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CHILDREN’S RIGHTS AND THE UN TREATY BODIES:
An analysis of the work of the UN Committee on the Rights of Persons with Disabilities
To mark the International Day of Persons with Disabilities this week, CRIN is publishing an analysis of the work of the UN Committee on the Rights of Persons with Disabilities in which we press for the rights of children with disabilities to be addressed with the same consistency and rigour as adults’ rights.
The ways in which human rights treaties, such as the Convention on the Rights of Persons with Disabilities (CRPD), apply to children are often overlooked. It is the responsibility of both children’s rights advocates and the UN mechanisms themselves to make the links. Indeed UN committees rely on civil society to bring issues to their attention. Our analysis of the disability committee’s work therefore reveals the children’s rights violations that are most frequently raised, as well as gaps in its questioning of States’ children’s rights records.
This publication is the latest in our series of analyses of children’s rights in the work of UN treaty bodies. We launched the first phase earlier in the year, looking at how children’s rights are addressed by the committees that monitor the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights.
Findings
As a general observation, we noted that States were urged to take action on a wide range of issues facing children. Many of the violations raised relate to the forced placement of children with disabilities in institutions or other closed settings; their situation in those settings, including the torture and other cruel and inhuman treatment to which they are subjected; and medical interventions carried out without their free and informed consent.
Nevertheless, the Committee sometimes fails to consider the specific implications certain rights have for children.
Recommendations
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The principle of progressive realisation of economic, social and cultural rights (reaffirmed in article 4 of the Convention): all steps taken, including legal reform and the provision of judicial remedies, should not only apply to children with disabilities but must also take into account their unique needs and vulnerabilities.
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Access to sexuality education and reproductive health services: the Committee should urge States to take all necessary measures to end harmful practices such as forced sterilisation and discriminatory beliefs about children with disabilities’ sexual and reproductive capacities and guarantee access to the full range of sexual and reproductive health information and services.
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The right to work: while stressing the need to protect children with disabilities from labour activities that are dangerous, harmful or hazardous or interfere with their development, the Committee must highlight the need to secure children employed in suitable work the special protection they need, as well as all the guarantees provided for adults.
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The right to privacy of children with disabilities: the Committee should reaffirm this right for children with a focus on those living in institutions who are particularly vulnerable to breaches of their privacy because of the range of situations in which adults have power over them.
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Harmful traditional practices: raise issues of harmful traditional practices against children with disabilities, with a focus on violations against both boys and girls.
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LGBTI children with disabilities: raise the issues faced by LGBTI children with disabilities, especially in light of the bans on “homosexual propaganda” that have either been passed or proposed in many countries to 'protect children from information deemed harmful to their health and development'.
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Austerity measures: challenge austerity measures recently adopted in a number of countries to minimise their effects on children with disabilities and encourage States to allocate more resources for the realisation of children’s rights under the Convention.
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Private institutions: examine specific violations unfolding in private institutions. Violations of children’s rights in institutions and other closed settings are highlighted throughout the concluding observations of the Committee. This is particularly important in light of the current wave of privatisation of public services.
Read the full analysis here.
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LATEST NEWS AND REPORTS
Reproductive rights and education
Northern Ireland’s almost outright ban on abortion breaches the human rights of women and girls, including rape victims, a high court judge has ruled. At present, abortions are only permitted in the health service if the life of a mother is directly under threat, or in cases in which there would be long-term negative effects on her health by continuing with the pregnancy. Under a 19th-century law, individuals face life imprisonment for carrying out abortions. But the historic judgment could lead to women and girls who are the victims of rape, incest and those suffering from fatal foetal abnormalities being able to have terminations in hospitals in Northern Ireland. However, Justice Horner suggested that a referendum might have to be held to enact his conclusions on reforming local abortion law. He said that without a referendum it was impossible to know how the majority of people in Northern Ireland viewed abortion. This is despite criticism that human rights matters should not be put to public vote, as public opinion cannot legitimise or de-legitimise human rights.
A TV programme in Africa has been found to have a positive impact on challenging sexual taboos held among young people. Shuga was first broadcast in Kenya in 2009 with the primary purpose to educate, inform and encourage people to talk about sexual health, relationships and HIV. In 2010, research from Johns Hopkins University found Shuga had reached 60 percent of Kenyan young people, half of whom had talked about it with their families. Although only 15 percent of viewers discussed it with a partner, 90 percent of those interviewed believed it had an impact on their thinking. Following its launch in Nigeria in 2013, research found that it is also encouraging young people to talk about safe sex and HIV with friends; 18 percent said they had done so with a partner, while 15 percent said they had used a condom the last time they had sex because of the TV programme.
Citizenship and identity
China is considering extending hukou, or household registration, to 13 million unregistered people, including many children, according to the Ministry of Public Security. Without a hukou, a person is denied access to public education, reimbursement for health care costs and other welfare benefits. Parents who had more than one child under the old family planning policy have not been allowed to register their children unless they pay a significant fee. More than 60 percent of China's 13 million unregistered people nationwide fall within this category. Other unregistered people include abandoned children, children born out of wedlock and those whose documents are missing. Now, the Ministry says it upholds registration as a fundamental right for all citizens that is endorsed by the constitution and the law. The intention to reform the hukou system follows the announcement in October of the new two-child policy.
New Zealand’s adoption law requires new birth certificates to be drafted upon adoption which exclude biological parents’ details, denying children’s right to an identity, advocacy groups say. "The act is based on the premise that neither the adopted person, nor the birth family, would ever see each other again," said Dr Anne Else of the group Adoption Action. "It is entirely orientated around adult interests.” She also added that another concern is that there is no requirement for a child to give consent to be adopted, even at the age of 17. The law also lacks regard for children's cultural background and their heritage, which is important for Maori and Pasifika groups. "This is a law that dates from 1955 and effectively fossilises the attitudes and values of that time. It's legislation that desperately needs overhaul," said Green Party MP Kevin Hague. In 2000, the Law Commission published a report suggesting about 100 changes to the law, but none have been imposed so far. When asked to explain the inaction, the office of the justice minister said: "there are other things on the minister's agenda that are more important right now".
Violence against women
Four people in Malawi, including two girls, are challenging a “sexist” rape law in the country’s Constitutional Court, as they claim it stops women and girls from getting justice for sex crimes. The law in question, which has already been repealed in many other countries, is an 18th-century bill rooted in English common law requiring women to provide a witness or medical evidence in order to obtain a conviction for her attacker, under what is titled the ‘corroboration rule’. It was created on the entrenched assumption that a woman might lie and send an innocent man to jail. “The cops, the society, the courts, everybody starts from a place of disbelief," said Fiona Sampson, a lawyer with legal rights network The Equality Effect which is supporting the Malawi case. But as a result of this requirement, the defendants in the Malawi cases were all acquitted by the courts. The principle that convictions require evidence beyond reasonable doubt already protects rape suspects, said former magistrate Bernadette Mulunga in her expert submission in support of the claim. What’s more, rape usually occurs in private, without witnesses.
Authorities in Cameroon failed to properly investigate the alleged rape of a 10-year-old girl and bring the wealthy abuser to justice, according to a complaint lodged with the African Committee of Experts on the Rights and Welfare of the Child. As well as this, the man accused of the crime was never detained and the Magistrate refused to share a copy of the judgment with the girl’s lawyer. The Magistrate went so far as to sue the girl and her counsel for defamation. The girl, referred to in the case as TFA, alleges that the government of Cameroon has violated her rights under numerous international conventions through its negligence and believes that a positive outcome in her case could benefit children across Africa.
Harsher sentences have been introduced in Colombia for those who attack women and children with acid. The new law effectively doubles the maximum sentence available for those who pour or throw acid onto victims, the majority of whom are women and children. Such attacks have devastating consequence beyond frequently blinding and disfiguring victims, which also frequently results in social stigma, discrimination and poverty for those who are attacked. The most common substances used are nitric and sulphuric acid and while these attacks are frequently associated with Southeast Asia, Colombia is currently the country where most acid attacks take place.
Overly broad refugee law unconstitutional
In Canada, the Supreme Court has held that people who help undocumented migrants enter the country - through acts ranging from steering a ship, acting as lookout, or cooking meals, for example - cannot be automatically branded as people smugglers. In a pair of unanimous judgements, the Court said the provision of the Immigration and Refugee Protection Act — which made it an offence to “organise, induce, aid or abet” the arrival of people in contravention of the act — was unconstitutional and overly broad. Explaining this further, the judgement said: “A father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution.” The judges clarified that acts of humanitarian assistance, or aid and support provided by family members, do not equate to the smuggling of persons under Canadian immigration law. The decision has been welcomed by refugee and civil liberties groups as an important development, particularly in light of the current refugee crisis.
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ACCESS TO JUSTICE FOR CHILDREN IN UKRAINE
Ukraine ratified the Convention on the Rights of the Child (CRC) and automatically incorporated it into national law in 1991. The CRC is directly enforceable in Ukrainian courts and takes precedence over national law if there is a contradiction between the two. Additionally, Ukraine has incorporated specific provisions into its legislation. The general rule is that only persons of legal age can bring claims to court on behalf of a child. However minors from the age of 14 onwards can carry out their civil procedure rights if they are directly involved in the case. They can also directly seek a remedy in a family court. A child of any age can report to an investigator or prosecutor about a criminal offence. Children can appeal through a representative to the Ukrainian Parliament Commissioner for Human Rights, for the protection of their constitutional rights and freedoms. The Commissioner can also request judicial review from the Constitutional Court of the constitutionality of a law or legal act. Anyone is entitled to challenge in court an unconstitutional decision, acts or omissions of an authority through domestic means or an appropriate international institution that Ukraine is a member of.
Read the full report on access to justice for children in Ukraine.
This report is part of CRIN's access to justice for children project, looking at the status of the CRC in national law, the status of children involved in legal proceedings, the legal means to challenge violations of children’s rights and the practical considerations involved in bringing a case.
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UPCOMING EVENTS
Internet: Protecting children and young people online - in the home, at school and across devices
Organisation: Westminster eForum
Date: 8 December 2015
Location: London, United Kingdom
Family: Int'l conference on shared parenting - Best practices for legislative and psycho-social implementation
Organisation: International Council on Shared Parenting (ICSP)
Date: 9-11 December 2015
Location: Bonn, Germany
Disability: 32nd Pacific Rim international conference on disability and diversity
Organisation: Center on Disability Studies, University of Hawaii at Manoa
Submissions deadline: 17 December 2015
Event date: 25-26 April 2016
Location: Honolulu, United States
Education: Sixth int'l human rights education conference - 'Translating Roosevelt’s four freedoms to today’s world'
Organisations: HREA and University College Roosevelt
Dates: 17-19 December 2015
Location: Middelburg, Netherlands
Research: Professional development courses in research with children & young people
Organisation: University of Edinburgh
Dates: March and April 2016
Location: Edinburgh, Scotland
Alternative care: Improving standards of care - systems, policies & practices
Organisation: Udayan Care
Date: 18-19 March 2016
Location: Noida, India
Call for submissions: Global summit on childhood - 'creating a better world for children & youth through sustainability, social innovation & synergy'
Organisation: Association for Childhood Education International
Date: 31 March - 3 April 2016
Location: San José, Costa Rica
Child rights: Advanced studies programme in international children’s rights
Organisation: Leiden University
Application deadline: 1 April 2016
Location: Leiden, Netherlands
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EMPLOYMENT
CRIN: Legal Research Intern (Russian-speaking)
Application deadline: Rolling deadline
Location: London, United Kingdom
CRIN: Middle East and North Africa Intern
Application deadline: Rolling deadline
Location: Bethlehem, Palestine
THE LAST WORD
"Children with disabilities face significant barriers to enjoying their fundamental rights. They are often excluded from society, sometimes living in facilities far from their families. They are also denied access to basic services, such as health care and education, and endure stigma and discrimination, as well as sexual, physical and psychological violence. [And] even though protective measures are available, girls and boys with disabilities are more likely than their peers to experience violence, sexual abuse or bullying in schools, at home or in institutions."
-- European Agency for Fundamental Rights in its December 2015 report Violence against children with disabilities: legislation, policies and programmes in the European Union
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