Expert presentation by Mr. Nigel Cantwell, Independent Senior Child Rights and Protection Expert


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Realizing article 16: State accountability to protect children from violence – what does it entail?
From 4th Child Protection Forum in Tajikistan, 2013.

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Expert presentation by Mr. Nigel Cantwell, Independent Senior Child Rights and Protection Expert

  1. 1. Upholding Art 16 of the CRPD: State accountability for protecting children with disabilities from violence Nigel Cantwell Consultant on Child Protection Policies Fourth Central Asian Forum on Child Protection Dushanbe, 1-3 August 2013
  2. 2. Special vulnerability  Children with disabilities are at least 70% more likely than others to fall victim to violence (UN Study on Violence, 2006): ◦ Stigma and negative attitudes ◦ Ignorance ◦ Marginalisation and powerlessness ◦ Greater recourse to institutional care ◦ Ineffective protection programmes  These factors impact on all settings where the child may be, from home, community and school to alternative care
  3. 3. CRPD Art 16  Recalling the main thrusts of Art 16  1) All types of measures to protect everyone with disabilities from violence in all situations ◦ Requires general measures plus targeted initiatives (e.g. home, community, school, alternative care)  2) Appropriate assistance to persons with disabilities and to their families and caregivers for the prevention of violence  3) Effective monitoring of facilities and programmes by independent bodies  4) Assistance to victims: recovery, rehabilitation and social reintegration to be assured  5) Identification, investigation and prosecution of incidents of violence to be assured ◦ Access to effective procedures for expressing concerns and complaints
  4. 4. CRPD Art 16 in context (1)  The CRPD as a whole ◦ A core HR instrument that approaches children‟s rights as part of human rights while setting out certain additional targeted issues/rights such as:  Art 7.3: right to express views, with assistance if necessary  Reflecting the CRC ◦ Not only CRC Art 23 but the entire treaty, as intimated in CRPD Art 7.1  „ensure the full enjoyment by children with disabilities of all human rights‟  Thus, e.g. CRC Arts 3(3),19, 20, 34, 36, 39…
  5. 5. CRPD Art 16 in context (2)  Guidelines for the Alternative Care of Children (UNGA 2009) ◦ Policy orientations for ensuring the appropriate use and conditions of alternative care for all children  Emphasis on preventing recourse to alternative care via, e.g. family support (§ 9.a) and tackling discrimination of all kinds (§ 10)  § 13 – “effective protection from abuse, neglect and all forms of exploitation, whether on the part of care providers, peers or third parties, in whatever setting they may find themselves.”
  6. 6. CRPD Art 16 in context (3)  Guidelines for the Alternative Care of Children (cont…) ◦ Also includes several (9) provisions where „disability‟ or „special needs‟ in general are explicitly mentioned ◦ CRC Committee already uses Guidelines systematically in Concluding Observations ◦ CRPD Committee briefed on Guidelines by NGO Working Group in Sept 2012, and likely will also use them as a reference…  Handbook on implementing the Guidelines (‘Moving Forward’) analyses key issues to be taken into account
  7. 7. CRPD Art 16 in context (4)  Issues raised and interpretative framework provided by CRC Committee General Comments, esp.: ◦ GC 8 (2006): Protection from corporal punishment and other cruel or degrading forms of punishment ◦ GC 9 (2006): Rights of children with disabilities ◦ GC 13 (2011): Right to freedom from all forms of violence
  8. 8. Core facets of accountability  Meeting obligations to respect, protect and fulfil rights by ensuring: ◦ Compatability of State laws and policies with international standards ◦ Adequacy and efficacy of structures, mechanisms and procedures put in place by the State to implement those laws and policies ◦ Mechanisms established by the State to monitor compliance and trigger responses as necessary  Aimed at preventing, protecting against and combating violence
  9. 9. General measures  Protecting children with disabilities from violence cannot take place effectively in a bubble – need to take account of overall attitudes towards: ◦ Violence in its various forms ◦ Family and family life ◦ Children ◦ Disability Measures of general application: ◦ Legal and policy basis for attitude change ◦ Awareness-building on problems and rights ◦ Enabling children to have an effective voice ◦ Following up alleged violations effectively
  10. 10. Focus on residential care  In CEE/CIS, children with disabilities make up between 30% and 60% of those in residential care (UNICEF 2010)  Numbers seem to have barely changed since the mid-Nineties, despite general efforts to prevent recourse to alternative care as a whole and to de-institutionalise the system in particular (UNICEF 2010)  The role, location, staffing and supervision of residential facilities are still among the major obstacles to preventing violence
  11. 11. Identifying basic issues (1)  Facilities 1. Has the State drawn up and disseminated standards for care in public and private facilities? 2. Is accreditation mandatory for private facilities? 3. Is regular inspection (including unannounced visits) mandatory for all facilities? 4. Are accreditation and inspection based on the fulfilment of specified and comprehensive criteria? 5. What rules govern (promote) contact with the family? 6. What rules govern (promote) contact with the outside world (either inside or outside the facility)? 7. Is there a State requirement that children in alternative care be made aware of/helped to understand their rights and responsibilities?
  12. 12. Identifying basic issues (2)  Staffing 1. Is a background check required for all staff having contact with children? 2. Are minimum qualification and training requirements set out for staff, according to role, level and needs/characteristics of the children to be cared for? 3. Are conditions of employment regulated, and are they adequate to recruit sufficient and suitable staff, motivate them and prevent high turnover? 4. Are lines of staff accountability clear? 5. What standards are set for ensuring adequate and appropriate supervision of the children at all times? Example of problem (Kazakhstan 2011) – the two main difficulties (both at 45%) expressed by staff were „problems with children‟s personalities‟ and „low pay‟, suggesting inadequate training and poor working conditions that are high risk factors for inappropriate responses (feelings of helplessness, frustration, lack of motivation…).
  13. 13. Identifying basic issues (3)  Discipline 1. What rules exist on discipline (prohibiting inter alia physical punishment, solitary confinement, dietary restrictions etc.)? 2. Are criteria and conditions laid down regarding use of force for the purpose of restraint (prevention of self- harm and harm to others)? 3. Are staff trained for implementing such rules? 4. Are there clear responsibilities assigned for ensuring that these rules are followed?  Complaints 1. Is there a mandatory, known, accessible and effective complaints mechanism in place? 2. Do children feel able to make use of this mechanism? 3. Can issues be referred to an ombudsman?
  14. 14. Identifying basic issues (4)  Response to victims of violence 1. Does legislation stipulate the mandatory treatment (recovery, rehabilitation, social reintegration) of child victims of violence? 2. Is an effective mechanism in place for ensuring that the need for such treatment is recognised and notified to good effect? 3. Are appropriate and sufficient programmes and services in place to provide that treatment?  Response to instances of violence 1. Are investigations of allegations carried out promptly and independently? 2. What sanctions are available?
  15. 15. Need for reliable data  Comprehensive and trustworthy data are the essential basis for accountability assessment but too often lacking ◦ Special importance given to this in CRPD Art 31:  1. States Parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention. […]  2. The information collected in accordance with this article shall be disaggregated, as appropriate, and used to help assess the implementation of States Parties' obligations under the present Convention and to identify and address the barriers faced by persons with disabilities in exercising their rights.  3. States Parties shall assume responsibility for the dissemination of these statistics […] ◦ Also Guidelines § 69: „policies should be based on sound information and statistical data‟
  16. 16. Example of data required  Number of children in alternative care who are registered as having a disability: ◦ By age ◦ By sex ◦ By type of disability ◦ By family situation ◦ By geographical origin (habitual residence) ◦ By location of facility ◦ By type (specialised/general) of facility ◦ By length of stay/outcome  Lack of such data compromises the identification of risk situations, knowledge of the extent of any problems and therefore the implementation of effective measures required under State accountability.
  17. 17. By way of conclusion…  Assessing and fulfilling the various facets of State accountability for protecting children with disabilities from violence in residential care requires in particular: ◦ A solid and accessible knowledge base ◦ Consultation with children and staff ◦ Consideration of all aspects of the legal, policy and practice framework  Inspiration available from many sources for a full checklist of issues, e.g. preparatory work for and results of UN Violence Study, CRC Committee GCs, Guidelines for Alternative Care and Handbook for their implementation, as well as assessments already carried out in individual countries…