Scottish Human Rights Law Group

By Zoe Picton-Howell, Solicitor (England & Wales) (Hons)

Doctoral Research Student, School of Law, University of Edinburgh

1. Disability as a Human rights Issue

The UNCRC is the first international human rights treaty to expressly recognise disability as a human rights issue. State parties to the UNCRC must “respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of….disability…“ This provision stresses that the whole of the UNCRC applies to disabled children. Additionally, Article 23 expressly addresses the rights of disabled children, which arise as a result of their impairment, over and above their other Convention rights.

The UNCRC’s recognition of disability as a human rights issue, illustrates the growing international awareness of this need during the 1970s and 1980s.

The Committee on the Convention on Economic, Social and Cultural Rights

(“the CESCR”), recognised the oversight in that 1966 Convention to expressly recognise disability in its General Comment on “Persons with disabilities”. It said the absence of an explicit disability-related provision in the CESCR “can be attributed to the lack of awareness of the importance of addressing this issue explicitly, rather than only by implication, at the time of drafting the Covenant…”

Having ratified the UNCRC on 16th December 1991, the UK is required to take “all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention.” The UK has agreed and is legally bound under international law to ensure that UK law and policy conform with the internationally recognised standards and obligations set out in the UNCRC. However, unlike the ECHR, the UNCRC has not become UK domestic law. This means that in contrast to the ECHR, UK children cannot bring proceedings based solely on a breach of the UNCRC before the domestic Courts. Commentators such as Bainham express the hope that, in any event, the provisions of the UNCRC will increasingly be relied on in legal argument in domestic proceedings to support the rights of children. Bainham cites one case where this has happened.

However, too often the UNCRC is ignored by the domestic courts and the ECtHR. Indeed, for an individual child in the UK encountering an abuse of his or her human rights, the UNCRC currently provides little benefit.

2. The UNCRC Monitoring and Reporting Process

Arguably the UNCRC’s strength within the UK is a political rather than legal one. It provides a mechanism whereby a combination of international and domestic pressure and monitoring can lead to reforms to domestic laws and procedures. As Bainham identifies the United Nations Committee on the Rights of the Child, (“the Committee”) established pursuant to Article 43 UNCRC and the reporting requirements placed on State Parties by Article 44 UNCRC have a vital role to play in this regard. The Committee consists of eighteen experts “of high moral standing and recognized competence in the field covered by this Convention.” The experts are elected by State Parties but act in a personal capacity, so should be independent of their State. States are required to submit reports to the Committee within two years of the Convention entering into force and thereafter every five years.

Article 44(1) and (2) UNCRC require States to produce a periodical report setting out the steps it has taken to implement the UNCRC and giving detail of any difficulties it has encountered. The Committee requires the UK to produce a single report. In practice, each of the executives within the UK produces its own report, which is consolidated into a single UK report. NGO umbrella groups in each of the UK executives also produce their own replies to the government report. These are also considered by the Committee alongside the government report. The NGO report is crucial to the process as NGOs reports are often less rose tinted than the government’s and NGOs often have grassroots information about the working of the UNCRC within the UK. They can also form the basis of requests for additional information by the Committee to the State, as was the case with the UK in 1999. A “constructive” dialogue takes place between the parties. The Committee then produces its Concluding Observations, highlighting positive aspects and outlining areas of concern for the UK to address to ensure compliance with the Convention. However, the Committee has no powers of sanction should the UK or any State Party fail to act on its Observations or comply with the Convention. As Fortin identifies this creates the risk of engendering a casual approach to the Convention.

A review of the UK’s Reports, UK NGO Reports and the Committee’s Concluding Observations, illustrates some of the strengths and weaknesses of the system. What is most striking is the virtual invisibility of disabled children from the UK reporting process since 1994 which with little improvement continues today. Despite the UNCRC expressly recognising disability as a human rights issue and the whole Convention applying, to disabled children, little reference is made to the position of disabled children in any of the UK government or UK NGO reports, or in the Committee’s concluding Observations. For example, reference in the UK’s initial 1994 report was limited to a short paragraph under the heading “Disabled children”. The claim that “The Government has a good record in providing help for families with disabled children” was made. Expenditure on certain social security benefits is also listed. The report did not, however, clarify which benefits were payable for disabled children and which to disabled adults. Moreover, the figures provided by the UK government accounted for only 323,000 persons, less than half the 700,000 disabled children estimated to be living in the UK. Very brief details of the improvements the UK government believed the Education Act 1993 would bring to the lives of children with special educational needs were also reported. Brief reference with no real detail was also given on the Children Act and services for disabled children. Other sections of the UK report dealing with services which impact on the human rights of disabled children on a daily basis, such as residential care, day care, and health care, made no reference at all to disabled children. Later UK reports provide greater detail, but still follow the same pattern. Indeed, in the current Report the Government refers to its pledge “that by 2025, disabled children and adults should have full opportunities and choices to improve their quality of life and will be respected and included as equal members of society”.

The first UK NGO report to the Committee, presented a somewhat different picture. For example reporting “Disabled children are substantially excluded from many aspects of day to day life. There is a continuing lack of integrated day care, play provision, residential care and leisure, culture and art facilities. Transport systems are inaccessible to many disabled children as are many shopping centres, offices, educational establishments, theatres and playgrounds”. Although the NGO Report provided a more balanced picture of the human rights abuses of disabled children, like the government report, it can be criticised for in effect ghettoising disabled children. It only considered them in the context on Article 2 and Article 23 and like the government did not consider their rights and specific needs in relation to other provisions of the Convention. This is significant as violations in the human rights of disabled children can only be addressed if they are firstly acknowledged. Moreover, as both Fortin and Kilkelly identify, the reporting and monitoring process is seriously undermined if a full and accurate picture is not presented to the Committee.

As Fortin rightly highlights, “the reporting mechanism relies on governments to subject their implementation programme to an objective and critical analysis before compiling their reports”. The UK government has proved unwilling or unable to do this. As Kilkelly reports other European States have submitted comprehensive self critical reports. These contrast with the UK’s initial report, which “emphasises areas of compliance, avoids contentious issues and glosses over the grey areas in between” It also failed to identify, as we have seen, barriers or problems experienced by the UK in implementing the Convention.

The NGOs can perhaps be excused for not addressing the position of disabled children in greater depth. Kilkelly reports that the Government only invited them to contribute at a very late stage, only directly consulted a very small number of voluntary organisations and gave them a very short deadline to submit comments on the UK’s draft report. However, that having been said, the more recent 2002 NGO Report, while going into greater depth than the 1994 Report still only considered the situation of disabled children in the context Article 2 and Article 23. It failed to address the UK’s breaches of the UNCRC in respect of children with disability across the whole spectrum of the Convention.

There are several reasons why the position of disabled children are to a large extent overlooked in the UK reporting process. One reason is that the reports no doubt reflect UK life, where children with disability are largely invisible. Another is that historically the NGOs involved in UN human rights treaty reporting processes, have concentrated until very recently on civil and political rights, rather than economic, social and cultural rights, which affect disabled children most commonly. As mentioned earlier, disability has only comparatively recently been recognised as a human rights issue. Many of the NGOs involved in drafting the UK NGO report may simply not be familiar with disability as a human rights issue. In contrast many of the NGOs and voluntary organisations in the UK which involve or work closely with disabled children may lack awareness, (despite requirements of Article 42 UNCRC), of the UNCRC reporting process and its potential influence on law and policy.

Perhaps another important reason for the ghettoising of disabled children within the reporting process despite the Committee reiterating in its General Comment No. 9 “The Rights of children with disabilities” , that “the Committee states from the outset that the implementation of the Convention with regards to children with disabilities should not be limited to [articles 2 and 23]”, that the Committee’s own reporting guidelines encourages the ghettoising of disabled children within the reporting process.

States are expressly asked to report on “Disabled children (art 23)”; as a sub paragraph of the State’s report on “Basic Health and Welfare”. This not only encourages States only to consider the position of disabled children within the context of Article 23, but moreover, by placing “disabled children” just within the category of “health and welfare”, the Committee encourages an outdated notion of disability as a medical and welfare issue. The human rights of disabled children are not placed in a much broader social context. It encourages a perception of disabled children as “children in need”, rather than “children with rights”.

3. Article 2 UNCRC

The Committee also identifies Article 2 (alongside Article 23) as one of the key provisions for disabled children. As Lansdown point out, more than appropriate legislation is needed to ensure equal treatment. “For example, the law might provide that all children have the right to education but the inadequate facilities, untrained teachers, inaccessible environment and lack of encouragement for children results in disabled children effective being denied.” Institutionalised discrimination also impacts disproportionately on the lives of disabled children in the UK. Lansdown cogently and accurately identifies as was seen in Glass, that these prejudices are “institutionalised, often unquestioned and even un recognised throughout society. The hostility that lies behind discrimination derives from a combination of inter-locking factors operating both through the institutions of the state and through the behaviours and attitudes of individuals and communities”. Russell refers to “a compelling body of evidence from research and inspection reports that many disabled children and their families continue to face multiple discrimination, low expectations and many physical and social barriers to full participation in society”.

Arguably, UK NGOs should take the initiative and catalogue the many examples of discriminatory practice against disabled children which come to the attention of voluntary organisations and the Courts. Pressure can then be brought to bare on the UK government both domestically and internationally to provide the resources including education and training to rectify such abuses.

However, not all commentators agree that the Committee’s emphasis on non-discrimination is a positive one. For example, Jones and Brasser Marks have serious reservations, expressing concern that a non-discrimination norm may be insufficient to guarantee disabled children equal rights. They cite the UN Human Rights Committee’s assertion in its General Comment on Non-Discrimination that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” They also express concern that the language of non-discrimination may deny rights to disabled children, by failing to “adopt the language of inclusion”. Certainly there is a risk particularly with severely disabled children, that well meaning service providers in their attempts not to discriminate can provide services, (the field of education being a prime example), which both exclude children from mainstream life and offers an inferior service.

Jones and Brasser Mark’s concern about the Human Right’s Committee’s assertion may at first appear to be misplaced. Its aim is to surely to ensure that any preferable treatment given to a disabled person, to enable them to overcome any impairment, is permissible under international law. However, even the wording of Article 23 gives rise to discrimination against disabled children.

4. Article 23 UNCRC

Firstly Article 23 states that “a mentally or physically disabled child should enjoy a full and decent life”. The choice of the word “should” in Article 23, rather than the more emphatic “shall” used in other Articles of the UNCRC, makes Article 23 aspirational rather that prescriptive, hence weakening the effectiveness of the Article 23. Article 23(1) also provides a right to the disabled child to special care “subject to available resources”. The same criticism can be made of this provision as was made of the statutory provisions in Scottish law with regard to education in the previous chapter. It imposes a resources restriction on rights on disabled children which is not imposed on similar rights for other children. The difficulty in the UK is one recognised by CESCR in its much earlier General Comment on “Persons with Disabilities” that “Even in countries which have a relatively high standard of living, persons with disabilities are very often denied the opportunities to enjoy a full range of economic, social and cultural rights recognised in the Covenant”. Arguably the UK has misinterpreted the wording in the Convention. Interpreting “the maximum extent available”, more as a “get out”, using lack of resources as a reason not to meet the human rights of children, rather than a stipulation that the UK should ensure that the maximum of resources are used. The Committee has repeatedly criticised the UK for failing to expend sufficient resources to meet the requirements of the UNCRC. Indeed, in the Committee’s view the UK clearly is sufficiently wealthy not only to fulfil its obligations under the UNCRC, but to provide aid to developing nations to assist them in meeting their UNCRC obligations. Article 23 can further be criticised for discriminating against disabled children in that they are required to apply for assistance under Article 23(2), whereas other rights in the Convention are automatic.

NGOs have also raised and continue in the current 2008 reporting process to raise the lack of resources for children’s services in their alternative reports. The latest current Scottish NGO report made the following recommendation: “Local authorities and other bodies must receive additional funding from government to ensure that care and support is provided to disabled children…in a way that recognises their rights needs and aspirations of the individual and takes full account of the views of the child as well as the parents.”

Although there are clear weaknesses in the UNCRC reporting mechanism and in the use made of the UNCRC within the UK, arguably it has the potential to improve the human rights of disabled children in the UK. Many of the weaknesses in the reporting process could relatively easily be addressed. Perhaps most noticeably by ensuring that many of the voluntary organisations within the UK working with children with disability understand the significance of the UNCRC and its reporting mechanism and are encouraged to contribute to both the government consultation and NGO reporting process. Additionally, it is crucial that the views of disabled children are sought and they are encouraged and supported to participate in the reporting process, in keeping with the requirements of Article 12. The UK government could also make a positive contribution towards increasing the level of awareness on the Committee by encouraging the appointing an expert with direct experience of child disability when the opportunity arises.

5. General Principles

The Committee has identified four General Principles to the UNCRC, namely, (the already discussed) non-discrimination (article 2); best interests of the child (article 3); the right to life, survival and development (article 6) and respect for the views of the child (article 12). All of which are particularly pertinent to the disabled child and fuller acceptance of which within the UK could greatly enhance the human rights of disabled children.

5.1 Article 3 UNCRC

Article 3 requires that the best interests of the child “shall be a primary consideration”, in all actions concerning children. The provision goes further than the paramouncy principle in English and Scottish law, which only applies when a matter comes before the Court. However, it should be noted that Article 3 states that the best interests of the child is a primary consideration, not the primary consideration. The Committee have however made clear “Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions…including those which are not directly concerned with children, but indirectly affect children.” It is clear that in this context public bodies should specifically consider the impact of policies on disabled children. They may be affected by decisions which do not impact on able children or affected differently.

5.2 Article 12 UNCRC

“Despite the emphasis of legislation, policy and practice guidance, there is evidence to suggest that disabled children and young people are frequently excluded from any meaningful involvement in decision making about their lives”. As this recent research indicates the voices of disabled children are often unheard in the many decisions made about them. This can be a particular problem for severely disabled children. They may have communication, sensory, cognitive or physical impairments making it harder for them to convey their views. Many professionals working with disabled children can also have a tendency to under estimate their abilities. Even where children are cognitively able to express an opinion it may be ignored or treated as less relevant than the opinion of a child without impairment of a similar age and cognitive ability. Some children, as was seen in Glass, are dependent on their parents to advocate on their behalf. Moreover, the State is likely to be involved in the day to day decisions concerning severely disabled children, in a manner in which it is not involved in the lives of other children. The importance of Article 12 to disabled children, can therefore not be stressed strongly enough. Once again training and education seems to be a key issue. Those working with disabled children need firstly to understand that the children have a legal right to be heard and secondly, to learn effective methods of communicating with disabled children and their families.

5.3 Article 6

Article 6 (1) recognises every child’s inherent right to life. Article 6(2) expands of this imposing on State Parties a duty to “ensure to the maximum extent possible the survival and development of the child”. The emphasis in the UNCRC is different from that of Article 2 ECHR. Article 2’s wording puts that Article firmly in the context of the deprivation of life by a State in times of political conflict, such as the “troubles” in Ireland, a context in which the ECtHR have felt comfortable to apply its provisions. Although, the ECtHR has confirmed that Article 2 can apply in healthcare situations, the ECtHR and the domestic courts clearly have a reluctance to apply the provision in such circumstances. However, the situation arguably would be much clearer if the question asked, for example, in Glass, was whether the hospital acted in a way to ensure David’s survival and development to the maximum extent possible? On the facts, the conclusion seems to be “no”.

In its General Comment on “Children with Disabilities” the Committee stated that “The inherent right to life, survival and development is a right that warrants particular attention where children with disabilities are concerned”. It adds “In many countries of the world children with disabilities are subject to a variety of practices that completely or partially compromise this right”. It is easy for the wealthy developed nations to complacently assume that these comments are addressed at developing world practices such as female genital mutilation, (which clearly they are), but to overlook the fact that the comments could also be interpreted as applying to “traditional practices”, among medical professionals in their treatment of disabled children illustrated most vividly in Glass. The UNCRC therefore has much to offer if Article 6 is used as a tool of interpretation in domestic and ECtHR cases involving the right to life.

The particular relevance of these “General Principles” to disabled children is therefore clear. Moreover, States and the Committee should ensure that the position of disabled children are fully addressed. The General Principles are perhaps a starting point for ensuring disabled children are not kept in the ghetto of Article 23.

6. UNCRC as an interpretation tool

Much greater use could be made by the UK Courts of the provisions of the UNCRC, as a tool of interpretation in cases involving children. The wording of many of the provisions, for example, expand on similar provisions in the ECHR and provided a much more child centered approach. The discussion of Article 6 above, illustrates how its use could enhance human rights in relation to Article 2 ECHR. Articles 28 and 29 UNCRC also add much to Article P1-2 ECHR in the context of education. In particular, Article 29(1) (a) states that education should be directed to “The development of the child’s personality, talents and mental and physical abilities to their fullest potential.” A major concern is that the ECtHR and the domestic courts often fail to take these factors into consideration resulting in a breach of the right to education of disabled children. Interpreting ECHR rights and domestic legislation in the spotlight of the UNCRC, is perhaps the biggest step that lawyers can take to enhance the rights of the UK’s disabled children.

© Zoe Picton-Howell

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Article 2(1) UNCRC. This can be contrasted with, for example, Article 2 Universal Declaration of Human Rights, 1948; Article 2(2) International Covenant on Economic, Social and Cultural Rights, 1966 and Article 2(1) International Covenant on Civil and Political Rights 1966, where no express reference is made to disability;

Pursuant to Article 1 UNCRC a child is defined a person “below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”;

Office of the High Commissioner for Human Rights, Persons with disabilities : CESCR General Comment 5, 09/12/94, para 6;

Article 4 UNCRC;

Article 6 (1) Human Rights Act 1998, makes it unlawful for a public authority to act in a way which is incompatible with a Convention right;

Bainham, Andrew, “Children and the Modern Law”, 3rd Edition, Family Law, 2005;

Re H (Paternity: Blood Test) [1996] 2 LR 65 per Ward LJ, which is influenced by Article 7 of the Convention;

Bainham, Andrew, “Children and the Modern Law”, 3rd Edition, Family Law, 2005, page 68;

Article 43(2) UNCRC;

ibid;

Article 44 (1) (a) (b). For example, in the case of the United Kingdom, with the UNCRC coming into force in 1992, the UK’s Initial Report was sent to the Committee in 1994, which issued its Concluding Observations in 1995. The UK filed its Second Report in 1999, but took until 2002 to file an updated Second Report when the Committee requested more detailed information. The Committee issued its Second Concluding Observations in 2002. The UK’s Third Report is due to be considered by the Committee at its 49th Session in September/October 2008. In practice due in part to the Committee’s large workload (in light of the almost universal ratification of the UNCRC) and in part to delays on the part of State Parties, the Article 44 (1) timetable of reports has slipped;

Namely, England, Scotland, Wales and Northern Ireland;

For example the Children’s Rights Alliance for England and the Scottish Alliance for Children’s Rights;

Office of the High Commissioner for Human Rights, List of Issues: United Kingdom of Great Britain and Northern Ireland, CRC/C/Q/UK/2, 14 June 2002;

Fortin, Jane, Children’s Rights and the Developing Law, (2nd Edition), Cambridge University Press, 2005;

See UK Government, The Consolidated 3rd and 4th Periodic Report to the UN Committee on the Rights of the Child, 2007, available at http://www.unicef.org.uk/aboutus/uncrcukrpt.pdf ;

UK Government, Initial reports of State parties due in 1994: United Kingdom of Great Britain and Northern Ireland , General CRC/11/Add.1, 28 March 1994;

Ibid, para 45;

Ibid ;

Institute of Public Policy Research, Disability 2020: Opportunities for the full and equal citizenship of disabled people in Britain in 2020”, ippr trading ltd, March 2007;

UK Government, Initial reports of State parties due in 1994: United Kingdom of Great Britain and Northern Ireland , General CRC/11/Add.1, 28 March 1994 para 46;

Ibid, paras 367-368;

Ibid, paras 26 -32;

Ibid, paras 33-36;

Ibid, paras 49-51;

Disabled children are mentioned on only 10 pages (including references in the contents page) of the 120 page report. The word “disabled” is mentioned only 21 times out of the 51,558 words used in the report. All the references made are brief, giving no real detail of provision. Despite the requirements of Article 44(2), no mention is made of difficulties encountered by disabled children in the realisation of their rights. In the current UK Report, the word “disabled” is mentioned 25 times in a 184 page report. 15 uses of the word are within brief paragraphs 65-69 dealing with Article 23;

UK Government, Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Periodic reports of States parties due in 1998: United Kingdom of Great Britain and Northern Ireland, CRC/C/83/Add.3, 25 February 2002;

UK Government, The Consolidated 3rd and 4th Periodic Report to the UN Committee on the Rights of the Child, 2007, para 65, available at http://www.unicef.org.uk/aboutus/uncrcukrpt.pdf;. It is clearly a matter of great concern that the UK government have set such a long term deadline for disabled children to be “included as equal members of society”. A deadline which will not be met until such time that even a disabled child born today will be reaching adulthood. It is also a matter of concern that the government states disabled children should rather than shall have full opportunities and choices at that time. Rather than showing a commitment to improving the human rights of disabled children, this pledge arguably does the opposite highlighting the low priority the government puts on the human rights of disabled children. It is to be hoped that the Committee will pick up on this in it Concluding Observations, following its consideration of the UK’s Report, later this year;

Children’s Rights Development Unit, UK Agenda for Children: A Summary – documenting key breaches of the UN Convention on the Rights of the Child, July 1994; available at HYPERLINK “http://www.crin.org/docs/resources/treaties/crc.8/UK_CRDU_Summary_NGO_Report.pdf”http://www.crin.org/docs/resources/treaties/crc.8/UK_CRDU_Summary_NGO_Report.pdf; accessed 27/01/08;

ibid, page 23;

Fortin, Jane, Children’s Rights and the Developing Law, (2nd Edition), Cambridge University Press, 2005 and Kilkelly, Ursula “The United Nations Committee on the Rights of the Child- An Evaluation in the light of the recent UK experience,” CFLQ, Vol.8, No.2, , 105-120, 1996;

Fortin, Jane, Children’s Rights and the Developing Law (2nd Edition), Cambridge, 2005, page 46;

Kilkelly, Ursula “The United Nations Committee on the Rights of the Child- An Evaluation in the light of the recent UK experience”; CFLQ, Vol.8, No.2, 105-120, 1996;

E.g. Spain (CRC/C8 Add.6, Aug 92); Poland (CRC/C/8 Add.11 Jan 94); Sweden (CRC/C/3/Add.1 Sept 92);

Kilkelly, Ursula “The United Nations Committee on the Rights of the Child- An Evaluation in the light of the recent UK experience”; CFLQ, Vol.8, No.2, 105-120, 1996;

Kilkelly, Ursula “The United Nations Committee on the Rights of the Child- An Evaluation in the light of the recent UK experience”; CFLQ, Vol.8, No.2, 105-120, 1996; page 108;

Kilkelly, Ursula,: “NGO Alternative Report on the Implementation of the Convention on the Rights of the Child in the United Kingdom”; submitted to the UN Committee on the Rights of the Child on 15th March 2002 by Children in Wales, Save the Children, Children’s Law Centre and Save the Children in Northern Ireland; Children’s Rights Alliance for England and the Scottish Alliance for Children’s Rights, 2002; available at http://www.crin.org/docsa/resources/treaties/crc.31/UK-ngo-report.pdf; accessed 28 January 2008;

For example, Micheline Mason of the Integration Alliance addressing a media conference organised by Save the Children and the Integration Alliance, spoke of the invisibility of disabled children in literature, television, film and advertisements, reported in The Teacher, April/May 1995. Also the Joseph Rowntree Foundation in Supporting Disabled Children and their Families state “central government’s economic and social policy initiatives generally treat the families of disabled children as peripheral or invisible”, available at http://www.jrf.org.uk/knowledge/findings/foundations/N79.asp ;

For example Article 16, International Covenant On Economic, Social and Cultural Rights, 1966 and Article 40 International Covenant on Civil and Political Rights, 1966;

Article 42 UNCRC, “State Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”;

For example, the author took part in the Scottish Executive consultation with regard the Scottish Executive’s contribution to the UK Report for 2008. The author was told by a director of a leading Scottish voluntary organisation working with children with disability and their families that the organisation had been invited to attend the consultation. The director, however, said that she did not view this as relevant to the organisations work;

Office of the High Commissioner For Human Rights, General Comment No.9 (2006), The rights of children with disabilities, CRC/C/GC/9 , 27/02/2007;

Ibid paragraph 5;

United Nations, General guidelines regarding the form and content of initial reports to be submitted by State Parties under Article 44, paragraph 1(a), of the Convention, CRC/C/5, 30 October 1991;

Ibid, para 19;

Office of the High Commissioner For Human Rights, General Comment No.9 (2006), The rights of children with disabilities, CRC/C/GC/9 , 27/02/2007, para 8;

Lansdown, Gerison ; “It is Our World Too!: A Report on the Lives of Disabled Children for the UN Special Assembly Special Session on Children,” Disability Awareness in Action, 2001;

Ibid, pages 21-22;

Glass v United Kingdom, 61627/00 [2004] ECHR 103 (9 March 2004);

Lansdown, Gerison ; “It is Our World Too!: A Report on the Lives of Disabled Children for the UN Special Assembly Special Session on Children,” Disability Awareness in Action, 2001, page 22;

Russell, P, “Access and Achievement or Social Exclusion?” Are the Government’s Policies Working for Disabled Children and their Families?”; Children and Society 17, 215-225, (2003), page 216;

Jones, Melinda and Brasser Marks, Lee Ann , “Beyond the Convention of the Rights of the Child: The Rights of Children with Disabilities in international law”, International Journal of Child Rights 5, 177-192, 1997, at page 179;

Office of the High Commissioner for Human Rights; General Comment No. 18: Non-Discrimination: CCPR; 10/11/89, paragraph 13;

Jones, Melinda and Brasser Marks, Lee Ann , “Beyond the Convention of the Rights of the Child: The Rights of Children with Disabilities in international law”, International Journal of Child Rights 5, 177-192, 1997, at page 179;

Read, Clement and Ruebain, Disabled Children and the Law: Research and Good Practice, Jessica Kingsley, 2006, refer to a “Good Enough for Me: Good Enough for You” principle employed by some practitioners who undertook a review of services offered to disabled children with complex support needs with the aim of extending the children’s opportunities and enhancing quality of life. The guiding principle of the project was that if the children’s quality of life did not meet the standards and expectations that staff would have for their own life and that of their families, then they should immediately question what should be done. One caveat is that such an assessment such as this is a positive one provided it is an assessment of services and a means of ensuring that children with disability achieve a high standard of services equal to that of other children and that it should not wrongly be interpreted as a subjective assessment quality of a child’s life, used to the child’s detriment, like that which appeared to have been carried out by the St Mary’s Hospital doctors in the case of David Glass;

Article 23 (1) author’s emphasis

The Committee in its General Comment 9 (see note 274 ante) at paragraph 14 (a) “urge State parties to make special care and assistance to children with disabilities a matter of high priority and to invest to the maximum extent of available resources in the elimination of discrimination against children with disabilities and towards their maximum inclusion in society“. Although different wording is used in Article 23 from “maximum extent of their available resources” used in Article 4, the Committee has interpreted the wording in Article 23 to have the same meaning as that in Article 4. However, the choice of wording in Article 23 makes it easily open to an interpretation by States that services need only be provided if resources are available. The Travaux Preparatoires ( Doek, Detrick & Cantwell, United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires, Martinus Nijhoff, 1992) also point towards an intention on the part of the drafters of the Convention that provision would be subject to resources, albeit taking into account the economic state of the relevant nation. It should also be noted that whereas the caveat in Article 4 only applies to economic, social and cultural rights, the caveat in Article 23 applies to any “special care and assistance” a disabled child may require;

Office of the High Commissioner for Human Rights, Persons with disabilities : CESCR General Comment 5, 09/12/94;

see for example United Nations, Committee on the Rights of the Child, Thirty-first session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: United Kingdom of Great Britain and Northern Ireland , 9 October 2002, at paragraph 10;

ibid, para 11;

Article 23(2) UNCRC “ of assistance for which application is made“;

The Scottish Alliance for Children’s Rights, NGO Report to the UN Committee on the Rights of the Child, The Scottish Alliance for Children’s Rights”, December 2007;

Office of the High Commissioner For Human Rights, General Comment No.5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts.4, 42 and 44, para 6), CRC/GC/2003/5 , 27/11/2003, para 12;

For example Section 16(1) Children (Scotland) Act 1995 and Section 1(1) Children Act 1989;

Office of the High Commissioner For Human Rights, General Comment No.5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts.4, 42 and 44, para 6), CRC/GC/2003/5 , 27/11/2003, para 12;

By way of a practical example, Edinburgh City Council have a policy of not permitting disabled parking bays for residents in the city of centre of Edinburgh, but permitting disabled parking bays for business use in the same parking zone. This policy decision does not directly concern children and does not impact on able children. It does however, impact on the lives of children with disability living in the zone. It potentially impacts on a number of their human rights if they cannot access their homes with the same ease as able children, for example their Article 8ECHR to a Family Life;

Morris L Still Missing? Volume 2: Disabled children and the Children Act, London, Who Cares Trust, 1998;

Glass v United Kingdom, 61627/00 [2004] ECHR 103 (9 March 2004);

Despite this paragraphs 128-136 of the UK’s Initial Report (see note 253 ante) dealing with Article 12, makes no reference to disabled children; the UK’s Second Periodic Report (see note 259 ante)makes only passing references to Article 12, making no meaningful reference to children with disability in this context e.g. paragraphs 2.10; 2.5.1; 2.6.3; and 5.4;

For example, McShane V UK, 43290/98, [2002] ECHR 469 (28 May 2002); McCann and Others v UK, 18984/91, [1995] ECHR 31 (27 September 1995); Hugh Jordan v UK, 24726/94, [2001] ECHR 327 (4 May 2001) and McKerr v UK, 28883/95 [2001] ECHR 329, (4 May 2001);

For example Glass v United Kingdom, 61627/00 [2004] ECHR 103 (9 March 2004);

ibid;

Article 6(2) UNCRC;

Office of the High Commissioner For Human Rights, General Comment No.9 (2006), The rights of children with disabilities, CRC/C/GC/9 , 27/02/2007, paragraph 31;

For example the practice is referred to in paragraph 399 of the UK’s Initial Report (see note 253 ante). The author’s point here is not that such practices should not be addressed, but rather that Western governments like the UK can have a tendency to address “traditional practices” only in terms of practices originating in the developing world and overlooking detrimental traditional practices originating within the UK, such as for example institutionalised attitudes towards disabled children;

Child & Family Law, Child Disability Law, Discrimination Law, Medical Law