Court/Judicial body: Supreme Court of Justice of Mexico
Date: August 6, 2009 CRC
Provisions: Article 3: Best interests of the child Article 6: Survival and Development Article 24: Health and Health Services Article 26: Social Security
Other international provisions:Universal Declaration of Human Rights ( Article 25)International Covenant on Economic, Social and Cultural Rights (Articles 9 and 24)American Convention on Human RightsDeclaration of the Rights of the Child (Articles 19 and 26)American Declaration of the Rights and Duties of Man ( Article 16)
Domestic provisions: Constitution of the United Mexican States ( Article 4); Law for the Protection of the Rights of Children and Adolescents (Articles 3, 4, 6 and 7)
Background: In June 2009, a fire started by faulty wiring at a warehouse in Sonora spread to the day care centre next door as a result of a series of fire safety failures and a variety of other unsafe conditions. As a result, 49 children died and 104 children were injured or exposed to toxic gases. The Supreme Court of Justice used its designated research power to investigate the events given the seriousness of the rights violations involved and the lack of legal remedies available to address these violations.
Issue and resolution: Right to protection; best interests. Justice Zaldívar believed that the federal, state and local authorities failed in their duty to protect the children in the day care centre, and that they should therefore be held liable for the resulting deaths and injuries.
Court reasoning: If the authorities had complied with their constitutional obligations to protect children in accordance with the best interests of the child principle, the deaths and injuries resulting from the fire would have been avoided. In interpreting the State’s constitutional duty to “foster respect for the dignity of children and the full exercise of the rights of the child”, Justice Zaldívar looked to regional case law from the Inter-American Court of Human Rights and international standards including the Convention on the Rights of the Child. He listed in detail the measures that must be taken to protect the safety, security, lives and health of children, including the provision of a proper legal framework, the implementation of appropriate public policies, ongoing monitoring obligations, and the availability of effective remedial measures.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: In effect, one of the objectives outlined in said reform was to adapt the framework of the Mexican Constitution to international treaties, in respect of children’s rights, which have been signed and ratified by our country. For that reason, this Supreme Court considers that any interpretation made of Article 4 of the Constitution should be made in light of the norms set by international law concerning the rights of the child and the criteria of the various bodies responsible for its interpretation. … The international framework on the rights of the child comprises various international instruments, among which the main ones are the Universal Declaration on Human Rights ( Article 25), the International Covenant on Economic, Social and Cultural Rights ( Article 24), the American Convention on Human Rights ( Article 19), the Declaration of the Rights of the Child and, in particular, the Convention on the Rights of the Child. As a whole, these laws not only protect the rights of the child in relation to food, health, education and leisure, but also many other human rights and special rights of children. In this regard, for example, the Convention on the Rights of the Child sets out many more provisions for children’s rights than Article 4 of the Constitution, including various rights not expressly defined in the Constitution, such as the rights to life and survival; to nationality and to the preservation of identity, to freedom of thought and conscience; to an adequate standard of living; to carry out activities appropriate to their age; and to the guarantees set out in the country’s criminal law, among others. In the domestic sphere, the rights of the child have been developed legislatively in various civil and criminal laws, both at the state and federal levels. However, it is the Law on the Protection of the Rights of Children and Adolescents that bears the most important task of defining these rights. The rights enshrined in this law also cover an ample list that goes beyond those expressly mentioned in Article 4 [of the Constitution], among which the following are included: property rights; the rights to life and survival; to nondiscrimination; to live in conditions that ensure the child’s well-being; to healthy physical and mental development; to receive full protection, including of their freedoms, and against mistreatment and sexual abuse; to an identity; to live in a family environment; to freedom of thought; to enjoy their own culture; to freedom of expression and information; as well as some rights specifically pertaining to children with disabilities. The wide scope with which the rights of the child have been developed both at an international level as well as in our domestic legislation should lead us to conclude that the list of rights contained in Article 4 is only illustrative of the rights guaranteed by the Constitution, meaning that other rights of the child can still potentially enjoy constitutional status. Having said this, even though children enjoy the same rights as adults, this doesn’t mean that those rights should be interpreted according to the same criteria as those used to give meaning to the norms that provide for the rights of adults. This situation is especially relevant to state authorities, keeping in mind that Article 4 stipulates their responsibility to guarantee the full enjoyment of children’s rights. To implement this constitutional mandate, children’s rights must be interpreted keeping in mind their “best interests”. The principle of the best interests of the child is implicit in the rights enshrined in Article 4 of the Constitution. This idea is rooted in a teleological premise. As mentioned earlier, in the ruling on the constitutional reform that gave rise to the current Article 4, it is expressly set out that one of the objectives of the Constitution’s section responsible for reforms was to adapt the domestic legal framework to international obligations agreed to by our country in respect of the protection of the rights of the child. In this regard, the principle of the best interests of the child is one of the most important guiding principles within the international framework of children’s rights. It is not only expressly mentioned in various instruments, but it is constantly referred to by international bodies responsible in applying these norms. Article 3.1 of the Convention on the Rights of the Child sets out that any measure taken by State authorities should reflect consideration of the fundamental importance of the best interests of the child. Articles 9, 18, 20, 21, 37 and 40 also explicitly mention this principle. In addition, the Inter-American Court of Human Rights has held that the best interests of the child is a “benchmark against which to ensure the effective realisation of all the rights listed in this instrument, compliance with which will allow the subject to fully develop his or her potential”. The Court has also said that the best interests are a criterion which “the actions of the State and of society must comply with with respect to the protection of children and the promotion and protection of their rights”. With respect to the Committee on the Rights of the Child, it has highlighted that “the principle of the best interests of the child is applied to all measures that affect children and calls for active measures, both to protect their rights and promote their survival, development and well-being, as well as to support and assist parents and other persons who may have the daily responsibility of realising the rights of the child”. In the domestic sphere, the principle of the best interests of the child is expressly acknowledged in the Law on the Protection of the Rights of Children and Adolescents. In accordance with Article 3 of this law, the best interests is one of the guiding principles of the rights of the child. Explicit references to this principle are also included in articles 4, 24 and 45 of this law. This Supreme Court has recognised in a number of rulings the importance of the principal of the best interests in the interpretation and application of the norms related to the rights of the child. In this respect, this High Court has sustained that “with regard to Article 4 of the Political Constitution of the United Mexican States; Article 3 of the Convention on the Rights of the Child […]; and articles 3, 4, 6 and 7 of the Law on the Protection of the Rights of Children and Adolescents, courts must give the utmost consideration to the best interests of the child, in all measures they may concern him or her”. By the same token, what has also been highlighted is “the importance of considering the best interests of the child – which entails, among other things, taking into account aspects related to guaranteeing and protecting the child’s development and the full enjoyment of his or her rights – as guiding principles for the development of norms and their application in all aspects relevant to the life of the child, in accordance with the stipulations in the text of the Constitution and the Convention on the Rights of the Child”. … Accordingly, this Supreme Court has sustained that “the principle of the best interests of the child, together with the right of priority, entails that State policies, actions and decision-making related to children under the age of 18 should seek to directly be in the benefit of children and adolescents at whom they are aimed, and that social welfare institutions, public and private institutions, courts, administrative authorities and legislative bodies give priority to child-related issues when acting in their respective fields”. Similarly, the Committee on the Rights of the Child points out that “all legislative, administrative and judicial bodies and institutions must apply the principle of the best interests of the child, systematically examining how the rights and the best interests of the child are affected or will be affected by the decisions and measures they adopt, for example, a proposed or existing law or policy, an administrative measure or a court decision, including those that do not directly refer to children but which indirectly affect them”. … In this respect, it is essential to highlight that the best interests principle requires that the measures of protection be doubly strong when they are aimed at small children. Along the same lines, the Committee on the Right of the Child stipulates that the protection of children has to be more robust when concerning those in early childhood. This greater protection is based on the special vulnerability of children of this age. It is evident that the motor and communication skills of children in early childhood are very limited, so much so that they depend completely on their parents and guardians to survive. … Bearing in mind the best interests of the child, the implementation of adequate public policies to guarantee children’s development concerns other measures related to the State’s role as protector. Here is where we find the obligation to create institutions that promote and guarantee respect for the best interests of the child. With respect to this issue, Article 3.3 of the Convention on the Rights of the Child establishes the obligation of States Parties to ensure that “the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision”. In this respect, the Inter-American Court of Human Rights has reiterated that “when concerning children, the State must make use of institutions that provide adequate personnel, sufficient facilities, suitable means and proven experience in the field”. … However, when concerning economic, social, and cultural rights (hereafter, ESC) that correspond to children, State measures for the protection of these rights must require measures to the maximum extent of available resources. In relation to ESC rights, Article 4 of the Convention on the Rights of the Child highlights that “States Parties shall undertake such measures to the maximum extent of their available resources”. The Inter-American Court of Human Rights set out that “the full enjoyment of children’s economic, social and cultural rights is linked to the means of the obliged State ( Article 4 of the Convention on the Rights of the Child), which must make the greatest and constant and purposeful effort to ensure children’s access to and enjoyment of these rights, while avoiding unjustified setbacks and delays, and assigning the greatest available resources for this purpose”. Having said this, understanding ESC rights in terms of optimisation commands, that is, as norms that must be adhered to to the greatest possible extent, the same cannot be said of other rights, such as those that protect children’s life and physical integrity, which must be fully complied with. … In this regard, it becomes irrelevant whether the State has developed public policies for the subrogation of daycare centres, which the State was obliged to provide directly under the Constitution. Subrogation in no way lessens the duties of protection that State authorities are charged with. Along these same lines, the Committee on the Rights of the Child has highlighted that “the fact that the private sector provides services, manages institutions, etc., in no way reduces the State’s obligation to guarantee full recognition and realisation of all the rights listed in the Convention of all children under its jurisdiction”, which undeniably includes the right to life and its protection. … Supervision and surveillance should not be the only measures that ascertain compliance with the security requirements which daycare centres are obliged to meet. They should also include verification that there is enough adequately qualified staff working in daycare centres to be able to care for the children there. This criterion is consistent with the opinion of the Committee on the Rights of the Child, which has stated that “States Parties must guarantee that institutions, services and facilities responsible for early childhood be adapted to meet quality criteria, especially in the fields of health and integrity, and that staff have the adequate psychosocial qualities and are competent, of sufficient number and well qualified”. This High Court has held that the State’s obligation to protect is more urgent when concerning the safeguarding of children’s lives. In this sense, we should not lose sight of the fact that the main victims of the “ABC daycare centre” tragedy were children in early childhood. As the Committee on the Rights of the Child has highlighted, small children are especially vulnerable, every time their capacity to face and resist adversities in their environment is greatly limited. This greater vulnerability calls for strong protective measures on the part of the State during this stage of childhood and for the monitoring of its compliance to be all the stricter. … In effect, various international legal systems explicitly recognise the right to access daycare services, not only as a social security right pertaining to adults, but also as a children’s right. The Convention on the Rights of the Child highlights in Article 18.3 that “State Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible”. Such a social prerogative is also recognised generically in Article 11 of the Law on the Protection of the Rights of Children and Adolescents, which requires that municipal, state, and federal authorities, of the Federal District, in each of their respective powers, follow through with the provision of daycare services. Follow-up: The Mexican Supreme Court of Justice ultimately found a smaller number of authorities at the Mexican Institute of Social Security, the Government of the State of Sonora and the Municipality of Hermosillo responsible than Justice Zaldívar would have. As of 2011, there were eight ongoing judicial proceedings related to the fire and two of the listed authorities had been convicted and incarcerated. In response to what it perceived as inaction from Mexican authorities, an NGO formed by parents of the child victims – the Movimiento Ciudadano por la Justicia 4 de Junio (http://www.movimiento5dejunio.org/abc/) – held three citizen trials and announced plans for a case to be submitted to the Inter-American Commission of Human Rights. In September 2011, the Mexican House of Representatives approved a new General Law on the Provision of Services for Child Care and Integral Development. Notes: This summary examines only the draft resolution presented by Justice Zaldívar, which was not adopted in the final decision by the Supreme Court of Justice as published on June 17, 2010. CRIN Comments: CRIN believes this draft resolution is consistent with the CRC. As recognised by Justice Zaldívar, the State has a duty to protect children and to guarantee their rights in accordance with regional and international obligations, including the Convention on the Rights of the Child. Among other things, this requires the creation of a proper legal and regulatory framework to ensure the safety of childcare institutions. Link to Full Judgment:http://www2.scjn.gob.mx/fi1-2009/Documentos/Informes/FacultadDeInvestigacion-1-2009V1.pdf This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related Instruments: American Convention on Human Rights (Pact of San Jose, Costa Rica)American Declaration on the Rights and Duties of ManInternational Covenant on Economic, Social and Cultural RightsUN Declaration on the Rights of the Child (1959)Universal Declaration of Human Rights Countries Mexico CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.