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A. Extended family and foster care
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Based on the various rights involved in the best interests of the child and applicable principles in this area, the implementation of special measures of protection that do not imply the separation of the child from her or his parents, but instead an intervention that looks after the needs of protection of the child while allowing her or him to remain in the care of his/her family, should be the priority. In order to comply with the objective of preservation and restitution of rights within the framework of the respective protection measure, it will be necessary to determine and implement various family support and strengthening actions to resolve the causes that led to that situation. Therefore, the specific content of the measure should fit the particular circumstances facing the family and the child, and could consist of, among others: i) support, guidance and follow up of the family by experts in family support; ii) direct material assistance or other type of assistance, allocations or benefits for the family to strengthen their standard of living and the enjoyment of the rights of the child; and iii) access to programs, social services or other type of suitable assistance to strengthen the capacity of the family to provide for the protection, care and upbringing of the child without separating her or him from the family.
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States must also consider those cases in which the parents, even with support and assistance, cannot or will not effectively care for their children, or if it would not serve the best interests of the child to remain with her or his parents, and, therefore, special measures of protection must be implemented that imply the temporary separation of the child from her/his family setting. In these cases, and to the extent possible, every effort shall be made to try to place the child under the care of his/her extended family. Only in cases in which the extended family is not able to take care of the child either, does not want to do it, or if the situation would not serve the best interests of the child, will the State then place that child under the care and safeguard of a foster family.358 It should be pointed out that the care and custody of the child within his extended family is consistent with the right to family and the identity of that child, and facilitates her/his future return to family life with her/his biological parents, which is the objective of the temporary special protective measures.
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In cases where the extended family does assume the responsibility for the care of the child, the appropriate social services can be required to provide direct support to those family members providing the care. This is done to ensure that the new environment is conducive to providing the child the care and protection she or he needs. These measures to provide support to the extended family are similar to those that would be provided to biological parents to help them carry out their parental duties. This form of special measures of protection must be accompanied also by support and accompaniment for parents with the goal of improving the conditions of the family nucleus and, thus, increasing the possibilities of reintegrating the child to the care of his or her parents.
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States must also regulate other types of special protective measures of a temporary nature for those cases in which neither the parent nor the child’s extended family can assume responsibility for the child’s care, or when this was against the child’s best interests. In order to provide an appropriate response to the immediate care and protection needs of the child, one of the types of special measures of protection is the temporary placement of the child with a foster family, while the conditions and circumstances that led to the situation of vulnerability are resolved, or, permanent protection measures are identified if it is not possible to return the child to her or his family.359
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In accordance with the United Nations Guidelines for the Alternative Care of Children, the IACHR points out certain criteria to take into account when determining the type of protection measure. In that regard, the IACHR reiterates the fundamental role of the best interests of the child as the basic tenet guiding the determination and implementation of special measures of protection. Furthermore, the Commission underscores the importance of preventing the distancing of the child from her or his family, social and educational environments, which imposes the need to implement the protection measure in a place near where the child lives and to make every possible effort to maintain the bond with the family, including keeping siblings together when implementing a protection measure that affects them all. The Commission further points out the importance of ensuring the continuity and stability of a protection measure that implies alternative child care, either with the extended family or with a foster family, while the protection measure remains in force. Frequent changes of the care setting are detrimental to the development of the child and his/her ability to form attachments, and, therefore, it should be avoided.360 Thus, Guideline 12 establishes that:
Decisions regarding children in alternative care, including those in informal care, should have due regard for the importance of ensuring children a stable home and of meeting their basic need for safe and continuous attachment to their caregivers, with permanency generally being a key goal.
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Proximity to the child’s normal environment, maintaining ties to parents and extended family and community, as well as the importance of taking into account the child’s cultural and religious identity, are all elements emphasized by the Committee on the Rights of the Child and must be considered when making decisions regarding the separation of the child from his/her parents:
Children feel better in their own environment and this should be taken into consideration when they are placed into out-of-home care. The basic premise is that children should be kept in their own distinctive communities. For instance, indigenous communities often have a very close family system and the child protection system should take into consideration both indigenous culture, values and the child’s right to indigenous identity. The importance of the local level and local authorities should not be neglected in providing basic protection for children.361
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There are some specific aspects to consider in relation to making decisions to guarantee the rights and well-being of siblings who become orphans or are left without the protection and care of both parents. In these situations and, under the provisions of Articles 17(1) and 11(2) of the ACHR, in connection with Article 19 of the ACHR, and bearing in mind the primary consideration of the best interests of children who find themselves in these situations, siblings must be provided the opportunity and support, if they so desire, to maintain the nucleus of the family and family living even if the parents are no longer present. In these cases, the type of special measure of protection may consist of maintaining the existing family nucleus, formed by the siblings, with the support of expert professionals and the appropriate social services to ensure their well-being in case they decide to remain at home. In addition, this measure would imply the appointment of a legal guardian to assume responsibility for the siblings’ well-being and protect their rights and interests. The Commission recalls that, along the same lines, Guideline 37 of the United Nations Guidelines for the Alternative Care of Children, establishes that:
Support and services should be available to siblings who have lost their parents or caregivers and choose to remain together in their household, to the extent that the eldest sibling is both willing and deemed capable of acting as the household head. States should ensure, including through the appointment of a legal guardian, a recognized responsible adult or, where appropriate, a public body legally mandated to act as guardian, […] that such households benefit from mandatory protection from all forms of exploitation and abuse, and supervision and support on the part of the local community and its competent services, such as social workers, with particular concern for the children’s health, housing, education and inheritance rights. Special attention should be given to ensuring the head of such a household retains all rights inherent to his/her child status, including access to education and leisure, in addition to his/her rights as a household head.
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