Amita Dhanda Gabor Gombos
It has been long contended that human rights circumscribe state power and empower the citizen. It is these motivations which dictated the adoption of the Universal Declaration of Human Rights and the Conventions on Civil Political Rights and Social Economic and Cultural Rights. The rights guaranteed by these general Conventions were deemed insufficient to address the discrimination faced by the more vulnerable populations; hence Convention on Elimination of Racial discrimination (CERD) and Convention on Elimination of Discrimination against Women (CEDAW) were adopted to eliminate racial and gender discrimination. The protections required by a child are not the same as an adult; consequently the Convention on the Rights of a Child (CRC) was adopted to address the concerns of the child. In further acknowledgement of the different needs of specific populations, along with the recognition that certain populations may require different mechanisms to fulfil the same universal needs, the Convention on the Rights of Persons with Disabilities (CRPD) has been recently included in the human rights pantheon.
The thematic Conventions were an acknowledgement that discrimination was not a uni-dimensional experience. This acceptance of the many layers of discrimination however did not resolve the question: how should such like discrimination be addressed and eliminated? These questions of multiple discrimination have arisen both in the context of women and children; in this paper we limit our attention to children and examine how the concerns of children with disability - a constituency which encounters multiple discrimination, has been addressed by the CRC and the CRPD. To this end, we firstly examine how the rights of the child have been constituted in CRC and what are the guarantees extended to children with disabilities. We next elaborate on the manner in which the issue has been addressed by the CRPD; and lastly we compare the two approaches and ponder on the questions raised by the similarities and differences of the two human rights Conventions.
II The CRC Paradigm of Rights
As a general rule the CRC recognizes every human being below the age of eighteen years to be a child. Unlike the other human rights Conventions, CRC is not just an articulation of the duties of the State and the rights of the Child. Rather it spells out the rights of the child in relation to the world of adults. This adult world consists of: the parents and extended family of the child and the State. Whilst the parents and the community are designated as the primary caregivers; the State stands in as guarantor, if the primary caregivers either fail or are unable to, perform their duties. In doing these duties the best interest of the child is required to be a primary consideration and they are to be performed consistent with the evolving capacities of the child.
“Best interests” is how the adult world be it community or State perceive the concerns of the child; whilst “evolving capacity” relates to the child’s view of the matter. CRC uses both parameters; but in the main allows best interests to trump evolving capacity. This is the case per se for the human being who has been defined as child in the CRC. There are no questions being raised here on aggravated vulnerabilities. The issue of special needs comes to the fore in article 23 where CRC addresses the rights of children with disabilities. It is important to note here that the article accepts “that a mentally or physically disabled child should enjoy a full and decent life in conditions which ensure dignity, promote self –reliance and facilitate the child’s active participation in the community”. The rest of the article speaks of providing subject to the availability of resources special care to children with disabilities. This article speaks of social participation and individual development of persons with disabilities but in a manner where the children with disabilities are passive recipient of support and assistance. It could be rightfully contended that Article 23 was included to incorporate the special needs of children with disabilities; the inclusion of the article in no way meant that the other principles of CRC were inapplicable to children with disabilities. However the implementation of CRC by State Parties, as evidenced by their reports to the treaty body, has shown that the concerns of children with disabilities have only been addressed in this article; the impact of the other articles of the Convention on children with disabilities finds no mention in the reports of States Parties. This was the case even when Article 23 mentioned education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities as areas in which children with disabilities have entitlements . Therefore to expect that States Parties shall launch special initiatives to promote the participation rights of children with disabilities, or accord recognition to their evolving capacities, in the face of the general paternalistic outlook of CRC and the silence of article 23 on this count, seems to say the least, unrealistic.
Even as the Convention is titled as the Convention on the Rights of the Child, it is more an instrument which has detailed State and community duties towards the child. A number of articles have recognized the rights of the parents and community of the children, instead of the children themselves. With an overarching emphasis being accorded to the best interests’ principle, children in the main emerged as helpless, immature beings. And though the inclusion of the evolving capacity of the child and the right to participation seemed isolated notes in the CRC; it is their inclusion which kept open future possibilities for the creation of a tune in the children’s own voice. It is these isolated notes which the rule the expression of child rights in CRPD.
Article 23 had been incorporated in the CRC with the understanding that the article would give to children with disabilities that trifle extra they may require to be at par with non disabled children. However as already mentioned this effort of same and different did not work out and the concerns of children with disabilities were ghettoized in article 23. Further the special measures in article 23 expressed the aspiration of inclusion and participation without specifying the mode by which it should be carried out.
Insofar as the needs of children with disabilities were not the same as those of adults with disabilities the need for a explicit expression of their concerns was acknowledged. In order to prevent the rights of children from either getting relegated to a single article or to get lost in the mainstream the CRPD adopts a twin track approach. This approach results in the treaty carrrying a stand alone article (article 7) on the rights of children with disabilities, along with suitable references to children with disabiliites in other substantive articles, where the negotiating ad hoc committee found justification for doing so. This approach gives recognition to both the sameness and the difference needs of children with disabilities and thus provides normative guidance on substantive non-discrimination requirements with respect to the various rights enshrined in CRPD.
Again in contrast to the CRC, the stand-alone article relating to children with disabilities provides assistance to the children themselves rather than to their caregivers. The claims of the child have been similarly centered in the other articles of CRPD. Thus Article 16 (Freedom from violence, exploitation and abuse) requires States Parties to ensure gender- and age-sensitive assistance and support to avoid, recognize and report exploitation.
The CRC expressly prohibited discrimination on the ground of disabilty, however this merely non-discriminatory approach proved insufficient to enable equal enjoyment of rights and fundamental freedoms for children with disabilities. This is because solely refraining from negative differential treatment does not help removing the barriers that cause disability; the lowering of such barriers requires more active measures of inclusion, such as reasonable accommodation. A reference to chlidren with disabilities in the CRC affirmed the sameness demands of children with disabilities but failed to recognize their different needs.
This twin tracking clearly expresses that the committee did not feel satisfied with the „mere fixing” of the failure of CRC to provide effective protection and promotion of the rights of cwd by either adding one child specific article to the new treaty or by only mainstreaming children with disabilities into the bulk of the convention. There was need for a new approach. Such an approach was possible in CRPD because the Convention reconstituted the human and in the process changed how fundamental rights like individual autonomy, dignity, equality need to be understood . This new image of the human allowed for the right to support and to reasonable accommodation to be guaranteed without negating a person’s capabilities to exercise his or her rights.It is this reconstitution of the human which has allowed the question of what is a child (with a disability) to be reconsidered.
Children without or with disabilities may and do require support in a number of areas of life.Adults without disabilities have been traditionally expected to act independently as mature human beings without seeking any support or accommodations. However adults with disabilties expressly seek support and reasonable accommodation because without such support and accommodation de facto equality cannot be reached. Children with disabilities are at the intersection of persons with disabilites in general who may need support because of disability and children in general who require age and maturity sensitive assistance and accommodations. Access to support is crucial for both adults with disabilites and non-disabled children not only to execute their self-determined decisions and choices but also to reach their decisions. Personal autonomy also entails the right to make own choices and to act accordingly. International human rights law had interpreted individual autonomy as something that is exercised by independent individuals,and consequently excluded all those who may require support from other people to realize their autonomy. Independence was seen as a given rather than a goal that could often be achieved only through interdependent support mechanisms. CRPD by recognising interdependent human existence as a valid and legitimate framework to enjoy and exercise all fundamental rights and freedoms also shifted the paradigm on how to handle children with disabilities in particular and children in general.
Non-discrimination in general is both a general principle in CRPD and an overarching aspect throughout the substantive articles in the convention. The preamble gives due recognition to the fact that certain groups of persons with disabilities face multiple discrimination, here age-based discrimination is expressly mentioned. Non-discrimination of children with disabilities relative to children in general also finds notice in the Preamble. The stand-alone article on children with disabilities, article 7 reiterates this non-discrimination provision. The rest of the child-specific article reiterates two of the guiding principles of CRC: the best interests of the child and their evolving capacities.
At first sight nothing more has happened in CRPD than the rights of the child enshrined in the CRC were incorporated into a non-discrimination framework without challenging the image of the child adopted by the child rights convention. Nevertheless, a closer study of CRPD, with a particular emphasis on the twin-tracking and on the way how overarching principles such as individual autonomy have altered the concept of the evolving capacities shows that in fact a new image of the child appears in the first human rights treaty of the new millennium.And this shall not stay without an effect on how human rights discourse shall look at children whether with or without disability.
Respect for individual autonomy plays a central role in CRPD. In the case of children with disabilities this is formulated in the context of the evolving capacities of the child. Article 7 paragraph 3 fills this principle with a dramatically new content. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.”
What the disability rights treaty does here with the evolving capacities of the child is, in our view, no less than revolutionary. The general paradigmatic shift in CRPD to give full recognition to the fact that rights can be enjoyed on an equal basis with others presupposes the right to support, assistance and accommodations demanded the negotiating committee to provide with both disability and age-appropriate support. This combined criteria on assistance reflects the social model of disability that has been the basis for the treaty: It is not only the impairment alone that creates barriers to equal participation and full and equal enjoyment of rights but the interaction between the individual with an impairment and the society at large results in disabled life. Age is not a mere biological factor; it is also a social construct. Providing only one of the two types of assistance (disability or age specific) would be meaningless as could not adequately address the barriers created by the combination of age and disability of the child.
CRC does not provide with any sort of assistance to the child to realize their evolving capacities. CRPD does not create new rights but provides this assistance. The situation thus is that for children with disabilities both disability and age-appropriate assistance would be required under international human rights law; whilst children without disabilities would be left to realize their evolving capacities without having the right to age-appropriate support. Equality between all children would require an interpretation of evolving capacities of the child and the right to realize them in such manner that age-appropriate assistance be seen as an entitlement of all children.
One of the inherent dilemmas in the field of child rights is the dilemma between protection and promotion, paternalism and participation of the child. Children are clearly growing human beings; their major task is to develop their capabilities to realize their full potential. While paternalism can be effective in protecting the child from abuses, it has no tools to enable the child with experiences from which they can learn and grow. This latter can be achieved if the child is seen more than just an immature and thus vulnerable person, i.e. the child needs to experience that they are agents in their matters. Paternalism acts against the active involvement and participation of the child in matters affecting their lives. CRC relies on the principle of the best interest of the child but the recognition of their evolving capacities remains an unfulfilled promise.
Judges, law enforcement professionals, child welfare administrations may find difficult to find a healthy balance between the best interests of the child and giving due weight to the child’s views in accordance with their age and maturity. Especially when the child’s will is in contradiction to the adults’ expectations the two principles rather compete than complement each other and the evolving capacities of the child can hardly win this competition due to the profound power imbalance between the authorities representing the “legitimate” adult views with authenticity given by the law. Thus, in a situation of conflict between child and adult, it seems safer, easier and far less risky to act in the “best interest” of the child and ignore the child’s preferences by a simple reference to its inadequate maturity.
The lack of any provision on age appropriate support in CRC at best relegates evolving capacities to individual concessions. On a case by case basis the maturity of the child can be assessed and if the child is found mature enough, his/her preferences are given due weight, otherwise a decision is made in his/her best interest. In case of a conflict between the child’s preferences and their alleged best interests, it is the latter that will guide the authorities. Thus while the best interest principle in CRC is an overarching one, evolving capacities remain in the individual domain without any clear normative consequences. The effective enjoyment of evolving capacities require more than a vague recognition and the CRC falls short in elaborating on what this more should be.
Only when (disability) and age-appropriate assistance becomes a right implying obligations on behalf of the authorities to provide children with such assistance, the chances that the child’s views will not be ignored and decisions contrary to the child’s wishes will not be taken routinely are significantly enhanced. This is the approach adopted by the CRPD.
The best interest and the evolving capacities principles can find harmony and just treatment only if the disproportionate power asymmetry between children and those around them is removed. CRPD does this by placing the child in the center rather than their parents, families or authorities bearing responsibilities towards the child. While CRC addressed the paternalism and participation dilemma mostly through the best interest principle, CRPD has reinterpreted the principle of evolving capacities through making age and disability appropriate support a right.
The CRPD has introduced the strategy of double empowerment to deal with the double discrimination faced by children with disabilities. Further the Convention has questioned the pejorative attributions towards support by allowing for a person to seek support without loss of personhood. Insofar as the CRPD addresses the question of child participation in structural terms it offers a more empowering paradigm to children with disabilities. It is hoped that this strategy of structural empowerment shall not be restricted to children with disabilities alone; and child rights activists will engage with the CRPD paradigm to enhance the participation rights of all children.
Professor of Law NALSAR University of Law Hyderabad
 Senior Advocacy Officer Mental Disability Advocacy Center, Budapest Hungary
 This rule does not apply according to article 1 when according to the law applicable to the child majority is attained earlier.
 See article 7 (3).
 Article 16 (2) 2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.
 Ref to your Twin Track paper
 Article 3 (General Principles) (b) Non-discrimination;
 Preamble (p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status,
 Preamble (r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child,
 Article 7(1) States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
 Article 7 (2) In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
 See in next section
 Preamble (n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,
Article 3 (General Principles) (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons,
 Article 3 (General Principles) (h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.