Right to Care and Right to Live as a Family

At the headquarters of the Inter-American Court of Human Rights in the city of San José, Costa Rica, Marcelo Sánchez Ahumada and María José Pérez present before the Court the scope of the right to care and its interrelation with other rights from the dimension of the Right to be Care. that boys and girls have. In their presentation they present the legal support through which the Right to Care is expressed in the Right to Live as a Family both in the Convention on the Rights of the Child and in the American Convention through articles 17 and 19 and observation number 17. of the Court. Therefore, it considers the Corpus Iuris that supports this right as autonomous and transversal that accompanies the person throughout their development. Particular scope is made with respect to children who under State protection are separated from parental care, extending their right to care in the role that falls to the State according to the alternative care guidelines that promote the right to live as a family through foster family system.

«The right to care, with all the conceptualization that it will require from this H. Inter-American Court of Human Rights, must not only be understood, in the context of childhood, as care that is given to the family, but also It must also cover the care provided by the State when children and adolescents are separated from their family environment to guarantee their protection. In that sense, the State must provide direct care with means equivalent to those that families should provide, and in that sense, measures such as foster care are valuable and desirable measures, so this modality must be considered by the States. Sánchez pointed out

In Chile, the right to care for children and adolescents (NNA) is part of the catalog of rights enshrined in Law 21,430 on Guarantees and Protection of the rights of children and adolescents. In its article 2, it establishes that “the right and duty of upbringing, care, training, assistance, protection, development, guidance and education of children and adolescents corresponds preferably to their fathers and/or mothers.” To guarantee this, the State must “provide protection to the family and promote its strengthening, in order to provide fathers and/or mothers and caregivers with the necessary tools to exercise their function” (Art. 9). For this reason, the Law on guarantees in its article 10, “children and adolescents have the right to be cared for, protected, trained, educated and assisted, at all stages of their development, preferably by their fathers and/or mothers, their legal representatives or those who have them legally in their care, and have the right to be guided and oriented by those in the exercise of the rights recognized in this law.”

As established in the Convention on the Rights of the Child and Adolescent in its preamble, all children and adolescents have the right to live in a family: “recognizing that the child, for the full and harmonious development of his or her personality, must grow within the family, in an environment of happiness, love and understanding.” Despite this, in cases where the best interest requires it, the child may be deprived of his or her family environment temporarily or permanently. To this end, article 20 of the Convention on the Rights of the Child establishes that children “shall have the right to special protection and assistance from the State.”

It is worth highlighting in this regard what is established by the Guidelines on alternative care modalities for children as a guiding instrument for the application of the Convention. The Guidelines explain the right to live with a family member for children and adolescents, while guideline 21 states that residential care should be limited only in cases where it is in the best interests of the child. Under this same logic, guideline 23 indicates that deinstitutionalization strategies must be developed to achieve the progressive elimination of the residential system, always considering it as the last ratio. Likewise, in general comment No. 13 on the right of the child not to be subjected to any form of violence of the Committee on the Rights of the Child, it has been established that both families and foster families “are the best suited to protect children. children and prevent violence. These different recommendations on foster families, which seek to reinforce the right to live with children and adolescents, have been included and reinforced in the current legislation on children and youth in Chile. Law 21,430 on Guarantees and Comprehensive Protection of the Rights of Children and Adolescents establishes in its article 27 that “every child or adolescent has the right to live in a family, preferably in the family of origin, and thus complete their adequate development.” In cases where the separation of the person caring for him or her due to a violation of rights is necessary, the same article states that he or she will be “incorporated into a temporary alternative care modality that adjusts to his or her own best interests, with family-based or family-based modalities preferred. “a definitive solution for care in an adoptive family.”

Likewise, law 21,302 that creates the National Specialized Protection Service for Children and Adolescents, within the alternative modalities of care for children and adolescents, contemplates both residential care and foster families as protection measures. Of the latter, the law orders priority in the programmatic offer of foster families (whether extended or external foster family) for cases of children and adolescents who must be deprived of their family environment, leaving the residential option only by virtue of best interest. of the child. There is also a priority for boys and girls between 0 and 3 to be referred to foster families, as suggested by the Guidelines on alternative care modalities for children in its guideline 22, which indicates that alternative care for minor infants of 3 years must always be exercised in a family environment.

Family foster care guarantees sensitive and loving care for children who need measures equivalent to their right to live in a family. Family foster care will be understood as “any placement in a family environment that has been ordered by the judicial authority or a competent administrative body” (UN, 2010, p. 6). In the programmatic offer of alternative care of the National Specialized Protection Service in Chile, according to data updated in September 2023, 65% of children and adolescents under alternative care are in Foster Families, and 35% in protection residences. Currently in Chile, 84% of foster families are extended, with the majority of caregivers being women (84%), especially grandmothers (54%) and aunts (31%) who perform this role to a greater extent. On the other hand, “loving and sensitive care” within foster care is vital for the development of children and adolescents, especially for children under 3 years of age. Evidence has established that institutionalized children under 3 years of age without parents can suffer from disengagement disorders, developmental delays, and/or neuronal atrophy of the developing brain. This is why Law 21,302, which creates the National Service for Specialized Protection of Children and Adolescents, in its article 18 ter., indicates that the availability of foster families must be encouraged for all boys and girls between 0 and 3 years, thus ensuring the guarantee of the right to live with a child's family, at the same time, ensuring the right to be cared for in obedience to their best interest and progressive autonomy.