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Article 7 - Children with
disabilities
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CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 16
Children with disabilities
SEE CRAE TEXT, PAGE 33
1. States Parties undertake 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.
2. States Parties recognize that children with disabilities should enjoy
a full and decent life, in conditions that ensure dignity, promote self-reliance
and autonomy, and facilitate the child’s active participation in the community.
3. States Parties recognize the right of children with disabilities to inclusive
care, which shall include:
(a) Early provision of appropriate and comprehensive services;
(b) 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.
4. Recognizing the needs of children with disabilities, assistance extended
in accordance with paragraph 3 of the present article shall be provided
free of charge, whenever possible, taking into account the financial resources
of the parents or others caring for the child and shall be designed to ensure
that a child with a disability has effective access to and receives education,
training, health-care services, comprehensive [re]habilitation services,
preparation for employment and recreation opportunities in a manner conducive
to the child’s achieving the fullest possible social integration and individual
development, including his or her cultural and spiritual development.
5. Children with disabilities and their parents or other persons caring
for or legally responsible for the child shall be provided with appropriate
information, referrals and counselling, and information made available in
these ways should provide them with a positive view of their potential and
right to live a full and inclusive life.
Article 16 CHILDREN WITH DISABILITIES
CHILDREN’S RIGHTS ALLIANCE FOR ENGLAND, JULY 2004
(Unbolded text taken from original UN draft)
1. States Parties undertake to ensure that each child with a disability
within their jurisdiction shall enjoy, without discrimination of any kind
of the basis of disability, the same rights and fundamental freedoms as
other children.
2. States Parties recognise the right of children with disabilities to be
full and equal members of their community, and undertake to provide comprehensive
advice, information and support to children with disabilities and their
families, to enable the full inclusion and active participation of children
with disabilities in society and in all spheres of life.
3. Recognising the rights of children with disabilities to assistance extended
in accordance with paragraph 2 of the present article, this assistance shall
be provided free of charge and in a manner conducive to the child’s achieving
their fullest potential and promoting their individual dignity and autonomy.
4. States Parties recognise the difficulties encountered by children with
disabilities in seeking redress for violations of their human rights, and
shall undertake to ensure that all relevant procedures have been adapted
for children with disabilities.
States Parties undertake to ensure the views and experiences of children
with disabilities are central to the monitoring and ongoing development
of such procedures.
INTERNATIONAL
DISABILITY CAUCUS
Draft Article 16: Children with Disabilities
1. States Parties shall ensure that children with disabilities enjoy a full
and decent life, in conditions that ensure dignity, promote self-reliance
and autonomy, and facilitate the child's active participation and achievement
of his or her full potential in society.
2. States Parties recognise 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,
and without any discrimination based on the child's disability.
3. States Parties shall ensure that children with disabilities are included
in all basic services provided to children. States Parties shall provide
special services for children with disabilities to prepare them for inclusion
in daily life activities. States Parties shall also ensure that basic services
are structured to support the inclusion of children with disabilities in
all aspects of child life.
4. States Parties shall ensure that children with disabilities have access
to quality education as laid out in Article 17 of this Convention.
5. States Parties shall ensure no child with disability shall be required
to undergo any medical treatment or intervention to correct, improve or
alleviate any impairment, any actual or perceived disability as a condition
of inclusion, and that the child is consulted about any such proposed interventions
and given the opportunity to exercise the right to informed consent and
to have his or her preferences given due weight, in accordance with paragraph
2 above.
6. States Parties shall ensure that children with disabilities enjoy inclusive
care within their community relevant to their daily life, which shall include
the early provision of appropriate and comprehensive supports and services
to the child and those responsible for his or her care.
7. Recognising the rights and needs of children with disabilities, assistance
extended in accordance with paragraph 6 of the present article shall be
provided free of charge, or a sliding scale whenever possible, taking into
account the financial resources of the parents or others caring for the
child.
8. States Parties shall ensure that appropriate information, referrals and
counselling are made available in ways that provide children with disabilities,
parents, families and caregivers with a positive view of the child’s potential
and right to live a full and inclusive life. State Parties shall also endeavour
to change social and cultural attitudes thereby protecting the child, and
family, especially the mother, from negative attitudes and exclusion.
9. States Parties shall take all appropriate legislative, administrative,
social, educational and measures to provide assistance, training and education
to children with disabilities, families, caregivers and persons working
with children with disabilities to prevent all forms of violence, injury
or abuse, neglect or negligent treatment, maltreatment or exploitation,
including economic and sexual exploitation and abuse.
10. States Parties shall recognize the high incidence of crimes, especially
crimes of violence, against children and young people with disabilities,
and shall take all appropriate measures to ensure that children and young
people with disabilities enjoy, on an equal basis with other children and
without discrimination, the right to have crimes against them dealt with
appropriately. This should include, but not be limited to, law reform and
adaptation of policies and procedures appertaining to evidence and investigative,
prosecutorial, and court room procedures.
11. Children with disabilities shall not be obliged to live in institutions;
where children with disabilities are unable to live with their parents,
State Parties shall make every effort to provide respite-, day- or alternative
family care in the community, the best interest of the child being paramount
consideration.
12. Nothing in this article shall be construed as limiting or derogating
from any of the rights provided in the Convention on the Rights of the Child
and to which States Parties of this Convention may be subject.
LANDMINE SURVIVORS NETWORK
Draft Article 16 – CHILDREN WITH DISABILITIES
SYNTHESIS OF PROPOSALS
1. States Parties shall ensure that children with disabilities enjoy a full
and decent life, in conditions that ensure dignity, promote self-reliance
and autonomy, and facilitate the child's active participation and achievement
of his or her full potential in the community, society, and all spheres
of life.
2. States Parties recognise 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.
3. States Parties shall ensure that children with disabilities are included
in all basic services provided to children. States Parties shall provide
special services for children with disabilities to prepare them for inclusion
in daily life activities. States Parties shall also ensure that basic services
are structured to support the inclusion of children with disabilities in
all aspects of child life.
4. States Parties shall ensure that children with disabilities enjoy inclusive
care within their community relevant to their daily life, which shall include
the early provision of appropriate and comprehensive supports and services
to the child and those responsible for his or her care.
5. Recognising the rights and needs of children with disabilities, assistance
extended in accordance with paragraph 4 of the present article shall be
provided free of charge, or a sliding scale whenever possible, taking into
account the financial resources of the parents or others caring for the
child.
6. States Parties shall ensure that appropriate information, referrals and
counselling are made available in ways that provide parents, families or
caregivers with a positive view of their child’s potential and right to
live a full and inclusive life. State Parties shall also endeavour to change
social and cultural attitudes thereby protecting the child, and family,
especially the mother, from negative attitudes and exclusion.
7. States Parties shall take all appropriate legislative, administrative,
social, educational and measures to provide assistance, training and education
to families, caregivers and persons working with children with disabilities
to prevent all forms of violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including economic and sexual exploitation
and abuse.
8. Nothing in this article shall be construed as limiting or derogating
from any of the rights provided in the Convention on the Rights of the Child
and to which States Parties of this Convention may be subject.
COMMENTS
The inclusion of a separate article on the children is important to address
the particular experiences of children and young people. It is not in every
case appropriate that the concerns and interests of children and young people
are simply subsumed under those of adults, and, therefore, a separate and
distinct provision on children with disabilities is warranted in this Convention.
It is important that this Article does not duplicate Article 23 of the CRC,
but rather focus on the barriers that children with disabilities face in
fulfilling their human rights that other treaties do not adequately address.
While there is merit to the argument that all the rights in the CRC apply
to children with disabilities, and this remains the most widely ratified
treaty (EU), it remains rare for State parties reporting to the Committee
on the Rights of the Child to provide information on the realization of
the rights of disabled children beyond provision of health care and access
to education. (Cf. review of State reports to the Committee on the Rights
of the Child, and concluding observations of the Committee) In addition,
Rights for Disabled, an international group of disabled people’s organizations
originating from the discussion day held by the Committee on the Rights
of the Child in 1997 on the rights of disabled children, has found that
it is rare for governments when reporting to the Committee on the Rights
of the Child, to provide information on the realization of the rights of
disabled children beyond provision of health care and access to education.
(Cf. G. Lansdown (2001) It’s Our World Too! A report on the Lives of Disabled
Children for the UN General Assembly Special Session on Children, Disability
Awareness in Action, London, available at: http://www.daa.org.uk/ItisOurWorldToo.htm;
Rights into Action Submission to the 2004 January Working Group and the
Submission of International Save the Children Alliance to the third session
of the Ad Hoc Committee, May/June 2004)
Draft Article 16(1): The following text, “States Parties shall 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” is deleted on the basis that it
is an unnecessary repetition of Draft Article 7. It is essential, however
that the language set forth in Draft Article 7 is retained to include a
strong legal obligation against non-discrimination.
New Draft Article 16(1): Unlike the CRC, this article places a real obligation
on States by the inclusion of the word “ensure.” The concept of “autonomy”
is new and builds on successive interpretations by the Committee on the
Rights of the Child. It is important that this principle, one of the guiding
principles of the Convention, be explicitly applied to the situation of
children with disabilities.
New Draft Article 16(2): The concept of evolving capacities is particularly
relevant to children with disabilities because it imposes obligations on
governments to ensure children and young people are not passive recipients
of adult protection, but they have a right to be consulted and express their
views in all actions and decisions affecting them at all levels of society.
(Cf. CRC, Articles 5 and 12) Research has shown that this right has not
been adequately applied to disabled children and young people. (Cf. What
works? Promoting the rights of disabled children, Guidelines for action,
Gerison Lansdown, Rights for Disabled Childrenhttp://www.daa.org.uk/RDC%20WHAT%20WORKS.htm;
G. Lansdown (2001) It’s Our World Too! A report on the Lives of Disabled
Children for the UN General Assembly Special Session on Children, Disability
Awareness in Action, London, http://www.daa.org.uk/ItisOurWorldToo.htm)
New Draft Article 16(3): Children with disabilities are frequently excluded
from basic services, and are instead routed through special services, to
the extent that they exist. This provision seeks to ensure that basic services
are the rule, and are not made subject to financial resources as in the
case of special services. (Cf. Submission of International Save the Children
Alliance to the third Session of the Ad Hoc Committee, May/June 2004)
New Draft Article 16(4): The right to inclusive care in the community builds
on Article 23 of the CRC, which refers to “special care.” This new formulation
also focuses on the rights and abilities of disabled children rather than
stigmatizing disabled children as problems with burdensome special needs.
The reference to “within their community relevant to their daily life” seeks
to ensure that disabled children and youth are included in all basic services.
New Draft Article 16(5): Article 23 of the CRC refers to the “special needs”
of disabled children, rather than the rights of the child. This new formulation
focuses on rights and distinguishes special services from basic services.
New Draft Article 16(6): This provision recognizes the inherent interdependence
of the child with his or her family and community, families or caregivers
who must be provided with adequate supports to enable the child to realize
his or her full and active participation within the family and community.
This is another means to help to change social and cultural attitudes, which
often lead to exclusion of the child and family, especially the mother.
The second sentence reflects the social model in that the focus also needs
to be a change in society. The mother is specifically mentioned as mothers
are often blamed for the child’s disability, and are frequently coerced
to abandon the child to be able to stay in the relationship.
New Draft Article 16(7): This provision recognizes the high incidence of
crimes, especially crimes of violence, against children and young people
with disabilities. Explicit obligations need to be imposed on governments
to take measures to tackle violence and abuse, including physical punishment,
of disabled children and young people. In many countries it remains socially
and legally acceptable to hit children, and disabled children are disproportionately
vulnerable to bullying as well as physical, sexual and emotional abuse.
In countries lacking formal governments or which are experiencing armed
conflict the particular vulnerability of disabled children and young people
gives rise to specific concern
Many current child protection strategies are inappropriate and inaccessible
to disabled children. (Cf. Rights into Action Submission to the 2004 January
Working Group citing A Matter of Context; the sexual abuse of children with
disabilities, (1997) Radda Barnen; Report on the maltreatment of children
with disabilities, (1992) Crosse, Kaye and Ratnovski, National Centre for
on Child Abuse and neglect, Administration for Children and Families, US
Department of Health and Human Services, Washington)
New Draft Article 16(8): The reference to the CRC is to ensure that the
rights contained therein remain unaffected by this Convention. This type
of provision is now standard in many multilateral treaties and ensures that
new treaties do not adversely impact standards developed in others binding
agreements. (Cf. CEDAW, Article 23; CRC, Article 41)