Expert presentation by Mr. Nigel Cantwell, Independent Senior Child Rights and Protection Expert
Upholding Art 16 of the CRPD:
State accountability for protecting
children with disabilities
Consultant on Child Protection Policies
Fourth Central Asian Forum on Child Protection
Dushanbe, 1-3 August 2013
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
◦ 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
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
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
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
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…
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.”
CRPD Art 16 in context (3)
Guidelines for the Alternative Care of
◦ Also includes several (9) provisions where
„disability‟ or „special needs‟ in general are
◦ 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
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
◦ GC 13 (2011): Right to freedom from all
forms of violence
Core facets of accountability
Meeting obligations to respect, protect
and fulfil rights by ensuring:
◦ Compatability of State laws and policies with
◦ Adequacy and efficacy of structures,
mechanisms and procedures put in place by
the State to implement those laws and
◦ Mechanisms established by the State to
monitor compliance and trigger responses as
Aimed at preventing, protecting against
and combating violence
Protecting children with disabilities from
violence cannot take place effectively in a
bubble – need to take account of overall
◦ Violence in its various forms
◦ Family and family life
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
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
Identifying basic issues (1)
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?
Identifying basic issues (2)
1. Is a background check required for all staff having contact with
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…).
Identifying basic issues (3)
1. What rules exist on discipline (prohibiting inter alia
physical punishment, solitary confinement, dietary
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?
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?
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?
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‟
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.
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
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