PART 2:
THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
Chapter 15:
The Human Rights of Children with Disabilities
Convention on the Rights of Persons with DisabilitiesRecognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child.
Article 3, General principles
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 4, General obligations
In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.
Article 7, Children with disabilities
1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.
OBJECTIVES
The information contained in this chapter will enable participants to work towards the following objectives:
· Understand discrimination against children with disabilities as a human rights issue;
· Understand the interrelationship and interdependence of the rights of children with disabilities and other human rights;
· Identify ways in which the rights of children with disabilities have been promoted or denied;
· Explain the importance of allowing children with disabilities a voice regarding issues that involve them; and
· Understand and apply the provisions on the human rights of children with disabilities in the Convention on the Rights of Persons with Disabilities (CRPD).
GETTING STARTED: THINKING ABOUT THE HUMAN RIGHTS OF CHILDREN WITH DISABILITIES
Children with disabilities throughout the world are often marginalized and excluded from mainstream society. In many countries, children with disabilities are sent away to institutions where they receive no education and are isolated from society for their entire lives. Children with disabilities are discriminated against due to their disability and due to the fact that they are children and are therefore more vulnerable to marginalization, exploitation, and abuse. For these reasons, children with disabilities are mentioned in a separate article in the CRPD. For them, as for all children, the promotion and protection of their human rights, especially to education, health, the right to family, and an adequate standard of living, is critical.
World Report on DisabilityThe World Report on Disability estimates that there are between 93 and 150 million children with disabilities in the world. According to the report, “[c]hildren with disabilities are less likely to attend school, thus experiencing limited opportunities for human capital formation and facing reduced employment opportunities and decreased productivity in adulthood.”
Source: World Health Organization & World Bank, World Report on Disability, p. 205; 10 (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf
While children are human beings with rights, their marginalization and exclusion requires additional protections and safeguards to be put into place. Moreover, within the constituency of children, sub-groups, such as children with disabilities or children living in poverty, remain vulnerable to additional and compounded risk factors. The different stages of childhood development raise different human rights concerns. (See text box).
Examples of Human Rights Violations Against Children with DisabilitiesBefore Birth
· Poor maternal health and nutrition;
· Inadequate prenatal care; and
· Prenatal screening and termination of pregnancy based on disability.
At Birth
· Euthanization;
· Denial of appropriate food and/or medical treatment; and
· Risk of rejection by parents.
After Birth
· Institutional placement in segregated setting away from family;
· Isolation in the home and isolation from the community;
· Denial of the right to education, among other human rights;
· Risk of continual medical treatments, some painful and unnecessary; and
· Denial of the right to participate in decisions that affect their lives.
Realizing a Child’s Rights and Freedoms
Multiple individual factors influence the extent to which a child with a disability is excluded within his or her particular culture and context. The more of these interrelated factors a child faces, the more his or her basic human rights are compromised or denied. In this way, children with disabilities often experience multiple discrimination based on the combination of disability and other factors, such as gender and/or poverty:
· Attitudes and behaviours of others towards them (for example, parents, teachers, neighbours, other children);
· Satisfaction of basic needs (for example, survival, food, shelter, stimulation);
· International and national policies that include or exclude them;
· Accessibility of the physical environment (for example, home, school, community); and
· Access to supports for their physical, social, mental, communication, and personal development (for example, basic aids and equipment, assistance, health and education services, access to early childhood care and education).
Perhaps the most harmful of these factors are negative attitudes, stereotypes, and false beliefs about children with disabilities. These factors present the greatest barriers to equal access and full participation for children with disabilities in all contexts, and because they are deeply rooted in culture and tradition, they are also the hardest factors to change. Of these negative attitudes, gender stereotypes that devalue girls can result in not only discrimination, but even death. In most countries, girls with disabilities are more likely than boys with disabilities not to survive, to be abandoned, to be excluded from education, to be deemed un-marriageable, and to be excluded from general participation in their society.
Children with Disabilities in Crisis SituationsChildren in particularly difficult circumstances such as natural disasters, armed conflict, and refugee situations are particularly vulnerable to exclusion.
International Committee of the Red Cross (ICRC): The ICRC emphasizes that armed conflict situations carry enhanced vulnerabilities for all children and, for children with disabilities, such risks are even more pronounced. For children with disabilities, whether they remain in a war zone or flee with their families or others, they face serious barriers to education, health and rehabilitation, and other essential services.
Radda Barnen/Swedish Save the Children: Radda Barnen reports that girls with disabilities living in refugee settings are especially exposed to sexual violence. Humanitarian assistance providers must take specific measures to address the enhanced risk of girls, as well as women with disabilities, to violence in refugee settings.
World Health Organization (WHO): The WHO reports that in 2011, over 5,000 war-wounded were reported by the three main hospitals in Mogadishu, Somalia, and that of almost 1,600 patients admitted with weapon-related injuries in a single month, half of the injured were children. Health facilities in the capital are poorly resourced, have poor infrastructure, and cannot handle the number of victims. Many of these children with newly acquired disabilities cannot receive medical attention and die; for others, rehabilitation is unavailable.Sources: International Committee of the Red Cross (ICRC), “Promotion and Protection of the Rights of Children, ICRC Statement to the United Nations, 2011,”: http://www.icrc.org/eng/resources/documents/statement/united-nations-children-statement-2011-10-18.htm; Radda Barnen/Swedish Save the Children, “Inventory of documentation about Children with Disability in Armed Conflict and Refugee,” Article No. 2099 (1997): http://unipd-centrodirittiumani.it/public/docs/27681_emergencies.pdf; Ikram Kramal Yacoub, “Increase In Injured Somalian Children,” 15 June 2011, AL Arabiya with Agencies, http://english.alarabiya.net/articles/2011/06/15/153415.html
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT THE RIGHTS OF CHILDREN WITH DISABILITIES?
The human rights of children are defined in various international legal instruments. The Universal Declaration of Human Rights (UDHR) sets forth the rights of children in Articles 25 and 26. Article 25 of the UDHR states that motherhood and childhood are entitled to special care and assistance and that all children, regardless of whether they are born in or out of wedlock, shall enjoy the same social protection. Article 26 of the UDHR entitles everyone to equal access to education and allows parents the right to choose the kind of education provided to their child.
Article 24 of the International Covenant on Civil and Political Rights (ICCPR) articulates the rights of children and states:
Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
Article 24 of the ICCPR also provides for children to be registered immediately after birth and for the right of children “to acquire a nationality.”
The International Covenant on Economic, Social and Cultural Rights (ICESCR) also specifically provides for the rights of the child. Article 10(3) provides that, “[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation.” In addition, Article 12 of the ICESCR, which articulates the right to health for everyone calls for “[t[he provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child.”
Notably, the ICCPR and ICESCR do not specifically mention disability as a protected group, and therefore the rights of children with disabilities are not clearly articulated in these instruments. However, it is important to note that the Committee on Economic, Social and Cultural Rights, the treaty body that monitors the ICESCR, addresses this issue in General Comment No. 5, Persons with disabilities, and states:
The Covenant does not refer explicitly to persons with disabilities. Nevertheless, the Universal Declaration of Human Rights recognizes that all human beings are born free and equal in dignity and rights and, since the Covenant's provisions apply fully to all members of society, persons with disabilities are clearly entitled to the full range of rights recognized in the Covenant.
The Convention on the Rights of the Child (CRC) provides the over-arching framework for children’s rights and is the first legally binding instrument to specifically mention children with disabilities. Article 2 of the CRC prohibits discrimination against children with disabilities and Article 23 specifically addresses children with disabilities. Although the CRC includes this specific article on children with disabilities, it is important to note that every right set forth in the CRC that refers to “the child” applies to children with disabilities. The CRC marks an important shift in thinking towards a “rights-based approach,” holding governments legally accountable for failing to meet the needs of all children. The CRC creates a new vision of children as bearers of rights and responsibilities appropriate to their age, rather than viewing them as the property of their parents or the helpless recipients of charity. The CRC stresses the recognition of the child as a positive participant and social actor rather than a voiceless and powerless adult-in-waiting.
There are four guiding principles outlined in the CRC that are necessary for all rights to be realized:
1) Non-discrimination: Requires States to ensure that all children within their jurisdiction enjoy the rights in the CRC without discrimination of any kind;
2) Adherence to the best interests of the child: Requires States to ensure that the central consideration of all decisions or actions concerning children, whether by courts, administrative offices, legislatures, public or private welfare agencies, or others are in the best interests of the child;
3) The right to life, survival, and development: Requires States to ensure the survival and development of the child to the maximum extent possible, including positive measures; and
4) The right to participate: Requires States to ensure that children can express their views freely in all matters affecting them.
Building upon earlier international instruments, especially the innovations of the CRC, the CRPD addresses the rights of children with disabilities in greater detail than any previous instrument. The Preamble of the CRPD makes special reference to children with disabilities:
(r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child.
Article 3, General principles, makes important reference to children with disabilities that must be applied across the treaty text and notes the importance of “respect for evolving capacities of children with disabilities and their right to preserve their identities.” Article 4, General obligations, also includes children with disabilities in the general obligations that States must ensure and provides that “States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.” This provision builds upon the CRC’s principle of ensuring that children have the opportunity to state their views freely and to participate in matters that affect them. In addition, the CRPD articulates participation and inclusion as a general principle in Article 3, which applies equally to children with disabilities.
Article 7, Children with disabilities, provides in-depth articulation of how all human rights apply to children with disabilities. Article 7 requires that:
· States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children;
· The best interests of the child is the primary consideration in matters affecting children with disabilities;
· Children with disabilities have the right to express their views freely on all matters affecting them, given due weight to their age and maturity; and
· Children with disabilities are to be provided with disability and age-appropriate assistance to realize their rights.
While Article 7 applies across the entire CRPD and requires that children with disabilities be taken into account in all aspects of CRPD implementation, there are other articles that raise specific issues of importance to children with disabilities and that add age-related considerations to certain obligations. For example, Article 6, Women with disabilities, underscores that girls with disabilities are often subjected to multiple forms of discrimination and requires States to take measures to tackle such discrimination. Article 8, Awareness-raising, emphasizes the obligation of States to undertake awareness-raising in the context of the education system, including early age school children.
Committee on the Rights of Persons with Disabilities on Article 7Concluding Observations of the CRPD Committee on the report of the
Government of TunisiaArticle 7, Children with disabilities
16. The Committee is particularly concerned at the low rate of reporting ... of cases of habitual mistreatment of children, including children with disabilities, which may amount to situations of danger, in view of [reports] which indicated that 94 per cent of children aged between 2 and 14 years are disciplined in the home through violent means, whether verbal, physical, or through deprivation.
17. The Committee recommends that the State party:
(a) Evaluate the phenomenon of violence against boys and girls with disabilities, and compile systematic disaggregated data … with a view to better combating it;
(b) Ensure that institutions providing care for children with disabilities are staffed with specially trained personnel, subject to appropriate standards, regularly monitored and evaluated, and establish complaint procedures accessible to children with disabilities;
(c) Establish independent follow-up mechanisms; and
(d) Take steps to replace institutional care for boys and girls with disabilities with community-based care.Source: Committee on the Rights of Persons with Disabilities, “Concluding Observations of the Committee on the Rights of Persons with Disabilities in its Consideration of the Report of the Government of Tunisia,” Fifth Session, April 2011, (June 2011), at para. 16 & 17: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session5.aspx
List of issues provided to Spain on its initial report
Article 7, Children with disabilities
36. Please explain how gaps (for example lack of parenting skills, scant resources of social networks, lack of institutional support, among others) are identified in the effective protection of children with disabilities. .... Please indicate to what extent the new single register of cases of ill-treatment of children with disabilities has data disaggregated by age, disability and gender. Please also indicate whether the new reference module for the development of protocols on steps to be taken on cases of ill-treatment adopted in 2007 includes children with disabilities.37. Please provide information on measures in place to improve the ability of children with disabilities to participate in decision-making on all matters relating to their lives.
38. Please provide information on the kinds of social protection available to children with disabilities whose families live in poverty.
Source: Committee on the Rights of Persons with Disabilities, “List of issues to be taken up in connection with the consideration of the initial report of Spain,” Fifth Session, April 2011 (June 2011), at paras. 36-38: http://www2.ohchr.org/SPdocs/CRPD/5thsession/CRPD.C.ESP.Q.1_en.doc
Other specific provisions in the CRPD bring attention to issues that have a particular impact on children with disabilities. For instance, Article 16, Freedom from exploitation, violence and abuse, requires States to enact child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse are identified, investigated and, where appropriate, prosecuted. Likewise, Article 18, Liberty of movement and nationality, raises the issue of birth registration for children with disabilities who too often are excluded from birth registries, thereby undermining their right to access a myriad of services. Article 18 requires States to register children with disabilities immediately after birth and guarantees their right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by their parents. Article 23 protects the right of children with disabilities to retain their fertility on an equal basis with others, requires States to ensure that a child shall not be separated from his or her parents against their will, except in accordance with legal procedures where such separation is necessary for the best interests of the child, and mandates that in no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. Where children with disabilities are separated from their family, the CRPD emphasizes that States shall make every effort to provide alternative care within the wider family, and failing that, within the community in a family setting. Article 24, Education, provides that children with disabilities may not be excluded from free and compulsory primary education, or from secondary education, on the basis of disability.
The Duty to Respect, Protect, and Fulfil Obligations Relating to the Rights of Children with Disabilities
Taken as a whole, States’ obligations with regard to children include:
1. Obligation to respect: States must refrain from engaging in any act, custom, or practice that denies or limits the rights of children with disabilities.
Example: The State adopts legislation prohibiting female genital mutilation.
Example: The State repeals discriminatory legislation that limits the right of children with disabilities to attend mainstream schools.
2. Obligation to protect: States must take all appropriate measures to eliminate discrimination and violations of the rights of children with disabilities by non-State actors.
Example: The State takes action to protect children with disabilities from harassment in the school system.
Example: The State takes action to stop a local community centre from denying access to children with disabilities.
3. Obligation to fulfil: States must be proactive in their adoption and implementation of measures to give effect to the rights of children with disabilities.
Example: The State adopts training programmes for dentists on how to accommodate children with disabilities so that they have access to dental treatment.
Example: The State introduces an “affirmative action” programme to encourage greater participation of children with disabilities in university education.
In sum, international human rights law strongly supports the right of children with disabilities to enjoy their human rights.
CHILD-CENTRED APPROACH TO RIGHTS PROGRAMMING
It is important to remember that children with disabilities, like all children, have the right to be active participants in decisions that affect them. Some key considerations for child-rights programming using a child-centred approach are:
· Consider the best interests of the child;
· Listen to children with disabilities;
· Challenge your own and others’ assumptions about the needs and perspectives of children with disabilities;
· Do not make assumptions about what children with disabilities can and cannot do;
· Do not make assumptions about the needs and perspectives of children with disabilities. Ask them!;
· Seek to develop the child’s abilities and competencies;
· Consider the child as a whole and the whole range of his or her development and needs;
· Analyze the situation of the child as a whole in the broader context of family and community; and
· See children with disabilities as “social actors” who are involved in decision-making.
PARENTS AND FAMILIES OF CHILDREN WITH DISABILITIES
In many countries, families, including grandparents and siblings, take care of children with disabilities with very little government-provided support. In other countries, parents are encouraged by medical professionals to institutionalize children with disabilities due to lack of resources and knowledge about the rights of children with disabilities. This section focuses on the role of parent and family support for children with disabilities. In countries where medical professionals recommend institutionalizing children with disabilities, parents and family members need to understand that children with disabilities have the same rights as other children to live in the community with their families.
Furthermore, parents and family members should be informed about how to advocate for other rights. For example, information should be available to parents of children with disabilities about how to enrol their child in an inclusive education programme that will provide the child with reasonable accommodations from the day he or she begins school. In some countries, a parent may need to contact the local school board months before the school’s opening to develop a plan for their child to receive accommodations in school. Parents must be provided with adequate information to help advocate for their child’s right to education and also be able to access information about government-sponsored rehabilitation programmes that their child may be eligible to attend. For instance, a child who is blind may be eligible to receive vocational rehabilitation services once per week to learn how to use certain technology, but if parents are not aware of the programme, then they may not enrol their child. Advocates play an important role in helping parents, other family members, and others to support children with disabilities consistent with human rights principles. This is vital given the stigma associated with having a child with a disability in many cultures.
THE CHILD’S RIGHT TO PARTICIPATE
Children with disabilities have the right to participate and express their views on matters that may affect them under both the CRPD and the CRC. The child’s right to participate extends to various levels, including policy level decisions, community decisions, and family decisions.
A rights-based approach to participation means putting girls and boys from all backgrounds and disability types, including intellectual and psychosocial disabilities, at the centre of human rights policy and programming. This approach also recognizes children with disabilities as rights-holders and members of society and holds governments accountable for ensuring the rights of all their citizens, including children with disabilities.
How to Achieve Children’s ParticipationSocial and Political Movements
· Children form their own movements and organizations to claim their rights with support from adults.
· Change the power relations between children and adults.
· Enable children to become democratic citizens.Human Rights
· Promote children’s civil rights (for example, expression, thought, information, organization).
· Recognize children as rights holders.Child Development
· Develop children’s abilities, confidence, and independence.
· Develop children’s ability to protect themselves.
· Improve children’s locus of control, level of empowerment, and learning.Development
· Work to develop better understanding of the needs of children.
· Develop better programmes and policies for children.
Laws and policies can be put in place to empower and protect persons with disabilities, but to ensure laws and policies have meaning, it is important to train persons with disabilities about their rights. Equality and inclusion will not be achieved for persons with disabilities until the capacity of children with disabilities to make decisions is ensured, providing them with opportunities to make decisions and respecting their choices. Advocates play essential roles in empowering both children and adults working together to realize child rights.
Empowering Children and Adults to Realize the Rights of Children with DisabilitiesRecognition of Children as Social Actors
· Parents and community members develop respect for the views and rights of children with disabilities, thereby increasing their status and voices;
· Children with disabilities are recognized as social actors who make positive contributions to local communities and society; and
· Children with disabilities bring about attitude changes amongst adults, thus challenging discrimination in the family, school, and community.
Children as Rights Holders
· Children with disabilities are empowered to address violations of rights and claim their rights;
· Educational performance of children with disabilities is improved;
· Self-esteem, confidence, and resilience of children with disabilities are enhanced;
· Enthusiasm of children with disabilities to address issues for the benefit of their peers and community is developed;
· Communication, negotiation, and teamwork skills are increased;
· Values, skills, and knowledge of democratic functioning among children with disabilities are enhanced; and
· Girls and boys with disabilities are empowered through knowledge of their own rights and recognition of the value of their participation.
Working with Children in Programme Development
· Opportunities are created for children with disabilities to participate in planning, decision-making, reporting, and legal advocacy at different levels of their community and government; and
· Children with disabilities are able to express their own perspectives, their understanding of issues, problems, analysis, solutions, and priorities, which often differ from those of adults.
Programme Outcomes
· Reduced discrimination against children with disabilities;
· Increased inclusion in the community and school;
· Improved attitudes and access to the home, community, and school; and
· Increased commitment amongst adults to work with and for children with disabilities.
Source: Adapted from Claire O’Kane, “Children and Governance,” (draft) Save the Children’s Training Manual Child Rights Programming. http://seap.savethechildren.se/
This chapter has emphasized how children have the right to participate fully and express their views in matters that affect them, as well as how adults can be resistant to their participation for many reasons. Protecting children’s human rights is not enough; they need to be promoted as well. Most importantly, children can actively participate as partners in programming and advocacy; they can participate in actions leading to many positive outcomes, such as empowerment, social action and inclusion, and the reduction of discrimination. Because the rights of children with disabilities are vulnerable to abuse, it is the responsibility of human rights law and society to ensure these rights are upheld.
USEFUL RESOURCES ON THE HUMAN RIGHTS OF CHILDREN WITH DISABILITIES
· Child Rights Information Network: http://www.crin.org/ and http://www.crin.org/themes/ViewTheme.asp?id=5
o Website devoted to the rights of children.
· Committee on the Rights of the Child, General Comment No. 9: The Rights of Children with Disabilities (29 Sept. 2006): http://www.ohchr.org/english/bodies/crc/docs/co/CRC.C.GC.9.doc
o General Comment of the CRC Committee focusing on children with disabilities within the context of the CRC.
· International Save the Children Alliance: http://www.savethechildren.net/alliance/index.html
o International network with a focus on the rights of children worldwide.
· UNICEF: http://www.unicef.org/crc
o Official CRC website for the United Nations Children’s Fund.
