Respect for home and family
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:
(a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis on free and full consent of the intending spouses is recognised;
(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 recognised, 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.
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.
State Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realising these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, State Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.
State 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.
State 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. (Article 23)
Obligations
This article applies and extends the traditional right of respect for the home and family to the circumstances of persons with disability. The first paragraph of the article requires State Parties to ensure that persons with disability are protected from discrimination in any matter concerning marriage, family, parenthood and relationships. This protection includes the right of consenting adults with disability to marry and found a family, and to decide on the number and spacing of their children. To assist persons with disability effectively realise this right, State Parties are required to ensure that persons with disability have access information and education about family planning, in alternative and adapted formats if required. Importantly, the first paragraph also asserts the right of persons with disability, including children, to retain their fertility on an equal basis with others. This provision is, in effect, a prohibition against non-therapeutic sterilisation of children and adults with disability. Paragraph 2 of the article requires State Parties to ensure that persons with disability have the same rights as others with respect to the guardianship and adoption of children. It requires all guardianship and adoption decisions to be subject to the paramount principle of the ‘best interests of the child.’ The remaining paragraphs of the article emphasise the rights of children with disability to grow up at home with their parents, or where this is not possible, with members of their wider family, or in a family-like setting in the community. In this respect, paragraph 3 protects children with disability from concealment, neglect and segregation by requiring State Parties to ensure that these children and their families have access to early intervention, comprehensive information and services and support. Paragraph 4 protects against the separation of children from their parents on the basis of the disability of the child or one or both of its parents, unless such separation is in the best interests of the child (for example, in a case of abuse or neglect).
Indicators
• Persons with disability do not experience discrimination in relation to any matter concerning marriage, family, parenthood and relationships.
• Consenting adults with disability are able to marry and found a family.
• Persons with disability are able to decide on the number and spacing of their children.
• Persons with disability have effective access to family planning information and education, including in accessible and adapted formats if required.
• Persons with disability, including children with disability, retain their fertility on an equal basis with others.
• Persons with disability are accorded the same rights and responsibilities as others with respect to the guardianship and adoption of children.
• The ‘best interests of the child’ is the paramount consideration in all decisions concerning guardianship and adoption.
• Persons with disability have access to appropriate assistance, where necessary, to assist them with the performance of their child-rearing responsibilities.
• Children with disability are accorded the same rights as other children to family life.
• Children with disability are effectively protected from concealment, abandonment, neglect and segregation.
• Children with disability and their families are effectively supported with early intervention, comprehensive information, and services and support.
• Children with disability are not arbitrarily or unlawfully separated from their parents against their will. The ‘best interests of the child’ is the basis for any such separation.
• Children with disability are not separated from their parents on the basis of the disability of either the child or of one or both parents.
• Children with disability unable to live with their immediate family are provided with alternative care within their wider family, or if this is not possible, within the community in a family setting.
Example
The right to respect for home and family will be particularly relevant to people who through their work are involved in:
• Working with families and children, for example where children have been removed from parents or guardians
• Working with prisoners or others in involuntary government care
• Working with clients experiencing family violence
• Working with children who have been charged with criminal offences