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

92 Committee on the Rights of the Child, General Comment No. 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. 26.

93 I/A Court H.R., Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2012. Series C No. 246, para. 294. Although the Committee on the Rights of the Child mentions the “broad dissemination” of the policies, in a recent ruling the Inter-American Court pointed out more specifically the obligation to “active transparency” with regard to programs and services to which certain persons may have legal access according to domestic legislation. Mutatis mutandi, I/A Court H.R., Case of Claude Reyes et al v. Chile. Merits, Reparations and Costs. Sentence dated September 19, 2006. Series C No. 151, para. 79. Likewise, the scope of this obligation is established in the resolution of the Inter-American Juridical Committee on the “Principles on the Right of Access to Information,” which establishes that, “Public bodies should disseminate information about their functions and activities—including, but not limited to, their policies, opportunities for consultation, activities that affect members of the public, budgets, subsidies, benefits and contracts—on a routine and proactive basis, even in the absence of a specific request and in a manner that ensures that the information is understandable and accessible.” Inter-American Juridical Committee, “Principles on the right to access to information,” 73rd Regular Session, August 7, 2008, OEA/Ser. Q CJI/RES.147 (LXXIII-O/08), fourth paragraph.

94 Day of General Discussion of the Committee on the Rights of the Child on the topic of children without parental care, 2005, Report of the 40^th Session of the Committee on the Rights of the Child, CRC/C/153, para. 681. Available at: http://www.ohchr.org/EN/HRBodies/CRC/Pages/DiscussionDays.aspx

95 Day of General Discussion of the Committee on the Rights of the Child on the topic of children without parental care, 2005, Report of the 40^th Session of the Committee on the Rights of the Child, CRC/C/153, para. 682. Available at: http://www.ohchr.org/EN/HRBodies/CRC/Pages/DiscussionDays.aspx

96 Committee on the Rights of the Child, General Comment No. 5 General Measures of Implementation for the Convention on the Rights of the Child (Articles 4 and 42 and paragraph 6 of Article 44), CRC/GC/2003/5, November 27, 34^th Session, para. 30. Also see II World Conference on Human Rights adopted from June 14 to 25, 1993, Vienna, Austria, p. 69 para. 21: “[N]ational and international mechanisms and programs should be strengthened for the defense and protection of children, in particular, the girl-child, abandoned children, street children, economically and sexually exploited children, including through child pornography, child prostitution or sale of organs, children victims of diseases including acquired immunodeficiency syndrome, refugee and displaced children, children in detention, children in armed conflict, as well as children victims of famine and drought and other emergencies.”

97 Committee on the Rights of the Child, General Comment No.5 General Measures for the Implementation of the Convention on the Rights of the Child (Articles 4 and 42 and paragraph 6 of Article 44), CRC/GC/2003/5, November 27, 2003, 34^th Regular Session, para. 12.

98 For details of the proposed measures see guidelines 32 to 38.

99 Among them, for instance, “good and accessible basic social and health services; home visits by social workers, visiting nurses or community based support groups; (…); programs that provide child rearing skills; provide material support to ease the burden of poverty and measures to make it possible for parents with demanding child care duties to rest every so often, “pages 207 and 208, in addition to other measures outlined throughout the report. The U.N. Study pointed out that all the information gathered in the preparation of the report and all the evidence presented, led to the conclusion that: “[t]he benefits of keeping children together with their families are indisputable with regard to their health, happiness and serving their best interests. Furthermore, the cost of supporting families in order for them to keep their children at home is substantially less than placing them in institutions,” p. 208. See: http://www.unviolencestudy.org/spanish/index.html

100 Day of General Discussion of the Committee on the rights of the Child on the topic of Children without parental care, 2005, Report of the 40^th Regular Session of the Committee on the Rights of the Child, CRC/C/153, paragraphs 636-689. See also, Committee on the Rights of the Child, General Comment No. 3, HIV/AIDS and the rights of the child, CRC/GC/2003/3, March 17, 2003, 32^nd Regular Session; Committee on the Rights of the Child, General Comment No. 7, Realization of the rights of the child during infancy, CRC/C/GC/7/Rev.1, September 20, 2006, 40^th Regular Session, para. 21;,Committee on the Rights of the Child, General Comment No. 8, Right of the child to protection from corporal punishment and other forms of cruel or degrading punishment (Article 19, paragraph 2 of Article 28 and Article 37, among others), CRC/C/GC/8, of August 28, 2006, 42^nd Regular Session; Committee on the Rights of the Child, General Comment No. 13, Right of the child to freedom from all forms of violence, CRC/C/GC/13, April 18, 2011. In general, among the family support and assistance measures to which the Committee on the Rights of the Child makes reference, are: the creation of institutions, facilities and services to support families provide care to their children, including day care centers and full-time schools, and will help parents coordinate their workday with their family and parental responsibilities (in that regard also Article 18 of the CRC); counseling and training programs for families on the rights of the child and positive child rearing without violence; and, loans or direct material assistance in order to ensure a decent and appropriate standard of living for the family and child that will make his/her integral development possible.

101 The U.N. Guidelines for the Alternative Care of Children identify certain situations in real life that, in general terms, could affect families and have an impact on their capacity to provide protection and care for the child, among them: socio-economic conditions; instances of discrimination that some families may face; the personal or medical condition of the parents and/or the child; and, the need to acquire knowledge and training in the appropriate care of their child, positive child rearing without violence and the protection of the rights of their children.

102 The U.N. Study on Violence against Children also identified those as the main causes that lead to the implementation of special measures of protection that imply the separation of children from their families, see pages 185 and 186. http://www.unviolencestudy.org/spanish/index.html

103 For instance, a study conducted in Argentina, “The situation of children and adolescents without parental care in the Republic of Argentina. National survey and recommendations for the promotion and strengthening of the right to family and community living,” National Secretariat for Children, Adolescents and Family (SENNAF) and UNICEF, June 2012, reveals the following data: violence and mistreatment 44%, abandonment 31%, sexual abuse 13%, causes linked to situations in which parents suffer from mental health illnesses, use psychoactive substances, are in prison or have died 11%. See, Ministry of Labor, Human Services and Social Security, Assessment of procedural and physical standards in children’s residential care institutions in Guyana. Summary and Recommendations, August 2006, p. 14. See also, Observatory of the Judicial System, Rhetoric and Reality: Application of the Children and Adolescents Code in Maldonado [Observatorio del Sistema Judicial, La protección judicial de derechos. Realidad, perspectivas y cambios en el marco de la aplicación del Código de la Niñez y la Adolescencia en Maldonado, Montevideo, Paysandú y Salto, Fundación Justicia y Derecho], Montevideo and Salto, UNICEF, Montevideo, 2009.

104 The Committee on Economic, Social and Cultural Rights stated in 2001, that poverty is "a human condition characterized by the continuous or chronic deprivation of resources, capacity, options, security and the power necessary to enjoy an adequate standard of living and other civil, cultural, political and social rights.” (E/C.12/2001/10, para. 8). In turn, extreme poverty has been defined as "a combination of scarcity of resources, lack of human development and social exclusion,” (A/HRC/7/15, para. 23), in which an extended lack of basic security affects several areas of a person’s life at the same time, seriously compromising a person’s ability to exercise or recover his/her rights in a foreseeable future /CN.4/Sub.2/1996/13).

105 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. 76.

106 Day of General Discussion of the Committee on the Rights of the Child on the topic of Children without parental care, 2005, Report of the 40^th Session of the Committee on the Rights of the Child, CRC/C/153, para. 658. Available at: http://www.ohchr.org/EN/HRBodies/CRC/Pages/DiscussionDays.aspx

107 Day of General Discussion of the Committee on the Rights of the Child on the topic of Children without parental care, 2005, Report of the 40^th Session of the Committee on the Rights of the Child, CRC/C/153, para. 659. Available at: http://www.ohchr.org/EN/HRBodies/CRC/Pages/DiscussionDays.aspx

108 Guiding Principles on Extreme Poverty and Human Rights of the United Nations, presented by the Special Rapporteur on extreme poverty and human rights, U.N. Human Rights Council, 221^st Regular Session, A/HRC/21/39, July 18, 2012, para. 4.

109 Guiding Principles on Extreme Poverty and Human Rights of the United Nations, presented by the Special Rapporteur on extreme poverty and human rights, U.N. Human Rights Council, 21^st Regular Session, A/HRC/21/39, July 18, 2012, para. 5.

110 The Charter of the Organization of American States can be found at: http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States.htm

111 Article 30 of the OAS Charter.

112 Article 33 OAS Charter.

113 Article 31 OAS Charter.

114 The Inter-American Democratic Charter can be found at: http://www.oas.org/OASpage/eng/Documents/Democractic_Charter.htm

115 Article 11 Democratic Charter.

116 Article 12 Democratic Charter.

117 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. 80 and para. 7. In that same regard, I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, paras. 144 and 191.

118 Article 6 of the CRC establishes: “(1) States Parties recognize that every child has an inherent right to life. (2) States Parties shall ensure to the maximum extent possible the survival and development of the child.” Furthermore, the Committee on the Rights of the Child elevates the contents of this Article to the level of general principle to guide the implementation of the whole Convention. In that regard, see General Comment No.5, Committee on the Rights of the Child, General Measures of Implementation of the Convention on the Rights of the Child (Articles 4 and 42 and paragraph 6 of Article 44), 34^th Regular Session (2003), UN Doc. HRI/GEN/1/Rev.7 para. 12 and General Comment No. 11, Indigenous children and their rights under the Convention, CRC/C/GC/11 of February 12, 2009, 50^th Regular Session, para. 35.

119 Committee on the Rights of the Child, General Comment No. 5 General Measures of Implementation of the Convention on the Rights of the Child (Articles 4 and 42 and paragraph 6 of Article 44),” CRC/GC/2003/5, November 27, 2003, 34^th Regular Session, para. 12; Committee on the Rights of the Child. General Comment No. 7, Implementing child’s rights in early childhood, 40^th Regular Session, U.N. Doc. CRC/C/GC/7/Rev.1, September 20, 2006, para. 10.

120 Committee on the Rights of the Child, General Comment No. 5, General Measures for the Implementation of the Convention on the Rights of the Child (Articles 4 and 42 and paragraph 6 of Article 44), CRC/GC/2003/5, November 27, 2003, 34th Regular Session, para. 12.

121 Committee on the Rights of the Child, General Comment No. 7, Implementing the child’s rights in early childhood, CRC/C/GC/7/Rev.1, September 20, 2006, 40th Regular Session, para. 10.

122 In the case, “Children of the Street” the Court linked the concept of a decent life with the concept “full and harmonious personality development” or “comprehensive personality development “,I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, paras. 144 and 191. In another decision, the Court determined that “the development of the child is a holistic concept that encompasses physical, mental, spiritual, moral, psychological, and social development,” as the Court had previously established in the decision “Institute for the Reeducation of Minors,” I/A Court H.R., Case Chitay Nech et al v. Guatemala. Preliminary Exceptions, Merits, Reparations and Costs. Sentence of May 25, 2010. Series C No. 212, para. 169. In the sentence “Institute for the Reeducation of Minors,” the Court specifically cites Articles 6 and 27 of the Convention on the Rights of the Child and the Committee on the Rights of the Child interpretation of the word “development” in broad and holistic terms encompassing the various aspects of the child; the Court, as the Committee had also done, considered that the right to life includes the obligation of the State to ensure “to the maximum extent possible, the survival and development of the child.” I/A Court H.R., Case Reeducation Institute of Minor v. Paraguay, Preliminary Exceptions, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 161. See also, I/A court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Sentence dated March 29, 2006, para.176; I/A court H.R., Juridical Condition and the Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, paras. 67, 80, 84 and 86. With regard to the interpretation by the Committee on the Rights of the Child, cited by the Court in the aforementioned decisions, see United Nations Committee on the Rights of the Child, General Comment No. 5, General Measures for the Implementation of the Convention on the Rights of the Child (Articles 4 and 42, and paragraph 6 of Article 44), CRC/GC/2003/5, November 27, 2003, 34th Regular Session, para. 12.

123 I/A Court H.R., Juridical condition and the Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No.17,para. 88 and point 8 of the Court’s opinion. In the same regard, see General Comment No.17, General Comments adopted by the Human Rights Committee, Article 24—Rights of the Child, 35^th Session, U.N. Doc. HRI/GEN/1/Rev.7 at 165 (1989), para. 3.

124 I/A Court H.R., Juridical Condition and the Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, Series A No. 17, para. 81, also see para. 64.

125 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, para. 162.

126 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, para. 163, also see paragraphs 168, 175, 176 and 221. In the reference case, the State had ratified the Additional Protocol to the American Convention in the area of Economic, Social and Cultural Rights, in addition to the ILO Convention No. 169. In the Case of Yakye Axa Community Vs Paraguay, the Commission argued that the State “has the obligation to ensure the conditions necessary to live a decent life, an obligation underscored by the commitment established in Article 26 of the American Convention, to adopt appropriate measures to achieve the full realization of social rights. However, through omission in its health policies, the State reduced the capacity of the members of the Yakye Axa Community to enjoy basic sanitary, nutritional and housing standards” [para. 157, (e)].

127 Committee on Human Rights, General Comment 17, Rights of Child (Art. 24), 07/04/1989, CCPR/C/35, paragraphs 3 and 6; the United Nations Committee on the Rights of the Child has repeatedly expressed the same position, as evidenced in the citations included in this section.

128 I/A Court H.R., Case Acevedo Buendía et al (“Discharged and Retired Employees of the Office of the Comptroller”) v. Peru. Preliminary Exceptions, Merits, Reparations and Costs. Sentence dated July 1, 2009 Series C No. 198, para. 101. With regard to the opinion issued by the Commission see, IACHR Report, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II., Doc. 54, December 30, 2009, para. 954. Also see Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, “Protocol of San Salvador,” which specifically recognizes in tis preamble the “close relationship that exists between economic, social and cultural rights, and civil and political rights, in that the different categories of rights constitute an indivisible whole based on the recognition of the dignity of the human person, for which reason both require permanent protection and promotion if they are to be fully realized, and the violation of some rights in favor of the realization of others can never be justified.”

129 The Draft Treaty drawn up by the Inter-American Commission made reference to economic, social and cultural rights in two Articles which, according to some States, merely “gathered in a declarative text, conclusions that had been reached at the Buenos Aires Conference.” The review of that preparatory work to the Convention also showed that the main observations that constituted the basis for the Convention’s approval placed special emphasis on “giving economic, social and cultural rights the maximum protection compatible with the conditions present in the vast majority of American States.” I/A Court H.R., Case Acevedo Buendía et al (“Discharged and Retired Employees of the Comptroller”) v. Peru. Preliminary Exceptions, Merits, Reparations and Costs. Sentence dated July 1, 2009, Series C No. 198, para. 99. With regard to the references the Court makes to the debates in the framework of the preparatory work to the ACHR, see Specialized Inter-American Conference on Human Rights (San Jose, Costa Rica, 7-22 of November 1969). Records and Documents.

130 I/A Court H.R., Case Acevedo Buendía et al (“Discharged and Retired Employees of the Office of the Comptroller”) v. Peru. Preliminary Exceptions, Merits, Reparations and Costs. Sentence dated July 1, 2009, Series C No. 198, para. 100.

131 I/ACHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V.II.102 Doc. 9 rev. 1, February 26, 1999, chapter III. para. 5. Also see, IACHR, Work, education and women’s resources: The road to equality in ensuring economic, social and cultural rights, para. 29 to 58.

132 IACHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V.II.102 Doc. 9 rev. 1, February 26, 1999, chapter III. para. 6. Also see, IACHR, Work, education and women’s resources: The road to equality in ensuring economic, social and cultural rights, para. 29 to 58

133 Guiding Principles on Extreme Poverty and Human Rights of the United Nations, presented by the Special Rapporteur on extreme poverty and human rights, UN Human Rights Council, 21^st Regular Session, A/HRC/21/39, July 18, 2012.

134 The Guiding Principles on Extreme Poverty and Human Rights of the United Nations emphasize several specific rights whose realization by individuals living in poverty is particularly limited or diminished, and offer guidance on how to respect, protect, and realize those rights for persons who live in poverty. Specific rights: i) right to life and personal integrity, ii) right to liberty and personal security, iii) right to equal protection before the law, equal access to justice, and effective means of restitution, iv) right to recognition of juridical personality, v) right to privacy and the protection of the family and abode, vi) right to an adequate standard of living, vii) right to adequate food and nutrition, viii) right to water and sewer, ix) right to adequate housing, secure possession and protection from forced eviction, x) right to the highest possible standard of mental and physical health, xii) right to work and to rights at work, xiii) right to social security, xiv) right to education, xv) right to take part in cultural activities and to enjoy the benefits of advances in science and its applications. It should be emphasized that the Guiding Principles are based on international and regional instruments and agreements such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the United Nations Convention on the Elimination of all Forms of Discrimination against Women, the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities, in addition to the general comments and recommendations of treaty bodies. “Guiding Principles on extreme poverty and human rights,” UN Human Rights Council, 21^st Regular Session, A/HRC/21/39, July 18, 2012.

135 Guiding Principles on extreme poverty and human rights, UN Human Rights Council, 21^st Regular Session, A/HRC/21/39, July 18, 2012. Paragraphs 32 to 35.