AD HOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

The case for explicit inclusion of disabled children and young people

Disabled children and young people face a double burden of discrimination. They are excluded and marginalised as a result of their impairment, and are further denied a right to participation in decisions affecting them because of their youth. Disabled people have fought hard for the right to represent themselves and to challenge the assumption that non-disabled people can speak on their behalf. Similarly, disabled children and young people demand the right to be heard and to challenge the assumption that adults can adequately represent their experience and concerns¹.

Article 12 of the Convention on the Rights of the Child introduces for the first time in international law, the right of all children capable of expressing their own views to 'express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child'. The Committee on the Rights of the Child has stated that this article is one of the fundamental values of the Convention². It imposes clear obligations on governments to ensure that children and young people have the right to have a say in all actions and decisions affecting them, from the family to the wider community level, and to have appropriate information with which to inform those views. This right to be listened to and taken seriously recognises that children and young people must be involved in the exercise of their rights and not simply treated as passive recipients of adult protection. However, to date, too little action has been taken by governments around the world to ensure that the right to be heard extends to disabled children³.

The Convention on the Rights of the Child includes disability as a ground for protection against discrimination, and also includes an article addressing the rights of disabled children⁴. Nevertheless, it is extremely rare for governments when reporting to the Committee on the Rights of the Child, to provide information on the realisation of the rights of disabled children beyond provision of health care and access to education⁵. In other words, although all the Convention rights, in principle, extend to the rights of all children, disabled children are frequently forgotten or ignored, in the same way that the rights of disabled people are disregarded by governments when reporting on the international covenants.

While many of the experiences of disabled adults and children and young people are similar, they are not the same. It is not appropriate that the concerns and interests of children and young people are simply subsumed under those of adults. In order to ensure that the rights of disabled children and young people are not sidelined in the new Convention, it is imperative that their different perspectives are properly reflected and made explicit in its text. Only by so doing, will the rights of disabled children and young people be adequately represented.

Addressing the rights of disabled children and young people

In order to ensure the visibility of disabled children and young people in the disability Convention, Rights into Action would like to draw attention to the following proposals for consideration in the drafting process:

1. The Preamble, in drawing on existing human rights law to affirm that it applies to all human beings, needs to mention explicitly that this includes children and young people.
   
2. When addressing the principles of autonomy and self-determination, three dimensions need to be included with regard to disabled children and young people:
   
   
   • the right to express their views on all matters of concern to them and to have their views taken seriously in accordance with their age and maturity⁶;
     
   • the right to exercise rights on their own behalf consistent with their evolving capacities⁷;
     
   • the right to support and encouragement to enable them to develop their capacities in order that they can participate in the exercise of their rights and take increasing levels of responsibility for their own lives⁸.
   
   
3. Parents' have rights and responsibilities in respect of their children to provide direction and guidance in helping their children exercise their rights⁹. Many disabled children experience difficulties in gaining respect for their capacities to take responsibility for their own decision-making. Parents need to be supported and encouraged to recognise and respect their children's right to increasing levels of autonomy in accordance with their evolving capacities.
   
4. The right to protection from all forms of violence and abuse, including physical punishment, needs to be extended expressly to children and young people as well as adults¹⁰. In most countries it remains socially and legally acceptable to hit children, and disabled children are disproportionately vulnerable to bullying aswell as physical, sexual and emotional abuse¹¹. In countries lacking formal governments or which are experiencing armed conflict the particular vulnerability of disabled children and young people gives rise to specific concern. Explicit obligations need to be imposed on governments to take measures to tackle violence and abuse of disabled children and young people. Many current child protection strategies are inappropriate and inaccessible to disabled children.
   
5. Governments must undertake commitments to ensure that disabled people, including children and young people, are aware of their rights and that there are legal remedies available to them when those rights are violated¹². Legal remedies need to be available and accessible to disabled children and young people as well as adults.
   
6. Recognition needs to be given to the right of disabled children and young people, as well as adults, to be consulted and participate in, for example¹³:
   • the establishment of independent institutions to monitor and promote the rights of disabled people;
   • development of legislation and polices to promote the rights of disabled people;
   • reporting to the treaty body established to monitor governments' progress in implementation of the Convention.
7. Consideration needs to be given to the benefits or otherwise of including a specific article on the rights of children. The inclusion of such an article does have the merit of drawing attention to children and highlighting their rights. Conversely, it can, as has been the experience with Article 23 of the Convention on the Rights of the Child, mean that only those issues detailed in the article are addressed by governments, thus leading to the disregard of the broad scope of rights for disabled children and young people. Another approach would be to make an explicit reference in the section on definitions that all rights, unless otherwise stated, extend equally to adults and children and young people

Conclusion

Disabled children and young people are subjects of rights. Too often, those rights are violated and disregarded. The proposed Convention offers a unique opportunity to assert and codify those rights, and place explicit obligations on governments to take action to make them a reality. Rights into Action offers another unique opportunity - a means through which the drafters of the Convention can hear the voices of disabled children and young people, and ensure that their experience and concerns are used to inform the text in the interests of disabled children and young people all over the world.

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Notes:

1. Manifesto of Rights into Action, 4th July 2003
2. Pais MS, (1997), The Convention on the Rights of the Child, in Manual of Human Rights Reporting, OHCHR, Geneva
3. 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 in Action, London
4. Article 2 addresses the right to non-discrimination; Article 23 addresses the rights of disabled children
5. Between 2000-2003, Rights for Disabled Children, an international working group of disabled people's organisations, undertook analysis of each government report due to be examined by the Committee on the Rights of the Child. It was found that although governments did seek to address the issue of children's participation, albeit inconsistently, they rarely, if ever, mentioned participation with regard to disabled children.
6. See Article 12, Convention on the Rights of the Child
7. See Article 5, Convention on the Rights of the Child
8. See Articles 5, 6, 23 and 29, Convention on the Rights of the Child
9. See Article 5, Convention on the Rights of the Child
10. See Article 19, Convention on the Rights of the Child
11. See, for example, A Matter of Context; the sexual abuse of children with disabilities, (1997) Radda Barnen,; Report on the maltreatment of children with disabilities, (1992) Crosse, Kaye and Ratnovski, National Centre for on Child Abuse and neglect, Administration for Children and Families, US Department of Health and Human Services, Washington,
12. Article 42, Convention on the Rights of the Child
13. See Article 12, Convention on the Rights of the Child

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