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Children with disabilities’ right to equality
Holness and Rule35 argue that the rights to equality and access to justice are often not realisable without accessibility being provided to persons with disabilities.Equality is a concept with its routes grounded in moral, legal and political idealism. Persons with disabilities have historically been denied this right and have been disadvantaged, marginalised, overlooked, discriminated against and invisible in the broader human rights system.37 They have been treated not as equal rights-bearers in their own capacity, but merely as a people deserving of pity, charity and medical attention. Similarly, children have also been neglected as rights-bearers until elatively recently, succumbing flagrantly to being the recipients of the welfare approach, also deserving of pity. Barford and Wattam39 assert that children are largely (and akin to people with disabilities) an excluded and marginalised group, and describe the challenges children face as having to combat the effects of “adultism,”40 which can be viewed as the power imbalance between adults and children. Freeman,41 Eekelaar42 and Mnookin43 all support a measure of the welfare approach, whilst simultaneously recognising children as independent and autonomous rights-bearers.44
In assessing this approach, and superimposing same onto the position of people with disabilities, the approaches are strikingly alike. People with disabilities too are equal rights-bearers, albeit having to sometimes rely on some or other support or assistance in order to equally partake in society. People with disabilities are also viewed as vulnerable, but that does not mean that they cannot act in their owninterest, or make decisions for themselves. People with disabilities are furthermore in need of some level of protection as a result of their vulnerability and historic disposition for being discriminated against. However, this protection must not rid the person of his autonomy or identity.
Against this background, it is apparent that CWD specifically, in having to face the challenges experienced by both children, as well as people with disabilities, may consequently experience the compounded effect of being denied their equal rights assertion as a result of their two-tier vulnerability. They may face inequality on both levels, from the State as well as other individuals.45 Even where the rights of children are recognised, CWD may be denied equal enjoyment as a result of their disability.
Similarly, where the child’s disability is taken into account and responded to, the service or response may not take into account the child’s age. This means that CWD may be denied equality not once, but twice as a result of their particular vulnerabilities. Matshedisho46 argues that for rights to be effective, it must be recognised by someone other than the right-bearer. Rights such as the right to equality must thus be recognised and respected by, for instance a court, or prosecutor as well as a family member or friend.47 Accordingly, the law must determine that vulnerable people such as CWD are not denied an integral right such as equality.
Chapter 1: Introduction
1.1 . Research aim and thesis statement
1.2 Research question
1.3. Research methodology
1.4 . Scope of research and limitations
1.5 . Context of research
1.6 . Overview of chapters
1.7 . Conclusion
Chapter 2: Constitutional rotection for children with disabilities
2.1. Introduction
2.2. Operational provisions
2.3. Section 9: Children with disabilities’ right to equality
2.4. Section 10: The right to human dignity and children with disabilities
2.5. Section
2.6. Section 28(1)(h) and the relationship betwee section 34 and 35
2.7. Section 39
2.8. Conclusion
Chapter 3: International obligations
3.1. Introduction
3.1.1. Interpretation of the UNCRC and UNCRPD
3.2. Convention on the Rights of the Child
3.2.1. Introduction
3.2.2. Children with disabilities under the UNCRC
3.3. The Convention on the Rights of Persons with Disabilities
3.3.1. Introduction
3.3.2. Children with disabilities and the UNCRPD
3.3.3. Context and correlation
3.3.4. Access to justice under the UNCRPD: the sixth pillar
3.3.5. Conclusion
3.4. Conclusion
Chapter 4: Domestic Response
4.1. Introduction
4.2. Domestic legislation
4.2.1. Children’s Act 38 of 200
4.2.2. The Child Justice Act 75 of 2008
4.2.3. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
4.2.4. Mental Health Care Act 17 of 2002
4.2.5. Criminal Procedure Act 51 of 1977
4.2.6. Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 20
4.3. Assessment of domestic legislation against the “six pillars”
4.3.1. Pillar one: the best interests of the child principle
4.3.2. Pillar two: the principle of non-discrimination
4.3.3. Pillar three: survival and development
4.3.4. Pillar four: the child’s right to be heard
4.3.5. Pillar five: the rights of CWD specifically
4.3.6. Pillar six: Article 13 of the UNCRPD
4.4. Conclusion
Chapter 5: Childhood disability and the abuse and neglect profile
5.1. Introduction
5.2. Defining childhood disability
5.3. South African data and statistics
5.3.1. The South African Census
5.3.2. The Census 2011 and disability
5.3.3. Census 2011 and age
5.3.4. Data from the care dependency grant
5.3.5. Other sources of data
5.4. The abuse and neglect profile
5.4.1. The victim profile
5.4.2. The abuser profile
5.4.3. The abuse statistics
5.4.4. The effect of an increased abuse probability
5.5. Conclusion
Chapter 6: International trends and comparativeanalysis
Chapter 7 Recommendations and conclusion
Chapter 8 Bibliography
