Abstract
Conflicting interpretations of the Convention on the Rights of the Child (CRC) and Convention on the Rights of Persons with Disabilities (CRPD) send mixed messages on the safety and legitimacy of residential care, resulting in the replacement of large institutions with smaller ones, often called ‘residential care’ or 'group homes.' The CRPD requires governments to create protections and supports to allow all people with disabilities to live in the community. CRPD Committee General Comment No. 5 says that, for children, living in the community means growing up in a family – not in a large or small facility. This article demonstrates how the family inclusion mandate of General Comment No. 5 is rooted in the 'human rights model of disability,' fundamental to equal protection under the CRPD for all children with actual or perceived disabilities. The article proposes solutions to ensure full implementation of both the CRC and CRPD.
Highlights
The Convention on the Rights of the Child 1989 (CRC) was groundbreaking as it was the first international convention to recognize the rights of children with disabilities, but disability rights and children’s rights experts have raised concerns about weaknesses in CRC protections that reflect paternalistic and outdated assumptions about disability (Kilkelly, 2002, pp.119–120; French and Kayess, 2008, p.13; OHCHR European Regional Office, 2011, pp.10–11; Bantekas, 2018, p.201; Rosenthal, 2019, pp.71, 113–114)
General Comment 5 clarifies that ‘[f]or children, the core of the right to be included in the community entails a right to grow up in a family’
Disability Rights International (DRI) interviewed judges who were authorized to make such determinations for each residential care placement in Bulgaria (DRI, 2019, pp.28–33). These judges explained to DRI investigators that, when no alternatives exist to support a child to live with their family or foster family, placement in a group home or institution is always the placement of last resort (DRI, 2019, p.28–33)
Summary
The Convention on the Rights of the Child 1989 (CRC) was groundbreaking as it was the first international convention to recognize the rights of children with disabilities, but disability rights and children’s rights experts have raised concerns about weaknesses in CRC protections that reflect paternalistic and outdated assumptions about disability (Kilkelly, 2002, pp.119–120; French and Kayess, 2008, p.13; OHCHR European Regional Office, 2011, pp.10–11; Bantekas, 2018, p.201; Rosenthal, 2019, pp. 113114). The UN Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006 to ensure equal protection for people with disabilities – and to fill gaps in existing protections under existing international human rights conventions (French and Kayes, 2008, p.20; Kanter, 2015, p.5). One of the most important contributions of the CRPD is that it protects the right of people with disabilities to full inclusion in society. 37; Rosenthal 2019, pp.65–137) These new human rights standards require broad changes in domestic policies, professional practices and international guidelines, which have long been built on the assumption that some residential treatment is necessary as part of any child protection system. Under the human rights model, society must become fully inclusive of all people with actual – or perceived – impairments The adoption of common guidelines would be an invaluable step forward – as long as they reflect the full measure of protection promised by both conventions
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