Children with mental disabilities: Too ‘small’ to be seen by the law?

Last week the UN Human Rights Council passed a resolution reaffirming that children must be guaranteed access to justice when their rights are violated. MDAC welcomes the resolution and is currently working on a major project on Access to Justice for Children with Mental Disabilities in Europe. The resolution also announces the introduction of the new Optional Protocol (the communications procedure) under the Convention on the Rights of the Child. This will allow children and their representatives to complain about violations of their rights directly to the Committee on the Rights of the Child.

Children with intellectual disabilities and children with mental health issues continue to be subject to inhumane, abusive and oppressive treatment all across Europe. Our initial project findings are already uncovering widespread allegations of sexual violence and abuse of children in institutions, and segregation of children with mental disabilities from their peers in mainstream schools.

Boy in Slatinany institution, Czech Republic 2002

 

The resolution reminds states that ensuring children can access justice requires positive action: children need to be seen, supported, listened to and recognised.  The resolution does not, however, add any further rights or protections to children. More tellingly, it reminds governments that the rights belonging to children are not being fulfilled; children with intellectual disabilities and mental health issues remain virtually invisible in the eyes of the law.

The reality for children with mental disabilities

Many children with mental disabilities are denied even basic legal protections, sometimes less than that afforded to adults. Little, if any, support is provided to children to help them understand very complex justice systems, let alone children in need of extra support and assistance. Police, judges, lawyers, care workers and other professionals in justice systems are rarely given training on children’s rights and needs and, as we are finding, often themselves become barriers to justice.

Examples of the denial of justice to children with mental disabilities are widespread and should be much higher on the political agenda. In Latvia, police failed to investigate wounds to a boy’s genitals because he has autism and cannot ‘tell the police what happened’. This was true despite the fact that he could point to the nurse and expressed fear when she was around. Also in Latvia a judge overturned the conviction of a rapist who repeatedly raped and abused a girl in an institution because the rapist agreed to bring up the resulting baby. 

The new Optional Protocol

The new Optional Protocol will provide an additional mechanism to challenge the invisibility of these children when states fail to take action and will enter into force on 14 April 2014. Violations of children’s rights can now be communicated directly to the Committee on the Rights of the Child where States fail to address them appropriately under domestic law.

With financial support of the European Union we are piloting training and education materials for professionals in the justice system. We are also investigating the access to justice failures and preparing guidance on how they need to be addressed. With the use of these tools we are reminding governments why they need to make these invisible right holders visible.

 

For more information please contact the Access to Justice Project Manager, Katherine Morely at: kmorely@mdac.org

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