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Article 7 - Children with
disabilities
Background Documents | Article
7 Background
Seventh Session | Sixth Session | Fourth
Session | Third Session
Working Group | References
Governments
UN System organizations
National Human Rights Institutions
National Human Rights Institutions
Ontario Human Rights Commission
Non-governmental organizations
Bizchut
European Disability ForumIndian NGO Consultative Meeting
International Disability Caucus
International Save the Children AllianceJapan Disability Forum
Landmine Survivors Network
World Blind UnionWorking Meeting of NGOs for persons with disability from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
Draft Article 16
CHILDREN WITH DISABILITIES
EU Proposal: The EU does not consider that this Article adds to what is
already contained in Article 23 of the CRC, and questions its value. The
EU considers that this Convention should apply to all persons with disabilities
and does not favour differentiating between categories of persons with disabilities
– to do so could create the impression that persons in those categories
were entitled to fewer rights than others. For these reasons the EU proposes
deletion of this Article.
The EU considers that an appropriate reference to the situation of children
with disabilities should be included in the Preamble.
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 recognise 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 recognise 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. Recognising 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 rehabilitation
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.
INDIA
Article 16
Children with Disabilities
1. States Parties undertake shall endeavour to ensure that each child with
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.
3(a)alt Provision of early detection, early referral and early intervention
services, including counselling for parents.
5bis States Parties recognize the vulnerability of children to sexual abuse
and exploitation and shall endeavour to ensure their protection.
5ter States Parties recognise 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.
5quart 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.
5sext 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.
MEXICO
Mexican Proposal - Article 16 -Children with disabilities
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, including
early detection and pre-natal care;
(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 habilitation and
rehabilitation 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. States Parties shall create the necessary mechanisms to provide
adequate advice and information to children with disabilities, their parents,
or, where applicable, legal guardians or other persons legally responsible
for the child, on the full exercise of all human rights and fundamental
freedoms by children with disabilities, in a manner consistent with the
present Convention. 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.
5 bis. States Parties shall adopt all legislative, administrative,
and other measures to protect the child with disability from torture or
other cruel, inhuman or degrading treatment or punishment, and from all
forms of violence and abuse, including economic exploitation and sexual
exploitation and abuse, while in the care of parents, legal guardians or
any other persons who have the care of the child, or by any other persons,
within or outside the child’s home.
UN System organizations
OHCHR
See references to international human rights conventions and jurisprudence.
WHO
Article 16 - Children with disabilities
WHO requests that residential facilities be age-appropriate as well as separate
from facilities for adults and that due attention should be given to the
needs of orphaned children with disabilities. Furthermore, WHO extends an
offer of technical support towards developing strategies for early identification
of disabilities.
National Human Rights Institutions
NATIONAL HUMAN RIGHTS INSTITUTIONS
Interventions made at the Third Session:
Article 16
We would delete the words:
- Paragraph 1 – “without discrimination of any kind on the basis of disability”
- Paragraph 2 – seek the deletion of the word “should enjoy” and propose
replacement with the words “have the right”
- Paragraph 3
(a) We would like to insert the word “identification and” after the word
“early”
(b) We offer the following text:
“the provision to the child and those responsible for their care, of assistance
for which application is made and which is appropriate to the child’s condition
to the circumstances of the parents or caregivers”.
We also offer the following:
- Paragraph 4 - All children with disabilities are guaranteed the right
to free basic services that are designed to ensure the child achieves the
fullest possible social integration and individual development, including
his/her cultural and spiritual development including inter alia: education,
training, health-care services, nutrition, comprehensive (re) habilitation
services and recreation opportunities.
- Paragraph 5 - We propose the deletion of the words “other persons caring
for” and replace it with “care-givers”. And then, deletion of the word “referrals”
(which surely would be covered by the words “appropriate information”).
Similarly as suggested by Uganda, we would like to introduce paragraph 6:
“A child’s best interests are of paramount importance in every matter related
to the child”
Finally, we would like to support the inclusion of paragraph 7 of the Save
the Children Fund proposal.
Chair, we would like to see introduced, an additional paragraph similar
to Article 12 of the CRC that addresses children’s participation.
Such an article will assist in monitoring.
ONTARIO
HUMAN RIGHTS COMMISSION
Article 16 – Children with disabilities
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.
The Commission is supportive of all the subparagraphs of this draft Article.
The Commission has referred a series of cases before a human rights tribunal
and will be arguing that children with autism have a right to access intensive
habilitation services necessary for their communicative and social development
and ability to exercise and benefit from their right to education.
There is related case law in this regard. In a recent decision of the British
Columbia Court of Appeal in Auton,15 the Court confirmed that behavioural
therapy for children with autism is a medically necessary treatment, and
that if untreated, autism will likely lead to an individual being unable
to access service programs such as education. The Court ordered the government
to fund the treatment.
Non-governmental organizations
BIZCHUT
Draft Article 16 – Children with Disabilities
The right to life in the community
The following principle should be added: in situations where children are
not with their biological families, they are entitled to life within a family
framework, in a home, in the community, or in a framework most close to
this.
EUROPEAN DISABILITY FORUM
Draft Article 16 Children with disabilities
EDF proposes to limit the reference “subject to available resources” in
paragraph 3b.
EDF supports the paragraphs referring to the support to be provided to the
families as a key element for promoting the rights of disabled children.
The article might include a paragraph which protects the disabled child
from possible negative situations within the family. This should be based
on a reference to the best interests of the child, in line with the content
of the Convention on the Rights of the Child (CRC).
INCLUSION INTERNATIONAL
Article 16 is much too closely based on out of date models for supports and contains totally unacceptable references to 'subject to existing resources'. Such a qualification would never be considered in relation to girls or members of minorities. This article as it is currently drafted would be regressive for many people who have a disability and in many jurisdictions.
INDIAN
NGO CONSULTATIVE MEETING
Draft Article 16
28. A substitute text for 16-3- b). is suggested. The new text proposed
is as follows “ the extension to the child and those responsible for his/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 and others
caring for the child.”
29. New text to be included in article 16 as para 6. This should be read
as “ States parties shall ensure children with disabilities specially girl
child with disabilities is not subjected to exploitation and abuse of any
kind including sexual abuse.”
30. Further addition to the text of article 16 is suggested by way a new
para- 7 of article 16, which should be read as “ States parties undertake
to ensure children with disabilities including girl child with disabilities
is not used for any illegal purpose including for economic gains.
INTERNATIONAL DISABILITY CAUCUS
Draft Article 16: Children with Disabilities
13. 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.
14. 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.
15. 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.
16. States Parties shall ensure that children with disabilities have access
to quality education as laid out in Article 17 of this Convention.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
INTERNATIONAL
SAVE THE CHILDREN ALLIANCE
Draft article 16 - CHILDREN WITH DISABILITIES
Proposal by Save the Children
Inclusion
International
World Federation of the Deaf
World Network of Users and Survivors of Psychiatry
Canadian Association for Community Living
West African Federation of Disabled Persons
World Blind Union
People with Disability Australia Incorporated
Australian Federation of Disability Organisations
(Australian) National Association of Community Legal Centres
1 States Parties undertake to comply with their obligations to children
and young people under a World Fit for All Children 1 and the Convention
on the Rights of the Child (CRC), and nothing within this Convention shall
be taken to derrogate from or undermine the rights contained in the CRC.
Particularly, States Parties will ensure that children and young people
with disabilities equally and without discrimination enjoy the full rights
guaranteed under said Convention
2 States Parties recognise 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 recognise the obligation to respect the evolving capacities
3 of children with disabilities in the exercise of their rights, and the
right to express their views freely on all matters affecting them, their
views being given due weight in accordance with the age and maturity of
the child 4 .
4 States Parties recognise the right of children with disabilities to inclusive
care, within their community, which shall include:
a. Early provision of appropriate and comprehensive supports and services
to enable the full inclusion and active participation of children and young
people with disabilities in society and in all spheres of life
b. Supports to children and young people with disabilities and their families
within the home environment, to ensure the autonomy and personal integrity
of the child is respected and to enable the child to develop towards his
or her full potential in society
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 and in a manner conducive to the child’s achieving
their full social inclusion and individual development, including his or
her cultural and spiritual development
6 Recognising the inherent interdependence of the child with his or her
family and community, families or caregivers and in particular mothers 4
shall be provided with adequate supports to enable the child to realise
his or her full and active participation within the family and community.
States Parties shall make appropriate information, referrals and counselling available in ways that provide them with a positive view of their child’s potential and right to live a full and inclusive life. States Parties will 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 recognise the particular vulnerability of children
and young people with disabilities to abuse and neglect and shall take all
appropriate measures to provide assistance, training and education to families,
caregivers and persons working with young persons with disabilities to counteract
the incidence of abuse.
8 States Parties shall recognise 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.
9 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.
10 States Parties undertake to prohibit the sterilisation of children and
young people with disabilities.
Footnotes:
1. A World Fit for All Children: Guidelines for Inclusion of the rights
of Children with Disabilities in the Convention on the Rights of the Child
has been launched in 2003 by Inclusion International and adopted by States
Parties except a few, to assist them to meet their obligation to ensure
the rights of children with disabilities are met across the said Convention
2. this concept relates to art 5,6,23 and 29 of the CRC
3. this paragraph is related to art 12 of the CRC posing clear obligations
on governments to ensure that children and young people are not passive
recipients of adult protection, but that they have the right to have a say
in all actions and decisions affecting them, from the family to the wider
community level. However to date, too little action has been taken by governments
around the world to ensure that the right to be heard extends to children
with disabilities (Lansdown G. 2001 ‘Its Our World Too!’ A report on the
Lives of Disabled Children for the UN General Assembly Special Session on
Children, Disability Awareness and Action, London)
4. in many countries it is the mother that is directly affected and ostracised
by disability like her child and therefore deserves special support to provide
primary care and nurturing and to enable her to play a full and active role
in society like all persons .
JAPAN
DISABILITY FORUM
<Article 16>Children with disabilities
Original Text of the Draft
3. States Parties recognize the right of children with disabilities to inclusive
care, which shall include:
(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.
JDF’s proposed Amendment
1. The term “subject to available resources” shall be deleted on the premise
of the significance of the care for children with disabilities.
2. Based upon Draft Footnote 54, Paragraph 6 as follows shall be added.
Paragraph 6
State Parties undertake to ensure protection of children with disabilities
from sexual abuse and exploitation. State Parties also undertake to ensure
the rights of refugee children with disabilities, orphan children with disabilities
or those who are in other vulnerable situations.
DRAFT ARTICLE 16 COMMENTS
This Article is a duplication of Article 23 of the Convention on the Rights
of the Child. However, Article 23 is the weakest provision of the Convention
on the Rights of the Child, as it includes language “shall” as compared
to the more forceful “should”. Draft Article 16 of this Convention, even
though it does specify rights of children, does not adequately deal with
the issues that are particular to children with disabilities as a sub-group
of people with disabilities, such as abuse or exploitation. For example,
the Ad Hoc Committee may consider emphasizing groups at risk within this
group, i.e., refugees, orphans, etc. Children with disabilities are mentioned
only in two other Articles of the Convention.
(Article 17-Education and 21-Rehabilitation) Thus the Committee should consider including more specificity in Draft Article 16, in order to make it stronger than Article 23 of the Convention on the Rights of the Child, and more adequately tailored toward issues and barriers facing specifically children with disabilities. For a helpful reference on formulation of an article dealing solely with children with disabilities, see Rights into Action’s contribution to the Working Group. This document is available at: http://www.un.org/esa/socdev/enable/rights/wgcontrib-riaction.htm
Footnote 54 explains that duplication exists between this Article and Article
23 of the Convention on the Rights of the Child, which deals with Children
with Disabilities. Therefore, the Committee should consider whether reference
to children with disabilities should be included in every article, or if
it should be dealt with exclusively within this provision. If the latter
approach is adopted, then as mentioned above, the Article needs to further
elaborate the issues relevant to children with disabilities.
The draft language of paragraph (5) refers to the right of participation
of children with disabilities. A helpful reference in this regard would
be Article 12 of the Convention on the Rights of the Child, which addresses
children’s right to participation.
CHILDREN WITH DISABILITIES
Article 16:
This Article provides a lower standard than in the convention of the rights
of the child there the ”best interests of the child”, is stated.
Habilitation as a concept directed to of children with disabilities is fundamental.
Re-habilitation is to re-establish abilities, which have got lost. Habilitation
could be defined under Article 3, Definitions.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
Article 16
Children with disabilities
Issue 3 should be complimented with one more sub-issue (c):
“3. States Parties recognize the right of children with disabilities to
inclusive care, which shall include:
(c) residence and care in the family – either biological or a foster one.
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