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

743 Disability Rights International and Comisión Mexicana de Defensa y Promoción de los Human rights, “Abandonados y desaparecidos: Segregación y abuso de niños y adultos con discapacidad en Mexico”, 2010, pp. 27 and 28. Available at: http://www.disabilityrightsintl.org/wordpress/wp-content/uploads/1._Informe_final_Abandonmados_y_Desaparecidos_merged.pdf

The Communication presented by the United Nations Special Rapporteur on Trafficking in Persons, Specially Women and Children to the Government of Mexico regarding children who disappeared from a care center can be found at: Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, presented before the Human Rights Council, Fourteenth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Addendum, Communications to and from Governments, U.N. Doc. A/HRC/14/32/Add.1 (May 31, 2010) (by Joy NgoziEzeilo), para. 41-54

744 Disability Rights International and Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, “Abandonados y desaparecidos: Segregación y abuso de niños y adultos con discapacidad en Mexico”, 2010, pp. 19 and 20. Available at: http://www.disabilityrightsintl.org/wordpress/wp-content/uploads/1._Informe_final_Abandonmados_y_Desaparecidos_merged.pdf.

745 Ministerio Público Tutelar de la Ciudad Autónoma de Buenos Aires, “Puertas adentro. La política de institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires (2007-2011)”, [Indoors. The Policy of Institutionalization of Children and Adolescents in the City of Buenos Aires], pp. 42 to 48.

746 Report of the Independent Expert presented to the General Assembly, A/61/299, of 29 of August, 2006, para. 57.

747 The Committee on the Rights of the Child has spoken out regarding the situation found in several States through the Consideration of Reports Submitted by States Parties under Article 44 of the Convention. In some cases this has led the State to take steps and the situation has improved in some institutions, for example, Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, 17 February 2010, para. 48. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Brazil, CRC/C/15/Add.241, 3 November 2004, paras. 44-45. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Chile, CRC/C/CHL/CO/3, 23 April 2007, paras. 48-49.

748 Ombudsman of Peru, Report No. 150, “El derecho de los niños, niñas y adolescentes a vivir en una familia: la situación de los Centros de Atención Residencial estatales desde la mirada de la Defensoría del Pueblo” [The Right of Children and Adolescents to Live in a Family: The Status of State Residential Care Centers from the Viewpoint of the Office of the Ombudsman], Lima, 2010, p. 331. See: Havana Rules, Rule 50.

749 The U.N. Study on Violence against Children also mentioned the requirement that a record be kept of any incident involving violence occurring at a protection and care, p. 204.

750 Jamaicans For Justice, Report on “The Situation of Children in The Care of The Jamaican State”, delivered to the IACHR in November 2009, p.13.

751 Article 7 of the ACHR.

752 Article 37(b) of the CRC.

753 The Commission has defined the meaning of the term deprivation of liberty: “[…]Any form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship, protection, or because of crimes or legal offenses. This category of persons includes not only those deprived of their liberty because of crimes or infringements or non compliance with the law, whether they are accused or convicted, but also those persons who are under the custody and supervision of certain institutions, such as: psychiatric hospitals and other establishments for persons with physical, mental, or sensory disabilities; institutions for children and the elderly; centers for migrants, refugees, asylum or refugee status seekers, stateless and undocumented persons; and any other similar institution the purpose of which is to deprive persons of their liberty.” IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, para. 38.

In a similar vein, the Havana Rules state: “The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority..” Havana Rules, Rule 11. b).

754 I/A Court H.R., Case of Gangaram Panday v. Suriname. Merit, Reparations and Costs. Judgment of 21 January 1994. Series C No. 16, para. 47; I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, para. 131; I/A Court H.R., Case of Durand and Ugarte v. Peru. Merits. Judgment of 16 August 2000. Series C No. 68, para. 85; I/A Court H.R., Case of Bámaca Velásquez v. Guatemala. Merits. Judgment of 25 November 2000. Series C No. 70, para. 139; I/A Court H.R., Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merit, Reparations and Costs. Judgment of 7 June 2003. Series C No. 99, para. 78; I/A Court H.R., Case of Bulacio v. Argentina. Merit, Reparations and Costs. Judgment of 18 September 2003. Series C No. 100, para. 125; and I/A Court H.R., Case of “Juvenile Re-education Institute” v. Paraguay. Preliminary Objections, Merit, Reparations and Costs. Judgment of 2 September 2004. Series C No. 112, para. 224.

755 I/A Court H.R., Case of Loayza Tamayo v. Peru, Judgment on Reparation and Costs of 27 November 1998, Series C, No. 42, paragraph 148.

756 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, para. 172; I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006, para. 160; I/A Court H.R., Judicial Status and Human Rights of the Child, para. 80, 81, 84, and 86-88, I/A Court H.R., The “Street Children” v. Guatemala Case (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, para. 196.

757 Committee on the Rights of the Child, General Comment No. 7, Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, 40^th session, para. 17.

758 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, 18 April 2011, para. 33.

759 In addition to the authorized opinion of the United Nations Committee on the Rights of the Child, see U.N. Guidelines for the Alternative Care of Children, Guideline 19: “No child should be without the support and protection of a legal guardian or other recognized responsible adult or competent public body at any time.”

760 U.N. Guidelines for the Alternative Care of Children, Guideline 101.

761 U.N. Guidelines for the Alternative Care of Children, Guideline 102.

762 Also, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment, A/HRC/22/53, paragraphs 68 and 69: The Committee on Rights of Persons with Disabilities has been most explicit in its call for prohibiting the deprivation of liberty due to disabilities, in other words the forcible non-penal commitment, forcible commitment or deprivation of liberty due to a disability. It establishes that community living, with support, is no longer a favorable policy development but an internationally recognized right. “(...) Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent (…)” (para. 68). Deprivation of liberty on grounds of mental illness is unjustified if its basis is discrimination or prejudice against persons with disabilities (…).” The Special Rapporteur believes that the severity of the mental illness is not by itself sufficient to justify detention; the State must also show that detention is necessary to protect the safety of the person or of others
(para. 69).

763 CRC Article 23.

764 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 47; Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013, para. 15.

765 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 47.

766 Article IV. 2. b) Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities.

767 Especially the provision found in Article 14 of the Convention of the Rights of Persons with Disabilities regarding a person’s right to liberty and safety, which stipulates that the States must ensure that persons with disabilities are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that that the existence of a disability shall in no case justify a deprivation of liberty.

768 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, para. 167. For the opinion of the Commission see, para. 157.e).

769 Article 24(1) of the Convention on the Rights of the Child provides that: “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” According to the Constitution of the World Health Organization “[h]ealth is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Also see, Committee on the Rights of the Child, General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, CRC/GC/2003/4, 21 July 2003, 33^rd session; Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013.

770 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, para. 167.

771 Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000.

772 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013, paras. 112 a 115.

773 U.N. Guidelines for the Alternative Care of Children, Guidelines 84 and 87.

774 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, de 14 May 2013, para. 25.

775 Havana Rules, Rule 49. Also with regard to the scope of health care, see: IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Principle X.

776 Havana Rules, Rule 49.

777 Havana Rules, Rule 51.

778 See for example: Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4, 25 October 2010, para. 59, b).

779 One of the reasons leading to specific and specialized care is when the child is the victim of violence. Based on information gathered by the Commission, in most of the States on this continent a situation involving violence, mistreatment and abuse within the family is one of the main reasons underlying institutionalization. This fact has led several States to establish institutions specifically for children and adolescents who are victims of this type of situation. In Nicaragua, for example, there are 10 shelters managed by non-governmental organizations for victims of domestic abuse and rape, three of them specifically for children and adolescents. Amnesty International, “Escucha sus voces y actúa. No más violación y violencia sexual contra niñas en Nicaragua”, 2010, pag.22.

780 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, de 14 May 2013, paras. 12, 14 and 19.

781 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013, para. 58; Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, 20 July 2009, para. 103.

782 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, de 14 May 2013, para. 59; IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas,
Principle X.

783 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013, paras. 21, 31 and 52.

784 Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000, para. 8.

785 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013, paras. 58 and 59.

786 In the case of medical treatment, the information a person must receive in order to decide whether or not to accept treatment must cover: the diagnosis and its evaluation; the purpose, the method, probable duration and benefits expected from the proposed treatment; other possible methods of treatment, including those that cause the fewest alterations; possible pain and discomfort as well as the risks and aftereffects of the proposed treatment; information may not be withheld from the person based on the excuse that this could negatively affect outcome of the treatment. The process of informed consent must always begin before the treatment being offered and must be continuous throughout the duration of the treatment, allowing the person to withdraw his/her consent for the treatment at any time.

787 Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/64/272, 10 August 2009, para. 18.

788 Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/64/272, 10 August 2009, para. 92.

789 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, 20 July 2009, paras. 20 y 21. In paragraph 20 the Committee says that “States Parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States Parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity.”

790 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, 14 May 2013, para. 21.

791 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, de 14 May 2013, para. 31, also see para. 24.

792 Committee on the Rights of the Child, General Comment No. 12, The right of the child to be heard, CRC/C/GC/12, 20 July 2009, para. 102

793 Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, de 14 May 2013, para. 12.

794 Ministerio Público Tutelar de la Ciudad Autónoma de Buenos Aires, “Puertas adentro. La política de institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires (2007-2011)”, [Indoors. The Policy of Institutionalization of Children and Adolescents in the City of Buenos Aires], pgs. 45 to 48.

795 Ministerio Público Tutelar de la Ciudad Autónoma de Buenos Aires, “Puertas adentro. La política de institucionalización de niños, niñas y adolescentes en la Ciudad de Buenos Aires (2007-2011)”, [Indoors. The Policy of Institutionalization of Children and Adolescents in the City of Buenos Aires], pgs. 45 to 48.

796 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149,
para. 109.

797 I/A Court H.R., Case of Ximenes Lopes v. Brazil. Merit, Reparations and Costs. Judgment of 4 July 2006, Series C No. 149, para. 128. Also see: The Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities, Article III(2); United Nations Convention on the Rights of Persons with Disabilities, most especially Articles 17 and 25.

798 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 52; See also Committee on the Rights of the Child, General Comment No. 15, The right of the child to the enjoyment of the highest attainable standard of health (Article 24), CRC/C/GC/15, de 14 May 2013, para. 38.

799 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 52.

800 Committee on the Rights of the Child, General Comment No. 9, The rights of children with disabilities, CRC/C/GC/9, 27 February 2007, 43^rd session, para. 51.

801 WHO Child and Adolescent Mental Health Policies and Plans, 2005.

802 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149,
para. 130.

803 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149, para. 130. One of the basic principles of the United Nations Convention on the Rights of Persons with Disabilities is “[r]espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons” (Art. 3). As interpreted by the Committee on the Rights of Persons with Disabilities the basic requirement in Article 12 (equal recognition before the law) means replacing the system of substitution of decision-making with assistance in decision-making that respects the autonomy, wishes and preferences of the person. Committee on the Rights of Persons with Disabilities Sixth Period of Sessions, Examination of the Reports presented by the States Members under Article 35 of the Convention, Concluding Observations of the Committee on the Rights of Persons with Disabilities CRPD/C/ESP/CO/1, para. 34. In this same vein, also see the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities, Article III(2).

804 I/A Court H.R., Case of Ximenes Lópes v. Brazil. Judgment of 4 July 2006. Series C No. 149, para. 130. Also, Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, 1 February 2013, with regard to medical s, para. 66: “(...) criteria that determine the grounds upon which treatment can be administered in the absence of free and informed consent should be clarified in the law, and no distinction between persons with or without disabilities should be made. Only in a life-threatening emergency in which there is no disagreement regarding absence of legal capacity may a health-care provider proceed without informed consent to perform a life-saving procedure.”

805 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, 1 February 2013. Paragraph 80: “In the case of children in health-care settings, an actual or perceived disability may diminish the weight given to the child’s views in determining their best interests, or may be taken as the basis of substitution of determination and decision-making by parents, guardians, carers or public authorities.”