Ability to Complain
Children with mental disabilities are often denied access to justice because they do not know that what has happened to them was wrong, because they do not know where to complain when their rights are infringed, or because there is no place to complain to when their rights are violated. Professionals working with children with mental disabilities need to ensure that children and their families are aware of their rights, can recognise potential rights violations, and can access independent complaints mechanisms safely to raise their concerns.
Basis in Human Rights Standards
Awareness of Rights Violations
Before making a complaint, individuals must to be able to recognise where a rights violation may have occurred. Children, families and professionals, need to have appropriate information about the human rights of children with mental disabilities. Too many human rights abuses have been exposed in situations where the complainant never approached the authorities, often because the child in question did not recognise what happened to them as a violation of their rights or was afraid to come forward. Children need to be informed of their human rights, including the right to complain or challenge any abuse or exploitation, without fear of retribution, and provided with the appropriate support to make a complaint. Similarly, families and professionals need to be trained to recognise human rights violations which may affect children, and to learn what complaints processes should be activated where an allegation has been made. Awareness can be increased through the use of child-friendly, disability-sensitive human rights education tools, such as ‘These Are Your Rights’ and the Child-Friendly Text of the Disability Convention.
Article 42 of the Convention on the Rights of the Child requires States Parties to “make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.” This means that all children, families, and professionals should be educated on the rights contained in the Convention. Article 8 of the Convention on the Rights of Persons with Disabilities provides even more detail about the State’s obligation to raise awareness of the rights of all persons with disabilities (including children). It requires States to “raise awareness throughout society, including at the family level, regarding persons with disabilities” to “nurture receptiveness to the rights of persons with disabilities” and to foster “at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities.
Existence of Complaints Mechanisms
Once an awareness of human rights is achieved, the next step is to ensure that effective, independent complaints mechanisms exist, and that these are accessed in response to an allegation of a rights violation. The need for effective remedies to human rights violations is a long established principle in international human rights law, and is recognised in both the Universal Declaration of Human Rights (Article 8) and the International Covenant on Civil and Political Rights (Article 2.3).
Professionals working with children have a responsibility to ensure that such mechanisms are created in the domains in which they work – and that connections between different complaints mechanisms can be made to eliminate overlap and to ensure that complaints are addressed in a holistic manner. It is important for professionals to be trained on the relevant complaints mechanisms within their field, and to have a working knowledge of alternative complaints mechanisms that can be accessed where local or thematic complaints processes fail to achieve an effective outcome for the child.
For example, where an internal complaints process within the health or education system has failed to result in a positive outcome for a child, professionals working with children and families should be able to point towards other mechanisms for challenging the human rights violation in question, including the redress provided by National Human Rights Institutions, Equality Bodies or Ombudsman Offices. Practical guidance is available for these monitoring bodies to make their complaints processes accessible to children – including children with mental disabilities, such as this UNICEF study published in 2012. In that report, UNICEF highlighted some good practices, such as the Office of the Provincial Advocate for Children and Youth in Ontario, Canada, which makes monthly visits to special schools for children with severe learning disabilities to hear about their experiences of accessing services.
Where complaints processes do not produce an effective outcome for a child, legal remedies may be pursued in the national courts. Once domestic remedies have been exhausted, regional and international human rights mechanisms may be pursued, including taking a case before the European Court of Human Rights, or making an individual complaint to a UN treaty body, such as the Committee on the Rights of the Child or the Committee on the Rights of Persons with Disabilities. More information on preparing individual complaints to UN treaty bodies is available here.
Awareness of and Ability to Access Complaints Mechanisms
Once effective complaints mechanisms have been established, professionals working with children and families must take responsibility for raising awareness of the existence of these mechanisms, and be trained to support children and families to access these mechanisms where needed to address a human rights violation. While all complaints mechanisms should be accessible, professionals may need to facilitate access to these mechanisms for children and families in different ways – including by seeking that information on the complaints process is provided in an accessible manner to the child, and facilitating the child’s participation throughout the complaints process.
Relevance to Children with Mental Disabilities
First, there is a need to make complaints mechanisms both child-friendly and disability-sensitive and to raise awareness of existence of these mechanisms and how to use them. Secondly, given the specific barriers these children face and the complex and diverse communication strategies they may use, it can also be important for third parties, including professionals, to be able to initiate complaints on behalf of a child where a potential human rights violations are uncovered. This is particularly important where children and their families fear retribution or are unable to access independent complaints mechanisms for a variety of reasons (including geographical isolation, lack of awareness of rights and entitlements, etc.).
One good example of a tool to make complaints by or on behalf of children with mental disabilities is the ‘Protect Brazil’ web-based app. The app can be downloaded onto smartphones or tablets and based on geographical location of the user, provides up to date contact details for police stations, protection councils and other organizations which combat violence against children in major Brazilian cities. The app uses simple visual aids to give information about different forms of violence against children and with adaptation could be used in different cities and made more accessible for children with mental disabilities.
Finally, there is a responsibility on professionals to develop and receive training in the use of child friendly and disability-sensitive ‘ information on human rights and complaints mechanisms and to ensure broad dissemination of this information. It is important to ensure that such information is available even in places where children may be isolated or in vulnerable situations including detention or segregated residential care.
Particular Skills
Professionals should develop skills to spot potential human rights violations affecting children with mental disabilities; learn how to with create and locate easy to read, visual information on human rights and complaints processes for children with mental disabilities, and develop diverse communication strategies and outreach efforts to access isolated children who may be vulnerable to human rights abuses. Some examples of good practice in developing these skills can be found here, and include the child-friendly information on human rights developed by the Office of the Children’s Commissioner in Northern Ireland. Outreach activities, such as those in the Czech Republic targeted at inspectors of children’s educational institutions which include raising awareness of existing complaints mechanisms and how to use them, are also a good example of the skills which can be developed to ensure effective access to justice.