Amendments to the draft Disability Convention proposed by child rights NGOs

1. The retention of Article 7 ("Children with disabilities") as a separate article, rather than as an additional paragraph under Article 4 ("General Obligations")

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 a primary 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.

Rationale

The retention of a dedicated article on children serves to ensure their visibility within the Convention. Although the Chair has confirmed that in the event of Article 7 being removed, the text it contains will be transferred to Article 4, it will have less impact there. A dedicated article will facilitate a stronger awareness of children in both implementation and monitoring of the Convnetion. Children have a different status from adults. They are not recognised as having legal capacity and are entitled to additional protections. However, they are subjects of rights and entitled to be explicitly recognised as such. The existence of the dedicated article gives recognition to children with disabilities and the importance of respecting both the commonality and the difference in their status.

2. Amendment to Article 23, paragraph 3

3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realising these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.

Amend to:

3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realising these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall: 
 
(a) Prohibit the sterilisation of children on the basis of disability

(b) Undertake to provide early and comprehensive information, services and support to children with disabilities and their families 

Rationale

The current text of Article 23 makes provision for the right of persons with disabilities to decide on the number and spacing of children, and to equal opportunity to retain their fertility. The paragraph is clearly articulated in the context of adult decision-making with regard to having children. It does not address the concern that many children with disabilities are sterilised before they ever reach the stage of being in a position to make such choices. This amendment seeks to prohibit the practice whereby children with disabilities are sterilised on the basis of the consent of the parent or guardian. 

In many countries, children with disabilities are sterilised purely on the basis of their disability. The intervention is usually undertaken at the request of the parent who gives consent on the child’s behalf. In most legal systems, parents have rights to consent to the treatment of children until a fixed age (16-18years), or until the child is deemed to be competent to give consent on their own behalf. In this sense, the sterilisation of children is forced: the child is being forced to undergo a medical intervention on non-medical grounds without their consent, or even knowledge. This practice violates their personal integrity, their right to found a family, and potentially places them at greater risk of sexual exploitation and abuse

3. Amendment to paragraph 4

4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.

Amend to:
 
4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents or institutionalised on the basis of disability of either the child or one or both of the parents. 
 
Rationale

This amendment seeks to prohibit the practice of placing children with disabilities in institutions as a matter of policy. In many countries, children are still placed in institutions, often from birth, specifically on the basis of their disability. This practice results in the denial of many of their rights - for example, not to be separated from their family, to freedom of association, to the right to express their views and have them taken seriously, and to the right to optimum development. In some instances it also leads to the denial of the right to life, to healthcare, to education and to play. The current provisions in Article 19 ("Living independently and being included in the community") are insufficient to protect children with disabilities from forced institutionalisation. Article 19 states that persons with disabilities shall not be obliged to live in a particular living arrangement. Children with and without disabilities may be placed in institutions for a variety of reasons. The current wording in Article 19, para (a) implies choice. Children with disabilities do not have choice – these matters are decided on their behalf – by parents, professionals or administrators.  A provision which simply provides that persons with disabilities shall not be obliged to live in an institution relies on the person him or herself expressing a view to that end. In respect of children, particularly very young children, consent can be given by a person with the authority to act on the child’s behalf, and therefore, the concept of obligation, or imposition would not apply.