RESPONSABILIDAD SOLIDARIA DEL INSTITUTO COLOMBIANO DE BIENESTAR FAMILIAR – ICBF Y LOS HOGARES COMUNITARIOS POR LOS DAÑOS CAUSADOS A MENORES BAJO SU CARGO

Abstract

Are there real guarantees in the physical and legal protection provided by the Colombian State to children and adolescents? Much has been debated in the Colombian legal framework regarding minors as subjects of special constitutional protection. Consequently, institutions other than the family have been established to ensure their protection; one of these being the Colombian Family Welfare Institute (Instituto Colombiano de Bienestar Familiar – ICBF). However, despite the belief that this entity ensures such protection, gaps and legal voids remain. These gaps concern the allocation of accountability between the ICBF and individuals whose actions or omissions compromise minors' physical integrity.

This research identifies a legal void related to the State’s liability for harm to minors' lives and integrity, as well as the type of contracts used by the ICBF to ensure the protection of children and adolescents placed under its care. Specifically, the ICBF employs a special type of contract called a “contribution contract” (contrato de aporte), under which community homes are tasked with hiring community mothers who directly care for the minors. However, in cases of harm caused by these caregivers’ actions or omissions, accountability is generally attributed to the ICBF, rather than the caregivers themselves. This situation often leads to the ICBF being held legally and financially responsible, even though the caregivers’ actions directly caused the harm.

This investigation focuses on analyzing and determining the legal feasibility of assigning joint liability to the ICBF, community homes, and community mothers in such cases. The goal is to bypass the need for subsequent lawsuits for reimbursement and instead establish direct legal consequences for the community mothers implicated in the harm. To achieve this, jurisprudential rulings by the Council of State between 2010 and 2020 regarding direct reparation claims under the doctrine of service failure (falla en el servicio) were analyzed, along with the legal foundations of contribution contracts.

The analysis reveals that the Council of State consistently holds the ICBF directly liable under the doctrine of objective extracontractual liability, based on its role as the guarantor of minors’ rights. The Council focuses on objective factors, refraining from imposing individual or subjective liability on parties other than the ICBF. This approach fails to address the broader dimensions of accountability, as established in Article 34 of the Colombian Labor Code and the objectives of contribution contracts.

The study argues for introducing mandatory insurance within contribution contracts to ensure accountability for community homes and community mothers. This would enable the Council of State to assign joint liability, allowing each party to be held accountable within the limits of their financial capacity without relying on inefficient reimbursement lawsuits. Such a mechanism would streamline judicial processes and ensure responsibility for both natural and legal persons.

While joint liability could be applied to extracontractual claims for harm to minors, its effectiveness would depend on making insurance a mandatory feature of contribution contracts. This would enable accountability to include both objective liability (arising from the ICBF’s guarantor role) and subjective liability (of individuals directly involved in harmful actions), ensuring comprehensive and equitable accountability within a single legal process.