The Guidelines for Alternative Care
of Children—Adopted by the United
Nations General Assembly in 2010, the Guidelines aim to enhance the implementation of
the Convention on the Rights of the Child and
of relevant provisions of other international
instruments concerning the protection and
well-being of children who are deprived of
parental care or who are at risk of being so.
The Guidelines seeks to ensure that children
do not find themselves in out-of-home care
unnecessarily. The Guidelines further seek
that the type and quality of out-of-home
care provided is appropriate to the rights
and specific needs of the child concerned.
Available at www.unicef.org/protection/alternative_care_Guidelines-English.pdf.
Encouraging family unification
117.
Even when separation is determined to
be in the best interests of the child, it should not
necessarily be permanent or indefinite. When
separation is necessary, it should be for the
shortest possible time. Services should be
provided to support families to address the
causes of separation, and there should be a process for regular review of the situation for eventual family unification when it is deemed to be in
the best interests of the child. Given that international law provides special protection to the
family, States should ensure such periodic review of separation with the aim of reuniting the
child with his or her family whenever it is in the
child’s best interests.230 In situations in which a
child is in a country different from his or her parent or parents, article 9 of the Convention on the
Rights of the Child requires that applications by
a child or his or her parents to enter or leave a
State Party for the purpose of family reunification should be dealt with by States parties in a
positive, humane and expeditious manner.231 If it
has been determined that it is in a child’s best
interests to be repatriated without his or her parents or other family members, he or she should
be readmitted to his or her country of origin as
soon as possible to facilitate family reunification.
3.1.3 Human Rights Considerations When Separation Occurs
118.
Even when separation is decided to be in
the best interests of the child, international human
rights standards provide several considerations
to be made by the States to ensure that the
child’s rights are respected and protected. When
a child has to be separated from the parent or the
primary caregiver, the State has a responsibility
to provide alternative care. Family-based care
should be prioritized rather than an institutional
environment. Institutions should be used only
as a last resort and for the shortest time possible.232 States should ensure that guardianship of a
separated child is never granted to an individual
or organization that is involved in a conflict.233
230 Universal Declaration of Human Rights (1948), art. 16(3);
International Covenant on Civil and Political Rights (1966),
art. 23; International Covenant on Economic, Social and Cultural Rights (1966), art. 10(1); American Convention on Human
Rights (1969), art. 17(1); Additional Protocol to the American
Convention on Human Rights in the area of Economic, Social,
and Cultural Rights (1988), art. 15(1); African Charter on Human Rights and Peoples’ Rights (1981), art. 18.
231
Convention on the Rights of the Child (1989), art. 10(1).
232
A/HRC/40/28, para. 11.
233 Ibid., para. 55.
54.