain, at the very least: i) the staff/child ratio, ii) the professional profiles required, iii) the basic duties to be performed by the various professionals, and v) the minimum qualifications and knowledge required.
s. Ensure that in the procedures for selection and employment of staff, the references and professional background of the candidates are taken into account, most especially those of the people who are in direct contact with the children and adolescents, in order to be able to rule out a background involving cases of abuse, neglect or any other form of violence or infringement of the rights of the children.
t. Make sure that working conditions and remuneration paid to the staff working in residential institutions and care centers be in line with their responsibilities so as to maximize retaining of suitable and skilled staff.
u. Take into consideration the existence and availability of training plans and courses for ongoing professional training for people employed at residential care centers and institutions. Implement suitable measures to ensure, insofar as possible, that this training is properly recognized.
v. Regulate codes of conduct for staff working at residential care centers and institutions. These rules must define the standards for workplace conduct and the manner in which all the staff must adjust their behavior and treatment towards children. Include clear-cut procedures for filing complaints and reports concerning improper behavior on the part of any person working there. It is especially advisable to provide procedures to be followed in the cases of violence or abuse at the centers or institutions.
w. Ensure physical separation of children from adults, and proper placement of children and adolescents inside the instalations of the centers, where issues of age, sex, treatment needs and requirements, and other relevant conditions of the various children and adolescents must be taken into account. The Commission also stresses the inadmissibility of situations where children and adolescents in conflict with criminal laws are kept together with children and adolescents in need of protection and care.
x. Regulate mechanisms and procedures properly adapted and effective to ensure that the opinion of the children about the organization and the manner in which services are provided within the center or institution can be heard and is given due consideration.
y. Design and implement violence-prevention plans, within the framework of the residential care centers and institutions, that take the different vulnerabilities of children into account, and that include systematic and ongoing training of staff working at these centers. Among other prevention measures, the Commission considers it advisable to have the regulations include the obligation to perform an initial medical examination when the children arrive at the institutions, and to keep a record of illnesses, injuries and accidents occurring to the children during the entire period they are in institutional care.
9. Disciplinary systems and the use of force
With regard to the regulation of disciplinary systems, the Commission basis its understanding on the understanding that the rules governing behavior, community life and discipline applied in care centers and institutions must be positive and constructive. Discipline must always be administered in a respectful manner consistent with the human rights of children and adolescents, their dignity and personal integrity. In addition, the Commission recommends:

1. 
   Prohibit all disciplinary actions involving cruel, inhuman or degrading treatment, or any form of physical or mental abuse or harm, such as corporal or humiliating punishment, placement in a dark cell, solitary confinement, restraint or immobilization as punishment, reduction of food or limiting or denying the child contact with family members, or any other measure that could jeopardize the child’s personal integrity or his/her mental or physical health, his/her right to education and to contact with members of his/her family. All collective disciplinary measures and multiple sanctions for the same infraction must also be expressly forbidden.
   

2. 
   Require, by means of State legislation regarding the operation of residential care centers and institutions, that these facilities adopt disciplinary measures that are in strict compliance with the law and respect the human rights of the children and adolescents. These rules must be in writing and be displayed in areas of the center where they are visible, and be available in language appropriate for children so as to ensure that every person knows and understands them. Each child should receive a copy of the disciplinary rules upon his/her arrival at the center. Children accused of committing disciplinary infractions must be informed of the fact without delay and in such a way that they understand the infraction they are accused of having committed and the applicable punishment.
   

3. 
   In general, the Commission considers that disciplinary measures and the procedures for their application are justified provided they are stipulated in the rules, have a legitimate purpose according to the best interests of the child and the goals of the special measures of protection, and that they are appropriate, necessary and proportional, and are strictly in keeping with human rights. Insofar as the legitimate purposes of disciplinary measures are concerned, the Commission understands that they are intended to protect children, and maintain order and safety at the centers, and that are exceptional in character.
   

4. 
   Consider the importance of preparation and training for the staff in human rights and the limits to disciplinary measures and the use of force. In addition, staff should have the skills needed to deal with tension and inter-personal conflicts that may arise without resorting to disciplinary sanctions.
   

5. 
   Prohibit the use of force, restraint and other measures of control over children, except when strictly necessary to prevent physical or psychological harm to the child or others, and be used when no other method is possible, pursuant to law, in a manner that is reasonable, proportional and respectful of the child’s fundamental rights. The law must regulate the use of force at residential care centers and institutions, following the principles of exceptionality , use of the minimum force necessary, and for the shortest period of time possible, only when strictly necessary for the protection of the child or others. Rule out, without any exceptions whatsoever, the deliberate and punitive use of force to cause pain or humiliation as control measure. The legitimate use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment.
   

6. 
   Prohibit, in general, the use of psychiatric medications to children who are in residential care centers or institutions without any diagnosis of psychiatric pathologies or complex psychological afflictions that justify medical treatment with these drugs. The administration of drugs, not as part of a therapeutic treatment, but as a way of controlling children, is a violation of their personal integrity, health and dignity.
   

7. 
   Prohibit solitary confinement or isolation in the case of children and adolescents, be it as a disciplinary measure or as a so-called “form of protection” for the child. The Commission distinguishes the exceptional use and justified means of control over the child, under the parameters already exposed, from solitary confinement or isolation.
   

8. 
   Disseminate widely, among the children and staff working with children , the prohibition of all cruel, inhuman, humiliating and degrading treatment or forms of punishment, , as well as the sanctions that can be imposed on staff in the event of violations to this prohibition.
   

9. 
   Keep standardized records of the disciplinary measures applied, identifying the child, the punishment imposed, the duration and the authority/ staff who ordered it. Furthermore, in compliance with the obligation to supervise, both the regulations governing the disciplinary system at institutions, as well as actual application of the system, must be reviewed periodically higher‐level authorities that can objectively assess their suitability and effectiveness, and identify possible patterns of abuse or arbitrariness in the application thereof.
   

10. Systems for the production and analysis of information
States must strengthen the systems for the production of information concerning the systems for protection, specifically with regard to the operations of the residential care centers and institutions, in order to determine the degree of compliance with the rules and regulations, to improve the delivery of the service, and to formulate more effective public policies to protect the rights of children and adolescents. The systems for the production of information must include the participation of children and adolescents, while respecting the right to privacy of children. These systems should also allow the States to assess the effectiveness of family protection policies, analyze the causes underlying the decision to separate the child from his/her family, the availability and use of different types of alternative care, and the success of family reintegration actions and other measures that offer a permanent solution for the child.
F. Duty to respect and guarantee rights
States must ensure all human rights of children who are in residential care centers and institutions, as well as a dignified treatment, in addition to taking into account the specific situation of certain groups of children in consideration of their special requirements or their special situation of vulnerability. To this end, the Commission specially recommends the following:
1. Adopt the necessary measures to respect the cultural identity of indigenous children and other ethnic groups, in particular providing access to health and education services that are respectful of the cultural identity of the child and that, insofar possible, are planned and organized at the community level and managed in cooperation with the peoples concerned.
2. Ensure the possibility that children who live in residential care centers or institutions can access the services in the areas of education, health, recreation, culture, occupational training and other services, within their community, unless this goes against the child’s best interests and is properly justified in each individual case.
3. Introduce in the legislation governing residential care centers and institutions the duty to respect and guarantee the personal autonomy of the child in making decisions that affect him/her, or in the exercise of his/her rights, bearing in mind his/her age and degree of maturity. It will also be necessary to allow for the possibility that the children may make informed decisions, bearing in mind acceptable risks and the age and maturity of the child, in a manner similar to the in the case of children living with their families.
4. Guarantee children with disabilities the full enjoyment of all their rights. In particular, provide the necessary measures to ensure that children with any disability, especially a mental or intellectual disability, are not subjected to greater restrictions on their right to personal liberty than other children under protection, unless there is a justification based on their protection and best interests.
5. Children with disabilities have the right to be guaranteed access to an adapted and inclusive education that enables them to exercise their right, as well as access to culture, recreation and vocational training programs that are accessible and adapted.
6. Ensure access to quality health services, tailored to the particular needs and requirements of children and adolescents, according to their age, disability, illness or medical condition, or other special requirements. When a child is sick, complains of feeling ill or has physical, mental, sensory or intellectual symptoms, he/she must be quickly examined by a health care professional.
7. Ensure that institutions receiving children under special measures of protection who require specialized care, such as assistance and physical and psycho-social rehabilitation for children who have been victims of violence, for example, must have access to suitable programs in order to provide the type of specialized care needed.
8. Prohibit children and adolescents who are in residential institutions or care centers to be subjected to intrusive and irreversible medical treatments that do not have therapeutic purposes, as well as medical experiments or treatments that lack necessary scientific and medical backing. The principle of the child’s best interests should govern all decisions made in connection with the child’s health, after listening to and taking into account the opinion of the child him/herself based on his/her age and maturity.
9. Respect and adequately guarantee the right of the child to participate in the planning of his o her health, in particular to ensure access to information and the right to informed consent, in a manner that is appropriate to the age and maturity of the child. The Commission recommends that States draw up procedures and criteria for providing clear guidelines for medical and health-care personnel for proper practices that are respectful of the rights of children and adolescents.