Court/Judicial body: Supreme Court of Argentina
Date: December 21, 2010 CRC
Provisions: Article 3: Best interests of the child Article 6: Survival and development Article 12: The child’s opinion Article 19: Protection from abuse and neglect Article 20: Protection of a child without family Article 25: Periodic review of placement
Domestic provisions: Law 26,061 on the Integral Protection of the Rights of Children and Adolescents Argentine Constitution
Background: After a 17-year-old child committed suicide while living at a boarding school run by Cordoba’s Council for the Protection of Minors, the child’s parents brought suit against the province for damages. The lower court dismissed the case because of a lack of proof that the Province had caused or had a duty to prevent the child’s suicide.
Issue and resolution: Right to protection; children in care. Cordoba may have violated a duty to protect the child as the child was dependent on the care of the province. The lower court should review the circumstances of the case to make this determination and consider international children’s rights in so doing.
Court reasoning: Although the province does not have a general obligation to protect individuals, if it chooses to provide a public service like running a boarding school for adolescents, it may be responsible for damages caused by a failure to properly execute that service. This scenario must be distinguished from a situation where an entity is specifically required by law to take a certain action and fails to comply. Instead, in this case, the province has some form of a duty to protect the child who is in its care, but the determination of fault and damages requires a weighing of specific factors best done by the lower courts.
Excerpt citing CRC and other relevant human rights instruments as translated by CRIN: 8) If relevant, courts should consider with special emphasis the Convention on the Rights of the Child, which provides that ‘[i]n all actions concerning children, whether undertaken by public…[or] administrative authorities…, the best interests of the child shall be a primary consideration’ ( Article 3.1), that ‘States Parties shall 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’ ( Article 3.3), that ‘States Parties shall ensure to the maximum extent possible the survival and development of the child’ ( Article 6.2), that ‘the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child’ ( Article 12.2), that ‘States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of…neglect…while in the care of parent(s), legal guardian(s) or any other person who has the care of the child’ ( Article 19.1), that ‘a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be end to special protection and assistance provided by the State’ ( Article 20.1), and that ‘States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement’ ( Article 25). 9) Also significantly relevant and to be emphasised is law 26,061 on the Integral Protection of the Rights of Children and Adolescents which provides for the right of children and adolescents to be heard and have their opinion taken into account ( Article 3, paragraph b) in accordance with their maturity and development ( Article 24, subsection b), as well as protection regarding threats to and violations of [children’s] rights that should be afforded through medical, psychological and psychiatric measures… ( Article 37, paragraph f).
CRIN comments: CRIN believes that this decision is consistent with the CRC. As noted by the Court, children in state custody have a special right to protection under Article 21 of the Convention, and courts must be empowered to review instances in which this right may have been violated and to provide an appropriate remedy.
Citation: P. 918. XLIII Link to Full Judgment: Download via [CRIN link – Download here via http://www.csjn.gov.ar/cfal/fallos/cfal3/cons_fallos.jsp]