 |
 |
|
|
|
|
Article 7 - Children with
disabilities
Background Documents | Article
7 Background
Seventh Session | Sixth Session | Fourth
Session | Third Session
Working Group | References
Seventh Session
Governments
UN System organizations
Non-governmental organizations
Comments, proposals and amendments submitted electronically
Governments
Article 7
Canada makes the following proposals for amendment to the facilitator's text on children:
Article 7(4) "STATE PARTIES SHALL UNDERTAKE TO ENSURE THAT every child with A disability [DEL shall have the right to] HAS such measures of protection, assistance and care on the part of his or her family, society and the State as required by his or her minor status and are tailored to his or her individual circumstances. When a child with disability is deprived of his or her family environment or in whose own best interest cannot be allowed to remain in that environment such protection and assistance shall be provided by the State." (drawn from Art.3(2) of the CRC)
Part II CHILDREN
Article 7
1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children and ensure the equal rights of children with disabilities to the enjoyment of all rights set out in this Convention.
2. In all actions situations and for all measure concerning children with disabilities the best interest of the child shall be the paramount primary consideration.
Proposals on articles relating to Women and Children with disabilities and other relevant articles
Article 7
(ii) Para 2 of Article 7 has to replace word “paramount” with “primary” as has been suggested by China and New Zealand to make it consistent with CRC.
(iii) We feel that article 2 bis is not necessary and can be deleted since this concern has already been taken care.
Rights of Children with Disabilities
Article 7
“1. States Parties shall respect and ensure the rights set forth in the Convention on the Rights of the Child and in this Convention to each child with disability on an equal basis with other children and without discrimination of any kind, including on the basis of disability.
2. Every child with disability shall have the right to such measures of protection, assistance and care, on the part of his or her family, society and the State, as required by his or her minor status and are tailored to his or her individual circumstances. When a child with disability is deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, such protection and assistance shall be provided by the State.
3. In all actions concerning children with disabilities, whether undertaken by public or private social welfare institutions, courts, administrative or legislative bodies, the best interests of the child shall be a primary consideration.
4. In order to ensure full realization in good time of the rights in accordance with the present Convention, every child with disability shall be registered immediately after birth and shall have a name and the right to acquire a nationality on an equal basis with other children”.
Contributions to article 7: Children with disabilities
1. We recommend that the text of the facilitator proposed for inclusion in the preamble be retained, but be considered for inclusion in the obligations or as part of this chapter, should a separate article remain. If shifted and with changes it could read as follows:
Recognizing that specific measures are necessary that will ensure children with disabilities have full enjoyment of all human rights on an equal basis with other and fundamental freedoms, without discrimination on the basis of disability, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child.
2. We recommend that the text of IDC with slight re-organization and additions to the text be inserted as paragraph two to strengthen paragraph one irrespective of its placement and to read as follows:
Specific measures by states shall ensure that:
a. all rights are implemented fully in respect of children with disabilities in fulfilling obligations under both the CRC and this convention:
b. reports provided to the relevant treaty body under the terms of the CRC and this convention shall fully address measures taken to implement all the rights in respect of children with disabilities.(could also be shifted to the article on monitoring)
c. Children with disabilities benefit from all mainstream strategies, policies and programmes aimed at children on an equal basis.
Justification
(This convention must fix what other conventions failed to achieve for children with disabilities in general but more specifically ensuring that States do take the issues of children with disabilities and their empowerment in consideration in particular in relation the implementation and monitoring of the CRC. Empowerment of children in this context so as to achieve equality in relation to children with no disabilities is of critical importance. In this context this convention must identify and spell out what the measures of States must ensure effectively.)
Recommendations for specific text per article on the issues of children
We further support IDC’s recommendations and recommend that it be considered for possible inclusion in specific articles related to children in general in various articles of this convention and we recommend that it replace the facilitator’s text where appropriate.
Justification
(The empowerment of children with disabilities in all fields is of utmost importance as they are the ones primarily experiencing inequality and discrimination in comparison with children with no disabilities. Areas where empowerment is especially needed must be emphasized in this convention in separate articles)
25 January 2006
South Africa’s Response to the first facilitator’s text
Article 7
Should a separate article on children be favored we recommend the following text.
1. Article Seven Children with Disabilities
1.(a) As the facilitator’s text stands, children are recognized in the Preamble. The Preamble, however, is not an operative part of the Convention. Moving the below Facilitator’s Text to Article 7: Children with Disabilities would ensure their interests are covered in the legally binding portion of the Convention.
Facilitator’s Text:
N bis:
Recognizing that children with disabilities should have full enjoyment of all human rights on an equal basis with other and fundamental freedoms, without discrimination on the basis of disability, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child.
1. (b) (i) In addition to the above text, the following words would shift the focus and strengthen the language: “specific measures are necessary that will ensure”.
N bis, therefore, would become paragraph 1 for Article 7: Children with Disabilities and with these amendments will read as follows:
Recognizing that specific measures are necessary that will ensure children with disabilities have full enjoyment of all human rights on an equal basis with other and fundamental freedoms, without discrimination on the basis of disability, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child.
1. (b) (ii) The IDC text is well developed and we recommend its inclusion as paragraph two in a specific article on children. It will link with paragraph one above because it expands on just what measures are being ensured.
IDC text with adjustments:
Specific measures shall ensure that:
a. all rights are implemented fully in respect of children with disabilities in fulfilling obligations under both the CRC and this convention:
b. reports provided to the relevant treaty body under the terms of the CRC and this convention shall fully address measures taken to implement all the rights in respect of children with disabilities (note that this could also be shifted to the article on monitoring).
c. children with disabilities benefit from all mainstream strategies, policies and programmes aimed at children on an equal basis with others.
We feel strongly that this is an important issue, however could perhaps best be dealt with in a separate article
Facilitators Text, paragraph 2:
State Parties recognize that children with disabilities are disproportionately vulnerable to non registration of their birth and as a result be denied other rights and shall take all necessary measures to ensure that children with disabilities have equal rights regarding registration after birth and acquisition of a name and nationality.
2. Children as addressed in specific articles other than article 7.
The text of IDC is worth exploring for inclusion in the Text especially
To include under general obligation -“respect for the evolving capacities of children with disabilities and the right to express their views freely on all matters of concern to them and to have them given due weight in accordance with age and maturity”
South Africa’s response to the facilitator’s text on children
Article 7
We are once again flexible on whether the facilitator’s text in this article is contained in a separate article or in the obligations.
We support the wording as contained in the facilitator’s text on Article 7 par 1, 2 and 3 but would propose the following wording for par 4:
State parties shall ensure that measures are taken for the protection and care of children with disabilities and that they have access to children’s services on an equal basis with other children.
UN System organizations
UNITED NATIONS CHILDREN'S FUND (UNICEF)
Statement
1. Introduction
1.1 UNICEF submitted statements to the Ad Hoc Committee in June 2003, 2004 and 2005, elaborating why and how the new Convention should include specific mention on the rights of children with disabilities. In October 2005, the Chair of the Ad Hoc Committee produced a revised text of the draft Convention which is currently being discussed at the Committee’s seventh session.
1.2 As it stands, the status of children in the draft Convention remains largely undetermined. The Chair’s revised text includes Article 7 as a placeholder for a dedicated article on children with disabilities. However, it does not make specific suggestions for the text. Apart from Article 24 (Participation in Cultural Life, Recreation, Leisure, and Sport) and Article 30 (Education), the revised text does not incorporate any of the issues of concern that have been identified in respect of children.
1.3 The purpose of this statement is to reiterate the need for special inclusion of children in the Convention and to explain the rationale for textual amendments.
2. Strengthening the rights of children with disabilities: Issues of particular concern for consideration by the ad hoc committee
2.1 There are a number of specific concerns applicable only to children with disabilities that need to be incorporated in the new Convention if their rights are to be properly addressed. They include:
- Respect for the evolving capacities of children with disabilities.
One of the general principles in the draft text of the new Convention relates to recognition of people with disabilities to autonomy and independent decision-making. However, in contrast to adults, children are generally recognized as having neither autonomy nor legal capacity. These rights are granted to their parents who have responsibilities for decision-making in respect of their children. Only gradually, as children acquire capacity, do these rights transfer to them. In the case of children with disabilities, however, there is little recognition or willingness to allow them to exercise their rights for themselves. Without explicit mention of the right of children with disabilities to respect for their evolving capacities, the general principles will, de facto, exclude them.
- The right of children with disabilities to be consulted in all matters affecting them on an equal basis with other children and be provided with disability, and age-appropriate assistance to realize that right.
Children with disabilities have little opportunities to express their views. Due to stigma and common misperceptions, children are often excluded in their families, communities and at school. Many cannot access information and therefore lack opportunities for developing and expressing views. To ensure that children with disabilities have a voice in their own lives, the new Convention must include provisions that require that children with disabilities be consulted (a) in the implementation of all the rights in the Convention and (b) on an equal basis with other children in all matters that affect them as individuals.
- The need for special measures to ensure that children with disabilities have equal rights regarding registration after birth and acquisition of a name and nationality.
Children with disabilities are far less likely to be registered at birth in many countries, resulting in a denial of citizenship and often inability to access education or health care. Governments must be required to take measures to address this serious violation of rights.
- The need for child protection services that are accessible and available to all children with disabilities.
The current draft addressees the need for measures to protect people with disabilities from violence. It does not include, however, any obligations on governments to ensure that child protection systems are adapted to ensure that children with disabilities are equally protected.
- The protection of children from sterilization on the basis of disability.
International evidence shows that young people with disabilities from around the world continue to face forced sterilization, with disabled girls having even greater chance of having forced sterilizations without proper consent. Such practice represents a fundamental violation of their physical integrity, exposes them to major medical intervention for no clinical benefit and denies them the right to found a family.
- The need to prevent children being placed in institutional care on the basis of their disability
Children with disabilities have the right to the love, care and protection that a family provides. However, they are nearly always over-represented among children confined to institutional care; denied the right to grow up in a family environment, with less of the stimulation and individual attention needed to grow to their full potential and at greater risk of abuse and neglect. In many countries, there is an explicit policy encouraging parents whose child is born with a disability to place the child in an institution. Existing provisions relating to institutionalization in the new Convention (see Article 17, 19, and 23) do not sufficiently protect children from such policies. All of them imply choice. Children with disabilities, however, do not have choice as these matters are decided on their behalf – by parents, professionals, administrators or the courts. Therefore, a special amendment is needed to strengthen obligations to prevent children being placed in institutions simply on the basis of their disability.
3. Background: Reasons for specific mention of children in the new Convention
3.1 As recognized in various human rights instruments including the Convention on the Rights of the Child (CRC), children are entitled to protection to address the particular vulnerabilities they face by virtue of their age, as well as safeguards to ensure their right to development. These protections and safeguards cannot be fully addressed or inferred from the main body of a text directed primarily towards the rights of adults with disabilities.
3.2 The argument has been raised that specific attention to children with disabilities is not needed in the new Convention in light of the existence of the CRC. It is true that all articles of the CRC apply to all children, including those with disabilities. Evidence from monitoring the implementation of the CRC indicates, however, that governments do not give consideration to the rights of children with disabilities except in regard to the provisions of Article 23, which focuses on education, health and rehabilitation. Other rights – to participate, to information, to freedom from violence, to an adequate standard of living – are rarely, if ever, addressed. It is therefore imperative that the new Convention pays attention to children with disabilities in imposing obligations on governments to ensure that they are afforded equal respect for their rights. That way, the new Convention would serve to reinforce and complement the CRC.
Non-governmental organizations
INTERNATIONAL
DISABILITY CAUCUS
(NEW
1. States Parties shall take all appropriate measures to ensure that, in fulfilling their obligations under both the Convention on the Rights of the Child, and the present Convention, all rights shall be implemented fully in respect of children with disabilities.)
2. States Parties shall ensure that reports provided to the relevant treaty body, under the terms of the Convention on the Rights of the Child and the present Convention, shall address fully measures taken to implement all rights in respect of children with disabilities.)
Response to facilitator’s text on Article 7
Facilitator’s proposed text
1. States Parties shall take all necessary measures to ensure the full enjoyment by girls and boys with disabilities of all human rights. To this end States Parties
a. shall ensure that children with disability have the right to be consulted in all matters relating to them on an equal basis with other children and be provided with disability and age appropriate assistance to realize that right.
b. ensure that the best interest of the child shall be of primary consideration while recognizing the responsibilities, rights and duties of parents and family members responsible for the child to provide direction and guidance in the exercise of the child’s rights.
c. 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.
2. State Parties recognize that children with disabilities are disproportionately vulnerable to non registration of their birth and as a result be denied other rights and shall take all necessary measures to ensure that children with disabilities have equal rights regarding registration after birth and acquisition of a name and nationality.
1 The IDC supports the introduction of the chapeau and para 1a.
However, we would recommend that the wording in para 1a should be changed to read ‘all matters affecting them’ rather than ‘all matters relating to them’ in order for consistency with the Convention on the Rights of the Child.
Rationale
It is important to affirm the right to the realisation of all human rights by children with disabilities – evidence from monitoring the implementation of the CRC indicates that governments do not give consideration to the rights of children with disabilities except in regard to the issues addressed in Article 23 addressing children with disabilities. In addition, the right to express views and have them taken seriously in all matters affecting the child is established in the CRC, and has been identified by the Committee on the Rights of the Child as a central underlying principle which must be applied in the implementation of all other rights in the CRC. Its inclusion here achieves two objectives:
a) It makes clear that children with disabilities must be consulted in the implementation of all the rights in the present Convention.
b) It requires that, at a wider societal level, children with disabilities must be consulted on an equal basis with other children in all matters that affect them as individuals, and provided with the necessary supports to enable them to do so.
This is a provision which is difficult to mainstream as the concept of consultation in individual decision-making only applies to children. Adults with disabilities have the right and capacity to act on their own behalf.
(However, if it is not included here, or if the inclusion of Article 7 is not agreed, it would be necessary to add the words, ‘including children with disabilities’ to para 4 of Article 4, General obligations, addressing the obligation to consult with people with disabilities and their representative organisations).
2 The IDC does not support the wording of para 1b
Rationale
Para 1b combines the provisions of Articles 3 and 5 of the Convention on the Rights of the Child. It does not add any additional protection for children with disabilities. Indeed, the proposed wording could serve to undermine existing provisions in the CRC. Article 5 states that parents shall provide appropriate direction and guidance, but this is qualified by assertion that it must be provided ‘in a manner consistent with the evolving capacities of the child….in the exercise by the child of the rights in the present Convention’ . The issue of key importance here is that the child is the rights holder and the role of parents is to facilitate the exercise of rights by the child. The proposed wording fails to recognise the child as a rights holder entitled to exercise rights in accordance with their evolving capacities.
3 The IDC does not support the inclusion of para 1c
Rationale
Para c replicates Article 23 para 1 of the CRC and does not appear to offer any additional protection.
4 The IDC supports the inclusion of a provision on birth registration.
(This provision could possibly be located in Article 12, Equal recognition before the law, or Article 18, Liberty of movement, but does not fit easily in either.)
Rationale
The CRC recognizes the right to birth registration, but does not call for measures to ensure that children with disabilities benefit from this right. Children with disabilities are disproportionately vulnerable to non-registration of their birth. Parents are usually required to pay for registration. In many countries, where there is strong stigma and blame associated with the birth of a disabled child, parents are often reluctant to make the necessary payment for a child deemed to be of little worth. And without registration, a child with a disability is likely to face difficulty in accessing health record of their birth, and CWD are often hidden away from public view, it is possible for them to be killed with relative impunity. And because they are not registered they are not included in national or local statistics, this leads to significant under-estimates of their representation with the community, with implications for planning, allocation of resources, and the development of appropriate and adequate services.
This amendment would place explicit obligations on states parties to take the necessary measures to address this particular form of discrimination.
5 The IDC supports the inclusion of an additional para in Article 7
(This para could also be considered for inclusion in Article 19, Living independently and being included in the community)
IDC proposed text
Add new para 1b
‘provision of mainstream children’s goods and services are fully adapted, and equally accessible and available to children with disabilities’.
This amendment seeks to introduce an obligation to ensure that all mainstream services for children are adapted and equally accessible to children with disabilities in order to ensure their optimum social inclusion within their communities. In other words, instead of the emphasis, as in Article 23 of the Convention on the Rights of the Child, on the need for special provision for children with disabilities, it places the emphasis on the development of inclusive services. This would apply, for example, to play and recreational facilities, museums, parks, youth clubs, day care and nurseries, and dental and opticians’ services.
Summary of IDC proposed text for Article 7
1 States Parties shall take all necessary measures to ensure the full enjoyment by girls and boys with disabilities of all human rights. To this end, States Parties shall ensure:
a. that children with disabilities have the right to be consulted in all matters affecting them on an equal basis with other children and be provided with disability and age appropriate assistance to realize that right;
b. that provision of children’s goods and services are fully adapted, and equally accessible and available to children with disabilities’.
2. State Parties recognize that children with disabilities are disproportionately vulnerable to non registration of their birth and as a result are denied other rights and shall take all necessary measures to ensure that children with disabilities have equal rights regarding registration after birth and acquisition of a name and nationality.
IDC Response on Children 30 January
Facilitator’s text
1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms and ensure the equal rights of children with disabilities to the enjoyment of all rights set out in this Convention.
2. In all actions concerning children with disabilities the best interest of the child shall be the paramount consideration.
3. State Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting to them on an equal basis with other children and to be provided with disability and age appropriate assistance to realize that right.
4. Every child with disability shall have the right to such measures of protection, assistance and care on the part of his or her family society and the State as required by his or her minor status and are tailored to his or her individual circumstances. When a child with disability is deprived of his or her family environment or in whose own best interest cannot be allowed to remain in that environment such protection and assistance shall be provided by the State
Comment: the text of this article may be located in Article 4
IDC response
The IDC supports the retention of a stand alone article on children. We support the text in the first three paragraphs. However, we do not support the wording of para 4.
The IDC would propose alternative wording
‘State Parties shall ensure that provision of children’s services are fully adapted, and equally accessible and available to children with disabilities on an equal basis with other children’.
Rationale
Article 23 of the CRC addresses the specific obligations of governments to provide services tailored to the need of children with disabilities. It is not necessary to reiterate that obligation here.
Furthermore, the obligation to provide protection and assistance when a family cannot care for a child also exists already in Article 20 of the CRC. This paragraph therefore appears to add nothing to existing protections for chdilren with disabilities.
The IDC proposed amendment seeks to introduce additional obligations to promote the social inclusion of children with disabilities. It proposes an obligation on governments to ensure the optimum social inclusion of children with disabilities within their communities by ensuring that wider children’s services are made available and accessible to them. In other words, instead of the emphasis, as in Article 23 of the Convention on the Rights of the Child, on the need for special provision for children with disabilities, it places the emphasis on the development of inclusive services. This would apply, for example, to play and recreational facilities, museums, parks, youth clubs, day care and nurseries, and dental and opticians’ services. At present, many of these services are completely inaccessible and inappropriately designed for children with disabilities. The inclusion of this para would ensure that when these services are being designed and implemented, appropriate consideration is given to the needs of children with disabilities.
Article 7
Comments:
The Preamble to the Convention and Article 3 (Definitions) should mention children with disabilities. In addition, Article 7 should be an independent clause on children with disabilities and should provide, “States parties to the Convention shall protect children with disabilities from abuse such as sexual abuse, exploitation and desertion. States parties to the Convention shall ensure to protect the rights of children with disabilities living as refugees, and children with disabilities in a vulnerable position such as orphans with disabilities” Related domestic measures: Protection of children with disabilities needs to be addressed in the Law Concerning the Prevention of Child Abuse. Also, a special provision is necessary in the Law Concerning the Abuse of Persons with Disabilities, which is currently under consideration.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 7
Chair’s text
The Chair left vacant text on children with disability.
As with women with disability in the previous section, there was overwhelming support for the inclusion of specific reference in the convention on the rights of children with disability.
Most participants also re-iterated support for the inclusion of young people within the text of this article as articulated in the 2004 Australian consultation report.
Participants noted that the Convention on the Rights of the Child (CRC) includes Article 23 that provides reference to children with disability. Participants also noted that some States Parties have interpreted this as the only article that relates to children with disability and reports to the Expert Committee have been tailored as such. In effect, progress toward the implementation of rights of children and young people have only been reported under this article. Participants noted that this highlights the inherent risk of having only a substantive article on children and young people within this convention. Participants also noted there is no reference to children at present in the general principles of this convention and recommended consistency in approach.
In general, participants supported a multi-faceted approach to the inclusion of reference to children and young people with disability in this convention. This included a reference to children and young people in Article 3: General Principles, inclusion of an interpretive article on children and young people (in addition to a more general interpretive article on the recognition of specific population groups) and mainstreaming reference to children and young people in relevant substantive articles.
Recommended position 1
• Change the title and text of the article to include children and young people
• General principles: inclusion of specific text on children and young people with disability
• Specific interpretive article on population groups (please refer to Section 3 of this report)
• Inclusion of an interpretive article on children and young people
• Mainstreaming issues of children and young people in substantive articles.
Recommended position 2
• Change the title and text of the article to include children and young people
• General principles: inclusion of specific text on children and young people with disability
• Specific interpretive article on population groups (please refer to Section 3 of this report)