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Article 7 [Children with Disabilities]

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The United Nations Convention on the Rights of Persons with Disabilities

Abstract

All children deserve special measures to ensure the effective protection of their rights. Children with disabilities are particularly vulnerable to discrimination and violations of their rights. Disabled children face double prejudice on account of the combined disadvantage accruing to them due to their impairment and age. They often fall through the gaps of legal protection, as the norms applied to non-disabled children are inadequate to ensure that the rights of children with disabilities are upheld. As particularly vulnerable individuals, there is no doubt that the rights of disabled children must be subject to specific safeguards. The United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention) revolutionises the manner in which international human rights law addresses the rights of people with disabilities. This chapter explores the novelties introduced by the CRPD in respect of children with disabilties, analysing in particular the constituent elements of Article 7 of the CRPD.

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Notes

  1. 1.

    However, as UNICEF points out, global estimates on the number of children living with disabilities are ‘essentially speculative’. United Nations Children’s Fund (2013), p. 3.

  2. 2.

    World Health Organization & World Bank (2011), p. 205.

  3. 3.

    While disability was covered under the heading of ‘other status’ in Article 2, para. 1, of the ICCPR (1966) and Article 2, para. 2, of the ICESCR (1966), those treaties were not designed with children or persons with disabilities in mind. In 1994, the CESCR developed its General Comment No. 5 on disability. In that General Comment, the CESCR recognised that children with disabilities are especially vulnerable to exploitation, abuse and neglect. As such, they are entitled to special protection—see para. 32, CESCR, General Comment No. 5 on Persons with disabilities, U.N. Doc E/1995/22, December 9, 1994.

  4. 4.

    UN Convention on the Rights of the Child (adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of November 20, 1989, entry into force 2 September 1990, in accordance with article 49).

  5. 5.

    Article 23, para. 1, of the CRC acknowledges the fact that disabled children 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, para. 2, of the CRC requires States Parties to recognise ‘the right of the disabled child to special care’ and to ‘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.’ Furthermore, Article 23, para. 3, of the CRC recognises the special needs of disabled children. It outlines the fact that assistance extended under Article 23, para. 2, shall be designed to ensure that children with disabilities have ‘effective access to, and receive education and training, health care services, rehabilitation services, preparation for employment and recreation opportunities, in a manner which is conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.’

  6. 6.

    CRC, Article 23, para. 2.

  7. 7.

    CRC, Article 23, para. 3.

  8. 8.

    By way of contrast to the medicalised approach to disability adopted in the CRC, the CRC Committee in its General Comment No. 9 (2006) recognises that the barriers faced by children with disabilities are not the disability itself but rather ‘a combination of social, cultural, attitudinal and physical obstacles.’ CRC Committee, General Comment No. 9 on the Rights of Children with Disabilities (2006), UN Doc. CRC/C/GC/9, February 27, 2007, para. 5.

  9. 9.

    CRC, Article 23, para. 4. Emphasis added.

  10. 10.

    CRPD, Preamble, para. (r).

  11. 11.

    CRPD, Article 3, para. (h).

  12. 12.

    The CRC Committee has referred to evolving capacities as ‘processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized’. CRC Committee, General Comment No. 7 (2005) on implementing child rights in early childhood, UN Doc. CRC/C/GC/7Rev.1, September 20, 2006 at para. 17.

  13. 13.

    See Article 5 of the CRC. The concept of ‘evolving capacities’ is stated again in Article 14, para. 2, of the CRC with respect to parental direction and guidance on the child's right to freedom of thought, conscience and religion.

  14. 14.

    For instance, see Article 6 of the CRPD, which highlights the fact that women and girls with disabilities are often subjected to multiple forms of discrimination and requires States to take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. The following CRPD articles are also of relevance to the rights of children with disabilities: Article 8, para. 2 (b), of the CRPD, which requires States to adopt awareness-raising measures fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities; Article 16, para. 5, of the CRPD, which requires States Parties to put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted; Article 18, para. 2, of the CRPD, which requires States Parties to ensure that children with disabilities shall be registered immediately after birth and shall have the 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, para. 1 (c), of the CRPD, which requires States to take effective measures to eliminate discrimination against persons with disabilities in matters relating to family life in order to ensure (inter alia) the rights of children with disabilities to retain their fertility on an equal basis with others; Article 23, para. 3, of the CRPD, which requires States to ensure that children with disabilities have equal rights with respect to family life; and Article 30, para. 5 (d), which requires States to ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system.

  15. 15.

    However, note the comments of the Israeli delegate, which stated that from a legal perspective, the CRPD was not appropriate to address specific groups or situations that are adequately dealt with in other international law instruments. The Israeli delegate argued that ‘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.’ Comments of the Israeli delegate, third session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, May 28, 2004. Available via http://www.un.org/esa/socdev/enable/rights/ahc3sum16.htm. Accessed April 12, 2015.

  16. 16.

    Paragraphs 2, 3 and 4 of draft Article 16 seemed to have been transcribed almost directly from the CRC. Available via http://www.un.org/esa/socdev/enable/rights/ahcwgreporta16.htm. Accessed March 14, 2015.

  17. 17.

    The language used in the final text of Article 7 of the CRPD also stands in contrast to the first draft of the child-specific article proposed during the negotiation sessions leading to the adoption of the CRPD. The first draft of the article made reference to the need for children with disabilities and their adult caretakers to be provided with ‘counselling’ and for the provision of ‘assistance’ and ‘care’ appropriate to the ‘child’s condition and the circumstances of their parents.’

  18. 18.

    UNGA, Status of the Convention on the Rights of the Child, UN Doc. A66/230 (August 3, 2011) at para. 14.

  19. 19.

    According to the World Report on Disability, ‘[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.’ World Health Organization & World Bank (2011), p. 205.

  20. 20.

    In its General Comment No. 9, the CRC Committee acknowledges the fact that discrimination often occurs in a wide variety of areas, including in service provision. This results, inter alia, in the exclusion of children with disabilities from education ‘and denies them access to quality health and social services.’ The Committee further observes that ‘the lack of appropriate education and vocational training discriminates against them by denying them job opportunities in the future’. CRC Committee, General Comment No. 9 on the rights of children with disabilities, UN Doc. CRC/C/GC/9, adopted at the forty-third session of the Committee, February 27, 2007 at para. 8.

  21. 21.

    Multiple discrimination refers to situations whereby ‘individuals or groups of individuals face discrimination on more than one of the prohibited grounds.’ CESCR, General Comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, UN Doc E/C.12/GC/20 at para. 17.

  22. 22.

    Intersectional discrimination has been described by Aart Hendriks as exemplifying ‘the reality in which two or more protected grounds can interact concurrently, cumulatively or otherwise cross-cut to constitute a new—real or perceived—“identity”’, Hendriks (2010), p. 17.

  23. 23.

    CRPD, Article 5, para. 2.

  24. 24.

    CRPD, Article 2.

  25. 25.

    CRPD, Article 13, para. 1.

  26. 26.

    See generally CRPD Committee, Concluding observations on the initial report of Argentina, October 8, 2012, UN Doc. CRPD/C/ARG/01, para. 16.

  27. 27.

    CRPD, Article 7, para. 1.

  28. 28.

    CRPD, Article 8, para. 1 (a).

  29. 29.

    CRPD, Article 8, para. 1 (c).

  30. 30.

    CRPD, Article 8, para. 1 (b).

  31. 31.

    CRPD, Article 7, para. 2.

  32. 32.

    CRC, Article 3, para. 1.

  33. 33.

    CRC Committee, General Comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child (on Articles 4, 42 and 44, para. 6), November 27, 2003, UN Doc. CRC/GC/2003/5, para. 12.

  34. 34.

    Ibid.

  35. 35.

    See CRPD, Article 23, para. 2, and Article 23, para. 4.

  36. 36.

    The CRC also refers to best interests as a primary (and not a paramount) consideration in Article 3, para. 1, of the CRC.

  37. 37.

    Notably, Article 23, para. 2, of the CRPD recognises the paramount nature of the best interests principle. That article provides: ‘States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount […].’

  38. 38.

    The travaux préparatoires of the CRPD reveal that National Human Rights Institutions recommended the inclusion of best interests as a paramount consideration and that, in fact, the best interests principle was considered to be the paramount consideration in all actions concerning disabled children in the original draft proposal of the Ad Hoc Working Group. See the comments of National Human Rights Institutions at the third session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, May 28, 2004. Available via http://www.un.org/esa/socdev/enable/rights/ahc3sum28may.htm. Accessed April 15, 2015.

  39. 39.

    UK Court of Appeal, Re A (Medical Treatment: Male Sterlilisation) [2000] 1 FCR 193 at 200.

  40. 40.

    See, for instance, UK High Court of Justice (Queen’s Bench Division), Case No. CO/4038/2003, R (on the application of Oliver Leslie Burke) and the General Medical Council and the Disability Rights Commission and the Official Solicitor to the Supreme Court [2004] EWHC 1879 (administrative court).

  41. 41.

    Freeman (2007), pp. 1–74 at p. 27.

  42. 42.

    Actions in the ‘best interests’ have been deemed to refer to actions promoting the well-being of a child. The best interests are determined by a wide range of individual factors such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences. United Nations High Commissioner for Human Rights, Guidelines on Determining the Best Interests of the Child (May 2008), p. 14. Available via http://www.unhcr.org/4566b16b2.pdf. Accessed March 20, 2015.

  43. 43.

    See generally Donnelly (2001), pp. 405–416.

  44. 44.

    CRPD, Article 23, para. 4.

  45. 45.

    Byrne (2012), pp. 419–437 at p. 429.

  46. 46.

    See, for instance, Article 7, para. 1 (a), of Directive 2008/52/EC of the European Parliament and the European Council on certain aspects of mediation in civil and commercial matters of May 21, 2008, OJ L136/3. See also Article 5, para. 5, of the Council Directive 2003/86/EC of September 22, 2003 on the right to family reunification, OJ L251/12.

  47. 47.

    CJEU, 23.12.2009, Jasna Detiček v Maurizio Sgueglia in Case C 403/09 PPU, judgment of the Court (Third Chamber).

  48. 48.

    European Parliament (2013), p. 13.

  49. 49.

    Ibid, p. 60.

  50. 50.

    Ibid, p.13.

  51. 51.

    See generally Ministry of Health and Social Affairs and Ministry for Foreign Affairs, Sweden (2001).

  52. 52.

    European Parliament (2013), p. 13.

  53. 53.

    CRC Committee, General Comment No. 9 on the rights of the children with disabilities, UN Doc. CRC/C/GC/9, February 27, 2007, para. 32.

  54. 54.

    UNGA, resolution adopted by the General Assembly on the report of the Third Committee (A/64/435 and Corr.1), UN Doc. A/RES/64/146, March 3, 2010, para. 33(t).

  55. 55.

    UNGA, Status of the Convention on the Rights of the Child, UN Doc. A66/230 (August 3, 2011) at para. 23.

  56. 56.

    ECtHR, Nielsen v Denmark, application no. 10929/84, (1988) 11 EHRR 175.

  57. 57.

    Ibid at para. 73.

  58. 58.

    Ibid at para. 71.

  59. 59.

    See, for instance, ECtHR, Hokkanen v Finland, application no. 19823/92 (1994), [1995] 2 FCR 320, [1996] 19 EHRR 139, 1 FLR 289 and Pini and Others v Romania, application no. 78030/01 (2005), 40 EHRR 13, [2005] 2 FLR 596.

  60. 60.

    European Parliament (2013), p. 13.

  61. 61.

    Ibid, p. 14.

  62. 62.

    See, for instance, CRPD Committee, Concluding observations on the initial report of New Zealand, UN Doc. CRPD/C/NZL/CO/1, October 31, 2014, paras. 17 and 18.

  63. 63.

    CRPD Committee, concluding observations on the initial report of Denmark, UN Doc. CRPD/C/DNK/CO/1, October 29, 2014, paras. 20 and 21.

  64. 64.

    CRPD Committee, Concluding observations on the initial report of Spain, UN Doc. CRPD/C/ESP/CO/1, October 19, 2011, para. 23. See also CRPD Committee, Concluding observations on the initial report of Sweden, UN Doc. CRPD/C/SWE/CO/1, October 28, 2014, paras. 19 and 20.

Table of Cases

  • CJEU 23.12.2009, Case C-403/09 PPU, Jasna Detiček v Maurizio Sgueglia (Third Chamber), ECR I-12193

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  • ECtHR 28.11.1988, Application No. 10929/84, Nielsen v Denmark, 11 EHRR 175

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  • ECtHR 23.09.1994, Application No. 19823/92, Hokkanen v Finland, [1995] 2 FCR 320, [1996] 19 EHRR 139, 1 FLR 289

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  • ECtHR 22.09.2004, Applications Nos. 78028/01 and 78030/01, Pini and Others v Romania, 40 EHRR 13 [2005] 2 FLR 596

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  • UK Court of Appeal (Civil Division) 20.12.1999, Re A (Medical Treatment: Male Sterlilisation), [2000] 1 FCR 193

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  1. Department of International and European Law, Maastricht University, Maastricht, The Netherlands

    Andrea Broderick

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  1. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Valentina Della Fina

  2. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Rachele Cera

  3. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Giuseppe Palmisano

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Broderick, A. (2017). Article 7 [Children with Disabilities]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_11

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