Children with disabilities experience profound and widespread violations of their rights. And, unfortunately, despite the explicit provisions of the Convention on the Rights of the Child (Article 23), these abuses have continued, largely unrecognised by the international community. This new treaty spells out clear obligations for governments on the actions they need to take to achieve greater protection of the rights of children with disabilities.
At the beginning of the process of the negotiations, most delegations were extremely resistant to the need to make explicit reference to children. They argued that children were subsumed under the general provisions. It was only after lengthy argument and negotiation that it was accepted that children have a different legal status from adults, that they are entitled to additional protection as children and that while many of the rights violations they experience are the same as for adults, this is not true for all, and the remedies needed are not always the same.
At the outcome of the 8th and final session of the Ad Hoc Committee, the Convention includes the following specific provisions for children:
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A preambular paragraph stating that children with disabilities should have full enjoyment of all human rights
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Inclusion of respect for their evolving capacities in the general principles (Article 3: General Principles)
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Recognition of the obligation for governments, when developing laws and policies, to consult with people with disabilities, including children with disabilities (Article 4: General Obligations)
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Specific article on children with disabilities (Article 7: Children with Disabilities) which requires governments to take all necessary measures to ensure the equal rights of children with disabilities to enjoyment of all human rights and fundamental freedoms, emphasises the requirement to ensure the best interests of children, and requires that government ensure the right to express views and have them taken seriously with due weight to their age and maturity and to provide disability and age appropriate assistance to realise that right.
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Provision of age appropriate accommodations to ensure that children with disabilities can get access to justice through the courts
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Provision of age appropriate assistance and support in preventing all forms of exploitation, violence and abuse, provisions for recovery and reintegration for victims of abuse which take into account age specific needs, and the introduction of child focused legislation and policies to enable violence and abuse to be identified, investigated and where appropriate prosecuted.
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An obligation to ensure the birth registration of children with disabilities – currently many children with disabilities are not registered which means they often cannot get into school, access health care and they are invisible in government statistics. It can even mean they can be killed with relative impunity as there is no record of their birth.
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The right of children to retain their fertility – in other words, a prohibition on sterilisation of children on grounds of disability, a practice widespread in many countries
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A requirement that in case of guardianship, wardship or adoption, the best interests of the child must be the paramount consideration
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Recognition of the equal right of children with disabilities to family life and the obligation for governments to provide information, services and support to families to prevent concealment, abandonment, neglect and segregation
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Recognition that children with disabilities must never be separated from their parents on the basis of disability of either the child or the parents – this should end the practice of institutionalising so many children with disabilities.
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The equal right of children with disabilities to education and an obligation to ensure an inclusive education system at all levels, with appropriate individualised support measures as necessary.
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An obligation to ensure that children with disabilities have equal access to participation in play, recreation, leisure and sporting activities, including in the school system
Overall, these changes should significantly strengthen the protection of children with disabilities. Indeed, most of the changes that child rights organisations were advocating for within the International Disability Caucus were taken into account: retention of Article 7 as a separate article, inclusive education, prohibition of sterilisation. However, the proposed amendments to Article 23 on the prevention of the institutionalisation of a child on the basis of disability (of the child or of the parent/s) was dropped due to total lack of support.
General Comment
The Committee on the Rights of the Child is currently drafting a General Comment on children with disabilities, which elaborates the obligations of governments when implementing the Convention on the Rights of the Child. A consultative meeting was held in New York with a member of the Committee on the Rights of the Child during the Ad Hoc Session, in order to ensure that the developments taking place in the drafting of the new disability Convention can be adequately reflected in the General Comment.
Next steps
The completion of the drafting of the Convention is an important first step. But it is only the beginning. Save the Children organised a meeting during the session to bring together interested organisations to share ideas of the action now necessary to make the Convention a reality for children with disabilities. They identified the need for:
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advocacy tools for civil society to promote implementation
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capacity building materials for governments and other service providers
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translation of the Convention into child-friendly language
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tools or kits for teachers both in respect of including the Convention into human rights curricula, but also on its implications for schools
There is significant commitment from many organisations to contribute to this process, and Save the Children plan to play a key part in building capacity for advocacy to ensure that this new treaty is both ratified and implemented.
