Committee on the Rights of the Child
Inquiry concerning Chile under article 13 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure
Report of the Committee *
1.Under article 13 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, if the Committee receives reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention or in the Optional Protocols thereto, the Committee will invite the State party to cooperate in the examination of the information and, to this end, to submit observations without delay with regard to the information concerned. Taking into account any observations that may have been submitted by the State party concerned, as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State party, the inquiry may include a visit to its territory.
2.Chile ratified the Convention on the Rights of the Child on 13 August 1990 and the Optional Protocol on a communications procedure on 1 September 2015. The procedure provided for in article 13 has therefore been applicable since 1 December 2015.
3.On 22 July 2016, the Committee received a request to conduct an inquiry into the situation of children and adolescents deprived of a family environment who live in residential centres under the direct or indirect control of the National Service for Minors in Chile. The facts presented indicated a possible grave and systematic violation of the rights set out in the Convention. This information was supplemented by official documents from the National Service for Minors, the Chamber of Deputies and the Attorney General’s Office that were forwarded to the Committee.
4.The Committee was of the view that the information it received was reliable. It examined it at its seventy-fourth session, held from 16 January to 3 February 2017, and decided, without prejudging the information, to accede to the request to conduct an inquiry. Pursuant to article 13 (1) of the Optional Protocol and rule 35 of the Committee’s rules of procedure under the Optional Protocol, the Committee decided to request Chile to submit its observations on the issues raised before the Committee.
5.Chile submitted its observations to the Committee on 18 May 2017. In the light of the observations received and the information provided, the Committee, having considered all the information available and found that the situation described above met the criteria for the establishment of an inquiry, decided to conduct a confidential inquiry into the potential grave or systematic violation of several provisions of the Convention affecting a significant proportion of children and adolescents in the care of the State party, in accordance with article 13 (2) of the Optional Protocol and rule 36 of its rules of procedure. It appointed Committee members Jorge Cardona and José Rodríguez Reyes to conduct the inquiry.
6.The State party consented to a visit by the two experts appointed by the Committee.
7.The country visit took place from 8 to 12 January 2018. The experts visited the Santiago Metropolitan Region and Valparaíso Region.
8.Pursuant to rule 37 of the rules of procedure, the State party was requested to nominate a representative to facilitate cooperation with the experts. The Government appointed a representative who provided extensive cooperation under his mandate.
9.During their visit, the experts met with approximately 100 people, including the Minister of Justice and Human Rights, the Minister of Social Development and the Family, the President of the Supreme Court, several family judges, the Attorney General and several prosecutors responsible for relevant investigations, the Director of the National Service for Minors at the time of the visit and a former director, the Director of the National Council for Children, the Chief of Staff of the Carabineros (police), the Director of the Forensic Medical Service, the Director of the National Human Rights Institute, several deputies and senators, officials from various services and ministries, representatives of United Nations agencies, representatives of trade unions of employees of the National Service for Minors and representatives of various civil society organizations, including people who as children had lived in centres run by the Service.
10.The experts visited four residential centres: two managed by the National Service for Minors – namely, Playa Ancha in Valparaíso and Galvarino in Santiago – and two managed by partner organizations – namely, Aldea Cardenal Raúl Silva Henríquez in Punta de Tralca and Pequeño Cottolengo in Santiago.
11.The Committee notes with appreciation the cooperation it received from the Government and all the institutions with which it asked to meet.
III.Sources of information and confidentiality of the proceedings
12.Pursuant to rule 35 of its rules of procedure, the Committee requested additional information from a range of sources.
13.The Committee gathered a wealth of documentary evidence. Many of the documents are in the public domain, including the Final Report of the Commission of Inquiry of the Chamber of Deputies, issued in 2013; the 2017 records of the proceedings of the Commission of Inquiry of the Chamber of Deputies; the report on the project to collect and consolidate information on children and adolescents in the residential system in Chile (the Jeldres report), prepared in 2012 by an institutional judicial commission with support from the United Nations Children’s Fund (UNICEF), as well as other reports prepared by the judiciary; a report drafted by the National Human Rights Institute on the observation mission to residential protection centres in the National Service for Minors network, following visits to 171 residential protection centres between January and April 2017; the annual reports of the National Human Rights Institute; and documentation provided by the National Service for Minors. Other confidential documents were either forwarded to the Committee or handed over to the experts during their visit. The Committee is impressed by the amount of information collected and provided by the various stakeholders who have contributed to the inquiry.
14.Unless otherwise noted, the data in the following paragraphs are taken from official and public reports.
15.Under article 13 (3) of the Optional Protocol, inquiries are conducted confidentially, and the cooperation of the State party is sought at all stages of the proceedings. All persons who participated in the hearings during the country visit signed a solemn declaration of confidentiality.
IV.Background and context
16.The National Service for Minors was created by Decree-Law No. 2.465 of 1979 as an agency of the Ministry of Justice. It is responsible for the social reintegration system for adolescents in conflict with the law, as well as the protection system for children and adolescents whose rights have been violated. It operates or oversees the operation of both residential and non-residential programmes with a view to achieving the aims of those systems.
17.The residential programmes are designed to provide care for children and adolescents for whom no suitable family environment can be found. At the end of 2016, 14,245 children and adolescents were living in residential centres. Although there are 15 different types of residential centre, they can be classified into two general groups: centres under the direct control of the National Service for Minors and centres run privately by accredited partner organizations and subsidized by the Service. There are 11 centres run by the Service and approximately 240 run by private operators. The management of the privately run centres is outsourced through public tenders. The majority of children in residential centres live in such centres: in 2016, for example, there were 11,492 children and adolescents in privately run residential centres and 2,753 in centres managed by the Service.
18.In addition to these two types of centre, there are private centres run by so-called contributing organizations, which are not accredited by the National Service for Minors and over which the Service exercises no control. These centres, although not legally regulated, are tolerated by the courts, which send children and adolescents to them because of a shortage of places at the centres managed by the Service and its accredited partners. In August 2016, there were 405 children and adolescents in such centres.
19.The family courts, which were established by Act No. 19.968 of 2008, are the only authority with jurisdiction to separate children and adolescents from their biological families or legal guardians and – as an exceptional and temporary measure when no alternative family-based care is available for them – refer them to a residential centre. The management of the National Service for Minors has a duty to report to the courts any incidents that might pose a risk to a child or adolescent living in an institution, to request the court to take action and to become a party to the proceedings.
20.There have been warnings and complaints about failures and rights violations in protection centres over a long period of time, including in the Jeldres report of 2013, the report on the National Service for Minors issued by the Family Commission of the Chamber of Deputies in 2013, the records of the hearings before and the documents presented to the Second Commission of Inquiry of the Chamber of Deputies on the National Service for Minors in 2016 and 2017 and the report issued in 2018 by the National Human Rights Institute.
21.The Committee expressed concern in this regard and made recommendations on the protection system in its concluding observations on Chile in 2002 (CRC/C/15/Add.173, paras. 35 and 36) and 2015 (CRC/C/CHL/CO/4-5, para. 54).
V.Existence of grave or systematic violations of the rights of children and adolescents in residential protection centres under the direct or indirect control of the National Service for Minors in Chile
A.Failure of the State party to fulfil its obligations under the Convention with regard to children and adolescents deprived of a family environment
22.Under article 2 of the Convention, Chile has an obligation to ensure that there is no discrimination on any grounds, including the economic status of a child or of his or her parents or legal guardians.
23.Poverty is widely understood to be a cause of placement in institutional care. Actors in the system frequently use claims of “inadequate socioeconomic conditions” as a pretext for complaints alleging ill-treatment or child neglect.
24.The majority of children and adolescents living in residential centres are from poor backgrounds. The regions with the highest concentration of children and adolescents in the residential system operated by the National Service for Minors are the Santiago Metropolitan Region, Biobío and Araucanía. Biobío is the country’s poorest region, while Araucanía is the third poorest.
25.The Committee is of the view that the State party is in breach of article 2 of the Convention, as it allows children and adolescents to enter the residential system as a result of economic hardship and fails to ensure that the family courts mobilize the material assistance families need to provide adequate care, thus favouring institutionalization over other forms of care, limiting support and closing off approaches to alternative solutions.
2.Best interests of the child
26.Under articles 3 (1) and 25 of the Convention, Chile has an obligation to ensure that the best interests of the child are a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. It also has an obligation to conduct periodic reviews of the circumstances surrounding a child’s placement.
27.The decision to separate a child or adolescent from his or her immediate or extended family should be taken as a last resort. However:
(a)Judges give limited consideration to the possibility of social interventions with the family to resolve situations involving violations of the rights of the child or adolescent and avoid separation;
(b)The frequent absence of rulings for which the reasoning is sufficiently set out makes it impossible to understand the factors that were considered and the weighting they were given, the circumstances that were taken into account and the process that was followed to ensure that the best interests of the child were a primary consideration in the decision that was taken.
28.Residential protection programmes are not obliged to ensure that an independent review is conducted to assess whether a residential placement continues to be in the best interests of the child or adolescent, and as a result children sometimes end up living in centres for long periods of time, in certain cases for more than five years.
29.In a number of residential centres, siblings are separated for administrative reasons. At the beginning of 2017, 24.1 per cent of children and adolescents living in centres had siblings in other centres.
30.The Committee considers that the State party is in breach of article 3 (1) and article 25 of the Convention insofar as it:
(a)Prioritizes placement in residential centres over other forms of intervention involving families;
(b)Has not established the legal criteria and circumstances that must be weighed when assessing and determining the best interests of the child and, in rulings ordering a child to be placed in residential care, fails to provide sufficient explanation of how the child’s best interests have been assessed and determined;
(c)Does not conduct periodic independent reviews of the situation of each child or adolescent and his or her best interests;
(d)Has no mechanism for monitoring the length of time a child spends in residential care;
(e)Separates siblings for administrative reasons, without regard to their best interests.
3.Obligation to ensure that institutions responsible for protection comply with the relevant rules
31.Under articles 3 (2) and (3) of the Convention, Chile has an obligation to ensure that children are provided with such protection and care as is necessary for their well-being and that the institutions, services and facilities responsible for the care or protection of children conform with the standards established by competent authorities, particularly in the areas of safety, health, the number and suitability of staff and the provision of competent supervision.
32.The centres are in continual decline; repairs are often of poor quality or only partially completed, and in many centres, infrastructure and equipment are in a critical state. Safety problems include a lack of escape routes and safe areas, expired or non-existent fire extinguishers, stairs in poor condition, an absence of evacuation plans and swimming pools without safety nets. There are also shortcomings in the size and use of indoor spaces, including a shortage of multipurpose communal areas, poorly equipped kitchens, furniture and fittings in a state of disrepair, broken windows, damaged doors, poorly maintained ceilings and cracked floor tiles. In addition to a lack of hygiene facilities, some bathrooms are shared by boys and girls, and some showers and toilets are not separated by cubicles or doors.
33.Overcrowding in the centres is another problem. At the end of 2017, 5 of the 11 centres under the direct control of the National Service for Minors were over capacity, by 60 per cent, 46 per cent, 35 per cent, 33 per cent and 24 per cent respectively.
34.The technical specifications in the calls for bids for contracts for the operation of highly complex residential programmes are vague, thereby leaving room for discretionary or arbitrary interpretations by the accredited partner organizations.
35.Staff have little or no training either in terms of supervisory duties or with regard to the professional and educational expertise required by teams that have direct contact with the children. Employees working directly with children and adolescents in the centres are required to hold a high school certificate, which is clearly insufficient. Many of the staff lack the knowledge and skills needed to support the children. The behaviour of children and adolescents living in the centres is becoming more disruptive, but despite the increasingly complex behavioural needs, employees’ skills have not been upgraded to enable them to respond appropriately. The report of the National Human Rights Institute notes that half of the officials who completed the survey reported that they had received no training. Employees’ usual 12-hour shifts are sometimes extended to as many as 24 or 36 hours owing to recurrent staffing shortages. There are no mental or physical health programmes for the employees, who work in a very stressful environment. All of this has an impact on the care and protection provided to children and adolescents. Furthermore, the selection of professional and technical staff at the National Service for Minors has followed partisan lines; political activists have been recruited without a selection process in which necessary qualifications are given due weight.
36.The Service’s technical supervision of its accredited partner organizations is mainly focused on the situation of the subsidized centres rather than on the children and adolescents themselves.
37.The courts are responsible for monitoring the situation of children and adolescents and the progress they make in the reintegration programme. However, most judges lack specific training to evaluate what progress has been made and largely confine themselves to monitoring the situation in the centres, and in many cases judicial decisions do not include details of which rights have been violated, making it impossible to identify why the child or adolescent is living in a centre and which issues they need help to deal with. As a result, very little work is done on support plans, and the activities of the relevant institutions are not monitored. Established time frames often expire without the knowledge of the court responsible for the case, and the child or adolescent continues to live in a residential care setting without a court order.
38.More than 400 children and adolescents are in centres run by contributing organizations that are not legally regulated, but judges send children and adolescents to them because there are not enough places in the centres under the direct control of the National Service for Minors or run by private operators. As centres run by contributing organizations do not receive subsidies, they are not subject to oversight by the National Service for Minors.
39.The Office of the Comptroller-General has repeatedly warned the Ministry of Justice and the National Service for Minors about very serious breaches of the law in such centres. These warnings have prompted no effective response.
40.The Committee is of the view that the State party is in breach of article 3 (3) of the Convention insofar as it:
(a)Provides inadequate infrastructure for the care of children and adolescents who are living in precarious conditions in terms of hygiene, cleanliness and safety;
(b)Has failed, over a long period of time, to assign a sufficient number of specialized professionals to provide care, protection and support to children and adolescents entering residential care centres who have experienced violence, ill-treatment, neglect and sexual abuse;
(c)Does not provide the necessary support for the specialized care of children and adolescents, particularly in terms of ensuring that planning capacity and the quality of individual support plans are aligned with the minimum standards required at the international level;
(d)Fails to ensure sufficient rigour in the monitoring tasks that fall to both the courts and the National Service for Minors, including in respect of compliance with minimum standards in relation to infrastructure, safety, surveillance and material deficiencies in hygiene and welfare, and stores unsatisfactory and/or unreliable information, submitted to the courts by the residential centres, regarding the overall situation of children and adolescents;
(e)Places children and adolescents in the care of partner organizations that operate without oversight.
4.General measures of implementation
41.Under article 4 of the Convention, Chile has an obligation to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention.
42.Juvenile Act (No. 16.618) of 1967 is informed by a custodial approach to children in which the paternalistic and repressive role of the State is prioritized. Three bills on comprehensive protection have been submitted, in 2005, 2013 and 2015 respectively, but none have been made law.
43.The accredited partner organizations are regulated by Act No. 20.032, which does not establish sufficient measures for the monitoring of residential centres.
44.Professionals working in the centres report a lack of coordination with the Ministry of Education. They point out that in addition to the absence of collaboration, the education system is itself sometimes an obstacle, because it lacks the flexibility required to adapt the curriculum to provide specific support to each child or adolescent.
45.Although some progress has been made, coordination and intersectoral work with the Ministry of Health are still inadequate, and, in most cases, public health services do not provide suitable care.
46.As a result of the lack of coordination, when a child or adolescent’s file reaches the centre, it does not include complete information with regard to health, education and social services.
47.The data collected by the National Service for Minors are used to award subsidies rather than to report on the situation of every child and adolescent. It is therefore difficult to procure complete, reliable and disaggregated data that would make it possible to understand the situation of all children and adolescents in the protection system and to determine whether their rights are affected by discrimination or disparities.
48.The resources allocated to the residential centres run by accredited partner organizations are described as “financial assistance”, reflecting the State’s charity-based approach to the matter. Under the law, up to 65 per cent of the centres’ costs can be covered by subsidies. However, the maximum amount is granted only in exceptional circumstances, and the accredited partner organizations must therefore raise the remainder through philanthropic activities. The very name “financial assistance” reflects an approach to subsidies that is far removed from the legal obligation to provide the resources necessary to uphold rights. During the country visit, senior officials expressed the view that the protection of children and adolescents whose rights have been violated is a charitable endeavour rather than a fundamental right of children and adolescents and a legal obligation of the State.
49.Financial assistance is provided to the partner organizations on the basis of actions rather than results. The assistance is granted according to the number of children and adolescents being cared for; thus, whenever one leaves a centre, the amount of financial assistance allocated decreases. As a result, there is a perverse incentive to keep children and adolescents in centres rather than make efforts to reintegrate them into their families.
50.Although the centres under the direct control of the National Service for Minors, as public institutions, are in a better financial situation, they are nevertheless underfunded, resulting in a lack of the technical, human and material resources needed to provide the level of services required to rehabilitate children and adolescents and ensure a suitable quality of life.
51.The Committee finds the State party in breach of article 4 of the Convention for:
(a)Its ongoing lack of a comprehensive law on children that, adopting a rights-based perspective, defines the legal framework for public institutions and sets forth specific policies and programmes relating to work with children and adolescents;
(b)Its failure to ensure coordination between the various ministries and services responsible for the comprehensive care of children and adolescents in the protection system;
(c)Its lack of adequate data regarding the overall situation of children and adolescents;
(d)Its continued use of a subsidy-based funding model for the protection system, which transfers responsibility for providing the necessary resources for the care of children and adolescents to partner organizations whose activities are informed by a philanthropic approach rather than a rights-based approach;
(e)Its establishment of a subsidy-based system for centres run by partner organizations, which encourages lengthy placements in the centres;
(f)Its failure to allocate to centres under the direct control of the National Service for Minors the resources they need to fulfil their mandate.
5.Right to life, survival and development
52.Under article 6 of the Convention, Chile has an obligation to guarantee for every child the inherent right to life and, to the maximum extent possible, to ensure his or her survival and development.
53.According to data from the National Service for Minors, between January 2005 and June 2016, a total of 210 children and adolescents died in residential centres – 40 in centres under the direct control of the Service and 170 in centres run by accredited partner organizations. Between 1 July and 31 December 2016, another 46 deaths were reported. The investigations carried out by the Attorney General’s Office since September 2016 found that severe negligence by staff responsible for the care of children and adolescents played a role in a significant number of these deaths.
54.A large number of children and adolescents return to programmes run by the National Service for Minors, and the number has increased year-on-year, from 4,168 in 2013 to 4,648 in 2014 and 5,744 in 2015. The main cause of these returns is neglect. Between January and April 2016, 3,180 children and adolescents returned to various programmes.
55.Children and adolescents in the protection system are not necessarily grouped by category, leading to situations where those with highly complex needs live together in regular protection centres, those whose rights have been violated live together with others who have perpetrated rights violations and adolescents live together with young children.
56.The waiting lists for assessment and admission to centres include children and adolescents who have experienced neglect (22 per cent) and victims of sexual abuse (5.5 per cent), who are not receiving adequate protection and treatment in the meantime.
57.The Committee is of the view that Chile is in breach of article 6 of the Convention for:
(a)Repeated and prolonged failures to protect the right to life of children and adolescents in residential programmes;
(b)Repeat admissions of children and adolescents to the centres, a situation that demonstrates that they continue to be exposed to violations of their rights in their families and communities and that the State does not take the necessary measures to ensure that the violations are ended as soon as possible or prevented;
(c)Its waiting lists, which reflect the State’s failure to prioritize the provision of adequate care and support to children and adolescents whose survival and development are at risk;
(d)The condition of infrastructure and equipment in the centres, which endangers the survival and development of children and adolescents.
6.No separation from the family except in the best interests of the child
58.Under article 9 of the Convention, Chile has an obligation to guarantee the right of the child not to be separated from his or her parents against their will, except when such separation is necessary for the best interests of the child.
59.The two basic criteria governing the separation of a child or adolescent from his or her family are exceptional circumstances and the temporary nature of placement in residential care. The admission of a child or adolescent to a residential centre is therefore a measure that should be taken only after considering all other alternatives that would allow the child to preserve ties with his or her family and community. Family-based solutions, whether in the extended family or another family, should always be prioritized over institution-based ones.
60.As a general rule, family judges decide to separate children or adolescents from their families and place them in the care of the State with little or no involvement of the child or adolescent and the family, particularly the extended family. This practice does not allow for an assessment of their specific circumstances or the measures that would help the family overcome its difficulties and enable the child or adolescent to return home in the short term.
61.Most centres lack the resources for family reintegration initiatives. Furthermore, the technical guidelines for both the residential centres run by the National Service for Minors and those run by the accredited partner organizations do not expressly set out the strategies, frameworks and guidelines that would be needed in order to take a targeted, rights-based approach to working with the families of children and adolescents.
62.Nearly a third of the centres (32.7 per cent) allow visits only during working hours, which limits opportunities to work with family members and help children and adolescents maintain their family ties. Fifty per cent of the centres place restrictions on the frequency of visits, with 30 per cent allowing only two visits per week; 23.3 per cent of the centres prohibit parents from participating in school meetings, a measure that exceeds the limits imposed by the courts. Approximately 12.7 per cent of the centres reported that they had suspended visits because of bad behaviour on the part of children and adolescents, while 17.2 per cent of the children and adolescents reported having had visits suspended. Half of them feel that they are not at liberty to call or be in contact with their relatives, and 11.9 per cent think it unlikely that they would be able to contact their family members outside of face-to-face visiting times. One third of the centres do not have spaces for family contact meetings, and many do not encourage family members to become involved in the care of children and adolescents.
63.Considerably more than half of the centres (57.4 per cent) are not located in the same commune as the family homes of the children and adolescents living in them, and 7.24 per cent of children and adolescents are living in centres located in different regions from their family. Of those living far away from their families, 4.94 per cent are infants or preschool children.
64.The Committee finds the State party in breach of article 9 of the Convention insofar as it:
(a)Allows children and adolescents to enter the residential system without offering all stakeholders the opportunity to participate in the process;
(b)Does not make sufficient efforts to find alternative living arrangements within extended families;
(c)Does not have specialized programmes to work with the immediate families of children and adolescents;
(d)Does not take all necessary measures to ensure that children and adolescents who are separated from their parents can benefit from initiatives designed to restore their right to live, grow and develop in their family and community;
(e)Does not have clear, established guidelines on family reintegration and the involvement of the families of children and adolescents, including with respect to visits to the residential centres, which are fundamental to maintaining family ties and planning for children to be returned to the care of a family member;
(f)Fails to ensure that there are enough centres for children and adolescents to stay close to home and not be uprooted.
7.Right to express views freely and to be heard
65.Under article 12 of the Convention, Chile has an obligation to guarantee the child the right to express his or her views in all matters affecting him or her, giving due weight to the views of the child in accordance with his or her age and maturity, including the right to be heard in any judicial or administrative proceedings affecting the child.
66.Most of the children and adolescents (86.4 per cent) report being aware of the reasons for their admission, and 70.6 per cent state that they are informed when hearings are due to take place to review their placement. However, only 32.1 per cent report having had the opportunity to speak to the judge, and only 30.8 per cent report being able to speak to the lawyer representing them. With regard to the centres, 4.1 per cent indicate that children and adolescents are not authorized to speak to the judge directly if requested to do so, 20.4 per cent report that children and adolescents did not speak to the family judge during his or her most recent visit and 7.5 per cent are unaware of whether any contact took place.
67.A total of 31.8 per cent of the centres report that they do not have a protocol in place for complaints and suggestions or are not aware of the existence of one. Of the centres that do have their own protocol, 11.7 per cent report that it does not exist in writing, meaning that it cannot be communicated to professionals, families and residents of the centres; 15.5 per cent of the centres report that they do not have a complaints box. Furthermore, 37.2 per cent of the children and adolescents feel that staff do not listen to their opinions on matters that affect them.
68.More than a third of the centres (39.4 per cent) stated that children and adolescents were not allowed to participate in any type of decision. Only 34.7 per cent of children and adolescents reported having the right to participate or have a say in decisions affecting the operation of the centre.
69.The Committee considers that Chile is in breach of article 12 of the Convention insofar as it:
(a)Fails to provide adequate information to all children and adolescents or to ensure that they understand information, so that their opinion is respected in the process leading to their admission to centres;
(b)Fails to ensure that children have access to a judge and a lawyer;
(c)Does not have clear and recognized protocols for making complaints or reporting rights violations;
(d)Does not guarantee to all children and adolescents the opportunity to be heard or to express their opinions of the decisions of the centres that affect them and thereby to contribute to the management of their day-to-day environment.
8.Appropriate assistance for parents and legal guardians in respect of children
70.Under article 18 of the Convention, Chile has an obligation to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities.
71.The system lacks adequate measures to support families in emotional, economic and social difficulty so that they can fulfil their responsibilities, thus allowing children and adolescents to remain with them. As a result, officials are not asked to take effective steps that might help prevent the separation of children and adolescents from their families.
72.The Committee is of the view that the State is in violation of article 18 of the Convention because it does not render appropriate assistance to parents or legal guardians in the performance of their child-rearing responsibilities and because it does not have an adequate and effective cross-sectoral support network, especially in the areas of health, education, assistance with social benefits, and intervention with families.
9.Protection from violence
73.In accordance with article 19 of the Convention, Chile has an obligation to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
74.According to the report of the National Human Rights Institute, in a 12-month period, 8 out of 10 children and adolescents in centres reported being punished by staff. This situation concerned boys and girls equally, regardless of their age. They reported punishments including being locked up or physically restrained, cold showers, being made to go out in the yard at night, social isolation and the prohibition of play. There are also punishments involving physical ill-treatment, which are administered on the pretext of “restraining” children and adolescents who are upset or emotionally unbalanced: “they would throw them to the ground and twist their arm” or “a female staff member put a 6-year-old’s head in a hot oven until he couldn’t breathe”.
75.According to information provided by the National Service for Minors, 83 administrative inquiries into the ill-treatment of children or adolescents by the Service’s officials were under way in 2016.
76.Almost half (48.4 per cent) of children and adolescents in centres reported being subjected to repeated physical or psychological violence by their peers. For their part, educators are disinclined to keep violent behaviours in check and unmoved by the seriousness of such behaviours and the possible impact on the development of the children and adolescents in their care. Some 34.3 per cent of these children and adolescents indicated that they felt unable to ask an adult staff member to help them resolve the situation in which their rights had been infringed.
77.The Committee considers that Chile is in breach of article 19 of the Convention owing to:
(a)Care and punishment practices that, by omission or direct action, allow violent relationships and abuse between children and adolescents themselves and between children and adolescents and adults to become the norm;
(b)The inadequacy of guidelines and staff training on non-violent educational and disciplinary techniques, which causes adults and children and adolescents to approach, communicate and deal with each other in a manner characterized by arbitrariness and violence;
(c)Inadequate staff training on peer violence to reduce the constant exposure of children and adolescents to aggression in their daily environment and to develop non-violent conflict-resolution techniques.
10.Right of children with disabilities to adequate care for a full and decent life
78.Under article 23 of the Convention, Chile is required to endeavour to provide children with disabilities with a full and decent life in conditions that ensure dignity, promote self-reliance and facilitate their active participation in the community. It also has an obligation to ensure the right of children with disabilities to special care.
79.According to the report of the National Human Rights Institute, 15.3 per cent of children and adolescents admitted to centres under the direct control of the National Service for Minors have some degree of disability; these children and adolescents reside in 9 of the 11 centres. Creating the conditions to ensure the full physical and social inclusion of children and adolescents in residential centres requires a special effort in terms of reasonable accommodation and preparation. However, no protocols have been drawn up for this purpose, direct care professionals are not trained to cater for diversity and there are no plans for support staff to compensate for this situation. There are 12 residential centres administered by partner organizations that are specifically for people with disabilities; children and adolescents are usually admitted at an early age and stay for life. In many cases, institutionalization occurs because families lack the resources and the preparation needed to care for children and adolescents with disabilities. Only about 20 per cent of these centres’ costs is covered by financial assistance from the National Service for Minors, and they are forced to cover the remainder by seeking philanthropic support. Very few children and adolescents residing in these centres maintain contact with their families, and it is extremely rare for them to return to them. There is no State assistance to cover the costs borne by potential foster families. It is also very rare for children and adolescents to be able to go out, as these centres have their own internal special schools and health and rehabilitation services.
80.The Committee is of the view that Chile is in breach of article 23 of the Convention for:
(a)Its failure to provide the necessary assistance to families with children with disabilities so as to prevent their placement in institutions;
(b)Its failure to provide the necessary support for children and adolescents with disabilities who are admitted to centres, so that they can enjoy a full and decent life in conditions that ensure dignity;
(c)Its perpetuation of a system of segregation in specific centres that causes children and adolescents with disabilities to be excluded and isolated from their social environment.
11.Right to the highest attainable standard of health
81.Under article 24 of the Convention, Chile is required to guarantee the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.
82.There are no up-to-date medical records for between 35 and 44 per cent of children and adolescents living in centres. Several reports have identified children and adolescents with chronic illnesses who are not receiving treatment. In December 2016, of the 1,334 children and adolescents with “physical and mental pathologies that are difficult to manage”, only 164 had received care of any kind from the public health-care network.
83.The Ministry of Health has acknowledged that 69.1 per cent of children in residential care have mental disorders, yet mental health services are scarce. The National Service for Minors has 17 psychiatrists in 8 of the country’s 15 regions: in other words, one psychiatrist for every 8,560 children and adolescents attended to by the Service or for every 470 institutionalized children and adolescents.
84.Medication is administered to children and adolescents carelessly, without appropriate medical supervision, and as a result more than 10,000 doses of psychiatric drugs are given every month. According to the report of the National Human Rights Institute, half of the children and adolescents reported taking medication for their mental health, even though the clinical information that is gathered does not include specialist psychological or psychiatric evaluations, only those performed by a technician and a general practitioner. Psychiatric residential care facilities for dealing with cases of alcohol and drug use are virtually non-existent. Staff dealing directly with children and adolescents resort to administering medication without medical supervision, often to calm them down.
85.Of the children and adolescents aged 14 years and older, 68.6 per cent exhibit symptoms that suggest that they are suffering from depression; 26.2 per cent said they had felt that way for more than a year, and 45.3 per cent said they had not seen a psychologist or psychiatrist either inside or outside the centre.
86.The Committee concludes that Chile is in breach of article 24 of the Convention for:
(a)Its systematic failure to assess the comprehensive health of children and adolescents admitted to centres;
(b)The limited availability of mental health services;
(c)Its lack of plans for the care of children and adolescents who have mental health problems or psychiatric or neurological disorders, or who use alcohol and drugs, and the lack of training and oversight of staff who deal directly with children and adolescents, resulting in the arbitrary administration of psychiatric drugs;
(d)Its failure to ensure that there are enough rehabilitation programmes of good quality, in addition to protocols, monitoring activities and periodic evaluations.
12.Right to education
87.In accordance with article 28 of the Convention, Chile has an obligation to guarantee the right to education.
88.According to the Jeldres report, half of the children and adolescents in centres are the equivalent of two years behind in school, and many are considered illiterate. The 2017 report of the National Human Rights Institute revealed that 19.8 per cent of the children and adolescents are behind in school and that 21.7 per cent of those who are behind do not receive homework support. In addition, 7 per cent cannot read and write, and a similar percentage does not attend school.
89.The vast majority of children and adolescents attend State schools, where teachers and staff are neither trained in nor sensitized to their particular situation and therefore do not give them the necessary attention. In some cases, residential centres have their own classrooms, and as a result children and adolescents experience social isolation. Neither of these situations helps offset, minimize or eliminate the effects of the rights violations suffered by children and adolescents, and they have serious consequences for their educational development.
90.The Committee considers that the State party is in breach of article 28 of the Convention owing to:
(a)The lack of appropriate special measures, including the inadequate preparation of teachers and staff to deal with the physical, emotional and psychological vulnerability of children and adolescents in an inclusive and protective educational context, which results in their falling behind in school in large numbers;
(b)The lack of measures needed to ensure that children and adolescents in the residential system can access education on an equal footing with other children and adolescents.
13.Right to rest, leisure and culture
91.In accordance with article 31 of the Convention, Chile has an obligation to uphold the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
92.Centres are characterized by spaces that are unsuitable for play, with recreational equipment that is in poor or precarious condition, if it exists at all, neglected green spaces, swimming pools that are disused or contain dirty water, sports courts that lack hoops or nets and have rusty goalposts and other equipment, and a lack of shade and shelter. There is also a shortage of open spaces for recreation, and only 59.3 per cent of centres have green spaces.
93.Some children and adolescents (43.2 per cent) reported not having toys or games for their enjoyment; just 57.1 per cent said that they owned books, and 29.3 per cent of the centres did not have a library. There is limited access to computers and the Internet (46 per cent). Television predominates, being present in 91.9 per cent of centres, which could be counterproductive without adequate supervision. Only 25 per cent of children and adolescents engage in recreational activities on a daily basis. Children and adolescents reported that they were bored and that centres did not plan complementary or social and educational activities, such as workshops or outings.
94.The Committee is of the view that Chile is in violation of article 31 of the Convention, as it does not provide children and adolescents living in institutions with full opportunities to engage in play and recreational activities appropriate to their age, including artistic expression, which can help children and adolescents whose rights have been violated to externalize their traumatic or difficult life experiences and thus overcome them. On the other hand, the excessive free time in some institutions, combined with the scarcity of activities and initiatives undertaken for play and recreation, is conducive to idleness, which may adversely affect the development and mental health of children and adolescents.
14.Protection from sexual exploitation and sexual abuse
95.Under article 34 of the Convention, Chile has an obligation to protect the child from all forms of sexual exploitation and sexual abuse, including the inducement or coercion of a child to engage in any unlawful sexual activity and the exploitative use of children in prostitution or other unlawful sexual practices.
96.Depending on the region, sexual abuse is the second or third most common cause of admission to the network of facilities for children and adolescents operated or overseen by the National Service for Minors, and their placement in centres re-exposes them to this form of abuse. Since 2012, investigations by the judiciary, the Public Prosecution Service and the National Human Rights Institute have uncovered cases of sexual violence among children and adolescents, of sexual violence perpetrated by adult staff against children and adolescents and of sexual exploitation of children and adolescents by adults.
97.The Jeldres report noted that there were many cases of sexual abuse, highlighting, for example, the existence of a child prostitution ring that affected 24 girls at the Ajllasga residential centre in Arica, an investigation of which led to charges of child sexual exploitation against two workers at the centre. A network for the sexual exploitation of girls living at a centre overseen by the National Service for Minors in the town of Freirina was dismantled in January 2016.
98.The report of the National Human Rights Institute identified 34 cases of sexual abuse of children and adolescents, mostly girls, that occurred in the year preceding its publication. The children and adolescents who reported sexual abuse lived in 20 centres in nine different regions. The abuse was allegedly committed by other children or adolescents, by adult staff or by unspecified aggressors. Most children and adolescents who reported abuse said that they continued to have contact with the abuser, and half of them had suffered repeated abuse. Two thirds reported that the abuse had occurred or commenced when they were under 14 years old.
99.During the visit, the experts heard shocking testimonies from former centre residents: “at night I smeared myself with my faeces so that they would not come near me”; “when I arrived I heard how they shared out the new ones: ‘this one’s for me’”.
100.Two thirds of the centres reported having received the sexual abuse protocol of the National Service for Minors, with the remainder reporting that they either did not have the protocol or were unaware of its existence.
101.Only 15.9 per cent of centres reported that they had held training on the prevention of sexual abuse, while only 6.6 per cent of the staff reported having received training in the previous year.
102.The Committee is of the view that the State party is in breach of article 34 of the Convention because of:
(a)Its failure to prevent sexual violence, both among peers and by adults against the children and adolescents under their protection;
(b)Its failure to act in a timely and effective manner when sexual violence is discovered and reported;
(c)The absence, ignorance or non-application in some centres of specific protocols with guidelines on how to handle and/or prevent situations of sexual abuse, with the result that some cases are not reported and, even if they are, administrative and judicial measures are not taken in a timely manner, contributing to impunity;
(d)The lack of staff training in the prevention of sexual abuse.
15.Protection from torture and cruel, inhuman or degrading treatment
103.Article 37 (a) of the Convention requires Chile to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment.
104.In December 2016, it came to light that 25 children placed at the Playa Ancha centre in Valparaíso had been severely mistreated and beaten by employees of the centre. In May 2016, acts of violence against children and adolescents with disabilities, committed by the director and staff, were reported at the Alihuen centre in Santiago.
105.In early 2017, the public prosecutor in charge of the criminal investigation into the death of 11-year-old Lissette Villa at the Galvarino centre concluded that the girl had died as a result of physical violence to which she was subjected by persons responsible for her care; in March 2017, he filed a complaint against eight people for the offences of torture and unlawful coercion.
106.Children and adolescents in residential centres have reported being subjected to mistreatment, including psychological abuse, such as being shouted at, locked up, socially isolated or threatened with violence, mild physical abuse, such as having their hair or ears pulled or being pushed or slapped, and serious physical abuse, such as being beaten with fists, straps or other objects, burned with cigarettes or scalded with hot water and even threatened with knives or other weapons.
107.The Committee is of the view that the State party is in breach of article 37 (a) of the Convention for:
(a)Its failure to protect children and adolescents in the care of the State from torture and/or cruel, inhuman or degrading treatment, practices that, adopted on the pretext of discipline and restraint, are normalized. These practices occur under the responsibility of the State and are carried out either by public officials or by persons acting in an official capacity at privately run centres, causing physical and/or psychological harm to children and adolescents for the purpose of punishment, which may be classed as torture;
(b)Its failure to act in a timely manner to put an end to known practices of torture and/or cruel, inhuman or degrading treatment in centres.
B.Attribution of violations to the State
108.The State is directly responsible for violations perpetrated in centres under the direct control of the National Service for Minors, in centres administered by partner organizations and in other centres. The responsibility is the State’s not only because the State has failed to exercise oversight but also because privately managed centres, which are delegated by the State to act in an official capacity, must be considered State agents for the purposes of attribution of responsibility. As the Committee has indicated, States are not relieved of their obligations under the Convention and the Optional Protocols thereto when their functions are delegated or outsourced to a private business or non-profit organization (CRC/C/GC/16, para. 25).
109.Within the scope of this report, the Committee considers that the State party has violated the following articles of the Convention: 2, 3 (1) and (2), 4, 6, 9, 12, 18, 19, 20, 23, 24, 25, 28, 31, 34, 37 (a) and 39. These articles should be read in conjunction with the Committee’s general comments No. 1 (2000) on the aims of education, No. 5 (2003) on general measures of implementation of the Convention, No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, No. 9 (2006) on the rights of children with disabilities, No. 12 (2009) on the right of the child to be heard, No. 13 (2011) on the right of the child to freedom from all forms of violence, No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts and No. 19 (2016) on public budgeting for the realization of children’s rights, as well as the Guidelines for the Alternative Care of Children.
C.Grave or systematic nature of the violations
110.According to rule 35 of the rules of procedure, the Committee must assess whether the violations of rights are grave or systematic.
111.The Committee considers violations to be “grave” if they are likely to produce substantial harm to victims. A determination regarding the gravity of violations must take into account the scale, prevalence, nature and impact of the violations found.
112.The term “systematic” refers to the organized nature of the acts leading to the violations and improbability of their random occurrence.
113.The Committee assesses the gravity of the violations in Chile in the light of the harm and suffering experienced by children and adolescents in the residential system of the National Service for Minors. The rights violations affected thousands of children and adolescents who were admitted to homes throughout the country, over a prolonged period of time that extends to the present day. The violations found are extensive, and their impact is likely to be long term. Furthermore, the State’s obligation under article 20 of the Convention to guarantee the right to special protection and assistance increases the gravity and scope of the violations identified.
114.The systematic nature of the violations is due both to the continued existence of a protection system underpinned by the State’s charity-based approach and paternalistic outlook and to persistent inaction and failure to change laws, policies and practices that, as several official reports had made clear, led to continual infringements of the rights of children and adolescents in the care of the State.
115.The Committee is of the view that the State party is liable for:
(a)Grave violations of the rights set forth in the Convention, considering that the residential protection system of Chile has caused the widespread infringement of the rights of thousands of children and adolescents in the care of the State over a lengthy period of time, in particular:
(i)The violation of its obligation to respect the rights of children and adolescents during their stays in residential centres under the direct control of the State, resulting in the secondary victimization of children and adolescents by staff;
(ii)The violation of its obligation to protect, as it fails to provide adequate protection and care for children and adolescents admitted to the residential protection system as a result of rights violations, or the care necessary for their recovery and physical and psychological rehabilitation;
(iii)The violation of its obligation to fulfil the rights of children and adolescents, as there are no timely and effective measures to put an end to rights violations, both in families of origin and in privately managed residential centres.
(b)Systematic violations of the rights set forth in the Convention, owing to:
(i)The lack of a comprehensive child protection law based on a human rights perspective;
(ii)The existence and the continued widespread use of judicial measures that fail to serve their purpose of protection and recovery;
(iii)The retention of an administrative framework for the National Service for Minors that is inadequate in terms of human and financial resources;
(iv)The inability and/or unwillingness to take timely and effective action, despite official reports of the executive, judicial and legislative authorities in which the situation in the residential protection system was made clear.
VI.Initial urgent recommendation
116.After the visit, the Committee sent a letter to the State party expressing its deep concern about the conditions of the infrastructure at the Playa Ancha residential centre in Valparaíso. In the Committee’s view, these conditions themselves constitute a violation of the Convention, in particular of articles 6 (2) and 39.
117.Given the urgency of the situation, the Committee urged the State party to:
(a)Close the Playa Ancha centre with immediate effect;
(b)Conduct a thorough analysis of the individual situations of all children and adolescents held there, taking into account their rights and specific needs;
(c)Place the children and adolescents in care that is appropriate to their individual needs.
118.In April 2018, the State party responded by accepting the request and undertaking to close the centre.
A.Prevention and protection
119.The Committee considers that the violations that have been described were not caused by a unique set of circumstances, specific individuals or a particular context; rather, their persistence over almost 40 years and the lack of corrective action, despite repeated complaints and observations, shows that there are structural causes that allowed this situation to arise.
120.It is the Committee’s view that there are four main structural causes that contributed to the grave and systematic violations described in this report: (a) the use of a tutelary approach to childhood, (b) a misinterpretation of the subsidiary nature of the State, (c) the courts’ excessive influence over the system and (d) the insufficient human, technical and financial resources in the system.
121.Chile continues to apply the tutelary system established in the Juvenile Act (No. 16.618) of 1967. In this system, children and adolescents are considered “objects of protection”, whereas under the Convention – in a paradigm shift – they are considered “subjects of rights”. In its 2015 concluding observations, the Committee expressed concern at this tutelary approach, which is incompatible with a legal framework that recognizes and guarantees the rights of all children and adolescents. As a result of this approach, there have been no policies to prevent rights violations, and philanthropy, the provision of food and shelter or separation from the family are deemed sufficient to protect children and adolescents whose rights have been violated, with no concern for a comprehensive vision that would allow for the introduction of clearly defined mechanisms for participation and the defence and protection of their rights.
122. The Committee recommends that the State party adopt the comprehensive protection paradigm of the Convention, in particular by:
(a) Urgently adopting a law on the comprehensive protection of children and ensuring that it is in line with the Convention;
(b) Promoting the rights of all children and adolescents and establishing programmes that promptly identify risks of violations;
(c) Providing appropriate assistance to families in the fulfilment of parental responsibilities in order to reduce the need for alternative care;
(d) Protecting children and adolescents whose rights have been violated through measures that prioritize foster care – whether in the extended family or in another family – over residential care; and working with families to seek the return of children or adolescents when it is in their best interests.
123.The concept of the subsidiary State informs the Chilean constitutional system. This concept holds that the State must act only when citizens, either individually or collectively, fail to do so. One consequence of this perspective is that the State has left the care of vulnerable children and adolescents mostly in private hands, where it is traditionally provided by philanthropic institutions. Under international human rights law, States have three types of obligation – to respect, to protect and to fulfil human rights – and nothing prevents them from relying on the private sector to meet these obligations. However, the Committee emphasizes that it is the State that is responsible for the design, implementation, execution and evaluation of public and social policies on children’s issues and, while it may rely on civil society to attain the goals it has set, it cannot delegate its responsibility.
124. The Committee recommends that the State party fully assume responsibility for regulation, monitoring and funding in respect of the steps needed to ensure that all rights of the children and adolescents in the protection system are respected, protected and fulfilled. In this regard, it should:
(a) Amend the Subsidies Act so that partner organizations are required to meet quality standards related to the number and the qualifications of staff, the quality of facilities and the development of programmes for the rehabilitation of children and adolescents and for work with their families, in conformity with the Convention and the Guidelines for the Alternative Care of Children;
(b) Provide sufficient financial and technical resources for compliance with these standards;
(c) Establish effective oversight mechanisms.
125.There is consensus regarding the courts’ excessive influence over the system. Judges are entrusted with the adoption of all protective measures, including residential and non-residential measures. They do not, however, have detailed knowledge of the alternatives to institutionalization, the time needed to study each case or the training to know which social measures are most suitable for each child or adolescent. Although decisions to separate children or adolescents from their families are made by the courts, administrative protection services staffed by specialized personnel are more effective in conducting the preventive monitoring of children and adolescents in situations of risk, applying the measures best suited to their individual characteristics and proposing the creation of such measures where they do not exist. Naturally, such an administrative system must also provide for the right to appeal to the courts against any actions that may affect the lives of children and adolescents.
126. The Committee recommends that the State party reduce the role of the courts in the protection system, in particular by:
(a) Creating a specialized administrative protection service, provided with sufficient resources, which has a thorough knowledge of the measures available to guarantee all rights, which identifies existing shortcomings and which carries out the individualized monitoring of risk and is competent to adopt the necessary measures to prevent, provide protection from and remedy rights violations;
(b) Establishing clear and strict criteria for decision-making regarding the alternative care of children and adolescents, with procedural safeguards that ensure their right to have their best interests taken as a primary consideration and that all parties are duly heard;
(c) Establishing a procedure for the judicial review of actions taken by the administrative system;
(d) Strengthening the role of the Children ’ s Ombudsman in monitoring respect for the rights of children and adolescents in the protection system.
127.Lastly, there is a structural shortage of the specialized human, technical and financial resources required to meet the obligation of providing the special protection and assistance to which children and adolescents temporarily or permanently deprived of their family environment are entitled. There are not enough professionals working in the system, and many are not competent to perform their functions and should not be in the system.
128. The Committee recommends that the State party:
(a) Allocate sufficient specialized human, technical and financial resources to the system;
(b) Establish specialized in-service training programmes for personnel working in the system;
(c) Establish effective procedures for the supervision of personnel working in the system and their punishment and removal in cases of violations of the rights of children and adolescents.
B.Redress for victims
129.In accordance with article 39 of the Convention, Chile has an obligation to take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse, or torture or any other form of cruel, inhuman or degrading treatment or punishment. Such recovery and reintegration must take place in an environment that fosters the health, self-respect and dignity of the child.
130.The Committee wishes to highlight that, in the specific case of this inquiry, the State party has a heightened obligation to provide redress for the victims, since the State itself – on account of acts or omissions of either the executive, legislative or judicial authorities or the staff of the National Service for Minors or of partner organizations – is directly responsible for the violations of the rights of many of the children and adolescents who were admitted to protection centres.
131. The Committee recommends that the State party:
(a) Establish reparation mechanisms for past or present victims, prioritizing their right to be heard and to express their pain;
(b) Develop an action plan for reparation that includes actions in the spheres of health, psychological treatment in particular, education, housing and justice and that provides financial compensation where appropriate.
132. The Committee recommends that the State party take all necessary measures, in the short, medium and long term, to urgently implement the above recommendations and to respect, protect and fulfil all rights of children and adolescents in the protection system.
133. The Committee requests the State party to inform it within six months of the measures it has taken and intends to take, including the urgent measures requested in February 2018, and recommends that the State party disseminate the Committee ’ s conclusions and recommendations.