Buffalo Human Rights Law Review Volume 25 Article 6 1-1-2019 The Right of All Children to Grow Up with a Family under International Law: Implications for Placement in Orphanages, Residential Care, and Group Homes Eric Rosenthal Disability Rights International Follow this and additional works at: https://digitalcommons.law.buffalo.edu/bhrlr Recommended Citation Eric Rosenthal, The Right of All Children to Grow Up with a Family under International Law: Implications for Placement in Orphanages, Residential Care, and Group Homes, 25 Buff. Hum. Rts. L. Rev. 65 (2019). Available at: https://digitalcommons.law.buffalo.edu/bhrlr/vol25/iss1/6 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Human Rights Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. THE RIGHT OF ALL CHILDREN TO GROW UP WITH A FAMILY UNDER INTERNATIONAL LAW: IMPLICATIONS FOR PLACEMENT IN ORPHANAGES, RESIDENTIAL CARE, AND GROUP HOMES Eric Rosenthalt ABSTRACT This article describes the right of all children to live and grow up in a family as it has evolved thirty years after the adoptionof the U.N. Conven- tion on the Rights of the Child (CRC) and since the 2006 adoption of the U.N. Convention on the Rights of Persons with Disabilities(CRPD). The article examines the implications of this rightfor the millions of children placed in orphanages,residentialcare, andgroup homes around the world. The CRC favors the placement of children with a family, but it does allow for the placement of children in "suitable institutions" when families are unavailable. In General Comment No. 9, the U.N. Committee on the Rights of the Child states that institutions should be "transformed" into smaller residentialfacilities and used only as a "last resort." The United Nations Guidelines on Alternative Care calls for the elimination of large institutions but also allows for long-term placement in smaller residential homes. The more recently adopted U.N. Convention on the Rights of Per- sons with Disabilities(CRPD) now creates strongerprotections through a combination of Article 23 (respect for home and family) and Article 19 (living independently and being included in the community). t Eric Rosenthal, JD, LL.D. (Hon.) is founder and Executive Director of Disabil- ity Rights International (DRI). For invaluable comments on the draft, thanks to Robert M. Levy, U.S. Magistrate Judge Eastern District of New York, Dr. Joan Kaufman, Pro- fessor of Psychiatry at Johns Hopkins University and Clinician and Director of Re- search at the Center for Child and Family Traumatic Stress at Kennedy Krieger Institute, Professor Arlene Kanter, Syracuse University College of Law, Dragana Ciric Milovanovic, Mental Disability Rights Initiative of Serbia (MDRI-Serbia), Priscila Rodrfguez, DRI Associate Director, and Jonas Rugkus, Ph.D., Dean of the Faculty of Social Sciences at Vytautas Magnus University, Kaunas, Lithuania, member of the U.N. CRPD Committee. Thanks to Rachel Arnold, DRI Communication and Human Rights Associate, Ivonne Milldn, DRI-Mexico, and Ericha Penzien, Washington College of Law for research and editing. For ensuring that DRI takes the most principled stand on rights-no matter which way the political winds blow-thanks to DRI President Laurie Ahem. BUFFALO HUMAN RIGHTS LAW REVIEW [Vol. 25 In 2017,the U.N. Committee on the Rights of Personswith Disabilities adopted General Comment No. 5, stating that, for children, the right to community integrationentailsa rightto live and grow up with afamily. The Committee stated thatplacement in a family-like residence andgroup home is not a substitutefor the right to a family under the CRPD. The protections established in the CRPD are consistent with new research revealing that institutionsand residentialcare are inherently detrimental to children. Ex- perience shows that all children, no matter how severe their disability, can and should receive the support andprotectionthey need to live and grow up with a family. This articlemakes the case that the protectionsrecognizedby the CRPD apply to all children - not just children with disabilities. To implement this right, governments are under an obligation to create the range of supports needed so that all children can live in families and not institutions, residential care, or group homes. Protectionsfor the family under the CRC should reflect these developments in internationallaw and knowledge about child development. Article 41 of the CRC recognizes evolving internationalstandardsfor the protection of children. Thus, the Committee on the Rights of the Child should update General Comment No. 9 to comply with new legal standardsthatprotectthe rightof all children to live and grow up with a family. The U.N. Guidelinesfor Alternative Care can be preserved, so long as they are used in a mannerconsistent with the requirementsof the CRPD and are not used to justify permanentplacement in group homes or other residentialfacilities. INTRODUCTION Throughout the world, millions of children are raised without a family in orphanages or other institutions.' The vast majority of these children have at least one living parent or extended family. Many parents who would want to keep their children have no choice but to give them up because of poverty-or because medical or social service authorities tell them that their children would be better off in institutions. Instead of protecting and supporting families, some social service systems break up families because of misperceptions about the ability of children or parents with disabilities to live safely together in the community. Despite these many forces that lead to the break-up of families, there is a growing international consensus that placement in any form of institution can be dangerous to children's psycho- 1. The prevalence and factors contributing to the placement of children in institu- tions are described further in Part I of this article. 2018-2019] Right of All Children logical and intellectual development. 2 Such placement also increases the 3 risk that children will be subject to abuse, exploitation, and trafficking. As this article will describe, some international standards for the care and treatment of children send a message to governments, service providers and families that placement in institutions or residential care-especially for children with disabilities-is not only acceptable but necessary. Unfor- tunately, differing provisions of international human rights law have estab- lished conflicting standards that add to this confusion. This article compares 4 the requirements of the U.N. Convention on the Rights of the Child (CRC), adopted in 1989, and the U.N. Convention on the Rights of Persons with Disabilities (CRPD), which entered into force in 2008. 5 The CRC has long been interpreted to allow and encourage govern- ments to maintain a system of residential care, including placement of chil- dren in group homes. The CRPD, in contrast, does not allow for the placement of children in institutions. As described in this article, recent interpretations by the U.N. Committee on the Rights of Persons with Disa- bilities over the last two years makes clear that placement in residential care, group homes or family-like residences violates the right of children to live and grow up with a family. 6 In March 2019, the U.N. Special Rap- 2. Part II of this article summarizes lessons from research and practice. 3. See infra note 63 and accompanying text (describing the findings of the U.N. Special Rapporteur on Torture that institutional placement puts children at increased risk of abuse and torture). In addition, in June 2018, the U.S. Department of State's Trafficking in Persons Report found that "[t]he physical and psychological effects of staying in residential institutions, combined with societal isolation and often subpar regulatory oversight by governments, place these children in situations of heightened vulnerability to human trafficking." U.S. DEPARTMENT OF STATE, TRAFFICKING IN PER- SONS REPORT 22 (2018). 4. Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, 1577 U.N.T.S. 3 [hereinafter CRC]. 5. Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, G.A. Res. 61/106, Annex 1, U.N. Doc. A/61/49 [hereinafter CRPD]. 6. Recent developments in this area are discussed in text accompanying notes 38- 41 infra. The Committee on the Rights of Persons with Disabilities is established under article 34 of the CRPD and its functions are set forth in articles 35 through 39. The Committee's power to make "general recommendations" to States Parties under article 39 authorizes it to adopt General Comments, which, "with their elucidation of specific treaty provisions, serve to guide the practice of states parties with respect to the panoply of rights-related issues that have an impact on persons with disabilities." Mary Pat Treuthart, Article 39 Report of the Committee, in THE U.N. CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: A COMMENTARY 1119 (Ilias Bentkas et al. eds., 2018) [hereinafter CRPD COMMENTARY]. General Comments adopted by a treaty- based body are generally considered authoritative but not binding interpretations. See Kerstin Mechlem, Treaty Bodies and the Interpretationof Human Rights, 42 VAND. J. BuFFALo HUMAN RIGHTS LAW REVIEW [Vol. 25 porteur on Disability called for the enforcement of the stronger CRPD stan- dards by protecting the right of children to grow up in a family. 7 As described in Part II, these protections are consistent with recent findings concerning child welfare that it is inherently detrimental to raise any child outside the care of a family. For children in institutions or at risk of being placed outside a family, it is urgent to establish a common understanding of the rights of children under the CRC and the CRPD.