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

 based arrangements, provided these are consistent with children’s rights and best interests. […] The Committee notes that in practice family patterns are variable and changing in many regions, as is the availability of informal networks of support for parents, with an overall trend towards greater diversity in family size, parental roles and arrangements for bringing up children.”

35 In particular, Articles 3(2), 5, 7, 8, 9, 10, 11, 18, 20, 21, and 27 of the CRC, which will be examined later in this report.

36 Article 15 of the Additional Protocol to the American Convention on the Subject of Economic, Social and Cultural Rights “Protocol of San Salvador” establishes the Right to the Formation and the Protection of Families: “1. The family is the natural and fundamental element of society and ought to be protected by the State, which should see to the improvement of its spiritual and material conditions (…) 3. The States Parties hereby undertake to accord adequate protection to the family unit (…)”

37 Article 16(3): “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

38 Article 23(1): “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

39 Article 10(1): “1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. (…)”

40 United Nations Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly in its resolution 61/106 of December 13, 2006.

41 In referring to “disabilities” or to a “child with disabilities,” the Commission uses the definition contained in the United Nations Convention on the Rights of Persons with Disabilities: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (Article 1).

42 See Articles 19 and 23 of the United Nations Convention on the Rights of Persons with Disabilities.

43 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 66; I/A Court H.R., Case of Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 25, 2010. Series C No. 212, para. 156; I/A Court H.R., Case of Gelman v. Uruguay, Merits and Reparations. Judgment of February 24, 2011, Series C No. 221, para 125.

44 The Committee on the Rights of the Child has understood that the so-called “principle of the best interests of the child,” recognized in Article 3 of the CRC, is one of the four basic principles that underpin and inform the entire Convention on the Rights of the Child and its implementation. Committee on the Rights of the Child, General Comment number 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/GC/2003/5, November 27, 2003, thirty-fourth session, para. 12.

Article 3 of the CRC establishes: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures (…).”

45 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, July 20, 2009, paras. 74, 84, and 85. General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), adopted by the Committee on the Rights of the Child at its 62nd session, paras. 43 and 44.

46 I/A Court H.R., Case of the Yean and Bosico Children v. Dominican Republic, Judgment of September 8, 2005, paras 182 and 184.

47 IACHR, Application before the Inter-American Court of Human Rights in the case of Gregoria Herminia Contreras et al. (Case 12.517) against the Republic of El Salvador, para. 217. See also the position of the IACHR in the case before the I/A Court H.R., Case of the Serrano Cruz Sisters v. El Salvador, Judgment of March 1, 2005. Merits, Reparations, and Costs, para. 117, “.(…) the right to identity, particularly in the case of children and of forced disappearance, is a complex legal issue that acquired relevance with the adoption of the Convention on the Rights of the Child. This right has been recognized by case law and by legal writings as both an autonomous right and as the expression of other rights or as a constituent element of these. The right to identity is intimately associated with the right to the recognition of legal personality, the right to a name, a nationality, and a family and to have family relationships. The total or partial suppression or modification of the right of the child to preserve his identity and its intrinsic elements entails State responsibility.”

48 I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, para. 123; I/A Court H.R., Case of Gelman v. Uruguay, Merits and Reparations. Judgment of February 24, 2011, Series C No. 221, para. 122; and I/A Court H.R., Case of Contreras et al. v. El Salvador. Merits, Reparations, and Costs. Judgment of August 31, 2011. Series C No. 232, para. 113.

49 ^ I/A Court H.R., Matter of L.M. regarding Paraguay. Order of the Inter-American Court of Human Rights of July 01, 2011, Considerative paragraph 15; See also, I/A Court H.R., Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011, Series C No. 221, para. 122. In the same sense see the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, Article 3.

50 I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, para. 113.

51 I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, para. 123.

52 I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, para. 119.

53 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, paras. 71–73, and 76.

54 See I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 66; I/A Court H.R., Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011, Series C No. 221, para. 125; and I/A Court H.R., Case of Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 25, 2010. Series C No. 212, para. 157. IACHR, Report No. 83/10, Case 12.584, Merits. Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 105. See also the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), adopted by the United Nations General Assembly in its resolution 45/112 of December 14, 1990, Guidelines 12 and 13. Along the same lines, Articles 1, 2, and 3 of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, adopted by the United Nations General Assembly in its resolution 41/85 of December 3, 1986.

55 The same rationale applies to several of the General Comments of the Committee on the Rights of the Child that touch on topics related to the importance of family care and the State’s obligation to support it, in particular: Committee on the Rights of the Child, General Comment number 3, HIV/AIDS and the rights of the child, CRC/GC/2003/3, March 17, 2003, thirty-second session; Committee on the Rights of the Child, General Comment number 4, Adolescent health and development in the context of the Convention on the Rights of the Child, CRC/GC/2003/4, July 21, 2003; General Comment number 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, fortieth session; Committee on the Rights of the Child, General Comment number 8, The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (Art. 19, para. 2, and Arts. 28 and 37, inter alia), CRC/C/GC/8, August 21, 2006, forty-second session; Committee on the Rights of the Child, General Comment number 9, The rights of children with disabilities, CRC/C/GC/9, February 27, 2007, forty-third session; Committee on the Rights of the Child, General Comment number 13, The right of the child to freedom from all forms of violence, CRC/C/GC/13, April 18, 2011.

56 Article 11(2) of the American Convention on Human Rights: “No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.” The prohibition of arbitrary interference in personal life is also covered in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. Article 16 of the CRC expressly recognizes the right of children, as holders of rights, to a family life free from arbitrary or unlawful interference.

57 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 71; and I/A Court H.R., Case of Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 25, 2010. Series C No. 212,
para. 157.

58 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, operative paragraph 5 and para. 77.

59 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, operative paragraph 75 and para. 77, and IACHR Report No. 83/10, Case 12.584, Merits. Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, paras. 103, 108 y 110, and, I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, paras. 47 and 48

60 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, operative para.113. See, IACHR, Report No. 83/10, Case 12.584, Merits. Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, para. 110; I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, paras. 116 y 117.

61 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, operative paragraph 75 and para. 77.

62 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 113. IACHR, Report No. 83/10, Case 12.584, Merits. Milagros Fornerón and Leonardo Aníbal Fornerón, Argentina, November 29, 2010, paras. 103 and 110.

63 See Articles 9 and 21 of the CRC.

64 Beijing Rules, Rules 17 and 18. I/A Court H.R., Case of Gelman v. Uruguay, Merits and Reparations. Judgment of February 24, 2011, Series C No. 221, para. 125; I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 75.

65 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 66; I/A Court H.R., Case of Atala Riffo and Daughters v. Chile. Merits, Reparations, and Costs. Judgment of February 24, 2012. Series C No. 239. para. 169; I/A Court H.R., Case of Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 25, 2010. Series C No. 212, paras. 156 and 157; I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations, and Costs. Judgment of April 27, 2012. Series C No. 242, para. 116.

66 Article 15 of the Protocol of San Salvador establishes that “[t]he States Parties hereby undertake to accord adequate protection to the family unit and in particular: a. To provide special care and assistance to mothers during a reasonable period before and after childbirth; b. To guarantee adequate nutrition for children at the nursing stage and during school attendance years; c. To adopt special measures for the protection of adolescents in order to ensure the full development of their physical, intellectual and moral capacities; d. To undertake special programs of family training so as to help create a stable and positive environment in which children will receive and develop the values of understanding, solidarity, respect and responsibility.”

67 Specifically, Articles 18 and 27 of the CRC.

68 Human Rights Committee, General Comment No. 17: Article 24 – Rights of the child, thirty-fifth session, HRI/GEN/1/Rev.7, p. 144 (1989); and General Comment No. 19: Article 23 – The family, thirty-ninth session, HRI/GEN/1/Rev.7, p. 149 (1990).

69 United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), adopted by the United Nations General Assembly in its resolution 45/112 of December 14, 1990.

70 Riyadh Guidelines, Guidelines 11–13. Likewise, Committee on the Rights of the Child - Day of General Discussion on the theme of children without parental care, 2005, Report of the fortieth session of the Human Rights Committee, CRC/C/153, paras. 636–689, and I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 67.

71 Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, adopted by the United Nations General Assembly in its resolution 41/85 of December 3, 1986.

72 Articles 1 and 2. Declaration adopted by the United Nations General Assembly in its resolution 41/85 of December 3, 1986.

73 Committee on the Rights of the Child – Day of General Discussion on the theme of children without parental care, 2005, Report of the fortieth session of the Committee on the Rights of the Child, CRC/C/153, para. 645.

74 Committee on the Rights of the Child – Day of General Discussion on the theme of children without parental care, 2005, Report of the fortieth session of the Committee on the Rights of the Child, CRC/C/153, para. 650.

75 Guideline 3.

76 Guideline 32.

77 Guideline 33.

78 Guideline 34.

79 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 92.

80 I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 16, 2009. Series C No. 205, para. 236; and I/A Court H.R., Case of the “Mapiripán Massacre” v. Colombia, Judgment of September 15, 2005. Series C No. 134, paras. 111 and 113; I/A Court H.R., Case of Perozo v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs. Judgment of January 28, 2009, series C, No. 195, para. 298, and I/A Court H.R., Case of Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations, and Costs. Judgment of September 22, 2009, series C, No. 202, para. 62.

81 I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 16, 2009. Series C No. 205, para. 236; and I/A Court H.R., Case Velásquez Rodríguez s. Honduras, Merits. Judgment of July 29, 1988. Series C No. 4, para. 166; I/A Court H.R., Case of Anzualdo Castro v. Peru, Preliminary Objection, Merits, Reparations, and Costs. Judgment of September 22, 2009, series C, No. 202, para. 62; and, I/A Court H.R., Case of Godínez Cruz v. Honduras, Judgment of January 20, 1989, Series C No. 5, para. 175. IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II., Doc. 57, December 31, para. 37.

82 I/A Court H.R., Case La Cantuta v. Peru. Judgment of November 29, 2006, Serie C No. 162, para. 172. ICHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II., Doc. 57, December 31, para. 37. See also, I/A Court H.R., Case the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001. Series C No. 79, para. 134; I/A Court H.R., Case of Castillo Petruzzi et al. v. Peru, Judgment of May 30, 1999, Series C No. 52, para. 207; I/A Court H.R., Case of Baena Ricardo et al. v. Panama. Competence. Judgment of November 28, 2003, Series C No. 104, para. 180; I/A Court H.R., Case of Cantoral Benavides v. Peru, Judgment of August 18, 2000, Series C No. 69, para. 178.

83 Duty to report established in Article 44 of CRC.

84 Document “General Guidelines on the structure and content of the reports to be presented by the States parties in accordance with Article 44, paragraph 1(b), of the Convention on the Rights of the Child“, adopted by the Committee in its 55^th Regular Session (September 13 to October 1,2010), CRC/C/58/Rev.2. The Committee requests States parties, with regard to the group of Articles included in the section “Family setting and alternative care of children, Articles 5, 9 to 11, 18 (paragraphs (1) and (2)), 19 to 21, 25, 27 (paragraph (4) and (39))”, to provide information on family support measures under paragraph 1.

85 Committee on Human Rights, General Comment No. 19, Article 23 – The family, 39^th Regular Session, U.N. Doc. HRI/GEN/1/Rev.7 at 171 (1990), para. 1

86 Committee on Human Rights, General Comment No. 19, Article 23 – The family, 39^th Regular Session, U.N. Doc. HRI/GEN/1/Rev.7 at 171 (1990), para. 3

87 Article 3(2) of the CRC: “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures”; Article 18(2) of the CRC: “For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children”; Article 27 of th CRC: “(1) States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. (2) The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development. (3) States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.(…).”

88 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 53. Likewise, Human Rights Committee, General Comment No.17, Rights of Child (Art. 24), 07/04/1989, CCPR/C/35, paras. 2, 3, and 6.

89 This position has been established by the various treaty bodies in their examination of obligations under Articles with content similar to that of Article 2 of the ACHR that contain general obligations for implementation of the respective treaties. See, General Comment No. 3 (1990), The Nature of States Parties’ Obligations, Article 2 of the International Covenant on Economic, Social and Cultural Rights, para. 4 in fine. Also, General Recommendation No. 28 regarding Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, para. 23.

90 Article 26 of the Vienna Convention on the Law of Treaties: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

91 Article 4 of the CRC: “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”