In this article, the administrative procedure for the protection of children and adolescents will be developed.
1.- Definition of administrative procedure.
The administrative procedure is a set of acts of the public administration, the purpose of which is to achieve a previously set goal in the legal system through the issuance of a final administrative act, which consists of a statement of will of the competent authority, which issues individual legal consequences. directly.
2.- Questions from the administrative proceedings for the protection of children and adolescents.
General Comment No. 12-2009 of the Committee on the Rights of the Child – UN – states:
“All States Parties should include in their legislation administrative procedures that comply with the requirements of article 12 and guarantee the right of the child to be heard together with other procedural rights, such as the right to disclosure of relevant files, notice of inspection and representation by parents or other. A child is more likely to be involved in administrative proceedings than in judicial proceedings, as administrative proceedings are less formal, more flexible and relatively easy to establish through laws and regulations. The procedure should be child-friendly and accessible.”
In the Organic Code for Children and Adolescents (hereinafter -CONNA-), from Article 235, there is an administrative procedure for the protection of children and adolescents.
This administrative procedure applies to substantiate the following matters:
2.1.- Application of protection measures when there is a threat or violation of the individual or collective rights of one or more children or adolescents.
2.2.- Knowing or sanctioning violations sanctioned by reprimand.
2.3.- The recognition and sanctioning of the irregularities committed by the care entities is the responsibility of the authorities that registered and authorized the offending entity.
It is important to note that what is inherent in the protection measures and the knowledge and sanction for offenses punishable by reprimand is the responsibility of the Cantonal Council for the protection of the rights of the canton in which the threat, violation of the law or violation occurred . Clarifying once again that measures for foster care, institutional care and adoption can only be accepted by family, women, children and juvenile judges.
3.- Active identification
Administrative proceedings for the protection of rights may be initiated ex officio or at the request of:
3.1.- Affected boy, girl or adolescent.
3.2.- Every member of his family up to the fourth degree of consanguinity and the second degree of consanguinity.
3.3. The Office of the Ombudsman.
3.4.- Community ombudsmen.
3.5.- Any other natural or legal person who has an interest in it.
4.- Requirements for appeals
As stated, the rights protection procedure can be initiated ex officio or through an oral or written complaint.
The complaint, whether oral or written, must state the following:
4.1.- The body before which it appears.
4.2.- Names, surnames, age and address of the applicant and the capacity in which he appears.
4.3.- The most detailed possible identification of the affected child or adolescent.
4.4.- The most detailed possible identification of the reported person or organization.
4.5.- Circumstances of the accused act indicating the affected right or the imputed irregularity.
5.- Carrying out the administrative proceedings to protect the rights of children and adolescents.
Within forty-eight hours of receipt of the complaint, the agency will assume that it is aware of the procedure and set a day and time for a response hearing.
It is the duty of the substantiating entity to notify the complaint to the person or entity that is denounced, thus the summoning procedure will be carried out in person or by means of a bulletin left at the residence of the cited person during business days and hours.
Since this is an administrative procedure, the proper legal form would not be a citation, but a notice. However, -CONNA- references and alludes to the quote.
At the court hearing, the competent authority will hear the oral arguments of the parties, starting with the applicant. After the arguments are over, the adolescent, boy or girl who is able to express his opinion will be heard in a reserved manner.
The grounds authority will then seek the conciliation of the parties to the extent that the nature of the matter permits in accordance with law. The punishing authority is authorized to transfer the file to a specialized mediation center.
In the event that there is reconciliation, the competent authority will provide a measure of protection that allows the favoring of relations between those affected and the mechanisms for the evaluation and monitoring of the measure will be defined.
In the event that there is no conciliation, and if the facts are to be substantiated, a new evidentiary hearing will be held, after which the parties may orally present the allegations, beginning with the complainant. This hearing must be held within a period of five days and, once established, may be adjourned for up to three working days due to the expansion of evidence.
The decision will be pronounced at the same meeting or maximum within the next two working days.
Provisions relating to urgent protective actions must be implemented immediately or within a maximum period of five days from notification of the decision.
In the event of non-compliance with the actions ordered by the Cantonal Protection Council, recourse may be had to the competent judge for children and adolescents to apply sanctions for violation of rights.
The following appeals can be filed against decisions issued by the Cantonal Protection Board:
5.3.1.- Replacement, which must be proposed within three days to the same authority that issued the decision.
5.3.2.- Appeal to one of the Family, Childhood and Adolescence Judges with jurisdiction corresponding to the body that issued the decision or rejected the request for processing. The appeal shall be submitted within three days from the date of rendering of the appealed decision or rejection of the appeal for reconsideration.
Withdrawal is a voluntary procedural figure by which the applicant or the person who requested the initiation of the trial or procedure decides not to proceed with it.
In the administrative procedures for the protection of the rights of children and adolescents, you can withdraw. However, the grounds authority may continue the procedure when it deems it necessary to adequately protect the rights of children and adolescents.
As can be seen, -CONNA- is considering withdrawal. However, the completion of the procedure depends on the criteria of the competent authority, i.e. if it appears that withdrawing would prejudice the rights of the child or adolescent, they can continue the process.
Constitution of the Republican Organic Code for Childhood and Adolescence. General Observation 12-2009 United Nations.Compendium of Administrative Law, Escola Héctor Jorge.
Dr. Veronica Jaramillo