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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to Article 16
CHILDREN WITH DISABILITIES
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #5
May 28, 2004
MORNING SESSION
Commenced: 10:23 AM
Adjourned: 1:00 PM
Vietnam proposed adding to Article 16.3(a) after "comprehensive
services," the words “including early detection, intervention and
rehabilitation.” 16.4 is amended to “Recognizing the needs of children
with disabilities, assistance extended in accordance with actual circumstances
of children with disabilities shall be provided, whenever possible…“
Yemen supported a separate Article 16 on children
with disabilities (CWD), but WWD should be integrated through the rest
of the Convention.
Ireland stated that the EU preferred to see an appropriate
reference to children with disabilities in the Preamble. The current
proposals would alter the CRC to which the international community has
agreed. This would not constitute a positive change to existing children’s
rights.
New Zealand recalled the WG discussions as noted in
footnote 54. Due to time restraints the WG inserted Article 23 from
the CRC into the draft text, with a poor result. New Zealand agreed
with the EU that since almost all States involved in this Convention
were signatories to the CRC, an article on children with disabilities
would not add to the international body of law. If this was determined
to be necessary, however, it should be elaborated so as to improve on
the CRC, for example, by addressing the “extra vulnerabilities” of CWD
to rejection, abandonment, reduced aspirations by parents, reduction
in opportunities and rejection by families and by emphasizing early
intervention. On the other hand, the proposal put forth by India on
16.1 weakens the undertaking by Member States who are already bound
by the CRC. It echoed concerns of the EU regarding new draft texts that
repeat language in existing provisions, as is reflected in 16.5 of the
Indian proposal, but which adds no value to obligations of parents as
already mentioned in CRC.
Uganda suggested amending Article 16 as follows: In
16.2, replace the word “recognize” with the phrase “shall ensure”; strengthen
16.4 by replacing “social integration” with “social inclusion”; delete
“should” in 16.5 and replace it with “shall.” In 16.6, add the following:
“States Parties shall ensure that in all decisions concerning children
with disabilities whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be of primary consideration.”
In order to provide further protection to CWD, a new paragraph 16.7
should state, “States Parties shall undertake to prohibit the sterilization
of children and young people with disabilities.” The high abuse, neglect,
and incidents of crime against CWD must be mentioned in this Convention,
along with the need to harmonize existing CRC provisions with the Convention.
Japan suggested the following language in 16.5 that
would ensure consistency with States obligations in relation to the
CRC: “States Parties shall recognise and take appropriate measures to
respect the rights of children with disabilities in accordance with
Article 23 of the Convention on the Rights of the Child and other relevant
provisions of this Convention”
Palestine proposed an additional paragraph 16.6, “In
accordance with the obligations under international humanitarian law
to protect children with disabilities in armed conflict, States Parties
shall take all appropriate measures in armed conflict, including foreign
occupation.”
India amended Article 16 as follows: ”16.1 States
parties shall endeavour to ensure that each child with a disability
within their jurisdiction shall enjoy, without discrimination of any
kind on the basis of disability, the same rights and fundamental freedoms
as other children." India also proposed adding the following paragraphs:
"16.3(a)alt Provision of early detection, early referral and early
intervention services, including counseling for parents.
"16.5(bis) States Parties recognize the vulnerability of children
to sexual abuse and exploitation and shall endeavour to ensure their
protection.
"16.5(ter) States Parties recognize that the child, for the full
and harmonious development of his or her personality, should grow up
in a family environment. In the case of destitute or orphaned children,
it shall be the duty of the State to make provision for adoption or
legal guardianship as per prevalent laws, as also for respite and residential
care, as appropriate.
"16.5(quart) States Parties shall respect the rights and duties
of parents and, when applicable, legal guardians to provide direction
to the child in the exercise of his or her rights in a manner consistent
with the evolving capacities of the child.
"16.5(sext) States Parties shall promote, in the spirit of international
cooperation, the exchange of appropriate information in the field of
health care, preventive health care, including dissemination of and
access to, information concerning methods of rehabilitation, education,
vocational training and services with the aim of enabling States Parties
to improve their capabilities, skills, human resource development and
research, in order to widen their experience in all these areas of expertise.
In this regard, particular account shall be taken of the needs of developing
countries.”
The Holy See proposed amending 16.2, line 3 by adding
the words “and citizenship” after "autonomy."
Canada proposed amending Article 16 by adding the
following new paragraph: "16.2(bis): States Parties recognize the
evolving capacities of children with disabilities in the exercise of
their rights, and the right of children with disabilities to express
their views freely on all matters affecting them, their views being
given due weight in accordance with the child’s age and maturity.” A
new paragraph, 16.6, should be added as follows: “Where children with
disabilities are unable to live with their parents, States Parties shall
make every effort to provide alternative family care in their community,
and such placements shall be in the child’s best interests.” Canada
suggested that new content should be developed specific to CWD, building
on concepts appearing in the CRC, Article 23. Any Article on CWD should
make it clear that its provisions in no way limit the rights to children
enumerated in other parts of the Convention.
Kenya supported inclusion of Article 16, with reformulation
of 16.3 and 4 to include state as well as parental responsibilities
in provision of CWD services, subject to resource availability. “If
previous instruments had provided equality for CWD, we would not be
here today. Rights of this Convention are not a derogation of the rights
of CRC.” Rather, both are important. Situations of abuse of CWD by families
and peers are not adequately addressed in the CRC. Kenya also reserved
the right to draft additional references to procedural criminal evidence
rules that allow criminals who abuse CWD to go free. The Working Group
needs to do more work on this.
AFTERNOON SESSION
Commenced: 3:01 PM
Adjourned: 6:00 PM
Thailand agreed that Article 16 was inadequate because
it is modeled on Article 23 of the CRC and further amendments to its
existing language would be of limited added value. It is in the best
interest of children with disabilities that this article be totally
redrafted containing provisions beyond Article 23 of the CRC. Thailand
reserved the right to submit revised draft language later.
Israel believed that from a legal perspective, this
Convention is not appropriate to address specific groups or situations
that are adequately dealt with in other international law instruments.
Taking this path could lead to differentiation between different categories
of groups and situations, which would be complicated given that this
list is endless, and counterproductive, leading to further ambiguity
as to the applicability of different principles and regimes of international
law.
South Africa called for deletion of the qualification
“subject to available resources” from 16.3 (b) as it weakens the much-needed
assistance that children with disabilities require. The allocation of
resources should not be conditional. 16.3(b) should be shortened to
“The provision of assistance to eligible children and those responsible
for his or her care" as the remaining text was redundant.
Kuwait called for a definition of “jurisdiction” as
stated in 16.1.
Sierra Leone suggested that if no consensus is reached
on referencing specific groups, the Convention should cover all groups.
This legal document should be comprehensive, comprehensible and the
language, particularly in the obligations, clear and consistent. If
overloaded with declaratory statements it would bury the obligations.
16.2 should be amended: “States Parties also undertake to ensure the
creation of conditions under which children with disabilities will enjoy
a full, active, and decent life, in dignity within their respective
communities.” 16.4 should be replaced with: “States Parties undertake
to provide and extend as far as possible free of charge appropriate
early comprehensive services to the child as well as to their parents
and others caring for the child. The provision and extension of these
services shall be designed to ensure that a child with disabilities
has effective access to, inter alia, education, training, participatory
recreational activity and activities for the child’s cultural and spiritual
development.” 16.5 should be replaced with: “States Parties shall provide
the child with disabilities and his or her parents with appropriate
information, referrals and counseling ensuring in all circumstances
that the child maintains his or her self esteem and a positive view
of his or her potential and right to live a full and inclusive life.”
Jordan proposed substituting “their caregivers” for
“other persons caring for or legally responsible for the child,” and
inserting “and information made available in these ways” after “counseling.”
Mexico agreed with Canada, that although Article 16
restates much of Article 23 of the CRC, it would be advantageous to
spell out and promote positive approaches to the rights of children
with disabilities. Mexico stated that it had a text for two new paragraphs
and would provide them to the Secretariat at a later date.
Ireland, on behalf of the EU, highlighted that all
the provisions of the CRC apply to children with disabilities, not just
Article 23 which has been the focus of the discussion thus far. Some
of the proposals submitted today could in fact undermine existing rights
in the CRC and other human rights instruments. Referencing certain parts
of this Convention in this Article implies that other parts of the Convention
are not equally applicable to children with disabilities. This exercise
is in danger not of enhancing the enjoyment of children’s human rights
but of undermining it.
Liechtenstein echoed the EU's statement that the Committee
must avoid undermining rights as the draft is revised. The Article could
be kept concise by referring to all the rights of the CRC, especially
Article 23. It recommended keeping an Article on the rights of children
with disabilities, because the Convention would not be complete without
it. Already-established standards need not be repeated, but should be
reflected and/or referenced. It is not necessary to mention progressive
realization in every Article, which might dilute the Article; rather,
this will be addressed in one Article. It suggested deleting “within
their jurisdiction” in 16.1, as this will be addressed in a general
horizontal Article in the Convention.
Norway agreed with Liechtenstein regarding progressive
realization and the need for consistency and referencing to the CRC.
It cautioned against using language that is similar but not identical
to what already appears in the CRC. Some of the proposals made so far
do pick up thoughts and concepts from the CRC but are not complete.
In this situation there is the risk that the AHC will end up with a
result opposite to that which it intended.
The Chair opened the floor to comments from NGOs.
Disabled Peoples’ International expressed concern
that the draft Convention does not deal with some essential issues for
children with disabilities, such as abuse and exploitation, and suggested
that the Committee consider groups at risk, including refugees and orphans
with disabilities. Article 16 should made be more specific, to make
it stronger than Article 23 of the CRC.
Save the Children, speaking on behalf of Inclusion
International, World Federation of the Deaf, World Network of Users
and Survivors of Psychiatry, Canadian Association of Community Living,
West African Federation of Disabled Persons, World Blind Union, People
with Disability Australia Incorporated, Australian Federation of Disability
Organizations, and Australian National Association of Community Legal
Centres, noted that the Draft is “adult biased and lacks a child perspective
across and throughout the text.” The fast pace of this Convention drafting
process does not give young people the chance to catch up, and be prepared
to make a strong stand. It is difficult for adults who have not lived
that experience to understand. The law itself sometimes violates the
rights of children with disabilities. The core principles of the CRC
– non-discrimination, the best interest of the child, life survival
and development, and participation – are not sufficiently addressed
when it comes to children with disabilities, and the implementation
mechanisms of the CRC are not sufficiently known by governments. The
references to Article 23 of the CRC as a stand alone is a limited approach.
While it appreciated the efforts of the EU to ensure that the Convention
will not be weaker than other human rights instruments, Save the Children
“hoped that EU understands our arguments to keep an Article on children
with disabilities in this Convention.” SCF made a counter proposal to
the EU and other delegations calling for a strongly defined paragraph
on diversity, in the Preamble, Principles, Definitions and in Monitoring.
The SCF alliance’s proposed revision of this Article is available at
www.savethechildren.org.uk
Inclusion International represented by CACL, asserted
that Article 23 alone does not adequately recognize the rights of children
with disabilities which must be explicitly recognized and secured, both
throughout the Convention, and in a strengthened Article devoted to
children. Canada’s proposed 17.6 should be adopted. Paragraph 9 in the
SCF alliance’s proposed text of Article 16 should be omitted because
it references alternative care facilities, as it could be construed
as an approval of institutions.
World Federation of the Deaf understood that many delegations
are hesitant to have this article included because it is not well formed,
and that the text needs to be refined. Article 23 of the CRC actually
limits the rights of children with disabilities. Adults including parents
and teachers should learn sign language in order to communicate with
deaf children or children with intellectual disabilities. Components
of Article 16 should not be moved to the Preamble, which would be long
and non-binding.
The National Human Rights Institutions recommended
a strong Article with additional language addressing prominently the
concepts of nurturing, protecting, and empowering families and caregivers.
Neither the broader text of the CRC nor Article 23 in particular has
effectively addressed the rights of CWD. Rather than be a “mini-CRC”
this Article should articulate specific issues pertaining to children
with disabilities. Its current formulation is negative in its thrust,
treating children with disabilities as liabilities. It is full of qualifiers,
which weaken the rights of children with disabilities. Escape clauses
such as “subject to available resources” and references to eligibility
criteria should be deleted. The words “without discrimination of any
kind on the basis of disability” should be deleted from 16.1. NHRI recommended
that “have the right” replace “should enjoy” in 16.2, and the insertion
of “identification” after “early” in the chapeau of 16.3. The following
revision should be made to 16.3(b): “The provision to the child and
the responsibility of their care of assistance for which application
is made and which is appropriate to the child’s condition and the circumstances
of the parents of the caregiver.” Also, 16.4 should be revised as follows:
“All children with disabilities are guaranteed the right to free basic
services that are designed to ensure that the child achieves the fullest
possible social integration and individual development including his
or her cultural or spiritual development, including, inter alia, education,
training, health care services, nutrition, comprehensive rehabilitation
and habilitation services and recreation opportunities.” In 16.5, the
words “other persons caring for” should be replaced by “caregivers,”
and “referrals” should be deleted as that is already covered by “appropriate
information.” A new paragraph should be added specifying that the child’s
best interest is of paramount importance in any considerations. The
new paragraph 16.8, proposed by Save the Children, should be adopted,
as should an additional paragraph related to Article 12 of the CRC,
related to children’s participation.
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