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The circumstances that lead parents to relinquish custody or care of a child, temporarily or permanently, or that lead to abandonment, may be potentially the same as those that, in general terms, limit the capacities of families to fulfill their parental responsibilities. In accordance with the provisions of Articles 17(1) and 19 of the Convention, and Articles VI and VII of the Declaration, the State has the duty to take any appropriate and necessary steps to guarantee that parents or, as the case may be, the extended family, are provided with appropriate counseling and professional support and, especially, access to relevant information on family support services and programs, in addition to legal assistance regarding the legal effects of the relinquishment custody and care of their child.
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With regard to situations in which one of the parents exercises custody and care for the child, and decides to relinquish care of the child temporarily or permanently, including in cases of mono parental families, the Court and the Commission have indicated that the State has a duty to take every reasonable step, taking into consideration the specific context, to try to locate the other parent or the extended family in order to determine whether there is a willingness on their part to maintain the parent-child tie, before proceeding with temporary or permanent decisions regarding the care of the child by a family other than his/her biological family.160
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The U.N. Guidelines for the Alternative Care of Children state the following:
When a public or private agency or facility is approached by a parent or legal guardian wishing to relinquish a child permanently, the State should ensure that the family receives counseling and social support to encourage and enable them to continue to care for the child. If this fails, a social work or other appropriate professional assessment should be undertaken to determine whether there are other family members who wish to take permanent responsibility for the child, and whether such arrangements would be in the child’s best interests. Where such arrangements are not possible or in the child’s best interests, efforts should be made to find a permanent family placement within a reasonable period. (…).161
When a public or private agency or facility is approached by a parent or caregiver wishing to place a child in care for a short or indefinite period, the State should ensure the availability of counseling and social support to encourage and enable them to continue to care for the child. A child should be admitted to alternative care only when such efforts have been exhausted and acceptable and justified reasons for entry into care exist (…).162
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In that regard, family protection and support measures should be provided also during pregnancy and following the birth of the child, in order to guarantee decent conditions for the appropriate development of the pregnancy and the care of the child, and prevent families from being exposed to precarious or other conditions that may lead to the decision of temporary or permanent relinquishment or abandonment of the child.163
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When the parents are adolescents under 18 years of age and have expressed their willingness to temporary or permanent relinquish their parental responsibilities, the State’s obligation of special protection also applies to them, given that, as individuals under the age of 18, they are themselves beneficiaries of this protection under the provisions of Article 19 of the Convention. In cases like these, the Commission agrees with the Committee on the Rights of the Child in expressing its concern in two aspects: i) with regard to any social, family or other type of pressure influencing the adolescents to give up their child for adoption or to temporarily relinquish their custody ; and, ii) the limited capacities and material possibilities of the adolescents to take care of their children and, therefore, the need to provide them appropriate counseling and support through progams and services that provide care and assistance. The Commission has expressed its concern with the fact that adolescent mothers quit their studies, which affects their right to education, and, therefore, urges States to continue to implement measures to ensure that pregnant adolescents and adolescent mothers have the support necessary to continue studying, and reminds authorities and educational institutions that any obstacle or impediment to that objective is a violation of this right.
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It is precisely to reduce the number of cases of abandonment of newly born babies, of parents giving up their children for adoption and voluntarily relinquishing their children, especially when the parents are adolescents, that the State should develop and implement programs and services to prepare adolescents to make fundamental decisions with regard to their sexual and reproductive health and to assume responsibilities in this regard.164 The goal of programs and services to provide assistance and support to future parents, specially to adolescents, must be to offer them the possibility to exercise their parental role with dignity and avoid that they relinquish custody of their children or consent to adoption due to the conditions of discrimination or vulnerability that they face.165
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In the Commission’s view, stronger protections must be provided to families headed by adolescents and to their children, as well as to other families in especially vulnerable situations that limit their capacity to develop their parental responsibilities in an appropriate manner, including the limitation of their material capacities. Single-parent families who may be exposed to poverty due to limited income, families where a parent or a child has special needs or a disability, and families facing a series of situations of vulnerability at the same time, including belonging to a social group which has been traditionally excluded or discriminated against, are some of the considerations that the State must take into account when formulating public policy and developing programs and services to support families. The relinquishment or abandonment of a child, are actions that raise serious concern within the Commission and the Committee on the Rights of the Child, and, in certain societies, may disproportionately affect children born out of wedlock and children with disabilities.166With regard to children born out of wedlock, States must take every measure necessary to ensure that the law recognizes equal rights for children born both out of and in wedlock.
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The United Nations Guidelines for the Alternative Care of Children identify certain types of families that may be more exposed to situations of vulnerability and, according to the Commission, also deserving of the State’s special attention under the provisions of Articles 17(1) and 19 of the Convention and VI and VII of the Declaration. The Guideline 36 states that:
Special attention should be paid, in accordance with local laws, to the provision and promotion of support and care services for single and adolescent parents and their children, whether or not born out of wedlock. States should ensure that adolescent parents retain all rights inherent to their status both as parents and as children, including access to all appropriate services for their own development, allowances to which parents are entitled, and their inheritance rights. Measures should be adopted to ensure the protection of pregnant adolescents and to guarantee that they do not interrupt their studies. Efforts should also be made to reduce stigma attached to single and adolescent parenthood.
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Based on the information gathered, the Commission agrees with the Committee on the Rights of the Child and the Independent Expert on the U.N. Study on Violence against Children in expressing special concern with the number of cases of abandonment or relinquishment of children with disabilities or serious illnesses, adding that “[m]any [children] have been given up by parents who, lacking money or support services to cope with their children’s disabilities, feel they have no alternative.”167
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The United Nations Convention on the Rights of Persons with Disabilities recognizes that persons with disabilities have the right to family life under equal conditions, and establishes the obligation of the State to provide the necessary support to parents with disabilities or parents with children with disabilities, to be able to carry out their parental responsibilities and prevent the abandonment of the children:
(…) States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.168
States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.169
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The information obtained clearly shows that, in general, there are fewer social support programs available for children with disabilities and their families, and, as a result, children with disabilities are more likely to remain in group homes or residential centers for the rest of their lives.170 In this regard, both the Committee on the Rights of the Child and the U.N. Study on Violence against Children make recommendations to the States with regard to prevention, especially the implementation of support and counseling services for families, as well as providing opportunities so that the care of the child does not fall entirely on the family. For instance, in-home assistance or care services available during the day right in the community make it possible for parents to continue working and reduce pressure in the family environment.171 The aforementioned U.N. Study found that, in some countries, the implementation of family support programs resulted in a 70% reduction in the number of children with disabilities living in alternative residential s.172 Based on the information gathered in the context of the present report, in certain States of the region children with disabilities represent a very high percentage of the total number of children living in group homes or residential s. For instance, in Peru, it represents 10.8% of the total population living in those institutions.173
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Last, the Commission is concerned that children in the region whose births are not registered. In previous occasions, the Commission has expressed its concern with regard to violations of the right to recognition of legal personality and access to other fundamental rights that may be affected due to the lack of documentation certifying the identity of the child. With regard tothe subject of this report, the Commission is concerned that children and their families, who may be in special vulnerable conditions in the exercise of their rights, may not have birth certificates to legally certify the child’s family relationship and ties with parents and extended family. The State’s efforts to preserve the child’s ties to his or her family of origin may be hindered by the absence of this documentation. Furthermore, the lack of birth certificates and identification documents make children vulnerable to other serious violations of their rights, such as the sale of children and human trafficking for exploitation purposes.
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