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As was noted above, the Commission uses the term “residential care centers” and the term “institution” or “residential institutions”, to refer to two different non family-based forms of alternative care.414 The difference in terms reflects two models of attention and care, which are organized and function differently from one another. While the concept of “residential care” describes a type of alternative care, while non family-based, it takes place, however, in settings that function similarly to a family unit, with individualized attention and a lower number of children living at each facility. Whereas, the term “institution” is used to refer to larger facilities, which provide simultaneous care to large groups of children; they are not organized nor do they function in such a way that enables them to provide personalized care and attention to the child in similar circumstances as that of a family-; and they are usually operated under a closed system, or in which children have restricted contact and integration with their surroundings and the community. In this section of the report, referred to the residential care, the references include both residential care centers as well as institutions, although in particular, it makes more references to institutions that, even though they should disappear, continue to exist in the region and present the main difficulties in the protection of the rights of children admitted to them. Precisely, one of the recommendations put forth in this report is to discontinue the model of institutionalization due to the evidence of it being incompatible with protecting the rights of children.
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In preparing this part of the report, the Commission identified an absence of sufficient quantitative and qualitative data on the number, characteristics and operating conditions of residential care centers and residential institutions in the region. This is often because such establishments are, on the one hand, quite diverse in nature and, on the other hand, there are no common definitions and shared classification criteria to enable identification, analysis and comparison. The other major difficulty the Commission has encountered in preparing this report stems from countries’ limited and unequal compliance with the obligation to regulate the establishment and functioning of this type of establishments, particularly when they are privately owned and operated, which makes it difficult to gain access to the full range of information required to shed light on the existence and operating conditions of these facilities and institutions.
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In this section of the report, the Commission addresses the need to turn this situation around by clearly establishing the duty of States to regulate the establishment and functioning of public and private residential care facilities and institutions, looking to standardize the licensing and authorization thereof throughout States’ territory, to set minimum conditions and standards for their operation , mechanisms of oversight and monitoring of all facilities and institutions, sactions in the event of failure to comply, as well as obligations to register and inform the authorities about all children living at a care facility or institution.
D. The duty to regulate: public and private centers and institutions
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States have the obligation to ensure adequate protection of children who lack parental care and, consequently, are receiving care and protection at an alternative care facility or institution. As a result of the obligation to respect and ensure rights recognized in Article 1(1) of the ACHR, and the obligation to adopt adequate legislation for this purpose under Article 2 of the ACHR, in connection with the duty to provide special protection to children under Article 19 of this same instrument, and article VII of the Declaration, the Commission finds that the States of the region have the duty to regulate and oversee the establishment and functioning of all the residential care centers and institutions.
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The Commission and the Court have held that under Article 19 of the ACHR and Article VII of the ADRDM, the right to protection, wellbeing and comprehensive development of children and adolescents is a matter of public interest and that, as such, it entails the duty of the State to adequately regulate these residential care facilities and institutions, which provide several basic and essential services of care to children, directly linked to respect for their rights.415
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Additionally, the Commission finds that because this involves children under the custody of a residential care facility or institution as a result of a decision of a State authority, based on the dictate of special measures of protection, the State has a heightened duty as a guarantor of these children, precisely in light of the context of regime of subordination or special relationship in which the State has placed the child.
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The Commission notes that residential care centers and institutions that shelter children without parental care in the region are public, private or a combination of both. Public care centers and institutions as part of the national system of protection are state-run and financed and, based on the particular country, may be dependent of public agencies or territorial entities (states, provinces, counties, etc.) with varying degrees of decentralization. The Commission also notes that generally speaking, in the different countries of the region, there are a high number of private care centers and institutions, which are managed by private individuals or entities. There are also care centers or institutions of a mixed nature, which although under private ownership, they receive public funding for part or all of their operations, and as a result of this allocation of resources, are subject to certain norms and public controls, content of which vary from country to country.
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Effective and timely protection of the rights of the child requires that care be provided by duly qualified specialized professional services, having appropriate and sufficient trained staff and adecuate facilities, in addition to a suitable organizational and operational system to serve the purpose of ensuring applicability and restoration of rights.416 This must apply to the activity of all public and private residential care centers and institutions, which must organize and discharge their duties taking into account both the very nature of the special measures of protection, in general, as well as the best interests of the child, specifically.417
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The Commission, therefore, considers that States parties have the duty to regulate and oversee the establishment and functioning of all residential care centers and institutions. The Commission underscores that these obligations to regulate and oversee are fundamentally important when they involve services provided by public and private centers and institutions in charge of the protection, custody and care of children, who have been separated from their families, in as much as both the duty of special protection for the child under Article 19 of the Convention and the particular protection needs of these children are applicable. In such circumstances, the State has a heightened duty as guarantor in light of the situation of vulnerability, which children separated from their families are in, and this means, as the Court has recalled, that the State “must assume a special position of guarantor with greater care and responsibility, and must take measures especially oriented in the principle of the best interests of the child.”418 In this regard:
The Inter-American Court considers that any person who is in a vulnerable condition is entitled to special protection, which must be provided by the States if they are to comply with their general duties to respect and guarantee human rights. The Court reaffirms that not only should the States refrain from violating such rights, but also adopt positive measures, to be determined according to the specific needs of protection of the legal person, either because of his personal condition or the specific situation he is in (…)419.
Additionally, as has been discussed above, Article 2 of the American Convention sets forth:
Where the exercise of any of the rights and freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
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The aforementioned duties of State to regulate and supervise residential care centers and institutions of protection and care are applicable irrespective of their nature as public, private or a combination thereof. In this regard, the legal precedents of the Inter-American Court clearly establish that States must regulate and supervise the provision of services of a public interest, also when these services are provided by private individuals.420 The Court has specifically found that States are responsible both for the acts of public entities as well as private ones, who provide services that have a bearing on the lives and personal integrity of persons.421 Concretely, the Court has held that “States must regulate and supervise […] as a special duty to protect life and personal integrity regardless of the public or private nature […], since under the America Convention international liability comprises the acts performed by private entities acting in a State capacity, as well as the acts committed by third parties when the State fails to fulfill its duty to regulate and supervise them.”422
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The Court has clarified the content of said obligations of the State to regulate and inspect in a case pertaining to services provided at a psychiatric centre in a residential care regime, establishing that:
[T]he Court considers that States are responsible for regulating and supervising at all times the rendering of services and of the implementation of national programs regarding the performance of public quality health care services so that they may deter any threat to the right to life and the physical integrity of the individuals undergoing medical treatment. They must, inter alia, create the proper mechanisms to carry out inspections at psychiatric institutions, submit, investigate and solve complaints and take the appropriate disciplinary or judicial actions regarding cases of professional misconduct of the violation of the patients’ rights.423
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Similar to the holdings of the Commission and the Court, the Convention on the Rights of the Child provides the following in paragraph 3 of Article 3:
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
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Additionally, the CRC expressly refers to the duty of the State to guarantee the necessary conditions to provide adequate protection and assistance to any children who require care at a facility of a residential nature.424 Article 39 of the CRC, however, refers more generally to the duty of the State to organize and promote, either directly or through third parties, the services of protection, recovery and reintegration of any children that so require them. Thus, the Article states:
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
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The U.N. Guidelines for the Alternative Care of Children also provide for the duty of regulation and supervision of the State with regard to alternative care centers operating in the territory of a State. In this regard, it states under several Guidelines:
[…] It is the role of the State, through its competent authorities, to ensure the supervision of the safety, well-being and development of any child placed in alternative care and the regular review of the appropriateness of the care arrangement provided.425
States should ensure that all entities and individuals engaged in the provision of alternative care for children receive due authorization to do so from a competent authority and are subject to regular monitoring and review by the latter in keeping with the present Guidelines. To this end, these authorities should develop appropriate criteria for assessing the professional and ethical fitness of care providers and for their accreditation, monitoring and supervision.”426
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The Commission notes that the general duty of regulating the requirements and standards for the establishment and functioning of public and private care facilities, must include: i) qualification requirements and procedures for getting an authorization for operating, licensing and registry of care s, ii) period of validity of the authorization, renewal and extension thereof, iii) grounds for revocation of authorization, iv) requirements and procedure for admission of a placement and authorizing the departure of a child, as well as the mandatory registration of the children cared for therein, v) supervision, control and inspection of the facilities, vi) mechanisms for complaints, reports and petitions, vii) civil, administrative and criminal sanctions, as appropriate, in the event of breach of the conditions for the provision of service and/or violations of rights, and viii) minimum standards of quality for the provision and functioning of services, taking into account the overriding nature and the objective of the special measures of protection and respect for and guarantee of the rights of the children.
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According to information received by the Commission, in many countries in the region a high percentage of residential care centers and institutions are private, and a great number of them are not properly accredited or licensed to operate as a result of an absence of laws, policies or rules adequately governing the establishment and operation thereof. The Commission urges the States of the region which still have not done so to adopt standards to regulate the establishment and functioning of public and private residential care facilities and, where necessary, adjust current regulations in order to bring them into line with the obligations of States emanating from international human rights law on the subject matter.
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The obligation of States to regulate is not restricted to public care facilities, which directly provide the public service, but rather encompasses any care facility or institution that protects children without adequate parental care. As was done by the Court, the Commission recalls that failure in the duty to regulate and supervise private care facilities and institutions generates international liability, since under the American Convention international liability comprises the acts performed by private entities acting in a State capacity, as well as the acts committed by third parties when the State fails to fulfill its duty to regulate and supervise them.427
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