2016

Ending exclusion and discrimination:
Protecting and promoting the rights of children and youth with disabilities, especially in education


Ingrid Heindorf
(Human Rights Officer and Coordinator of the Geneva Liaison Office, World Future Council Foundation; Head of Policy Research & Conference Organisation, Zero Project)



1. The United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (UN CRC), adopted on 20 November 1989[1] and with today 196 States Parties,[2] is the first international treaty integrating all human rights in reference to children. It is also the first human rights treaty that pays particular attention to children with disabilities, as it contains a specific reference to disability (Article 2) and a separate article (23) exclusively dedicated to the rights and needs of children with disabilities.

UN CRC Article 2 concerns non-discrimination and calls all States Parties to treat no child unfairly on any basis, including disability, whilst UN CRC Article 23 requests States Parties to guarantee that children with any kind of disability have the right to special care and support, so that they can enjoy a full and decent life, in conditions that ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

During the 80s and 90s, within the framework of the human rights treaties growing attention was paid to persons with disabilities in general and children in particular, also because the voice of persons with disabilities and of their advocates was being increasingly heard.[3]

Seen the “evidence of the dramatically restricted life opportunities of children with disabilities in many parts of the world”,[4] the Committee on the Rights of the Child (‘the CRC Committee’)[5] devoted in 1997 its day of general discussion to children with disabilities. It adopted a set of recommendations,[6] one of which was to explore the possibility of drafting a general comment on children with disabilities.

Nine years later - in September 2006 -, in the same year when a draft convention on the rights of persons with disabilities was submitted to the United Nations General Assembly,[7] the CRC Committee issued General Comment No. 9 on the rights of children with disabilities during its forty-third session in Geneva.[8]

The CRC General Comment No. 9 provides guidance and assistance to States parties in their efforts to implement the rights of children with disabilities. It reports that in the overwhelming majority of countries monitored by the Committee recommendations had to be made specifically to address the situation of children with disabilities, with problems that varied from exclusion from decision-making processes to severe discrimination and actual killing of children with disabilities.[9]

2. The United Nations Convention on the Rights of Persons with Disabilities

On 13 December 2006, the UN General Assembly adopted the first international treaty integrating all human rights in reference to the “world’s largest minority”,[10] the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), which as of today has 166 States Parties.[11]

Whilst the UN CRPD (and its drafting process) is innovative in a number of ways,[12] the treaty perhaps most importantly recognizes that disability is an evolving concept. Whereas previously disability was viewed as a ‘problem’ that belongs to the disabled individual (the so-called medical model), the UN CPRD acknowledges “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”.[13] On that basis obligations for States Parties arise to eliminate those barriers to the physical environment, participation, social opportunities, health, education, employment and personal development.

The UN CPRD pays particular attention to children with disabilities. Its preamble states “children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children” and its general principles highlight the “respect for the evolving capacities of children with disabilities”. A separate article (no. 7) is exclusively dedicated to children with disabilities, reminding States Parties that “in all actions […] the best interests of the child shall be a primary consideration”.

Moreover, the Convention contains specific references to children in numerous articles such as Article 8 on Awareness-raising,[14] Article 18 on Liberty of movement and nationality,[15] Article 24 on Education,[16] Article 25 on Health,[17] and Article 30 - Participation in cultural life, recreation, leisure and sport.[18] Article 23 on Respect for home and the family[19] states especially that children with disabilities shall not be separated from their parents against their will, except when the authorities determine that this is in the child’s best interests, and in no case shall be separated from their parents on the basis of a disability of either the child or the parents.[20]

As a compilation by the International Disability Alliance shows, the Committee on the Rights of Persons with Disabilities (‘the CRPD Committee’) addressed in its Concluding Observations to State Parties’ reports[21] many of the manifold problems concerning the situation of children with disabilities. What follows is a non-exhaustive overview by European region.

“Concerning Western Europe the CPRD Committee noted for instance in Austria “that the number of children in special schools is on the increase”; in Portugal “the negative impact of austerity measures on the range of support services for families who have children with disabilities”; in Belgium “the highest rates of children with disabilities placed in institutions”; in Spain “the reportedly higher rates of abuse of children with disabilities in comparison with other children”; in Sweden “it is concerned about the methods used in coercive and involuntary treatment of boys and girls with disabilities in mental health care settings, in particular the use of straps or belts and the use of seclusion, as reported by the Ombudsman for Children in Sweden”.

As evidenced above, and in the following compilation’s pages, the problems the CRPD Committee identified when it comes to children with disabilities are numerous and include stigma, lack of awareness, discrimination, high infant mortality, abandonment, institutionalization, poverty, abuse, exploitation, malnutrition, use of force, absence of data, lack of support, inadequate resources, and inaccessibility. An important subset of the problems identified relate to the lack of education, which belongs to the UN CRPD’s (and UNCRC’s) key provisions.

3. The right to education

Education is not only a right per se; it enables also other human rights and is strongly connected to health, independent living, employment and political participation. Over the past 20 years, the recognition of inclusion as the key to achieving the right to education has strengthened. Indeed the UN CRPD became the first international treaty to contain an explicit reference to the concept of quality inclusive education.

However, despite some progress achieved in some States Parties, profound challenges continue to persist. As noted by the CRPD Committee, “the equal right to education for persons with disabilities, while clearly mandated, is not being comprehensively implemented. Many millions of persons with disabilities continue to be denied a right to education, and for many more, such education as is available only exists in settings where they are isolated from their peers and receive an inferior quality of provision”.[22]

3.1. Status Quo - Facts and Statistics, and Reasons for Exclusion

While data are limited, the most recent global estimate of disability prevalence is that between 93 million and 150 million children live with disability, according to World Health Organization and World Bank (2011).[23] Mortality rates among children with disabilities are 80% even in countries where under-five mortality has declined below 20%.[24] Many children with disabilities in developing countries, particularly those with “mild to moderate “ disabilities, are not identified until they reach school age.[25] Only 10% of all children with disabilities are in school and of this number only half who begin, actually complete their primary education.[26] According to the World Report on Disability, the gap in primary school attendance rates between disabled and non-disabled children ranges from 10% in India to 60% in Indonesia.[27] Children with disabilities comprise one third of the out of school children.[28] Very few children with disabilities are enrolled in regular secondary schools.[29]

According to UNESCO‘s Education For All Global Monitoring Report of 2015 and to UNICEF’s Global Initiative on Out-of-school children,[30] the reasons for the exclusion of children with disabilities include: Discriminatory attitudes and social stigmas that exclude children with disabilities from interaction with wider society; Lack of understanding about forms of disability and disabled children’s needs; Lack of accessible school buildings; Limited number of teachers trained to teach in inclusive settings; Inflexible and inaccessible curricula, learning materials and examination systems; Insufficient data on disability to inform public policy; Insufficient resources to accommodate diverse needs, as well as Disadvantages of disability are often magnified by poverty, socio-economic status, gender, rural location and health conditions.

3.2. Traditional approaches by school systems

In the past, school systems have typically adopted one of three different approaches to persons with disabilities: Exclusion, segregation and integration.[31]

  1. Exclusion occurs when a student is kept away from school on the basis of the existence of an impairment, without another educational opportunity on equal terms with other students being provided. Through this approach, a student with disabilities is prevented from joining the education system on the basis of age, development or diagnosis and is placed in a social welfare or health-care environment without access to education.

This type of approach is existing in the Global South. According to UNICEF: Only 10% of all children with disabilities are in school and of this number only half who begin, actually complete their primary education, with many leaving after only a few months or years, because they are gaining little from the experience. This would mean that only 5% of all children with disabilities worldwide have completed primary school.

  1. Segregation occurs when such a student is sent to a school designed to respond to a particular impairment, usually in a special-education school system.

According to the CRPD Committee special education school systems exist in a variety of countries, including Argentina, Spain, Belgium, Germany, Austria, Switzerland, China, Azerbaijan, Costa Rica, Mexico, Paraguay, Hungary, Korea, etc.

  1. Integration is when a student with an impairment is placed in a mainstream school, so long as he or she can adjust to fit the standardized requirements of the school. The integration approach focuses solely on enhancing the ability of the student to comply with the established standards.

According to the CRPD Committee, integration is existing for example in Australia as well as in many other countries.

3.3. Legal recognition of “Inclusive Education”

As already said, the UN CRPD is the first international treaty to contain an explicit reference to the concept of quality inclusive education. Its Article 24 recognizes that “inclusive education systems” are the only means to ensure the right to education to all students, including persons with disabilities, without discrimination and on equal terms with others: „States Parties shall ensure an inclusive education system at all levels and lifelong learning”.[32] In other words, the right to education is in fact the right to inclusive education. Therefore, inclusive education systems must be in place.[33]

Article 24 also specifies what the main characteristics of inclusive education systems are. Such a system ensures that persons with disabilities are not excluded from the general education system on the basis of disability; that they can access education in their communities; that reasonable accommodation is provided as well as support and individualized support; that persons with disabilities acquire life and social skills, including the learning of Braille, sign language, etc.; that professionals and staff are trained in disability awareness and the use of appropriate communication and educational techniques and schools employ qualified teachers; and that persons with disabilities have access to general tertiary education, vocational training, adult education and lifelong learning.[34]

3.4. Inclusion and inclusive education is…

In the past ten years, efforts have been made to clarify the meaning of ‘inclusion’ and ‘inclusive education’.

According to the Thematic Study on the Right to Education of Persons with Disabilities by the OHCHR of 2013:[35] „Inclusion is a process that recognizes: (a) the obligation to eliminate barriers that restrict or ban participation, and (b) the need to change culture, policy and practice of the mainstream schools to accommodate the needs of all students, including those with impairments.” „An inclusive education implies transforming the school system and ensuring interpersonal interactions based upon core values which allow for the full learning potential of every person to emerge. It also implies effective participation, individualized instruction and inclusive pedagogies.”

According to the submission of the International Disability Alliance to the CRPD Committee of 2015:[36] „Inclusive education must not be confused with same and equal programming for all; it is not about assimilation, integration, nor diminishing learning to a common denominator. It is about responding to the diversity of all learners - be they persons with disabilities, girls, boys, women, men and older persons, having diverse ethnic, indigenous and linguistic backgrounds as well as migrant, refugee or asylum seeker status or other intersecting identities - in a diversity of environments - urban, rural or remote, humanitarian or conflict zones - in order to maximise the academic and social development of each individual, consistent with the goal of full inclusion.”

Moreover, UNICEF states in 2013: “Inclusive education entails providing meaningful learning opportunities to all students within the regular school system. Ideally, it allows children with and without disabilities to attend the same age-appropriate classes at the local school, with additional individually tailored support as needed.” “In an inclusive school, students are taught in small classes in which they collaborate and support one another rather than compete. Children with disabilities are not segregated in the classroom, at lunchtime or on the playground.” This requires measures of physical, informational and communication accessibility, notably for persons who are blind, deaf, deafblind and hard of hearing, and educational techniques and materials adapted to child-centered curricula to meet the diverse learning needs of all children.[37]

Inclusive education systems are those that have developed schools based upon “a child-centered pedagogy capable of successfully educating all children, including those who have serious disadvantages and disabilities. The merit of such schools is not only that they are capable of providing quality education to all children; their establishment is a crucial step in helping to change discriminatory attitudes, in creating welcoming communities and in developing an inclusive society. A change in social perspective is imperative”.[38]

Inclusive education can, therefore, be understood as the presence (access to education and school attendance), participation (quality of the learning experience from the learners’ perspective) and achievement (learning processes and outcomes across the curriculum) of all learners.[39]

3.5. The Way Forward

To bring about further clarity about what obligations States have under UN CRPD Article 24, the CRPD Committee is currently developing a General Comment on Article 24 - The right to inclusive education (no. 4). To inform the General Comment’s development, it held in 2015, its General Day of Discussion[40]focused on the core minimum elements that are vital to make inclusive education happen.[41]

The CRPD Committee received a number of submissions, including one from the International Disability Alliance, which recommended that States Parties, amongst others,[42] adopt a plan or strategy to achieve a fully inclusive education system; comply with non-discrimination and provision of reasonable accommodation; coordinate plans on general accessibility and inclusive education and address the accessibility of education environments, materials and methods; raise awareness in general and train teachers and all other school staff; and adjust public financing and allocate more resources for the development of inclusive education systems and reallocate resources from the special education system.

Besides the clarifying States Parties obligations under UN CRPD Article 24 (and thus close down existing avenues for bad excuses), good practice examples can also serve as useful and practical role models for policymakers.

For instance, the project Inclusive Education in Action of UNESCO, which aims to bridge the ‘policy to practice’ gap, gathered a number of examples of policies, accounts of practice, stories, videos and more that show some of the actions taken by people to address the concerns in the UNESCO Policy Guidelines on Inclusion in Education that were discussed in 2008 in Geneva.[43]

Moreover, OHCHR’s Thematic Report of 2013 cited for instance New Brunswick (Canada), which has a school policy that provides for non-rejection of students from mainstream education by guaranteeing inclusive education, and the Finnish Basic Education Act, which states that a pupil with disability has, additionally, the right to free interpretation and assistance services in order to participate in education.[44]

Last but not least, also civil society initiatives such as the Zero Project – For a World Without Barriers[45] have collected a number of practical and legal solutions. In 2016, ‘Innovative Policies’ concerning Inclusive Education and ICT were highlighted. Amongst them, for instance, USA’s Head Start Programme, which is required to offer inclusive early childhood services; Brazil’s National Plan of Rights of Persons with Disabilities ‘Living without Limit’, which provides for physically accessible education infrastructures, school transport, assistive devices, knowledgeable teachers, and cash support for deprived parents and their out-of-school children; Canada-New Brunswick’s Policy 322 on Inclusive Education, which forbids segregated education; Ghana’s Inclusive Education Policy that has introduced Inclusive Education in schools countrywide; INEE Minimum Standards for Education, which articulate the minimum level of educational quality and access in emergencies for all children, including those with disabilities; UNICEF Montenegro’s “It’s about Ability” Programme, which significantly improved the attitudes of Montenegrins towards Inclusive Education; and Costa Rica’s National Plan for Work Inclusion of People with Disabilities that increased access to the open labour market for persons with disabilities countrywide.[46]

Another promising step at the international level is the affirmation of inclusive quality and equitable education as a key goal for the Post 2015 Agenda.[47]



[1] http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

[2] http://indicators.ohchr.org/ *The United States has signed the UN Convention on the Rights of the Child (UN CRC), but is the only United Nations member state that is not a party to it.

[3] GC on the rights of children with disabilities

[4] http://www.ohchr.org/EN/HRBodies/CRC/Documents/Recommandations/disabled.pdf

[5] A UN treaty body composed of independent experts that monitor the implementation of the UN CRC. http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx

[6] CRC/C/66, paragraphs 310-339

[7] By the Ad-Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (A/AC.265/2006/4, Annex II). GC on the rights of children with disabilities

[8] GC on the rights of children with disabilities

[9] GC on the rights of children with disabilities

[10] https://www.un.org/development/desa/disabilities/backgrounder-disability-treaty-closes-a-gap-in-protecting-human-rights.html

[11] July 2016. Along with its Optional Protocol. http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx

[12] Numerous articles have been written hereon, for instance, http://www.enil.eu/wp-content/uploads/2012/11/ENIL_UNCRPD-and-the-Right-to-Independent-Living_2009.pdf; https://www.google.ch/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&ved=0ahUKEwjsy--c7p3OAhUEExoKHZXvB2YQFghoMAg&url=http%3A%2F%2Fwww.nuigalway.ie%2Fcdlp%2Fdocuments%2Fpublications%2FIHRGG%2520GQ%2520final.doc&usg=AFQjCNH_EHRG1YTECrsGVZh_3NXLnT3KhQ&cad=rja ; https://www.un.org/development/desa/disabilities/backgrounder-disability-treaty-closes-a-gap-in-protecting-human-rights.html

[13] http://www.un.org/disabilities/convention/conventionfull.shtml

[14] “1. States Parties undertake to adopt immediate, effective and appropriate measures: a. To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; b. To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; c. To promote awareness of the capabilities and contributions of persons with disabilities. Measures to this end include: Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities.“

[15] “2. Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents.”

[16] “1. States Parties recognize the right of persons with disabilities to education. 2. In realizing this right, States Parties shall ensure that: a. Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability; b. Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live; c. Reasonable accommodation of the individual’s requirements is provided; d. Persons with disabilities receive the support required, within the general education system, to facilitate their effective education; e. Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.”

[17] “States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall: b. Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons”

[18] “To ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system”

[19] “1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: […] b. The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided. c. Persons with disabilities, including children, retain their fertility on an equal basis with others. 2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities. 3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families. 4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. 5. States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.”

[20] https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/the-convention-in-brief.html

[21] May 2016, http://www.internationaldisabilityalliance.org/resources/compilation-crpd-committee%E2%80%99s-concluding-observations All States parties have to submit regular reports to the Committee on how the rights enshrined in the Convention are being implemented. States must report initially within two years of ratifying the Convention and, thereafter, every four years. The Committee examines each report and makes suggestions and general recommendations on the report. It forwards these recommendations, in the form of concluding observations, to the State Party concerned. http://www.ohchr.org/EN/HRBodies/CRPD/Pages/QuestionsAnswers.aspx

[22] Draft General Comment on the right to inclusive education

[23] http://www.who.int/disabilities/world_report/2011/chapter2.pdf

[24] http://unesdoc.unesco.org/images/0018/001831/183156e.pdf

[25] http://www.google.ch/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB8QFjAA&url=http%3A%2F%2Fwww.who.int%2Fdisabilities%2Fpublications%2Fother%2FECDD_final_word.doc&ei=PstRVenRBYG5UPvTgSA&usg=AFQjCNFusQZImFkAiutm2SHlgZ_EgjzFCg&bvm=bv.92885102,d.d24&cad=rja

[26] http://www.unicef.org/disabilities/files/Factsheet_A5__Web_NEW.pdf

[27] http://www.who.int/disabilities/world_report/2011/chapter7.pdf

[28] http://www.globalpartnership.org/focus-areas/children-with-disabilities

[29] http://www.uis.unesco.org/Library/Documents/disabchild09-en.pdf

[30] http://allinschool.org/barriers-to-education/disabilities/; UNESCO‘s EFA GMR of 2015

[31] OHCHR Thematic Study on CRPD art. 24

[32] http://www.un.org/disabilities/convention/conventionfull.shtml

[33] http://www.ohchr.org/EN/Issues/Disability/Pages/StudyRightOfPersonsWithDisabilitiesToEducation.aspx ;

[34] http://www.ohchr.org/EN/Issues/Disability/Pages/StudyRightOfPersonsWithDisabilitiesToEducation.aspx ;

[35] http://www.ohchr.org/EN/Issues/Disability/Pages/StudyRightOfPersonsWithDisabilitiesToEducation.aspx ;

[36] IDA submission to the GDD on CRPD art. 24: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGDontherighttoeducationforpersonswithdisabilities.aspx

[37] http://www.unicef.org/pacificislands/UNI138269.pdf; http://www.unicef.org.uk/Documents/Publication-pdfs/sowc-2013-children-with-disabilities.pdf

[38] UNICEF, The Right of Children with Disabilities to Education: A Right-Based Approach to Inclusive Education: http://www.unicef.org/ceecis/UNICEF_Right_Children_Disabilities_En_Web.pdf & Salamanca Statement and Framework for Action on Special Needs Education, Framework for Action, para. 3: http://www.unesco.org/education/pdf/SALAMA_E.PDF

[39] UNESCO IITE - ICT in Education for pwds – 2011

[40] http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGDontherighttoeducationforpersonswithdisabilities.aspx See also structure of its programme (Word)

[41] The CRPD Committee found that numerous States: Have no Inclusive and quality education systems in law and policies; Do not provide for the Non-exclusion on the basis of disability, reasonable accommodation and access to inclusive education systems; and Do not provide Support for inclusion in the general education system and individualized support measures.

[42] IDA submission to the GDD on CRPD art. 24 available at: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGDontherighttoeducationforpersonswithdisabilities.aspx

[43] http://www.inclusive-education-in-action.org/iea/index.php?menuid=59

[44] Thematic study on the right of persons with disabilities to education, Report of the Office of the United Nations High Commissioner for Human Rights (A/HRC/25/29): http://www.ohchr.org/EN/Issues/Disability/Pages/ThematicStudies.aspx

[45] Zero Project – For a World Without Barriers

[46] http://zeroproject.org/policy-type/2016/

[47] http://www.un.org/sustainabledevelopment/education/