Committee on the Rights of the Child
Fifty-fifth session
13 September-1 October 2010
Consideration of reports submitted by States parties under article 44 of the Convention
Concluding observations: Nicaragua
1. The Committee considered the fourth periodic report of Nicaragua (CRC/C/NIC/4) at its 1568th and 1570th meetings (see CRC/C/SR.1568 and CRC/C/SR.1570), held on 23 September 2010, and adopted at its 1583rd meeting, held on 1 October 2010, the following concluding observations.
A. Introduction
2. The Committee welcomes the submission of the fourth periodic report as well as the written replies to its list of issues (CRC/C/NIC/Q/4/Add.1). The Committee appreciates the presence of a high-level delegation and the open and positive dialogue, which enabled a better understanding of the situation of children in the State party.
3. The Committee reminds the State party that these concluding observations should be read in conjunction with the concluding observations adopted on 1 October 2010 on the State party’s initial reports to the Optional Protocols on the sale of children, child prostitution and child pornography, and on the involvement of children in armed conflict contained in CRC/C/OPSC/NIC/CO/1 and CRC/C/OPAC/NIC/CO/1, respectively.
B. Follow-up measures and progress achieved by the State party
4. The Committee welcomes a number of positive developments in the reporting period, including the adoption of legislative measures taken with a view to implementing the Convention, such as:
(a) Framework Law on the Right to Food (2009);
(b) Special Law for the Promotion of Housing Construction and Access to Social Housing (2009);
(c) Law of Equal Rights and Opportunities (2008);
(d) Law on Protection of Human Rights of People with Mental Illness (2008);
(e) Penal Code (2008);
(f) Responsible Paternity and Maternity Law (2007); and
(g) General Education Law (2006).
5. The Committee further welcomes the ratification by Nicaragua of the following:
(a) Convention on the Rights of Persons with Disabilities and its Optional Protocol;
(b) Optional Protocol to the Convention against Torture;
(c) Second Optional Protocol to the International Covenant on Civil and Political Rights;
(d) Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; and
(e) International Labour Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.
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
6. The Committee notes with concern that various concerns and recommendations made upon consideration of the State party’s third periodic report (CRC/C/15/Add.265) of 21 September 2005 have been insufficiently addressed. The Committee notes that those concerns and recommendations are reiterated in the present document.
7. The Committee urges the State party to take all necessary measures to address the recommendations contained in the concluding observations on the third periodic report that have not been sufficiently implemented, including those related to the implementation of legislation, the National Plan of Action and coordination, data collection, age for marriage, birthregistration, corporal punishment, child abuse and neglect, and teenage pregnancies, and to provide adequate follow-up to the recommendations contained in the present concluding observations on the fourth periodic report.
Legislation
8. The Committee notes the efforts made by the State party towards strengthening the constitutional, legal and normative framework related to the implementation of the Convention, but it is concerned at the under-implementation of legislation. It is particularly concerned that 12 years after entering into force, the Children and Adolescents Code (Código de la Niñez y la Adolescencia, 1998) has not been afforded the priority required and lacks the necessary institutional, human, technical and financial resources for full implementation.
9. The Committee recommends that the State party ensure that the Children and Adolescents Code continues to be the overall legal framework, complemented by new and specific legislation, including the new, yet-to-be-adopted Family Code, and assign appropriate human, technical and financial resources for the full implementation of the Children and Adolescents Code and all related laws protecting and promoting the rights of children.
Coordination
10. The Committee regrets that the National Council for the Comprehensive Care and Protection of Children and Adolescents (CONAPINA), established by the Children and Adolescents Code at the presidential level, with civil society participation, which was previously in charge of coordinating child policies, has lost its authority by virtue of Law 290 (2008) and is now under the Ministry of Family, Adolescence and Childhood (MIFAN), thereby affecting overall coordination, including with civil society. It is further concerned that a new National Social Welfare System (Sistema Nacional de Bienestar Social) has taken over the overall coordination of social policy, including that related to children, and consequently, the promotion and protection of children’s rights in general, not only those at risk, have lost specificity and transparency.
11. The Committee recommends that the State party consider strengthening the leadership and coordinating functions of CONAPINA as set out in the Children and Adolescents Code, and, in that respect, streamline the roles and activities of both
MIFAN and the National Social Welfare System to ensure a comprehensive and well articulated system of promotion and protection of children’s rights.
12. The Committee notes with satisfaction that more than 100 of the 153 municipalities have set up Municipal Commissions on Children and Adolescents (Comisiones Municipales de la Niñez y la Adolescencia), with the participation of civil society and children, in order to provide leadership and coordination for programmes related to children’s rights at the local level. However, it remains concerned that their actual functioning is restricted by the lack of clarity in the overall system and the inadequacy of resources.
13. The Committee urges the State party to ensure that a Municipal Commission on Children and Adolescents is established in all municipalities and that they are provided with the necessary human, technical and financial resources to ensure clear leadership and coordination of programmes for children at the local level.
National Plan of Action
14. The Committee notes that the State party has recently launched a National Plan for Human Development, but it is concerned that there is no information as to whether and how child rights goals and objectives are included therein, in consonance with the Children and Adolescents Code and the approved National Plan of Action for Children and Adolescents (2002-2011). The Committee also notes with concern that the Amor Programme (Programa Amor) and the Amor Early Childhood Education Strategy (Estrategia Educativa Amor para los más Chiquitos), created in parallel by the state party andcoordinated by MIFAN, seem to have replaced the National Plan of Action, despite their limited focus on special protection. The Committee is concerned that these developments are a regression in terms of the integral promotion and protection of child rights, as established in the Children and Adolescents Code.
15. The Committee strongly recommends that the State party ensure that the National Plan of Action for Children and Adolescents (2002-2011) forms, in an explicit and clearly identifiable way, part of its overall planning efforts, including the National Plan for Human Development. The Committee recommends that the current ongoing evaluation of the National Plan of Action for Children and Adolescents is used to elaborate a new comprehensive plan of action for children that is fully integrated into the national development planning framework. It further recommends that this be done in cooperation with civil society and taking into account all the provisions of the Convention and its two Optional Protocols.
Independent Monitoring
16. While welcoming the active involvement of the Office of the Ombudsperson for Human Rights (Procuraduria Nacional de Derechos Humanos)and the Office of the Special Ombudsperson for the Protection of Children and Adolescents (Procuraduría Especial de la Niñez y la Adolescencia) in the promotion, protection and investigation of violations of children’s rights, the Committee is concerned at the inadequacy of human, technical and financial resources available for this important work. It is also concerned about undue delays in the designation of the respective Ombudspersons.
17. The Committee recommends that the State party assign greater human, technical and financial resources to the Office of the Special Ombudsperson for the Protection of Children and Adolescents to ensure full exercise of its function to oversee and defend the rights of children and adolescents. It further recommends that independence in the designation and operation of the Ombudsperson for Human Rights be guaranteed. The Committee recommends that the State party take into account the Committee’s general comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child.
Allocation of resources
18. While welcoming the increase in spending on health and education over the past years, especially from national resources, the Committee is concerned at the insufficient level of resources available overall for social policies and specific plans and programmes for children. The Committee is further concerned that due to the financial crisis and the low public revenue base, financial resources, including contributions for budget support and specific programmes from international cooperation, may decrease further.
19. The Committee recommends that the State party conduct an overall budget exercise in line with the preparation of a comprehensive national plan of action for children, as recommended in paragraph 15 above, that takes full account of existing health, education, nutrition and social welfare policies, special protection and other programmes and their budget needs. It further recommends that the State party satisfy the criteria of transparency and balance in budget allocations, including with regard to international cooperation.
20. 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” (2007), the Committee encourages the State party to:
(a) Increase the level of social investment for the promotion and protection of child rights, including to MIFAN, ensure the expansion and equitable allocation to disadvantaged regions and groups, and address gender and ethnic disparities, among others;
(b) Utilize a child rights approach in elaborating the State budget by implementing a tracking system for the allocation and use of resources for children throughout the budget, thus providing visibility to the investment on children, and enabling monitoring and evaluation;
(c) When possible, follow United Nations recommendation to implement budgeting-by-results to monitor and assess the effectiveness of resource allocation and, if necessary, seek international cooperation to that effect;
(d) Protect children and social budgets from external and internal instability, such as economic crisis, natural disasters or other emergencies, in order to maintain the sustainability of investments;
(e) Define strategic budgetary lines for situations that may require affirmative social measures, such as birth registration – especially in the Caribbean Coast autonomous regions (RAAN and RAAS), chronic malnutrition, violence against children and women, children without parental care, indigenous and migrant children, among others;
(f) Ensure proper accountability by municipal and national authorities in an open and transparent way that enables participation by communities and children in budget formulation and monitoring, as appropriate; and
(g) Seek technical assistance from the United Nations Children’s Fund (UNICEF) and other international organizations included in the Alliance Group for Investment, as appropriate.
Data collection
21. The Committee welcomes the five-year plan for the modernization of the National Development Information Institute (INIDE) and the National Statistical System (SEN). It particularly commends the process to design and implement the statistical information system on children and adolescents (SIENA) and establish a system of child rights indicators in close cooperation with all concerned institutions. The Committee is however concerned that SIENA falls under MIFAN and is not part of SEN. Furthermore the Committee is concerned that data on children at risk is still not available and that sufficient financial and human resources are not allocated for the full functioning of the system.
22. The Committee recommends that the State party strengthen the implementation of the National Statistical System (SEN) and its adjustment to the National Information System on Child and Adolescent Rights (SIENA), and allocate appropriate human, technical and financial resources, as well as ensure that the systems produce comprehensive statistical information and analysis on the implementation of children's rights, with particular attention to children at risk at the national and municipal levels.
Dissemination and awareness raising
23. While noting the efforts undertaken to provide child rights education to children and teachers through the inclusion of human rights of the child in the primary education curriculum, the Committee is concerned at the low level of awareness of the Convention among children themselves and the general public.
24. The Committee recommends that the State party increase efforts, together with civil society, to broaden the knowledge of the general population, children and adolescents about the Convention and national laws formulated and approved on the basis of the Convention and other international instruments. Special emphasis should be placed on the Caribbean Coast autonomous regions (RAAN and RAAS).
25. The Committee further recommends that the State party ensure that both the private and public media respect child rights, especially the dignity of the child, support dissemination of the Convention and its Optional Protocols, and include the points of view and voices of children in their programmes. The Committee further recommends that the State party encourage the media sector to establish professional codes of ethics regarding, in particular, the rights of the child.
Training
26. The Committee is concerned at the low level of awareness of the Convention among professionals working with and for children.
27. The Committee recommends reinforcement of adequate and systematic training of all professional groups working for and with children, in particular, law enforcement officials, teachers (including those in indigenous and Afro-descendant communities, rural and remote areas), health workers, social workers and personnel working in all forms of alternative care.
Cooperation with civil society
28. The Committee is concerned that the long-standing tradition of collaboration between the State party and an extensive network of national and international non-governmental organisations (NGOs) has recently become more limited due, inter alia, to the weakening of CONAPINA.
29. The Committee urges the State party to take all necessary measures to reinstate the climate of trust and cooperation with civil society and systematically involve communities, including indigenous and Afro-descendant communities, civil society and children’s organisations in the planning, implementation, monitoring and evaluation of policies, plans and programmes related to child rights.
Child rights and the business sector
30. The Committee takes note of the State party’s collaboration with the business sector to finance specific public projects, as explained during the dialogue. The Committee is concerned that there are no policies or regulations in place related to the impact of the activities of mining, agro-industry and other large scale operations on children’s safety, standard of living and exercise of rights.
31. The Committee recommends that the State party ensure that appropriate policies and regulations are adopted with regard to the need for the corporate business sector (whether private or state-owned) to protect and respect the rights of children, and to operate in a socially and environmentally responsible manner. In that respect, the Committee encourages the State party to ensure coordination between state departments dealing with children’s issues and agencies related to investment and trade, labour, innovation, technology and the environment, among others. Furthermore, the Committee encourages the State party to study the adoption of clauses on the rights of the child when negotiating investment treaties and other foreign investment agreements with multinational corporations and foreign governments.
International cooperation
32. The Committee notes with concern that international cooperation for both budget and programme support may be on the decrease, and that since the State party depends considerably on international cooperation, this may not be in the best interests of the child.
33. The Committee encourages the State party to strive for balance and transparency in its budgetary allocations from both domestic and international sources, while aiming to increase financial and technical resources to implement the Convention from both domestic revenues and international cooperation.
2. Definition of the child (art. 1 of the Convention)
34. The Committee remains concerned that the State party establishes a low and unequal minimum age for marriage (15 years for boys and 14 years for girls, with parental consent).
35. The Committee reiterates its recommendation that the State party adopt the draft Family Code, and ensure that the minimum age for marriage for girls and boys is 18 years.
3. General principles (arts. 2, 3, 6 and 12 of the Convention)
Non-discrimination
36. The Committee welcomes the legislative action taken by the State party to guarantee equal rights of people, especially those with disabilities, living with HIV/AIDS and indigenous and Afro-descendants. It also welcomes the establishment of the Office of the Special Ombudsperson for the Rights of Indigenous People and Ethnic Communities, and its local office in the CaribbeanCoast autonomous region, as well as the Office of the Special Ombudsperson for Sexual Diversity. Notwithstanding, the Committee shares the concerns of the Committee on the Elimination of Racial Discrimination (CERD/C/NIC/CO/14, paragraph 12) and the Committee on the Elimination of Discrimination against Women (CEDAW/C/NIC/CO/6, paragraph 31) respectively, that indigenous peoples and peoples of African descent, as well as women, girls and children in rural and remote areas continue to suffer de facto discrimination.
37. The Committee urges the State party to strengthen efforts to combat racist and gender-biased attitudes and behaviour, including against children and adolescents of indigenous and Afro-descendant origins, from rural or remote areas and those who have disabilities. It further recommends that the State party place high priority in the public agenda on preventing and eradicating discrimination, inter alia, through the media and education system. The Committee also draws the State Party’s attention to the principles of the Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, as well as the outcome document adopted at the 2009 Durban Review Conference.
Best interests of the child
38. The Committee notes that, according to article 9 of the Children and Adolescents Code, the best interests of the child should be taken into account as a fundamental principle. However, the Committee is concerned that the principle of the best interests of the child is not well understood in the family or by State judicial and administrative authorities, and that it is not consistently applied in practice.
39. 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 into all legal provisions, judicial and administrative decisions, as well as programmes and projects that have an impact on children.
The right to life, survival and development
40. The Committee welcomes the State party’s decision to participate in the Regional Project on Child Development Indicators, conducted by the Inter-American Development Bank, which intends to explore the extent and dimension of the problem of young children in deteriorated social and economic environments, in particular in rural areas,and recommends that the State party develop targeted policies which support the holistic development of young children, in particular children in disadvantaged social environments, with a view to increasing their development opportunities.
The right of the child to be heard
41. The Committee commends the achievements made with regard to children and adolescents’ right to be heard through school and municipal councils, for example, but notes that the efforts are not deep enough and that the new forms of “direct democracy” (such as the Gabinetes de Participación Popular) seem to be adult-centred and authoritarian. The Committee is also concerned that children’s views are not always duly taken into account in the family and in judicial and administrative proceedings.
42. The Committee recommends that the State party strengthen its efforts to ensure that children’s views are given due consideration in the family, schools and community settings, without undue adult influence, and that they are duly heard in the family and in judicial and administrative proceedings affecting them. In this regard, the Committee draws the State party’s attention to its general comment No. 12 (CRC/C/GC/12) on the right of the child to be heard.
43. While commending the Constitutional measure to allow children between 16 and 18 years of age to vote, the Committee encourages the State party to ensure that it is supported by civic and human rights education in order to ensure early awareness in children that rights are to be exercised as part of citizenship, with autonomy and responsibility, and that the measure does not lend itself to undue influence. It recommends that the State party evaluate the results in an independent manner.
4. Civil rights and freedoms (arts. 7, 8, 13-17 and 37(a) of the Convention)
Birth registration and the right to identity
44. The Committee notes with interest the National Plan and considerable efforts, including by NGOs, to reduce the number of unregistered children (Plan Nacional para la Reducción del Subregistro de la Niñez Nicaragüense), which has resulted in a 20 per cent decrease to date. It also notes other efforts, such as the Law on Responsible Paternity and Maternity, which allows for DNA testing. However, the Committee is concerned at the large number of children who are still not registered and who do not have birth certificates (around 40 per cent), particularly those of indigenous and Afro-descendant origins.
45. The Committee recommends that the State party:
(a) Approve without delay the new Civil Registry Law and assign the resources needed for its application so as to enable modernisation of the current registry apparatus at both the municipal and central levels;
(b) Prioritize training of civil registrars and health and education officials to rapidly close the gap, particularly in the Caribbean Coast autonomous regions (RAAN and RAAS); and <