[This post was updated on April 20, 2016, with the addition of the video.]
At age five, her father sold their house. At age nine, her mother abandoned their family. By age fifteen, her father was an abusive alcoholic, and Marina and her twin sister went to the police and asked to be put in a children’s home. Fifteen days later their mother showed up.
“My mom told us a lot of things that she was going to change,” Marina said. “It wasn’t going to be the same, she was going to give us love and everything. That was a lie. She only wanted to use us to serve her.”
After suffering abuse from her mother, Marina and her sister returned to live with their father, where they again faced physical and mental abuse.
“I didn’t have anything to eat, I was practically nude, didn’t have clothes or a proper house—my dad still doesn’t have one,” she said.
Marina and her sister returned to the police and asked to be put in a children’s home—again.
But why couldn’t they just stay in the home in the first place? Because LEPINA.
“Because LEPINA,” is a phrase heard for multiple reasons in every children’s home in El Salvador—public or privately owned.
Passed in 2010, Ley De Protección Integral De La Niñez Y Adolescencia (the Law for the Comprehensive Protection of Children and Adolescents - LEPINA) has had both a positive and negative effect on El Salvador’s children. The law states that all children are born with unalienable rights, and when those rights are violated, they can go to the local government in order to demand them.
Mario Mena, of Santa Ana, El Salvador, has studied children’s rights for nearly 20 years and has followed the developments of the LEPINA law since its inception.
“[It] is the responsibility of the state to exercise the rights, a commitment to the development of the children’s autonomy, although limited,” he said. “And the possibility that when these rights cannot be exercised we can go through the court to claim those rights.”
However, LEPINA also has its flaws when interpreted certain ways by the justice system. The law states that children have a right to biological family, and a right not to be institutionalized. When combined with Articles 9, 12, and 40, the law is often interpreted to mean a child belongs with his or her family, not in a children’s home.
Mena said there is a misunderstanding of what family means, and nowhere in the law is the meaning of family defined.
“I’ve heard of politicians saying that single people who want to have kids, that’s not a family. That’s stupid,” he said. “At this moment, in any country in the world, the notion of family, the typical nuclear family, it’s no longer the dominant notion. So someone can have the illusion that they’re going to solve all the problems by tying the hands and restricting the person who is applicable.”
This right to family becomes a problem when the court system stops its interpretation at just that point, rather than considering the long-term effects of constantly bringing children out of the home and putting them back in.
Rachel Klubnik founded a private children’s home in La Libertad, El Salvador, in 2002. She says the new law and the child’s right to live with a biological family member make it difficult to give these children a home because the government sees a children’s home as a last resort.
“So what that means for children’s homes is that kids come in and kids are returned to family very quickly, … because we would love to see them come and sort of plant their roots, and it’s not that we wouldn’t want to see them go back to their biological family when that’s possible,” she said. “We very much believe that the best place for a child is with their family, when that is a safe place for them. But a lot of times we’ve seen kids be given back to biological families when it’s not a safe place and it’s not the best thing for them.”
CONNA (El Consejo Nacional de la Niñez y de la Adolescencia) provides studies and builds case files for children within 30 days. The children’s home can make a recommendation on what is best for the child, but the judge is under no obligation to adhere to it.
Ricardo Lazo, director of a government-operated children’s home in the capital city of San Salvador, said if CONNA determines a child should return to their family and the child objects, that’s when CONNA matches them up with a judge.
“In some cases the child does go back to the family because they make peace or come to an agreement. Other times that is not the case,” he said. “CONNA has their teams that investigate, each case, and if they determine that they should go back, we have no say and the child has no say. They would have to go back.”
Mena said not questioning the judges is part of the problem with the way society interprets the law. There is an appeal process to be followed if people are willing to fight for one.
“It is sensible for people to say, “here the one who makes decisions is a judge.” But the judge might be wrong, so an appeal is a way to revise that decision to see if the decision was right or wrong,” he said. “We don’t have that kind of culture. We don’t have a culture that questions politicians.”
Rachel’s husband Justin Klubnik, who works at the private children’s home as well, says the children’s home staff don’t mind disagreeing with the judge because what they are fighting for is not to end the case quickly, but rather to give young people a childhood free of abuse and poverty and to create a substitute family within the children’s home.
“If I was in that position, I would want someone to fight for me. I would want someone to put it all on the line, or to give it everything they have,” he said. “We can see that if we don’t fight for them nobody will—because they can’t fight for themselves, and the government’s not going to fight for them.”
(An El Salvadorian children’s rights judge was contacted for this story but did not want to be interviewed. Her name is being withheld to protect those children whose cases she oversees.)