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As mentioned in the preceding paragraphs, the legal structure of protective measures and their implementation are based on and guided by the objective of restoring the rights of the child and his or her ties to biological parents and family, once the situation of that created the vulnerability of the child and the need for the measure has been resolved. Therefore, it is important to draw a distinction between this type of measure and other measures such as pre-adoption foster care, whose objective differs from that of measures of a temporary nature. Pre-adoption foster care, considered and regulated by legal systems as a phase in the adoption process, is a measure designed to help the child, whose condition of adoptability has already been determined, develop ties with his/her future adoptive family which has been selected by competent authorities, as a pre-requisite to the legalization of the adoption. The objective of the pre-adoption measure is to give the child an opportunity to adapt to his/her new environment and determine the suitability of the family to become the child’s adoptive family, all before the legal adoption is finalized. The law has to be clear in drawing a distinction between the special measures of protection of a temporary nature which assume the transitory separation of the child from hi/hers family, and other types of measures, in particular, pre-adoption foster care or other similar measures. This is especially relevant in ensuring that the implementation of protection measures and their contents are suitable to fully achieving their objective and that every effort made is conducive to restoring to the child the right to reintegrate his/her family.
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The consideration of the child’s best interests may justify that the law exceptionally allows for the foster family to ask for the adoption of the child, as long as there is a strict fulfillment of the guarantees established to protect the child’s rights and his/her biological parents. Some legal systems in the region allow the foster family, in the context of a temporary special measure of protection, to later express its interest in adopting the child they have cared for under the foster care arrangement. The Commission emphasizes the need for the law to clearly define and regulate the various legal figures, the rights they protect, their objectives, and the principles that must regulate their implementation. The contradiction of objectives and the contrasting interests of the various individuals involved in the special measures of protection and in the pre-adoption foster care figure must be given special attention by Member States when establishing regulations for both figures. The Commission underscores that the law must establish due guarantees that the rights of the biological parents and the child will not be violated in the event that the law, as an exception, allows for that possibility. In that sense, the regulation of the pre-adoptive care must not constitute a possibility to be used to violate the legislation applicable to adoption and all the guarantees legally established.
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In connection to the preceding, it should be noted that the Committee has often expressed its concern with existing evidence of cases related to the sale of or trafficking in children, with no family or separated from their family, for various purposes. With regard to children in the younger-age groups, the purpose may be adoption.362 Although this is not the place to analyze the problem of sale of or trafficking in children, it is important to point out the various infringement of children’s rights that could potentially arise due to situations in which weaknesses in the response National Systems for the Promotion and Protection of Children´s Rights offer with regard to providing appropriate support to families , as well as possible shortcomings in the regulation, implementation and oversight of special measures of protection and of the adoption figure . The Commission joins the Committee on the Rights of the Child in pointing out the importance in that the States ratify and implement domestically the “Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography,” the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children”, which supplements the “United Nations Convention against Transnational Organized Crime,” and the “Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption” of 1993, which provide a framework to prevent the violation of children’s rights.363
C. Informal care
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Lastly, it bears mentioning that situations of informal care exist in which children live without their parents unbeknownst to and without any intervention by public authorities. Although a thorough analysis of informal care falls outside the scope of this report, it is important to make some brief comments thereon, given the Commission has found there to be a considerable number of children in the region who are not being cared for by their parents and who have been taken in informally by relatives or other individuals. The protection needs of this group of children may be very similar to those of children protected by special measures of protection adopted and monitored by the competent public authorities.
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Informal care infers specific arrangements made at the initiative of parents, the child, a child’s relatives, or other individuals, by means of which the child is then cared for and raised by a third party, unbeknownst to or without any intervention by public authorities. The causes that give rise to informal care and the circumstances behind them may be quite diverse and vary considerably.364 Studies show that the reasons may include: (i) the death of both parents; such cases have been specifically identified in the context of the consequences of HIV-AIDS; (ii) the absence of both parents, for example in the context of migration; (iii) the existence of material limitations on the part of the parents when it comes to being able to provide basic care to the child; (iv) other causes have also been identified, such as wanting to facilitate access to education for the child, and arrangements that involve support for the child and meeting of his or her needs in exchange for the child performing domestic work or other types of chores; these latter arrangements come closer to being methods of family survival, or as a means of generating opportunities. The people who take charge of the child may be relatives with a direct link to him or her, such as grandparents, or rather individuals or other families who are not necessarily related, or do not have direct and prior ties, to the child and his or her family. Some informal care arrangements are not risk free towards the rights of children.
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Reality has shown that the situations and contexts in which children live and are cared for by persons other than their parents can differ from each other and vary considerably. They can range from situations in which grandparents or other close relatives assume responsibility for the care and raising of the children when their parents are absent or face limitations, to situations in which parents turn their children over to the care of another family to facilitate access to education and other opportunities for them, often at a location far from where the parents reside. Such situations are also conditioned by social or cultural practices that may afford greater social acceptance of certain models or arrangements related to the raising of the children.365
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In some of these situations, the people who effectively, or informally, assume responsibility for caring for and raising the child may require support or assistance similar to that which would be provided if the State interceded and issued a special protective measure –for example, in the case of grandparents who assume responsibility for raising their grandchildren due to the absence or death of the parents, or to any other circumstance that entails a lack of parental care. Situations in which the grandparents are poor or face material and even physical limitations that prevent them from adequately caring for their grandchildren could warrant protection-based interventions aimed at ensuring the welfare and best interests of the child and, as a result, prompt support and assistance to be provided to the grandparents in caring for the children.
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In other respects, some of these arrangements may turn out to constitute a risk to or violation of the rights of the child, and in some cases may go so far as to amount to a form of exploitation and even a type of modern servitude. The Commission is concerned about the exploitation to which these children could be exposed when they are being informally cared for within a family nucleus that is not their own and such care is contingent upon their performing domestic work or other chores.366
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The removal of a child from his or her family and community, as well as social and even physical isolation when the child spends all the time in the house, place the child in a context that makes him or her particularly vulnerable to violations of their rights, such as different types of violence, sexual abuse, and labor-related exploitation. Such a situation seriously endangers the child’s health and development, in addition to jeopardizing other rights such as education, given that the evidence shows that the children involved often do not attend school.
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In this cases, the Commission and the Committee on the Rights of the Child have expressed the concern they have about some practices that might constitute a risk to the personal integrity of the child and the rest of the child’s rights such as, for example, in the case of the “Restavèks” in Haiti367 and the “criaditas” in Peru368 and Paraguay,369 the “kweekjes” in Suriname370, although similar phenomena can be identified to a greater or lesser extent in many countries in the region.371
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The United Nations Special Rapporteur on contemporary forms of slavery, including its causes and consequences (hereinafter, the Special Rapporteur on contemporary forms of slavery), defines domestic servitude as a global human rights concern and observes that a large number of people, the vast majority of them women and girls, are deprived of their dignity due to domestic work. The Special Rapporteur is particularly concerned about the large number of children employed in domestic service since the exploitation of children in domestic work may be equivalent to domestic servitude.372
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The U.N. Guidelines for the Alternative Care of Children also refer to “informal care”, as well as highlighting the fact that it is not an uncommon situation, and is one that is even highly prevalent in some countries, noting:
Recognizing that, in most countries, the majority of children without parental care are looked after informally by relatives or others, States should seek to devise appropriate means, consistent with the present Guidelines, to ensure their welfare and protection while in such informal care arrangements, with due respect for cultural, economic, gender, and religious differences and practices that do not conflict with the rights and best interests of the child.373
The U.N. Guidelines further recommend:
With regard to informal care arrangements for the child, whether within the extended family, with friends or with other parties, States should, where appropriate, encourage such carers to notify the competent authorities accordingly so that they and the child may receive any necessary financial and other support that would promote the child’s welfare and protection. Where possible and appropriate, States should encourage and enable informal caregivers, with the consent of the child and parents concerned, to formalize the care arrangement after a suitable lapse of time, to the extent that the arrangement has proved to be in the best interests of the child to date and is expected to continue in the foreseeable future.374
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Regarding “informal care,” the Commission recalls that, in any event, States continue to have the duty to provide special protection, as stipulated under Article 19 of ACHR and VII of the ADRDM, in particular, in identifying those situations and phenomena in which children’s rights may be exposed. Furthermore, the duty also remains to adopt appropriate measures in specific situations to effectively protect children from having their rights violated by third parties. States have diverse mechanisms at their disposal to make this type of identification, specifically vis-à-vis the information on these situations that education and healthcare systems possess thanks to the direct contact they have with children and families.
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When “informal care” goes hand in hand with social or cultural practices, States must endeavor to conduct a thorough analysis of the phenomenon, its causes, and the consequences and impact thereof on children’s rights. Regarding the prevalence of these practices, States access relevant information, for example, through tools such as family surveys, censuses, or other national data collection mechanisms. Based on the data compiled and studies conducted in an effort to understand the scope of the phenomenon,375 States should consider, at a minimum, the following aspects: (i) redoubling their efforts to create conditions that will enable the child’s biological family to assume responsibility for raising the child, specifically through social policies aimed at strengthening families; (ii) developing education campaigns targeting society and children themselves in order to raise awareness about violations of children’s rights that can result from certain practices; (iii) creating accessible, reliable, confidential, and effective reporting mechanisms that make it possible to inform public authorities about concrete situations in which children’s rights might be being violated; such mechanisms should also be accessible to children; (iv) boosting free access to basic public services, in particular, healthcare and education, for families that are more vulnerable and in those areas of the country with more limited access to these services; (v) adopting effective legislative measures to prohibit all forms of violence, abuse, neglect, and exploitation against children, or any other type of infringement of their rights, as well as offering care and recovery services for children whose rights may have been violated; (vi) adequately regulating the different types of care and alternative care in foster care families, bearing in mind existing cultural and social practices, and thereby effectively ensuring the rights, protection, and well-being of children within the setting of foster carers ; and (vii) encouraging families to formalize informal care arrangements so they may access whatever support that the foster carers might need to ensure the optimal well-being of the child, and so children may have the possibility of always having a legal guardian close to them.376
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