Committee on the Rights of the Child
Fifty-fourth session
25 May ‑ 11 June 2010
Consideration of reports submitted by States parties under article 44 of the Convention
Concluding observations: Argentina
1. The Committee considered the combined third and fourth periodic reports of Argentina (CRC/C/ARG/3-4) at its 1522nd and 1524th meetings (see CRC/C/SR.1522 and 1524), held on 2 June 2010, and adopted, at its 1541st meeting, held on 11 June 2010 (see CRC/C/SR.1541), the following concluding observations.
A. Introduction
2. The Committee welcomes the submission of the combined third and fourth periodic report and commends the inclusive approach used in their preparation, including the participation of children. The Committee also welcomes the written replies to its list of issues (CRC/C/ARG/Q/3-4/Add.1) and appreciates the constructive dialogue with the multisectoral delegation, which allowed the Committee to gain a better understanding of the situation of children in the State party.
3. The Committee reminds the State party that the present concluding observations should be read in conjunction with the concluding observations on the initial reports of the State party under the two Optional Protocols to the Convention (CRC/C/OPSC/ARG/CO/1 and CRC/C/OPAC/ARG/CO/1), adopted on 11 June 2010.
B. Follow-up measures and progress achieved by the State party
4. The Committee notes with appreciation the adoption of the following legal measures and creation of institutions and programmes, notably:
(a) Act No. 26061 of 2005, which creates a system for the comprehensive protection of children and adolescents and establishes the National Secretariat for Children, Adolescents and the Family (SENAF), the Federal Council for Children, Adolescents and the Family and the Ombudsperson for Children and Adolescents (2005);
(b) Act No. 26290 of 7 November 2007, for the inclusion of child rights in all training of security forces;
(c) Act No. 25974 of 1 December 2004, which created the Historical Reparation Fund for the Tracing and Restitution of Kidnapped Children and Children Born in Captivity;
(d) Act No. 26522 of 10 October 2009 on Audiovisual Communication Services and the creation of the Advisory Council on Audiovisual Communication and Children, as well as the Observatory on Audiovisual Media Relations with Children.
5. The Committee also notes the following institutional and policy measures:
(a) The creation of the National Commission on Refugees (2006);
(b) The establishment of the Commission for Oversight of the Institutional Treatment of Children and Adolescents (2006);
(c) The establishment, through Act No. 25724 of 27 December 2002, of the programme on food and nutrition for children until the age of 14, pregnant women, presons with disabilities and persons over 70 years in situations of poverty.
6. The Committee welcomes the ratification by the State party of the following international human rights treaties:
(a) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (in 2002);
(b) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (in 2003);
(c) Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in 2004);
(d) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (in 2006);
(e) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (in 2006);
(f) International Convention for the Protection of All Persons from Enforced Disappearance (in 2007).
C. Main areas of concern and recommendations
1. General measures of implementation (arts. 4, 42 and 44, para. 6, of the Convention)
The Committee’s previous recommendations
7. The Committee welcomes efforts by the State party to implement the concluding observations on the second periodic report of the State party (CRC/C/70/Add.10). Nevertheless, it notes with regret that several of the recommendations in the concluding observations have not been significantly addressed.
8. The Committee urges the State party to take all necessary measures to address those recommendations from the concluding observations on its second periodic report that have not yet been implemented or sufficiently implemented. These include such issues as the implementation of new laws at the national and provincial levels (CRC/C/70/Add.10, para. 16), children deprived of a family environment and failure of distinction between children in need of care and protection and those in conflict with the law (paras. 41 and 43), adolescent health and well-being (para. 51), multicultural education (para. 57), the sale and economic and sexual exploitation of children (para. 61), and juvenile justice (para. 63). The Committee also urges the State party to provide adequate follow-up to the recommendations contained in the present concluding observations on the combined third and fourth reports.
Reservations and declarations
9. The Committee notes the analysis on the State party reservations and declarations to the Convention carried out by the National Secretariat for Children, Adolescents and the Family. Regarding the reservation to article 21, subparagraphs (b) to (e) on intercountry adoptions, the Committee, while appreciating that the State party wishes to adopt “a rigorous arrangement… for the legal protection of children in order to prevent the phenomenon of the sale of children and child trafficking” (CRC/C/ARG/3-4, para. 38) remains concerned that the system has not yet been fully addressed.
10. In the light of the long waiting lists for adoptions, the Committee urges the State party to establish a strong legal protection system against sale and trafficking of children in line with the Optional Protocol on the sale of children, child prostitution and child pornography in order to, inter alia, establish a secure system of adoption that respects the best interests of the child and with a view to eventually withdrawing its reservation.
11. The Committee welcomes the fact that the interpretative declaration of the State party on article 24, subparagraph (f) regarding the concept of family planning has been rendered obsolete in 18 of 24 provinces.
12. The Committee further encourages the State party to ensure that its interpretative declaration to article 24, subparagraph (f) is rendered obsolete in all remaining provinces, with a view its withdrawal.
Legislation
13. The Committee welcomes the legal reforms of the State party to bring its legislation into line with the provisions of the Convention, and in particular Act No. 26061 (2005) on Comprehensive Protection of the Rights of Children and Adolescents. It notes that these reforms have progressively expanded to most provinces, given the federal structure of the State party. The Committee notes the difficulties of fully implementing the paradigm shift from guardianship (“patronato”) to the integral protection of the child and that such a shift has not yet fully materialized, nor has it been translated into a new specifically designed and appropriately resourced institutional set-up at the provincial level.
14. The Committee encourages full implementation of the legal reforms of the State party in all remaining provinces and urges the State party to take all necessary measures for the application of the Convention and its Optional Protocols in the entirety of its territory. It also recommends that the State party take all necessary measures to ensure that the appropriate institutional and administrative framework for the implementation of Act No. 26061 is set up at the national and provincial levels.
Coordination
15. The Committee welcomes the establishment in 2006 of the Federal Council for Children, Adolescents and the Family (COFENAF), a multisectoral and multiprovincial body headed by the new National Secretariat for Children, Adolescents and the Family, as the national coordinating mechanism for the Comprehensive Protection System. The Committee is, however, concerned about the insufficient coordination at the provincial and municipal levels.
16. The Committee recommends that the State party improve coordination at the provincial and municipal levels and that careful consideration be given by the provincial governments to the need for specificity of child policy, programmes and human and financial resources, avoiding duplication or gaps.
National Plan of Action
17. The Committee notes that a National Plan of Action for the rights of children and adolescents was adopted in 2009, covering the period 2008-2011 and containing 36 goals with their respective indicators. The Committee regrets that the plan does not have any operational provisions attached to it, nor a monitoring mechanism to track indicators, nor specific budgetary allocations.
18. The Committee recommends that the National Action Plan become an integral part of national development planning and the formulation of social policy, and be used to enhance the implementation of Act No. 26061. It further recommends that the National Action Plan be clearly articulated with the national and provincial budgets, and that it be extended for a new period. The Committee also recommends that the State party ensure that an evaluation and monitoring mechanism be developed to regularly assess progress achieved and to identify possible deficiencies. It encourages the State party to further ensure that the National Plan of Action is fully implemented at the national, provincial and municipal levels in a coordinated manner.
Independent monitoring
19. The Committee notes that monitoring of children’s rights is included in the mandate of the National Ombudsperson (Defensoría del Pueblo de la Nación Argentina). The Committee welcomes the introduction, by Act No. 26061 (2005), of an Ombudsperson for Children and Adolescents; however, it shares the concern of the State party at the delays in the appointment of the mandate holder by Parliament.
20. The Committee recommends that the State party take all necessary measures to expedite the appointment by Parliament of the Ombudsperson for Children and Adolescents, in order to monitor the implementation of the Convention on the Rights of the Child and its Optional Protocols. The Committee recommends that the Ombudsperson be able to receive and investigate complaints from, or on behalf of, children on violations of their rights and be provided with the necessary human, technical and financial resources.
Allocation of resources
21. The Committee welcomes the sustained increase since 2002 in social investment. In particular it welcomes the introduction in 2009 of the Universal Family Allowance per Child for Social Protection of 180 Argentine pesos (about US$ 48) per month (for up to a maximum of five children) for families of those employed in the informal market and the unemployed, who do not otherwise have social security, and notes that the initiative currently covers some 3.5 million children. The Committee welcomes the preliminary results of the application of the subsidy; for example, enrolment in preschool, primary schools and secondary schools has increased by 15 per cent, 10 per cent and 20 per cent, respectively, in one year, and the enrolment in the mother-child health programme (Programa Nacer) has increased by 30 per cent since 2008, both in line with the requirements for the Universal Family Allowance (presentation of school certificate and vaccination card). The Committee also welcomes the work that is being done by the Ministry of Economy and Finance and the United Nations Children’s Fund (UNICEF) to identify investment in children (calculated at 2.5 per cent of gross domestic product) and to focus on poverty areas. It however notes with serious concern that disparities between provinces remain, and are as extreme as 500 per cent between the poorest and richest provinces.
22. The Committee recommends that the State party, in the light of articles 3 and 4 of the Convention, take all appropriate measures, to the maximum extent of available resources, to ensure that sufficient budgetary allocation is provided for services for children and that particular attention is paid to the protection of the rights of children from disadvantaged provinces and groups, including indigenous children and children living in poverty. In particular and in line with the Committee’s recommendations resulting from its day of general discussion on “Resources for the rights of the child ‑ responsibility of States”, the Committee encourages the State party:
(a) To continue increasing the level of social investment while maintaining its sustainability;
(b) To protect children’s and social budgets from any external or internal instability, such as situations of economic crisis, natural disasters or other emergencies, in order to maintain the sustainability of investments;
(c) To ensure the expansion of and equitable allocation to disadvantaged provinces and groups in order to address disparities and, in particular, consider migrant children and children in alternative care (both in foster care and in other alternative care) as recipients of the Universal Family Allowance per Child;
(d) To define strategic budgetary lines for those situations that may require affirmative social measures (such as birth registration, chronic malnutrition, violence against children, children without parental care, indigenous and migrant children, etc.);
(e) To ensure proper accountability by local authorities in an open and transparent way that enables participation by communities and children, harmonized allocation and monitoring of resources;
(f) To continue seeking technical assistance from UNICEF and other international organizations, as appropriate.
Data collection
23. The Committee welcomes the establishment of the National Registry on Comprehensive Protection of Children and Adolescents (Decree 2044/2009), as well as the Directorate for Institutional Management and Development, which is in charge of the monitoring and evaluation of programmes for children, adolescents and the family. It also notes the commitment (Acta de Compromiso) with the provinces to build an integrated system of information on policies for children and adolescents. The Committee, however, remains concerned that the absence of a systematic approach to data collection and analysis in coordination with the National Institute of Statistics and Censuses continues to impede the availability of transparent and reliable data, disaggregated by provinces and municipalities as well as by other relevant variables such as gender, age, children with disabilities and indigenous children.
24. The Committee urges the State party to take the necessary steps to ensure that plans for the integral system of information on policies for children and adolescents are implemented and coordinated with the National Institute of Statistics and Censuses, covering all aspects of the Convention. The State party should ensure that information collected through this integral system contains transparent, reliable and comparable data on all rights, disaggregated by provincial and municipal location, gender, age and income, in order to enable policy and programme decision-making and to ensure public knowledge of progress made and gaps in its implementation. Furthermore, attention should be paid to generating and monitoring data and information on children in need of special protection: children with disabilities, children in the juvenile justice system, children of single-parent families, sexually abused children, children in alternative care, or children without parental care, and others as relevant. The Committee also recommends that the State party seek technical assistance from, inter alia, UNICEF.
Dissemination, training and awareness-raising
25. While noting the efforts of the State party to disseminate the Convention, the Committee is concerned at the low level of awareness in many provinces of the Convention and its Optional Protocols. The Committee is further concerned that the Convention and its Optional Protocols have not yet been translated into the languages of the indigenous populations. It also regrets the lack of knowledge of the Convention among technical and professional cadres working with children, but notes that many universities have begun to incorporate children’s rights into their programmes.
26. The Committee recommends that the State party increase its efforts to raise awareness of the Convention, the Optional Protocols and its national legislation on comprehensive protection of the child, including by translating them into the languages of the indigenous populations. It also recommends the reinforcement of adequate and systematic training of all professional groups working for and with children, including teachers, health workers, social workers, staff at childcare institutions and law enforcement officials. In this regard, the Committee recommends that human rights education be included in the official curriculum at all levels of education, and in training activities.
Cooperation with civil society
27. The Committee welcomes the consultations by the State party with civil society in the preparation of the report of the State party and the responses to the list of issues, though it regrets that such consultations did not take place in the provinces. It welcomes in particular the participatory process ‑ including business, labour unions and children – followed in the Province of San Juan to establish a Pact for Children and Adolescents in order to reform the law, formulate policy and allocate resources for children.
28. The Committee recommends that the State party encourage and support civil society organizations dealing with children to work in all provinces. It also urges provincial governments to advance children’s rights with the cooperation of broad coalitions of civil society, business, labour unions and children’s organizations.
Child rights and the business sector
29. The Committee is concerned at the lack of clear guidelines and regulations for business corporations, both national and international, on the protection of and respect for children’s rights. It has taken note of the study carried out by the National Ombudsperson (2009) on the adverse effects on children’s health and the environment of agro-toxics and other harmful substances used in agriculture, industry and the home. It further notes with concern reports that the production of tobacco, mate herbs and soya may have harmful effects on children.
30. The Committee urges the State party to develop clear guidelines and regulations for the business sector with regard to protecting and respecting children’s rights as enshrined in the Convention, Act No. 26061 and the Constitution, and to advance in the area of social and environmental responsibility from a human rights perspective. The State party should further ensure that the study by the Ombudsperson is followed up on and extended.
2. General principles (arts. 2, 3, 6 and 12 of the Convention)
Non-discrimination
31. The Committee notes Decree No. 1086/2005 establishing a national plan against discrimination. While welcoming the efforts of the State party to attend to the needs of disadvantaged children, as well as to establish programmes to promote bilingual and intercultural education for indigenous children and health programmes focusing on the needs of indigenous children, the Committee is nevertheless concerned at persistent reports of discrimination, social exclusion and physical, sexual and psychological abuse of indigenous children, who represent about 3 to 5 per cent of the total population in the country. The Committee notes with concern that disparities affecting the north-eastern and north-western provinces may lead to discrimination; for example, the risk of children dying in their first year of life is 60 per cent higher in those provinces than in the rest of the country, and the illiteracy rate, almost zero elsewhere in the country, is 11 per cent in that area. The Committee is further concerned at the stigmatization and discrimination faced by adolescents living in poverty in urban centres or in street situations in the country and by children from a migrant background.
32. The Committee urges the State party to increase its efforts:
(a) To fight against discrimination, social exclusion, and physical, sexual and psychological abuse of groups of children in vulnerable situations, in particular indigenous children;
(b) To fight against the stigmatization and discrimination faced by adolescents living in poverty in urban areas or in street situations and by children from a migrant background.
33. The Committee further requests that specific information be included in the next periodic report on the measures and programmes relevant to the Convention on the Rights of the Child undertaken by the State party to follow up on the Durban Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, taking into account the Committee’s general comment No.1 (2001) on the aims of education.
Best interests of the child
34. The Committee notes with concern that the principle of the best interests of the child may be used to evaluate if a child should be deprived of his/her liberty for reasons of protection under Act No. 22278 of 1980 on Juvenile Justice, which has not yet been reformed to conform to the Convention. It is further concerned that this principle may not be taken into account in all decisions, administrative and judicial procedures and programmes concerning children.
35. While strongly urging the State party to reform the juvenile justice system to conform to the Convention, the Committee recommends that the State party continue and strengthen its efforts to ensure that the general principle of the best interests of the child is appropriately integrated in all legal provisions as well as in judicial and administrative decisions and in all policies, programmes and services that have an impact on children The Committee also urges the State party to refrain from using the principle of the best interests of the child when deciding on deprivation of liberty as a means to allegedly “protect” children, instead of increasing guarantees for child rights.
Respect for the views of the child
36. The Committee welcomes the introduction in Act No. 26061 of the right of the child to be heard and the obligation of the authorities to guarantee that right in all proceedings that concern a child. Nevertheless, the Committee expresses concern that making the hearing subject to the child’s own request may give rise to discrimination and inconsistencies in practice. It further expresses concern at the absence of formal procedures to ensure the participation of children in issues that affect them and at the perception by children that their voices are not adequately heard.
37. The Committee recommends that the State party, in accordance with article 12 of the Convention and taking into account general comment No. 12 (2009) on the right of the child to be heard, ensure that the right to a hearing in all proceedings concerning a child is respected, even without previous request by the child. It further recommends that information on the right of the child to be heard be widely disseminated to parents, teachers, public officials, judges, lawyers, journalists and children themselves, with a view to increasing opportunities for children’s meaningful participation.
Right to life, survival and development
38. The Committee welcomes that the State party has ratified, in 2008, the Second Optional Protocol to the International Covenant on Civil and Political Rights. The Committee is concerned at the occurrence of suicides and self-inflicted injuries of children in detention, notably in the province of Buenos Aires. Moreover, the Committee, while noting the 2005 Supreme Court decision overturning a life sentence of an adolescent, is deeply concerned that, of the 12 children given life sentences during the period 1997 to 2002, three still face life imprisonment, and notes that their cases have been brought to the attention of the Inter-American Commission on Human Rights.
39. The Committee urges the State party to take effective measures to prevent child suicides in detention. It should furthermore carry out an extensive study on the causes of self-inflicted injuries and suicides. While welcoming the fact that no life sentences have been handed down since 2002, the Committee urges the State party to refrain from sentencing children to life imprisonment or to terms that may amount to life imprisonment.
3. Civil rights and freedoms (arts. 7, 8, 13-17, 19 and 37(a) of the Convention)
Birth registration
40. The Committee welcomes the new legislation that guarantees free, universal and ex officio birth registration. However, it expresses concern at the insufficient implementation at the provincial level, which leaves many children without adequate access to birth registration. The Committee is further concerned that children who are born outside of health-care facilities, including indigenous children or children from disadvantaged families, such as those living in remote areas or in social exclusion, do not have access to birth registration.
41. The Committee recommends that the State party continue to take all necessary measures, including retroactively, to ensure the access by all children, including children born outside of health-care facilities, indigenous children, and children from disadvantaged families, such as those living in remote areas or in social exclusion, to free birth registration, and that it take steps to identify all children who have not been registered or have not obtained an identity document. The Committee also encourages the State party to adopt flexible measures of birth registration, including mobile units, to reach all children. It further recommends that the State party implement a specific birth registration strategy for indigenous communities based on respect for their cultures and taking into account the Committee’s general comment No. 11 (2009) on indigenous children and their rights under the Convention.