Children and women are more often than men, disadvantaged and are more vulnerable to abuse of their rights. The disadvantages faced by women and children with disabilities face are often amplified by multiple factors such as race, poverty, minority status, and social status. Children with disabilities face exclusion on a constant basis which includes discriminatory enforcement of laws, denial of equal opportunity in education, exclusion from political participation, imposition of negative stereotypes and subjection to physical violence and denial of a healthy family life. The International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CRPD) now recognizes that women and children living with disabilities face multiple forms of discrimination on the bases of their gender, age, disability and other identities.
The social model of disability acknowledges that obstacles to participation in society and its institutions reside in the environment rather than in the individual, and that such barriers can and must be prevented, reduced or eliminated. Children with disabilities face a number of physical as well attitudinal barriers which prevents them from reaching their full potential. For instance, under estimation or over protectiveness for children with disabilities creates a vicious cycle of under-expectation, under-achievement and low priority in the allocation of resources.
Analysis of government reports to the Committee on the Rights of the Child reveals that mostly the only issues ever addressed by governments in respect of children with disabilities relate to education and social welfare, and other rights which include right to participate, to play, to information, to freedom from violence, to an adequate standard of living, and indeed, the right to life are rarely addressed. The lack of any policy or programme for children with disability in India depicts that the situation is same in India as well. It is therefore imperative for any new legislation to pay attention to children with disabilities in imposing obligations on governments to ensure that they are afforded equal respect for their rights.
Under the UN CRC a child is every human being who is below eighteen years of age. In India, most of the legislations identify this age as the minimum age for legal capacity/becoming a major.
In this paper, I have analyzed some of the major issues dealing with children with disabilities and made a case for adopting a double twin track approach in a legislation dealing with rights of persons with disabilities. First, I have looked at the application of the principle of evolving capacity in context of children with disabilities. Second, I have discussed the merits of adopting a double twin track approach in the legislation. Third, I have elucidated upon the areas which require twin-tracking within the legislation and provided justifications for the same namely the right to be protected against abuse and exploitation, access to justice, right to play and participations in sports, leisure and cultural activities and right to family life. Then I have looked at some other rights/provisions which should specifically take account of children with disabilities. Lastly, I have included chapter for children with disabilities which highlights the specific provisions which should be included for children with disabilities. (Annexure I) Herein, I have included the rights that should be present in the legislation. I have discussed a number of programmatic interventions and other measures along with the right in the main text.
The capability approach recognises that human beings must be supported in the development and exercise of some central human abilities, especially in the faculty of selection and choice. It is essential to recognise that children, when provided with adequate support are capable of exercising this faculty.However, children do not have autonomy in law, nor do they have the freedom to make their own choices. Without explicit recognition of this right children’s ability to make choices is not respected and they are effectively rendered invisible.
The recognition of autonomy rests on a presumption of the competence of individuals to make informed and wise choices and decisions. However, such a presumption does not, in general, extend to children.Under the present system parents are vested with rights to take decisions on the child’s behalf until a prescribed age-limit determined by law (eighteen under Indian law).
However, article 5 of the CRC recognises the principle of evolving capacity of the child. The concept of evolving capacity of children is one in which any decision affecting the child takes into account the capacity of the child to exercise rights on his or her own behalf. The Convention, for the first time in international law, establishes a direct relationship between the child and the State that challenges the presumption that parents have rights of ownership over the child. Article 12 of the Convention recognises that the child who is capable of forming his or her own views, has the right to express those views freely in all matters affecting the child and the views of the child have to be given due weight in accordance with the age and maturity of the child.This Article does not reverse that presumption of incompetence in children but it does place an onus on States parties to make certain that children’s capacities are respected. Thus it offers greater potential for the principle of autonomy to be extended to children, while at the same time continuing to provide the necessary protective framework to avoid exploitation, harm or abuse. This principle has also been adopted in the CRPD in Article 7 which further obligates the States to provide disability and age appropriate assistance to realize this right.
The principle of evolving capacity recognises that capacity or competence spans a wide range of qualities - moral, social, cognitive, physical, and emotional, but they do not all develop according to a uniform pattern. The assumption of fixed development stages of children ghettoize many children with disabilities whose capacities may evolve more slowly or in different ways from the majority of children. Very often the fact of difference is viewed as evidence of incapacity to develop.Such assumptions about children’s capacities impose judgments about ‘normal; stages and therefore, lead to a marginalization of children who fall outside these parameters. Furthermore, it is to be noted that these parameters are defined and constructed by adults observing children in isolation from adults. Thus, these parameters mostly fail to acknowledge the relevance and implications of children’s interactions with adults.Since these rely on adult assumptions, they may often differ from the perception held by children themselves. Further, such presumptions fail to value the behaviours exhibited by children that testify to their active participation in shaping their own and others lives around them.
However, research in child development in recent years has highlighted the extent to which children are not merely passive recipients of environmental stimulation, but rather, actively engage with their surroundings in purposeful ways.It is now recognised that children acquire competencies through experience, culture and levels of parental support and expectation.The concept of the evolving capacities of the child and the obligation on the parents to provide guidance and direction consistent with these evolving capacities in the exercise by the child of his or her rights has far reaching implications.This concept recognises the changing relationship between parents and children as they grow up, and also focuses on capacity rather than age as the determinant in the exercise of human rights.As children continually develop their abilities and acquire enhanced capacities, there is a reduced need for direction and a greater capacity to take decisions affecting their lives.Even though all the rights in the Convention on the Rights of the Child extend to all children irrespective of capacity, the question that the concept of evolving capacity addresses is where does the responsibility for the exercise of the rights lie. This principle plays out equally in the context of children with disabilities.
The State has a key role to play in providing the necessary legal and policy framework to promote the universal and consistent realisation of rights for children with disabilities. In order to determine the most effective legal framework for children with disabilities, it is essential to respect their right to participate in and take responsibility for those decisions they are capable of and also provide appropriate protection to them. This involvement in the participation process includes the right of the child to be informed, to express an informed view, to have that view taken into account and to be the main or joint decision-maker.
Further, it is also important to recognise that children with intellectual, physical or sensory impairments develop their capacities through different routes and with differing outcomes and there is no consistent level of capacity across all fields. However, inspite of the difference they are key actors in their own development and must be recognised as a subject of rights.Any construct of childhood in the law must focus on a social construction of instead of a biological construction.The expressions of competence vary according to the nature of the tasks involved, their personal experiences and expectations placed on them. Thus it is a mixture of social context and individual abilities. Thus though age is relevant factor in development and exercise of responsibility and decision making, capabilities are influenced by a range of other factors.By providing rights to children with disabilities in law to express themselves they are rendered visible as holder of rights and are entitled to protection on his or her own behalf.
Article 5 of the CRC does not mention of age as a factor in determining levels of capacity, thereby recognizing that the demonstration of the requisite skills, knowledge and understanding is crucial to the exercise of rights. There is a threefold obligation on the State while giving respect to the evolving capacity of children. There is an obligation upon the state to ensure that the rights guaranteed to the children are fulfilled in order to promote the child’s development and personal autonomy which furthers development of competence. Second, there is an obligation on the State to ensure that the responsibility for exercise of the rights shifts from the adults to the children in accordance with their levels of competence. Lastly, inspite of the acknowledgement of the fact that the children’s capacities are evolving, there is an obligation on the State and the Parents, to protect the children from exposure to activities which are likely to cause them harm.
It is essential to note that the principle of evolving capacity is to also to be the guiding principle for the best interest approach which is adopted while dealing with children. The best interest principle has to be informed by the rights of the child.This principle is also is an independent principle that helps to fill in gaps, provide guidance to the interpretation of other rights, resolve conflicts between rights, and identify conditions necessary for the enjoyment of any children's right. This principle requires taking into account the views of the child as well as those of parents or guardians. As far as children with disabilities are concerned there is a need for a very supportive and strong role of parents and families in the raising and healthy development of children. However, on combined reading of Article 5 and Article 12 of the CRC, and Article 7 (3) of the CRPD it is clear that children have the right to participate in decisions that affect them, in accordance with their age and maturity. Such participation is assumed to be an important part of the determination of their best interests. For instance, any kind of children's input through student councils and representation on committees is assumed to be in the best interests of both students and schools.
The CRPD provides for autonomy and legal capacity to all persons with disabilities. Incorporation of the jurisprudence of evolving capacity in a right based legislation for persons with disabilities is an important step to strengthening the argument of providing legal capacity to all persons with disabilities. In a legislation, a preamble is an interpretative tool and guides as to how the rest of the provisions must be interpreted. Thus this principle must also be included in the preamble in order to ensure that any provision which affects children with disabilities must be interpreted in consonance with this principle. For instance, provisions relating to taking decisions with respect to sexual health or provisions dealing with report of abuse, must be based on the principle of child’s evolving capacity, and his/ her ability to exercise a choice.
The United Nations has acknowledged the special vulnerability of children who are at risk of multiple discrimination based on a combination of factors in particular the, children with disabilities, girl child with disabilities, indigenous girls with disabilities, children with disabilities living in rural areas. Children with Disabilities have not received adequate attention with respect to a number of issues and there is a need to include them in any law dealing with people with disabilities in a twin tracked manner. According to this approach not only there are specific provisions with respect to children with disabilities in the legislation but simultaneous amendments are made in other legislations affecting children. This leads to a quicker implementation of the rights in the main law and incorporation of the basic principle of the law into other laws. Furthermore, apart from including the rights in the dedicated chapter for children with disabilities within the legislation a reference is made in each of the rights wherein children with disabilities are especially vulnerable.
This approach helps in integration of children with disabilities in the general implementation and also ensures that they receive priority attention. Twin tracking also ensures that disability evolves from a special or a separate issue to an integrated component of the mainstream human rights framework.The Twin track approach also ensures that children with disabilities are included in all relevant development programmes and also continual support is provided to them through special measures which enable them to be independent and to make decisions about their own affairs. Such an approach is vital for inclusive development.
While implementing special projects it is to be borne in mind that these projects should not further lead to separation rather than participation. For instance, there should be an assurance that children with disabilities are able to take part in general educational provision, or that any programme relating to access to justice must specifically deal with children. Thus programs must support integration so as to ensure that children and young people with disabilities are actively included in all mainstream policies and programs and there needs to be a dedicated program of work that is focused purely on children with disabilities. The twin track approach has been adopted in the CRPD with respect to children and women with disabilities. The convention not only provides for dedicated provisions with respect to them but requirement of age and gender related accommodations have been provided for throughout as well. Such an approach tackles the issue of multiple discrimination more effectively and it will be beneficial for the targeted group if the same method is adopted in the legislation.
Children with physical, sensory, intellectual or mental health impairment are at increased risk of becoming victims of violence. According to UNICEF violence against disabled children occurs at annual rates at least 1.7 times greater than their non-disabled peers in families, in custodial and institutional settings, in school, and in travel to school. Studies show that children with disabilities are also vulnerable to physical, sexual, emotional, and/or verbal abuse, and neglect in both the private and public spheres. It is observed that children in communities and homes where resources are scarce are often victims of neglect and often last in line for nutrition and care. Children with disabilities are also used in the harshest forms of child labour, and some communities maim and disable children for use in begging.
The major causes of greater vulnerability to violence are widespread social attitudes of rejection and hostility towards disability, greater levels of dependency among children with disabilities and greater degrees of social isolation and lack of services and support leading to pressure on families. Also, children with disabilities are more susceptible to violence because they frequently lack full capacity to flee the site of violence, defend themselves, or find recourse to justice. A large amount of sexual violence against children with disabilities happens because of the presumptions that children with disabilities are ‘non-sexual’ and unlikely to attract sexual attention. The kind of attitude towards disability related violence leads to low levels of reporting, lack of targeted services and limited access to justice.Children with disabilities especially intellectual disabilities face a number of barriers while reporting violence because of lack of capacity/ ability to report, lack to processes to access justice delivery systems, or lack of knowledge on how to approach these systems and not being accepted as a credible witness. Children with disabilities are consistently deemed to be incompetent witnesses and therefore lack opportunities to achieve justice when their rights are violated.
For the above stated reasons it is imperative for any legislation for persons with disabilities to impose obligations on governments to ensure that children with disabilities are equally protected. Most of the measures in place presently are largely inaccessible to children with disabilities. Even the Juvenile Justice Act, 2000 does not provide for accessible complaint mechanisms for children with disabilities. The above problems can be addressed effectively by introducing child specific measures in the legislation dealing with rights of persons with disabilities and making amendments in other laws affecting children with disabilities as well. The double twin track becomes especially useful since, it stresses on the rights which have not been addressed adequately and focuses on overcoming the specific barriers which are faced by children with disabilities. Thus the legislation should guarantee protection from any kind of abuse, or economic exploitation and from any work which is likely to be harmful to their development in any way, or to interfere with their education. There is a need of prohibition of violence in all settings, including the home, family, schools, institutions and the juvenile justice systems. The respective state governments must ensure that institutions providing care for children with disabilities are staffed with specially trained personnel who have been properly screened, according to appropriate standards, regularly monitored and evaluated.
Considering that a large amount of abuse happens in the form of medical interventions any such intervention must be with the consent of the CD keeping in view the principle of evolving capacity. There is a need to introduce accessible complaint mechanisms for children with disabilities and increasing awareness for the same. Not only is there a need to introduce accessible justice mechanisms, and safe and confidential reporting mechanisms but creating awareness and providing information to children is also a significant step towards addressing the violence against childrenwith disabilities. Furthermore, monitoring mechanisms must also be introduced to ensure that any acts violence, abuse, and exploitation may be brought to the notice of courts and the perpetrators are punished. Furthermore there is a need to introduce scheme for rehabilitation and social integration of victims of abuse.
The exclusion of youth's voices from court proceedings that have the capacity to fundamentally rearrange their lives has become an issue of major concern. The Juvenile Justice Act does not provide for consultation with the child while taking decisions which affect the child. Though the Indian Evidence Act allows for children as witnesses, Courts routinely declare children with disabilities as incompetent witnesses.Not only should children be mandatorily informed of any proceeding affecting them, but they must be allowed to participate in them. The principle which respects the opinions of the child can be incorporated in the legislation, and the testimony of the child must be respected based on the age and maturity of the child.
There is a need to ensure that all children with disabilities have an easy access to courts and legal representation. The lawyers as well as judges should be trained in dealing with children with disabilities. There should be a provision of age appropriate accommodations provided in the CRPD such as interpreting, access to sign language, access to information in accessible and age-appropriate forms, physical access to the courts, sufficient time made available to ensure the child fully understands the court procedures, video-taped interviews, and forms of questioning that promote children’s understanding and capacity to express themselves.
Regular participation in sport and play activities helps children develop a sense of belonging. The ability to play form the core of children’s physical, cognitive, social, moral and emotional development. It simulates creativity and is one of the most meaningful ways in which a child engages with the society. Participation in sports and recreation can have an effect on increasing the self-reliance and empowerment of persons with disabilities and in providing tools to facilitate fuller community engagement in all realms, including education and employment. Consequently, denial of the above canlead to further marginalization and is destructive for one's social inclusion, and physical and mental well-being.
For children with disabilities, the most acute sense of social exclusion and marginalization felt in the field of play, recreation and leisure activities.. The exclusion of children with disabilities from play and more structured forms of recreation can stifle both mental and physical growth.Even when children with disabilities are included in educational systems, often appropriate accommodations are not made for physical education and non structured play, thus undermining the goal of socialization. One of the fundamental human rights infringements documented by disabled people's organizations that report on abuses in various orphanages or mental health institutions for children with disabilities is a lack of stimulation, which could be countered through sport, recreational and cultural activities. In more extreme cases, children are often tied to furniture of caged in institutions, on an alleged protection policy by the staff. Not only is such treatment a violation of substantive equality and perpetration of social exclusion, but it is against the right to health of the children.
There are a number of barriers restricting access to culture and artistic life as well. However, for them, physical, attitudinal, cultural and social factors can place almost insuperable barriers in the way of the daily activities that other children are able to take for granted. Whereas in some cases it is structural/physical barriers which prevent children with disabilities to access playgrounds, sporting activities etc, as a result of discrimination, sometimes parents’ own lack of experience of play limits their ability to create, or recognise the importance of play environments for their children.
Article 2 of the CRC stresses that the right to non- discrimination must be encouraged for all children including children with disabilities. There is a need to provide opportunities to include children with disabilities wherever possible, in sporting activities together with other children. The opportunities for play must be consistent with different aptitudes, capacities and interests of children. It is essential children with disabilities must be given an opportunity to play with and alongside non-disabled children since it is a vital building block towards developing an inclusive society. In order to achieve this goal, governments must encourage the provision of appropriate instruction, training and resources on an equal basis with others.
The CRPD recognises that multiple barriers that impede access to cultural and artistic life and introduces very clear obligations which may serve to remove those barriers. It is necessary that the government ensures that children with disabilities have access, on an equal basis with others, to both mainstream and specialist education in the fields of music, art, drama, photography and dance. Encouragement should be given to the media to ensure that the artistic work of children with disabilities is afforded equal recognition. It is important to note that the CRPD stresses that there must be, on an equal basis with others, recognition of and support for the specific cultural and linguistic identity of children with disabilities, such as sign languages and deaf culture.
Thus, the right to play must be specifically guaranteed to the children with disabilities. Introducing it in the legislation in a twin tracked manner will ensure that this right which is fundamental to their physical, mental and emotional development is not neglected and adequate programmes are undertaken to enforce the same.
It is well recognised that family is the ideal environment for a child to grow-up in and it plays an essential role in the well-being of the child.In its preamble, the UNCRC emphatically endorses the family as the natural environment for children and emphasises that families should be provided with all the necessary protection and assistance to enable them to fulfil their responsibilities. There is still, however, a dearth of measures which ensure that children with disabilities have a right to family life or to provide support to families to raise a child with disabilities. A number of factors such as prejudice, ignorance and discrimination, combined with a lack of community-based support or social security provisions, undermine families’ capacities to provide appropriate care and protection for a child with a disability. In India, the family’s primary responsibility of the children has been recognized in the Juvenile Justice Act, 2000.Under International Law, children are placed under the primary jurisdiction of their parents, restricting state responsibility to intervene only when the family is perceived to be failing to protect the child’s fundamental rights. It is to be noted that families of children with disabilities need to be provided with appropriate support to enable them to promote their children's optimum development and to prevent abandonment, concealment and neglect.
According to the CRC, States have to 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 that such separation is necessary for the best interests of the child. In addition, where removal is being considered, children themselves should be consulted and their views taken seriously, in accordance with their age and maturity. The principle of evolving capacity is important is an consideration while taking any decision which affects the child with disability. Additionally, the CRPD provides that a child may not be separated from his or her parents on the basis of the disability. According to this, for instance, doctors, social workers, other professionals must never impose a decision to place a child away from parents simply because the child is disabled. The emphasis must be on providing for the child’s needs within rather than away from the family.
Very often children without family support are placed in institution where they often remain for the whole of their lives. Children in institutions face the violation of many other rights, namely, access to education and healthcare, social inclusion, protection from violence, play, opportunities for friendships , and sometimes, even the right to life. Despite growing awareness of these violations, the number of children in institutional care remains high. Article 14 of the CRPD requires that any deprivation of liberty must be neither unlawful nor arbitrary and that the existence of a disability must never be used to justify the deprivation of liberty. The forced institutionalization of children with disabilities is a violation of their right to equality.
The CRPD sufficiently makes it clear that it is not acceptable to place a lower priority on the protection of family life for children with disabilities.CRC as well as the CRPD places an obligation on governments to provide support for parents to strengthen their capacities to care for their children.The support may be provided through a series of programmatic interventions such aseducation of parents and siblings on causes of disability and each child’s unique needs, psychological support providing material support including allowances and necessary equipment, provision of mobility support and respite care and daycare facilities.The state may also develop and provide training for professionals working with families on the rights of children with disabilities.
Thus, it is absolutely necessary to stress on the right of children with disabilities to live with their families. It is essential that the views of the child must be taken into consideration while taking any decision affecting the child, for instance, while separating the child from the family and placing him/her in foster care.
Apart from the above stated rights where children with disabilities have to be mandatorily included.
Children with disabilities are far less likely to be registered at birth in many developing countries, resulting in denial of citizenship and often inability to access education or health care. This can render children invisible, such that they can be killed with impunity. Thus the right to be registered at birth must be included in the legislation and governments must be required to take measures to address this serious violation of rights.
The principle of every child having an equal right to education is present under the Right to Education Act 2010, but it needs to be strengthened to ensure that the right to inclusive quality education is clearly established. Governments must be required to take the necessary action to make genuine inclusion a reality for all children.
Further, children with disabilities must be expressly included in the provision relating to right to health and special policies and programmes must be introduced covering children with disabilities exclusively. A key consideration in this is that children with disabilities should be allowed to make decisions with respect to their health. Once the child is able to understand and communicate relevant information, or is able to think and choose with some degree of independence, then value should be given to those decisions taken by the child.
Children with disabilities must also be included in provisions relating to social security programmed as well as rights relating to habilitation and rehabilitation. Awareness raising is also a significant tool in promoting the rights of children with disabilities for removing stigma relating to disabilities, or providing information with respect to disabilities to families etc.
While making a legislation which affects children with disabilities it is important to recognise the fact that children carry within themselves a potential for their own development but this can only be realized in an environment where their optimal capacities can thrive. Participation of children with disabilities in different activities helps in promoting competence. Participation is not only a means by which children can effect change but also provides an opportunity for developing a sense of autonomy, independence and heightened social competence.Thus the legislation should respect the capacity of the child to make decisions which affect him/her as well as provide for opportunities and an environment where these children are able to thrive and develop their capacities to the maximum extent. The same can be done through the rights which must be guaranteed in the legislation as well as through a series of programmatic interventions at local levels. Inclusion of these rights in the legislation not only signifies community's recognition of persons with disabilities' equality, dignity, autonomy, and worth but it possesses expressive value as well.This means that legal instruments also affect preferences and behavior by altering social perceptions and conventions by precipitating belief changes by providing information to societies about the rights of persons with disabilities. It is sufficiently clear from the above that children have to be dealt with a twin track approach, focusing on aspects which have not received adequate attention till now. Considering there is a lack of any reliable statistics dealing with children with disabilities in India, there is also a need to monitor and collect data relating to children with disabilities.
The State shall ensure that children with disabilities have a right to freely express their views on all matters affecting them, the views of the child must be given due weight in accordance with evolving capacities of the child, and age and disability appropriate guidance and information shall be provided to the child to exercise this right.
All children with disabilities have a right to be provided with access to court and legal representation and to participate (directly or indirectly) in court proceedings which affect their lives including the right to be mandatorily informed of any proceedings concerning them and be provided with disability and age appropriate accommodations.