Equality and Non-Discrimination
‘Discrimination’ is a term that may be used to mean ‘discernment’. However, in legal contexts, it is generally used to refer to behaviour, systems or structures that unfairly disadvantage a person because they possess a particular personal characteristic. Discrimination may be based on a wide range of different characteristics including age (young or old) and disability. Legal prohibitions of discrimination constitute an important tool in the efforts of governments to achieve more equal societies in which all people are able to participate and contribute.
Discrimination often takes the form of treating people differently, ie less well, because of a personal characteristic – eg a school’s policy of refusing to admit pupils who have a diagnosed mental health condition. However, in most countries which prohibit discrimination, there will be many situations in which less favourable treatment based on a particular characteristic is not treated as unlawful discrimination. For example, the fact that children under a specified age are not permitted to vote is a form of different, and arguably less favourable, treatment of children, but it would not generally be regarded as an unfair policy or prohibited as unlawful discrimination.
Discrimination may also take the form of a failure to treat a person differently because of a personal characteristic they possess. For example, failing to adapt the format of an entry exam for a blind person so that they were able to read the questions would discriminate against them.
Basis in Human Rights Standards
The entire human rights enterprise is based on the premise stated in Article 1 of the Universal Declaration of Human Rights that
“All human beings are born free and equal in dignity and rights”.
Commitments to ensuring that this fundamental principle of equality is respected are contained in human rights instruments of the United Nations, the Council of Europe and the European Union in the form of provisions that prohibit discrimination.
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An important prohibition of discrimination in United Nations human rights treaty law is contained in Article 26 of the International Covenant on Civil and Political Rights (ICCPR). This provides that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground”. Article 2(1) of this treaty is also relevant because it provides that the rights it sets out will be conferred “without distinction” based on personal characteristics such as race and sex.
Both the International Covenant on Civil and Political Rights (in Article 24(1)) and the Convention on the Rights of the Child (in Article2) affirm that the rights they contain must be enjoyed by children without discrimination based on personal characteristics such as race, sex and political opinion. ‘Disability’ is included as an example of a relevant characteristic for these purposes in Article 2(1) of the Convention on the Rights of the Child.
Discrimination on the basis of disability is prohibited by Article 5 of the Convention on the Rights of Persons with Disabilities. According to Article 2 of that treaty, discrimination on the basis of disability includes conduct which has the ‘purpose’ or the ‘effect’ of denying access to a right because of disability – an approach which reflects the way in which ‘discrimination’ has previously been understood in UN human rights treaties. Article 2 of the CRPD also makes it clear that a failure to provide ‘reasonable accommodation’ will also amount to discrimination. An example of a case in which the Committee on the Rights of Persons with Disabilities found that there had been a failure to provide reasonable accommodation, and accordingly that there had been unlawful discrimination, is [[HM v Sweden]]. This concerned a disabled woman who, for health-related reasons, applied for permission to build an extension to her house. The planning authority refused her application, without considering her disability, because there was a policy of refusing such applications in that geographical area. The UN Committee on the Rights of Persons with Disabilities found that the authority should have considered whether a departure from the standard approach would have been a reasonable accommodation of the applicant’s disability-related circumstances.
In the Council of Europe system, discrimination in the enjoyment of Convention rights (including [[fair trial rights]]) is prohibited by Article 14 of the [[European Convention on Human Rights]].
In the European Union system, Article 21 of the [[EU Charter of Fundamental Rights]] prohibits discrimination on grounds including disability in the interpretation and application of EU law. Because EU law includes a number of [[directives on criminal justice]], these must be interpreted in light of the requirement not to discriminate on grounds of disability.
Relevance to Children with Mental Disabilities in Judicial Proceedings
Providers of services associated with judicial proceedings may discriminate against a person on the basis that they are a child or on the basis that they have an intellectual or psychosocial disability. They may also discriminate on the intersectional basis that they are a child who has an intellectual or psychosocial disability.
Such discrimination may take the form of rules, conduct or systems which have the purpose of restricting a person’s access to justice without justification – eg a rule which prevents children having a lawyer will discriminate on the basis of age. It may take the form of rules, conduct or systems which have this effect in practice even though this was not their main purpose or aim – eg a requirement that people are able to understand complex sentence structures in order to give evidence is likely to discriminate both against children and against people with intellectual disabilities. In addition, at least in relation to disability, discrimination may take the form of a failure to provide a reasonable accommodation.
A reasonable accommodation is an adjustment or support to standard processes that is required in order to avoid placing a person at a disadvantage because of their physical, sensory, intellectual, psychosocial or other impairment. It thus requires positive steps to be taken to identify what adjustment or support would remove the potential disadvantage for the particular individual and also to ensure that the necessary adjustment or support is put in place. It is subject to the limits of ‘undue burden’ or ‘unreasonableness’.
In judicial proceedings, therefore, adjustments might take the form of greater flexibility about the manner in which evidence is given in court – eg allowing a child who has a psychosocial disability to turn their back on the judge whilst speaking to them; to have frequent breaks and access to toys or items to relieve their tension (such as a trampoline or a favourite teddy) or to provide evidence at a certain time of day. Reasonable accommodation obligations may also require the provision of support, such as the provision of a live intermediary to assist a child with intellectual disabilities to provide information to the police.
Particular Skills
In order to ensure that children with intellectual and psychosocial disabilities are not discriminated against by justice organisations (and the professionals working within them) relevant professionals must possess certain skills. These include ability to be flexible, ability to identify what sorts of adjustments or support will be effective in removing potential disadvantage.