One of the most vulnerable groups among persons with disabilities are children. They are more vulnerable to wars, exploitation, malnutrition, physical and psychological ill-treatment, trafficking etc., and rely on adults for the enforcement of their human rights mechanisms have taken a significant interest in the protection of disabled children.
The Convention on the Rights of the Child (CRC) is the most complete statement of children's rights and is the first to give these rights the force of international law. A child is defined in the Convention as a person under the age of 18, unless national laws mandate an earlier age of majority.
The CRC provides in its Article 2 that States parties must respect the rights in the Convention "…without discrimination of any kind, irrespective of (…) race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status". (emphasis added). Article 19 (1) states that the child shall be protected from "…all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse…." Article 23 Concerns the rights of children with disabilities. Article 24 (2) (d) of the Convention requires States to ensure the appropriate prenatal and post-natal health care for mothers.
Other international instruments on the rights of the child include:
The Universal Declaration of Human Rights states in Article 25 (2) that "…motherhood and childhood are entitled to special care and assistance. All children whether born in or out of wedlock, shall enjoy the same social protection."
The International Covenant on Civil and Political Rights state in Article 24 (1) that , "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…".
The Article 10 of the International Covenant on Economic, Social and Cultural Rights states that "…special protection should be accorded to mothers during a reasonable period before and after childbirth…Special 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. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law."
The Section II paragraph 21 of the Vienna Declaration and Programme of Action urges States to ratify and implement the Convention on the Rights of the Child. In addition, in all actions concerning children, non-discrimination and the best interests of the child should be primary considerations.
The Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts states in Part II, Article 4 (3) (a) that children "…shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care." Article 4 (3) (b) states that all appropriate steps shall be taken to facilitate the reunion of families temporarily separated. Article 4 (3) (c) provides that "…children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities."
Furthermore, Article 4 (3) (d) states: "…measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being."
Other international instruments concerning the rights of the child include:
The European Social Charter states in Article 7 that, " right of children and young persons to protection:
With a view to ensuring the effective exercise of the right of children and young persons to protection, the contracting parties undertake,
- To provide that the minimum age of admission to employment shall be 15 years, subject to exceptions for children employed in prescribed light work without harm to their health, morals and education;
- To provide that a higher minimum age of admission to employment shall be fixed with respect to prescribed occupations regarded as dangerous or unhealthy;
- To provide that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education;
- To provide that the working hours of persons under 16 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training;
9. To provide that persons under 18 years of age employed in occupations prescribed by national laws or regulations shall be subject to regular medical control;
10. To ensure special protection against physical and moral dangers to which children and young persons are exposed, and particularly against those resulting directly or indirectly from their work."
Article 17 obliges the States Parties to take measures to provide economic and social protection for children:
"The right of mothers and children to social and economic protection: With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services."
Though there were no fundamental changes in the Revised Form of the European Social Charter, in article 7 the age limit goes up from 16 to 18 years of age and states:
"The right of children and young persons to social, legal and economic protection: With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in Cupertino with public and private organisations, to take all appropriate and necessary measures designed:
- To ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose;
- To protect children and young persons against negligence, violence or exploitation;
- To provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family's support; and
- To provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools."
Article 19 of the American Convention on Human Rights provides that, 'Every minor children with a right to protection: "Every minor child has the right to measures of protection required by his condition as a minor on the part of his family, society, and the state."
The Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights proclaimed in Article 15 (3) (b) and (d), States undertake to guarantee adequate nutrition for children and to help create an environment in which children receive and develop the values of understanding, solidarity, respect and responsibility. Article 16 outlines a comprehensive set of rights for children including the right to special protection, the right for the young child, save in exceptional circumstances, not to be separated from his mother, the right for children to remain under the protection of their parents, and the right to free and compulsory education.
Article 18 (3) of the African Charter on Human and Peoples' Rights provides: "The State shall ensure the elimination of every discrimination against women and also censure the protection of the rights of the woman and the child as stipulated in international declarations and conventions...".
More specific instruments also exist at the regional level. The African Charter on the Rights and Welfare of the Child is based on the CRC, but adapted to the regional context. The European Convention on the Exercise of Children's Rights focuses on procedural aspects in the enforcement of existing rights of children.
Other instruments include inter alia the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, the 1980 Convention on the Civil Aspects of Child Abduction, the 1975 European Convention on the Legal Status of Children Born out of Wedlock and the 1980 European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on the Restoration of Custody of Children. However, most of these are private international law treaties dealing with questions of jurisdiction, and not substantive law.
The CRC is the first international treaty, which recognises the rights of disabled children.
The most important article for the protection of disabled children is article 23 (1) which states that "States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community."
Article 23 (2) provides: "States Parties recognise the right of the disabled children to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition, and to the circumstances of the parents or others caring for the child."
Article 23 (3) provides that "…assistance shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child. Assistance shall be designed to ensure that the disabled child has effective access to and receives education, training, health, care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achievement the fullest possible social integration and individual development, including his or her cultural and spiritual development."
And further on: "States parties shall promote, in the spirit of international co-operation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries".
Other articles in this convention are also of special relevance to the protection of disabled children. These include: article 24 (the child is entitled to the highest attainable standard of health), and article 19 (States shall protect children from physical or mental harm and neglect, including sexual abuse or exploitation). Most importantly, the Convention's general principles: article 2 (non-discrimination), article 3 (the best interests of the child), article 6 (life, survival and development), and article 12 (respect for the views of the child) are also crucial for the protection of the rights of children with disabilities.
The African Charter on the Rights and Welfare of the Child has a very comprehensive approach regarding the protection of disabled children. Indeed, article 13 refers to handicapped children:
"Every child who is mentally or physically disabled shall have the right to special measures of protection in keeping with his physical and moral needs and under conditions which ensure his dignity, promote his self-reliance and active participation in the community. States Parties to the present Charter shall ensure, subject to available resources, to a disabled child and to those responsible for his care, of assistance for which application is made and which is appropriate to the child's condition and in particular shall ensure that the disabled child has effective access to training, preparation for employment and recreation opportunities in a manner conducive to the child achieving the fullest possible social integration, individual development and his cultural and moral development. The States Parties to the present Charter shall use their available resources with a view to achieving progressively the full convenience of the mentally and physically disabled person to movement and access to public highway buildings and other places to which the disabled may legitimately want to have access to."