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Article
22 - Respect for privacy, the home and the family
Background Documents | Article
22 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Fourth Session
Governments
Non-governmental organizations
Childrens Rights Alliance for England
International Disability Caucus
Landmine Survivors Network
People with Disability Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
AUSTRALIA
Australia’s Proposal
ARTICLE 14: Respect for Privacy
Australia’s preferred formulation:
Persons with disabilities shall not be subjected to arbitrary or unlawful
interference with their privacy, family, home or correspondence, nor to
unlawful attacks on their honour or reputation. Everyone shall have the
right to protection of the law against such interference.
ARTICLE 14bis: Marriage and Family Relations
Australia’s preferred formulation:
States Parties shall take effective and appropriate measures to eliminate
discrimination against persons with disabilities in all matters relating
to marriage and family relations, and in particular shall ensure, on an
equal basis:
(a) That persons with disabilities are not denied the equal opportunity
to experience parenthood, have intimate relationships, and express their
sexuality, in accordance with law;
(b) That the right of all persons with disabilities of a marriageable age
to marry, in accordance with law, is recognised;
(c) That all persons with disabilities are protected from unlawful involuntary
sterilisation;
(d) That people with disabilities are not discriminated against with respect
to guardianship, wardship, trusteeship and adoption of children, where this
is provided for in national legislation. The best interests of the child
shall be the paramount consideration in all cases;
(e) That no child shall be separated from his or her parents on the basis
of the disability of either the child or one or both of the parents, except
in accordance with appropriate law and where it is in the best interests
of the child.
CHILE
Article 14: Respect for privacy, the home and family
We support Qatar's proposal to add to paragraph 1 of this article the reference
to “attacks on the honour and reputation” of a person with disability. Accordingly,
the text would read:
1. " No person with disability, including those living in institutions,
shall be subjected to arbitrary or unlawful interference with his or her
privacy, nor to attacks on his or her honour and reputation, and shall have
the right to the protection of the law against such interference and attacks...."
We endorse Costa Rica's proposal to incorporate a subparagraph (b) bis,
on reproductive rights, the prohibition of all practices aimed at involuntary
sterilization and/or inhibiting the exercise of the right to reproduction
on the basis of prejudices about persons with disabilities.
In subparagraph (d) we endorse New Zealand's suggestion of including the
"best interests of the child". The text would thus read:
" The States Parties shall ensure: (d) "The rights of persons
with disabilities with regard to guardianship, wardship, trusteeship and
adoption of children, or similar institutions where these concepts exist
in national legislation ; in all case the interests of the child shall be
paramount....."
In subparagraph (e), we endorse the proposal by Jordan, Morocco, Thailand
and Saudi Arabia that "the decision on the separation should be provisional
and subject to periodical review"
The State of Qatar has made a proposal (which is inserted in the draft after
(a) although it would be more relevant to insert it under (f), since it
has to do with the same topic and incorporates such important elements as
the situation of women and girls with disabilities and encourages the media
to play an important role in that endeavour. Furthermore, Chile recommends
making reference to "motherhood" in this provision, which would
read as follows:
(f) The promotion of awareness and the provision of information aimed at
changing negative perceptions and social prejudices towards sexuality, marriage,
fatherhood and motherhood of persons with disabilities, bearing in mind
the situation of women and girls and encouraging the mass media to assist
with this endeavour.
EUROPEAN
UNION
Draft Article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY
1. Persons with disabilities, including those living in institutions, shall
not be subjected to arbitrary or unlawful interference with their privacy,
and shall have the right to the protection of the law against such interference.
States Parties to this Convention shall take effective measures to protect
the privacy of the home, family, correspondence and medical records of persons
with disabilities and their choice to take decisions on personal matters.
EU Proposal: Replace "privacy" by "private life"
in line 2 only. Insert "freedom of" before "choice".
2. States Parties to this Convention shall take effective and appropriate
measures to eliminate discrimination against persons with disabilities in
all matters relating to marriage and family relations and in particular
shall ensure:
(a) that persons with disabilities are not denied the equal opportunity
to experience their sexuality, have sexual and other intimate relationships,
and experience parenthood;
(b) the right of all men and women with disabilities who are of marriageable
age to marry on the basis of free and full consent of the intending spouses,
and to found a family;
EU Proposal: replace by “that the right of all men and women with
disabilities who are of marriageable age to marry and to found a family
on the basis of free and full consent of the intending spouses, shall be
recognized.” (based on ICCPR, Article 23(2) and 23(3)).
(c) the rights of persons with disabilities to decide freely and responsibly
on the number and spacing of their children on an equal basis with other
persons and to have access to information, reproductive and family planning
education, and the means necessary to enable them to exercise these rights.
EU Proposal: EU suggests that sub-paragraphs (d), (e) and (f) should
be included as separate paragraphs, numbered 3, 4 and 5 respectively.
(d) the rights of persons with disabilities in regard to guardianship, wardship,
trusteeship and adoption of children, or similar institutions where these
concepts exist in national legislation. For the purpose of guaranteeing
these rights, States Parties shall render appropriate assistance to disabled
parents in the performance of their child rearing responsibilities.
EU Proposal: EU suggests replacing the word “parents” with the word
“persons” in the second sentence.
(e) that a child shall not be separated from his or her parents against
their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation
is necessary for the best interests of the child. The child shall not however
be separated from parents with disabilities on the basis either directly
or indirectly of their disability;
EU Proposal: The EU suggests deletion of the words “either directly
or indirectly” .
(f) the promotion of awareness and the provision of information aimed at
changing negative perceptions and social prejudices towards sexuality, marriage
and parenthood of persons with disabilities.
Following the EU proposals, (d), (e) and (f) would read as follows:
(3) States Parties to this Convention shall ensure that there is no discrimination
against persons with disabilities in regard to guardianship, wardship, trusteeship
and adoption of children, or similar institutions where these concepts exist
in national legislation. States Parties shall render appropriate assistance
to disabled persons in the performance of their child rearing responsibilities.
(4) States Parties shall ensure that a child shall not be separated from
his or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable law
and procedures, that such separation is necessary for the best interests
of the child. The child shall not however be separated from parents with
disabilities on the basis solely of their disability;
(5) States Parties shall take appropriate measures to change negative perceptions
and social prejudices towards sexuality, marriage and parenthood of persons
with disabilities
Art 14 para.2(a)
Replace the current paragraph with "That sexuality of persons with
disabilities should be respected on an equal basis with others;"
(rationale) To avoid over-prescriptive, controversial language to many countries,
while recognizing the core substance of this paragraph should be retained
to tackle with the realities that persons with disabilities are still actually
facing.
Non-governmental organizations
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 14
Respect for privacy, the home and the family
1. Persons with disabilities, including those living in institutions, shall
not be subjected to arbitrary or unlawful interference with their privacy,
and shall have the right to the protection of the law against such interference.
States Parties to this Convention shall take effective measures to protect
the privacy of the home, family, correspondence and medical records of persons
with disabilities and their choice to take decisions on personal matters.
2. States Parties to this Convention shall take effective and appropriate
measures to eliminate discrimination against persons with disabilities in
all matters relating to marriage and family relations, and in particular
shall ensure:
(a) That persons with disabilities are not denied the equal opportunity
to experience their sexuality, have sexual and other intimate relationships,
and experience parenthood;
(b)That the sterilisation of children and young people with disabilities
without their full and informed consent is prohibited;
(c) The right of all men and women with disabilities who are of marriageable
age to marry on the basis of free and full consent of the intending spouses,
and to found a family;
(d)The rights of persons with disabilities to decide freely and responsibly
on the number and spacing of their children on an equal basis with other
persons and to have access to information, reproductive and family planning
education, and the means necessary to enable them to exercise these rights;
(e)The rights of persons with disabilities with regard to guardianship,
wardship, trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation. For the purpose of guaranteeing
these rights, States Parties shall render appropriate assistance to disabled
parents in the performance of their child-rearing responsibilities;
(f)That a child shall not be separated from his or her parents against their
will, except when competent authorities subject to judicial review determine,
in accordance with applicable law and procedures, that such separation is
necessary for the best interests of the child. The child shall not however
be separated from parents with disabilities on the basis either directly
or indirectly of their disability;
(g) The promotion of awareness and the provision of information aimed at
changing negative perceptions and social prejudices towards sexuality, marriage
and parenthood of persons with disabilities.
INTERNATIONAL
DISABILITY CAUCUS
Draft Article 14: Respect for Privacy, the Home and the Family
1. States Parties to this Convention shall take effective measures to protect
the privacy of persons with disabilities, their home, family, communications
of all kinds and medical records and their choice to make decisions on personal
matters. No person with a disability shall be subjected to arbitrary or
unlawful interference with their privacy, and shall have the right to the
protection of the law against such interference.
2. States Parties shall recognize that persons with disabilities have the
right to choose and direct caregivers and service workers in their homes
or other places of residence.
3. States Parties to this Convention shall take effective and appropriate
measures to eliminate discrimination against persons with disabilities in
all matters relating to personal relationships, and in particular shall
ensure:
a. that persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relationships, and experience parenthood;
b. the right of all men and women with disabilities who are of marriageable age to marry on the basis of free and full consent of the intending spouses, and to found a family;
c. the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights;
d. the rights of persons with disabilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall provide appropriate assistance to parents with disabilities in the performance of their child-rearing responsibilities;
e. that a child shall not be separated from his or her parents on the basis, either directly or indirectly, of their disability, or against the will of the parents except when in the best interests of the child.
f. the promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.
4. In cases where an adult with a disability is living with their family, States Parties shall take progressive measures to support the family to include their family member with a disability in all aspects of community life.
Draft Article 14 - RESPECT FOR PRIVACY, THE HOME AND PERSONAL RELATIONSHIPS
SYNTHESIS OF PROPOSALS
1. Persons with disabilities, including those living in institutions, shall
not be subjected to arbitrary or unlawful interference with their privacy,
or to attacks on their honour or reputation, and shall have the right to
the protection of the law against such interference. States Parties to this
Convention shall take effective measures to protect the privacy of the home,
family, communication, and personal information including medical records
of persons with disabilities, and their freedom of choice to take decisions
on personal matters.
2. States Parties to this Convention shall take effective and appropriate
measures to eliminate discrimination against persons with disabilities in
all matters relating to personal relationships, including marriage and family
relationships, and in particular shall ensure:
(a) that persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relationships, and experience parenthood;
(b) the right of all persons with disabilities who are of marriageable age to marry on the basis of free and full consent of the intending spouses, and to found a family;
(c) the rights of persons with disabilities to retain their fertility, decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights;
(d) that persons with disabilities have the same rights as others with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall render appropriate assistance to parents with disabilities in the performance of their child rearing responsibilities;
(e) that a child shall not be separated from his or her parents, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis either directly or indirectly of their disability or the disability of their child; and
(f) the promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.
COMMENTS
Although Draft Article 14, addresses issues of privacy, paragraph 1 largely
reiterates the provisions found in Article 17 of the International Covenant
on Civil and Political Rights, without tailoring these rights to the specific
situation of people with disabilities. For instance, policies that permit
staff in institutions to enter rooms at any time without warning may not
be per se unlawful, but nevertheless constitute an interference with the
right to privacy. The Ad Hoc Committee may therefore wish to expand upon
the provisions related to privacy and interference with family.
Draft Article 14(e) addresses the separation of a child from his/her parents.
Although paragraph (e) references the “best interests of the child” standard
(Cf. Convention on the Rights of the Child, Article 3(1)), no due process
protections are outlined regarding who would implement this standard and
how. It should also be noted that although there is an express prohibition
on the removal of a child “on the basis either directly or indirectly” of
the parents’ disability, there is no express provision prohibiting the removal
of a child from their parents on the basis of the child’s disability.
Footnote 50 references the discussion about whether “solely” should be used
in place of “either directly or indirectly.” In this regard the Ad Hoc Committee
may wish to take into consideration the historic and often systemic bias
of many societies against people with disabilities as parents. If the word
“solely” is substituted, the provision may not offer sufficient protection
against more subtle forms of discrimination against parents with disabilities.
Draft Article 14(f) relates to awareness-raising measures, but seems to
employ a lower standard than expressed earlier in the Working Group text.
The Ad Hoc Committee may wish to consider whether paragraph (f) should also
require States Parties to “undertake to adopt immediate and effective measures,”
as per Draft Article 5(1).
Draft Article 14(2) originally referred to “marriage and family relations,”
but this was felt to be too limiting. (South Africa, Costa Rica, Mexico)
The phrase has therefore been replaced with "personal relationships,
including marriage and family relationships," which better reflects
the contexts referenced in further provisions of 14(2). (PWDA)
Draft Article 14(2)(b) now references “persons with disabilities” rather
than “men and women,” in order to maintain consistency with the rest of
the Convention.
Draft Article 14(2)(c) has been amended to include the proposal to ensure
that people with disabilities are able to “retain their fertility.” (New
Zealand) This positive formulation is intended to protect people with disabilities
from practices such as forced sterilization, which a number of States agreed
was a form of human rights abuse to be addressed in the Convention. (Kenya,
Costa Rica, Mexico, Thailand, Serbia and Montenegro) (Cf. Committee on Economic,
Social and Cultural Rights, General Comment no. 5, para. 31)
Draft Article 14(2)(d) now includes the proposal to expressly state that
people with disabilities “have the same rights as others” with regard to
issues such as adoption and guardianship. (New Zealand) During the Working
Group meeting there had been some confusion regarding the reference to guardianship,
and this amendment should clarify that the provision protects the right
of people with disabilities to be guardians, adopt children etc. In addition,
“disabled parents” has been changed to “parents with disabilities” for consistency
in drafting. (EU)
For clarity, the reference to “against their will” in Draft Article 14(2)(e)
has been deleted, as it is unclear if this refers to the child or parents.
(PWDA) The proposal to include an express provision prohibiting the removal
of a child from their parents on the basis of the child’s disability has
been included, to provide balance with the provision requiring that a parent’s
disability also not be used as grounds for removal of the child. (Jordan,
Morocco, Thailand, Saudi Arabia)
PEOPLE WITH DISABILITY AUSTRALIA
Draft Article 14
1. Persons with disabilities, including those living in institutions, shall
not be subjected to ADD: discriminatory, arbitrary or unlawful
interference with their privacy, and shall have the right to the protection
of the law against such interference. States Parties to this Convention
shall take effective measures to protect the privacy of the home, family,
correspondence and medical records of persons with disabilities and their
choice to take decisions on personal matters.
WNUSP COMMENT: WNUSP urges the addition of the term “discriminatory” in
paragraph 1 addressing respect and protection of privacy. Particularly in
institutions, interference with privacy may be rationalized based on management
considerations and thus not considered arbitrary or unlawful, but it is
discriminatory because people not relegated to living in institutions are
not subjected to such interference. When the particular form of institutionalization
disproportionately affects people with disabilities, such practices may
also constitute discrimination based on disability.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITIES FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
Article 14
Respect for privacy, the home and the family
Issue 2 after “States Parties to this Convention shall take effective and
appropriate measures to eliminate discrimination against persons with disabilities
in all matters relating to marriage and family relations, and in particular
shall ensure:
(a) That persons with disabilities are not denied the equal opportunity
to experience their sexuality, and have sexual and other intimate relationships
and experience parenthood” to add “get the necessary information
and support for the implementation of such an opportunity”