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Notwithstanding the mechanisms of monitoring and supervision that are conducted by administrative authorities over the operation of residential care centers and institutions, the Commission deems it important to establish an additional, periodic system of inspection conducted through an independent monitoring mechanism. The existence and functioning of an independent monitoring mechanism ensures that supervision is conducted as well by an entity other than the very administrative authority to which the inspected services belong or fall under. The Commission finds that a mechanism of this type provides a necessary additional guarantee of supervision over for the adequate protection and care of the children in a care center or institution. For this purpose, this independent monitoring mechanism must oversee on a regular basis the conditions in which the children at said facilities are living. Similarly, Guideline 130 of the U.N. Guidelines for the Alternative Care of Children asserts that States should be encouraged to “ensure that an independent monitoring mechanism is in place.”463
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The State should take steps to create this type of mechanism through legislation and clearly empower it with legal authority to inspect and monitor in the broadest sense possible. In the judgment of the Commission, in establishing independent monitoring and supervision mechanisms, States Parties are to fully take into account the Principles relating to the status of national institutions for the promotion and protection of human rights464 (also known as the Paris Principles), in order to ensure a mandate based on adequate guarantees of independence.465
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In order that this type mechanism can serve its purpose of independent monitoring and supervision, it is of the utmost importance that it be empowered with competency to conduct visits to public and private residential centers and institutions, at any time, without any restrictions on access thereto or on contact with children or staff, in addition to having adequate legal authority to conduct investigations into any alleged violation of the rights of children in these settings, either in response to a complaint or on its own initiative.466
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Additionally, States must make sure that these agencies are able to gain unrestricted access to all areas of the facility and review all existing documentation and records.467 The Commission reaffirms that visits conducted by independent supervision and monitoring agencies should be performed on a regular basis and with no advance notice.468 The teams should be made up of professionals from different disciplines and should specifically include a qualified physician, capable of assessing the physical setting, medical services, and all other aspects, which have a bearing on the physical and mental health of the children.469 In the judgment of the Commission, an expert in child psychology and child communication should be a part of the team in order to provide technical expertise, particularly in light of the fact that the children may want to bring to the attention of the team certain concerns, complaints, or reports during the course of inspection visits; it is a valuable asset to have a professional available, who can facilitate this communication and help to gauge the significance of the statements and views of the child, given that the use of language and the exercise of communication is different in children than in adults. The element of gender should be taken into account in the make up of the team, so that both boys and girls can trust and feel comfortable enough to be able speak with the male and female members of the team. In addition to the foregoing, the conclusions of supervision and monitoring actions by independent agencies should be made public and a procedure should be in place for follow-up on its recommendations.470
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In broad terms, with regard to the legal authority to supervise facilities of confinement or deprivation of liberty , the Commission has made concrete recommendations that are set forth in the document Principles and Best Practices on the Protection of the Persons Deprived of Liberty in the Americas;471
In accordance with national legislation and international law, regular visits and inspections of places of deprivation of liberty shall be conducted by national and international institutions and organizations, in order to ascertain, at any time and under any circumstance, the conditions of deprivation of liberty and the respect for human rights.
As a minimum, such inspections shall be carried out with full access to places of deprivation of liberty and their installations, access to the information and documentation relating to the institution and the persons deprived of liberty therein; and the possibility of conducting private and confidential interviews with persons deprived of liberty and personnel.472
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Similar to the position of the Commission, the Committee on the Rights of the Child has voiced its view on independent monitoring mechanisms, particularly when children are deprived of liberty:
Independent and qualified inspectors should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative; they should place special emphasis on holding conversations with children in the facilities, in a confidential setting.473
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This independent supervision mechanism should be readily accessible to the children, their parents or those responsible for them. The authority and functions assigned to the mechanism should include safely, privately and confidentially conducting interviews of the children and adolescents and of officials of the centers and institutions. The Commission recalls that ensuring the safety of the child entails among other things, avoiding any harm, intimidation, retaliation or re-victimization.474
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The absence of regular independent monitoring mechanisms in the majority of the Member States was evidenced, based on the responses countries gave to the questionnaire submitted to them by the Commission and on the information provided during the sub-regional consultations, and the Committee on the Rights of the Child has also called attention to this fact in several countries of the region.475 In most instances, States mentioned that mechanisms were in place, but that they simply did not conform to the aforementioned requirements, either due to the fact that they were not independent from the executive agency under which residential centers function, that their legal authority was restricted, that they did not cover the entire territory of the State, that they did not conduct inspection visits on a regular basis, or that they were simply not endowed with the manpower and budget needed to be able to perform the aforementioned competencies. In many instances, in responding to the question on the questionnaire regarding mechanisms of monitoring and supervision by independent institutions, specific reference would be made to general mechanisms of supervision provided by administrative authorities in charge of the facilities themselves, either directly or through contracts with private organizations or facilities, as was the case in Chile and Colombia.
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Notwithstanding the aforesaid, the Commission does view as positive some efforts in this area, which although they may not completely conform to the abovementioned standards, they do help to perform an important job. For example, in Argentina, the Office of the Child Custody Affairs (Asesoría General Tutelar), which is part of the Judiciary of the Autonomous City of Buenos Aires, is in charge of supervising, monitoring and overseeing alternative care centers and institutions providing shelter to children, with regard to habitability and proper operations as well as monitoring of placement of children therein. In the same way, in Argentina, the procedures and protocols for the monitoring and supervision of these centers and institutions were approved by means of an administrative resolution, and this instrument contributed a great deal to standardizing and instituting objective criteria pertaining to the duties of monitoring and supervision.476 The same can be said about the duty performed by the Office of the Ombudsman of the State of Peru, which has released two reports addressing issues of alternative care and residential care facilities.477 In some States, such as Bolivia or El Salvador, the legal authority to conduct weekly inspection visits to police holding facilities, detention and penitentiary facilities and establishments used for the protection and care of children has been expressly given to the judiciary. In some instances, this type of legal authority is shared with the administrative authorities themselves.
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As for the ability of civil society organizations to conduct visits and inspections in order to monitor the situation in which children are living at residential care centers and institutions, the Commission has noticed in general that very few of this type of organization actually engage in this type of work in the region and, furthermore, those which do, have noted that they face significant barriers to gain
access to said institutions, especially when attempting to make unannounced visits or hold private interviews with institutionalized children.478
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The Commission finds it absolutely essential for independent mechanisms of supervision and monitoring of children’s and adolescents’ situation at all care centers and residential institutions to be functioning effectively. This type of independent monitoring system, along with mechanisms for the registry of reliable information on the institutions and the children, are invaluable tools for conducting periodic evaluation of the s’ and institutions’ functioning and curing any issue that may constitute a violation of the children’s rights.
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States’ noncompliance of the obligation to monitor, supervise and inspect may lead to impunity for a number of human rights violations taking place at residential care centers and institutions. As was highlighted in the U.N. Study on Violence against Children, in settings of residential institutions, violence still exists as a result of structural conditions of care at these institutions.479 In such contexts, children may become victims of abuse, mistreatment, cruel, inhuman or degrading treatment, and even torture and trafficking.
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In addition to national mechanisms, and in view of the existence of international monitoring mechanisms with competency over the centers and institutions that are the subject of this report, the Commission urges States to ratify the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,480 which creates the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture, in addition to call for the creation of National Torture Prevention Mechanisms.481
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The Commission welcomes the creation in several countries of the region of independent national human rights institutions -Ombudspersons- with the specific mandate to promote, in general, the protection and guarantee of the rights of children and adolescents.482 Similar positions have been taken as well by the United Nations Committee on the Rights of the Child, the United Nations Secretary-General’s Special Representative on Violence against Children, the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. Particularly, the Committee on the Rights of the Child has recommended for these human rights institutions to be established systematically and empowered to monitor the respect for the rights of children, examine individual complaints and conduct the appropriate investigation, in addition to making sure that children have effective remedies when any of their rights are violated.483 National human rights institutions should be established in accordance with the Paris Principles. These minimum standards provide guidance on creating such institutions, legal authority, powers and composition, as well as guarantees of pluralism and independence, types of functioning , and the quasi- jurisdictional activities of such national bodies.
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