Disability and Childhood – Intersectionality
This section will address core concepts within the field of disability and child rights such as, the concept of ‘disability’, childhood, and ‘best interests’ in child rights. It will also introduce the theory of intersectionality. The discussion in this section will help to explain why it is important to recognise that children with disabilities, and children with mental disabilities, require specific attention. They may well face different or additional barriers to accessing justice from those faced by children without disabilities or adults with disabilities. The concepts will be defined and explained using commonly accepted terminology from international human rights treaties.
Basis in Human Rights Standards
‘Disability’ and the Social Model of Disability
The concept of ‘disability’ is not actually defined in the UN Convention on the Rights of Persons with Disabilities (CRPD). However, some guidance on the term is provided in Article 1. According to this:
“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
The reference to the “interaction” of “impairments” with “barriers” is significant. It acknowledges that exclusion from society is not caused simply by the fact of having some sort of ‘impairment’. It is caused by the barriers which such people encounter. This approach is generally referred to as a ‘social model’ approach to disability.
The social model of disability was developed by Mike Oliver in the early 1980s in order to come up with a framework that better addressed the needs of people with disabilities. The social model is a framework that states that a person with a disability is not disabled by their difference or “impairment” but it is the barriers created by societal forces which are disabling and thus create ‘disability’. The social model is a useful framework to use because it puts the focus on government and society to change and adapt laws, policies, structures and practices to make them inclusive and accessible rather than on the person who has a physical, sensory, cognitive or other ‘impairment’ to adapt or else to remain excluded.
The social model was created in opposition to the medical model of disability which is often still used by governments and service providers. The medical model focuses on the impairment or chronic illness as the main problem and bases all approaches and ‘solutions’ to fixing the impairment or having the person with a disability adapt around the barrier rather than addressing the barrier itself. The medical model often assumes that a person with a disability is abnormal which can lead into paternalistic approach to services for people with disabilities and feed stigma and discrimination against people with disabilities.
Source: Disability Discrimination Act – Best Practice Trainers Resource Pack 2002 via Democracy, Disability and Society Group’s Taxi Driver Training Pack.
Explanation of the Barriers Faced by a Person with a Disability under the Social Model:
Childhood, the Voice of the Child and the Best Interests Principle
The meaning of ‘child’ within human rights law is, according to Article 1 of the UN Convention on the Rights of the Child (CRC), “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.
Although international human rights law states that children are not accorded equal legal capacity with adults, this does not mean that the views of a child have no weight. The CRC states that children must be taken seriously in all decisions concerning them, in accordance with the child’s age and maturity. Article 12 of the CRC guarantees “to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” This applies to “all matters affecting the child”.
The views of the child, however, may have to be balanced against the “best interests” of the child. The concept of the best interests of the child is laid out in the CRC Article 3 which states that in all actions undertaken by the State or private institutions “the best interests of the child shall be a primary consideration.”
The CRC also recognizes the evolving capacity of the child in their exercise of their rights in Article 5 and Article 14. Unicef has issued a detailed report explaining the idea and term of ‘evolving capacities of the child.’ To paraphrase a concept from the report, the obligation is on the state and its actors to create policies, laws and practices that allow all children to realise their rights. Evolving capacities should not be used as a way to strip children of their rights.
It is important to understand how a child’s views should influence determinations of what is in his or her best interests. Michael Freeman has written extensively on the rights of children, how to balance best interests against the voice of the child and how to evaluate ‘evolving capacity’, he states “There is not a simple answer to this, or a simple solution. However, there undoubtedly needs to be less emphasis on what these young people know- less talk in other words of knowledge and understanding- and more on how the decision they have reached furthers their goals and coheres with their systems of values.” Above all Freeman advocates that in determining best interests the voice of the child must be truly considered and engaged with before a child’s request and preference is overruled.
In the CRPD, Article 3 (which outlines the general principles of the Convention) calls for “respect for the evolving capacities of children with disabilities…” Article 7 of the CRPD, however, states that “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.”
Children with Disabilities as a Group
The rights of children with disabilities are specifically mentioned in two major international treaties, The Convention on the Rights of the Child (CRC) and The Convention on the Rights of Persons with Disabilities (CRPD).
The CRC details the human rights applicable to all children (with and without disabilities) and prohibits discrimination on the basis of disability in the implementation of the rights set out in the CRC. Children with disabilities have specific recognition in the CRC in Article 23.This article states that children with disabilities “should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance” and facilitate inclusion in the community.
The CRPD references the CRC in paragraph r of the preamble. Article 7 of the CRPD deals specifically with children with disabilities and calls on States to take “all necessary measures” to ensure full and equal enjoyment of human rights and fundamental freedoms by children with disabilities. Article 24 mandates equal access to compulsory and free primary and secondary education and access to inclusive education.
Article 4 on general obligations in the CRPD states that children with disabilities should be involved and consulted in relation to the development and implementation of laws and policies relating to people with disabilities. Article 7(3) of the CRPD calls on State Parties to ensure that children with disabilities “have a right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity.” The article mandates that age appropriate and disability appropriate assistance are given to the child in order to enable them to give their views.
Article 13 of the CRPD, which requires equal and effective access to justice for persons with disabilities, calls for age appropriate accommodations to facilitate that access. The booklet See me, Hear me provides good guidance and suggestions on how to use the CRPD to further the rights of children with disabilities.
Relevance to Children with Mental Disabilities in Judicial Proceedings
Children with disabilities inhabit two intersecting identities – they are a child and a person with a disability. As such the barriers they face may be different than those commonly encountered by children without disabilities and adults with disabilities. It is important to acknowledge the distinctiveness of the experiences of children with disabilities – experiences which may be different from those of children without mental disabilities and from those of adults with mental disabilities. This concept is known as intersectionality, an idea given prominence by the work of Kimberle Crenshaw in relation to the intersection of race and gender. She states, “Through an awareness of intersectionality, we can better acknowledge and ground the differences among us and negotiate the means by which these differences will find expression in constructing group politics.” The University of Minnesota’s Human Rights. Yes! Manual has a useful chapter that looks at the intersection of the identities of childhood and disability and explores the specific needs of children with disabilities.
Although here the focus has been on the intersection between disability and childhood, it is important to recognize that childhood and disability are not the only characteristics or identities that an individual possesses and that other identities may need to be taken into account in order to fully grasp the nature of the experiences or barriers they face. For example, a child with a mental disability will also have characteristics or identities linked to race, ethnic group, religious identity, Roma or Traveller identity, LGBT or gender.
Laws and programs are often designed to focus on or address issues connected with either children or people (adults) with disabilities. Programs and laws that focus narrowly on their target group may not adequately address the distinct barriers experienced by children with mental disabilities. For example, a law that allows a child to testify in legal proceedings in accordance with their “evolving capacity” may be interpreted to disqualify children with mental disabilities from testifying. Judges may refuse to hear testimony from children under the age of seven because they believe children under the age of seven do not have the capacity to testify. Both practices would be inconsistent with the principles and rights set out in the CRC and the CRPD. As stated in the Unicef report on the evolving capacities of the child “It is important to emphasise that the realisation of children’s rights is not contingent on the ability to exercise agency, or on the acquisition of a given age.”
It is important for professionals who work with, or who may encounter, children with mental disabilities in their work to specifically consider the individual needs of the child when providing services (legal, social or health). The best way to do this is to ask the child themselves about what support they need (if any). Useful information may also be provided by family members or carers who know the child well – although care must be taken not to prioritise their views over those of the child.
Particular Skills
- Sensitivity to the possible implications of intersectional disadvantage.
- Understanding of the balance between the rights of the child, best interest approach and evolving capacities of the child.
- Sensitivity to the implications of the social model of disability and the need to recognise and remove barriers.