Abstract
The first draft texts of the CRPD included an article to protect the home and family of persons with disabilities in line with Rule 9 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities of 1993. The original proposals on Article 23 also mentioned the right to privacy, then regulated in a separate provision (Articles 22).
Article 23 covers a wide range of rights and obliges States Parties to 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.
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Notes
- 1.
See UNGA Resolution 48/96 of December 20, 1993. See also the Declaration on the Rights of Disabled Persons of 1975 (para. 9).
- 2.
See, infra, par. 2.
- 3.
The Chair of the Ad Hoc Committee submitted the Draft Elements to the Working Group in December 2003. http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm. Accessed April 15, 2015.
- 4.
See Article 22 [Respect for Privacy ] in this Commentary.
- 5.
See Draft Article 14 – Respect for Privacy, the Home and the Family, A/AC.265/2004/WG/1, Annex I. http://www.un.org/esa/socdev/enable/rights/ahcwgreporta14.htm. Accessed April 15, 2015.
- 6.
See D’Espallie (2013). The CRPD Committee recognized that “women with disabilities are subjected to high rates of forced sterilization , and are often denied control of their reproductive health and decision-making, the assumption being that they are not capable of consenting to sex”; see General comment No. 1 (2014), Article 12: Equal recognition before the law, CRPD/C/GC/1, para. 35.
- 7.
Ibid.
- 8.
On these issues, see Degener, Begg, ‘From Invisible Citizens to Agents of Change: A Short History of the Struggle for the Recognition of the Rights of Persons with Disabilities at the United Nations’ in this Commentary.
- 9.
At the third session of the Ad Hoc Committee, Costa Rica and Australian NGOs had already proposed to divide the subject matter of draft Article 14 into two separate articles, one on the right to privacy and the other on family, home, and personal relationships. http://www.un.org/esa/socdev/enable/rights/ahcstata22tscomments.htm#kenya. Accessed April 15, 2015.
- 10.
For the Holy See, the degree of detail of the Article was “creating too many problems”; see Schulze (2009), p. 86. At the third session of the Ad Hoc Committee (May 24–June 4, 2004), the Holy See suggested to merge subsections (a), (b), and (c) of the draft Article 14 into a new subparagraph (a), which read as follows: “(a) The right of men and women with disabilities of marriageable age to marry and found a family shall be recognized, and no marriage shall be entered into without the free and full consent of the intending spouses; (ICCPR Article 23.2 and 23.3).” http://www.un.org/esa/socdev/enable/rights/ahcstata22tscomments.htm#kenya. Accessed April 15, 2015.
- 11.
See A/AC.265/2005/2. http://www.un.org/esa/socdev/enable/rights/ahc5reporte.htm. Accessed April 15, 2015. Within the Ad Hoc Committee, there was general agreement that paras. (a), (b), and (c) of the Working Group text would become paras. (1) (a), (b), and (c) of draft Article 14 bis, and paras. (d), (e), and (f) would become paras. (2), (3), and (4).
- 12.
Ibid., para. 94.
- 13.
Ibid., para. 97.
- 14.
Ibid., para. 99.
- 15.
The phrase was added, but at the final stage of negotiations, several delegations, including the EU, and NGOs proposed to delete it, and this proposal passed. See http://www.un.org/esa/socdev/enable/rights/ahcstata23sevscomments.htm. Accessed April 10, 2015.
- 16.
See A/AC.265/2005/2, para. 104.
- 17.
See Article 25 [Health] in this Commentary.
- 18.
Article 23 of the ICCPR reads as follows: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized.”
- 19.
The terms “men and women” were used in this provision to qualify both marriage and parenthood and were drawn from Article 23 of the ICCPR. However, some delegations expressed concern over any possible interpretation of Article 14 bis as broadening marriage to same-sex couples.
- 20.
See A/AC.265/2005/2, para. 108.
- 21.
Ibid., para. 110. Article 16, para. 1 (e), of the CEDAW states: “The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.”
- 22.
Ibid., para. 111. These issues were also discussed with regard to draft Article 12 concerning “Freedom from violence and abuse.”
- 23.
Ibid., para. 112.
- 24.
Article 16, para. 1 (f), of the CEDAW states: “The same rights and responsibilities with regard to guardianship , wardship , trusteeship and adoption of children , or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount.”
- 25.
See A/AC.265/2005/2, para. 117.
- 26.
Ibid., para. 120.
- 27.
Ibid., para. 124.
- 28.
Ibid., para. 125.
- 29.
See A/AC.265/2006/1, para. 91. http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm. Accessed April 15, 2015. See Schulze (2009), p. 87.
- 30.
See A/AC.265/2006/1.
- 31.
Ibid., para. 85.
- 32.
See the text in the Report of the Committee, A/AC.265/2006/2. http://www.un.org/esa/socdev/enable/rights/ahc7report-e.htm. States’ and NGOs’ proposals and amendments are available at http://www.un.org/esa/socdev/enable/rights/ahcstata23sevscomments.htm. Accessed April 18, 2015.
- 33.
Ibid.
- 34.
The EU did not support para. 2 ter, while the IDC fully supported the inclusion of these two paragraphs in Article 23.
- 35.
When the CRPD was adopted by UNGA, the Holy See delegation, while expressing appreciation for the Convention, underlined its position on Articles 18, 23, and 25. With regard to Article 23, Msgr. Celestino Migliore affirmed that “my delegation interprets all the terms and phrases regarding family planning services, regulation of fertility and marriage in article 23, as well as the word ‘gender’, as it did in its reservations and statements of interpretation at the Cairo and Beijing International Conferences.” http://www.vatican.va/roman_curia/secretariat_state/2006/documents/rc_seg-st_20061213_un-rights-persons_en.html. Accessed April 18, 2015. Because of the wording of the abovementioned Articles, the Holy See did not sign the CRPD.
- 36.
As already mentioned, in a first phase of negotiations the phrase was “family and personal relationships”; afterward, the adjectives were deleted because they were considered too restrictive. For the Final report of the Ad Hoc Committee, see A/61/611, December 6, 2006.
- 37.
See Quinn and Degener (2002), pp. 7 et seqq.
- 38.
See Harnacke and Graumann (2012), pp. 41–42.
- 39.
See CCPR, General Comment No. 16: Article 17 (Right to privacy), HRI/GEN/1/Rev.1 at 21 (1994), para. 5.
- 40.
For business premises, see ECtHR, Niemietz v. Germany, Application No. 13710/88, judgment of December 16, 1992, [1992] 16 EHRR 97; for holiday homes, see ECtHR, Demades v. Turkey, Application No. 16219/90, judgment of July 31, 2003; for caravans and homes built in contravention of planning regulations, see ECtHR, Buckley v. the United Kingdom, Application No. 20348/92, judgment of September 29, 1996, [1996] 3 EHRR 101 and ECtHR, Chapman v. the United Kingdom, Application No. 27238/95, judgment of January 18, 2000, [2001] 33 EHRR 18.
- 41.
See ECtHR, Moreno Gomez v. Spain, Application No. 4143/02, judgment of November 16, 2004, [2004] ECHR 633 [2005] 41 EHRR 40, para 53.
- 42.
See ECtHR, Guerra and Others v. Italy, Application No. 14967/89, judgment of February 19, 1998, [1998] 26 EHHR 375. Cf. Roagna (2012), pp. 73 et seqq.
- 43.
At the seventh session of the Ad Hoc Committee (January 17, 2006), the United States proposed to include in the draft Convention the recognition that the family is the natural and fundamental unit of society, which is also reflected in the ICCPR. http://archiv.agile.ch/fileadmin/user_upload/UNO_Berichterstattung.pdf. Accessed April 10, 2015.
- 44.
See General Comment No. 16, cit., para. 5.
- 45.
- 46.
On the notion of “family” in international law, see Van Bueren (1998), pp. 69 et seqq.
- 47.
See Mowbray (2012), p. 528.
- 48.
For the text of the IDC proposal submitted at the seventh session of the Ad Hoc Committee (January 23, 2006), see http://www.un.org/esa/socdev/enable/rights/ahcstata23sevscomments.htm. Accessed April 10, 2015. New Zealand, in particular, emphasized the need to ensure to children with disabilities the right to experience family life, a right that is implicit in several provisions of the CRC (Articles 5, 9, and 18) but that needs specific mention in the CRPD as children with disabilities are more vulnerable than other children to placement in institutions rather than with families. http://www.un.org/esa/socdev/enable/rights/ahcstata23sevscomments.htm. Accessed April 10, 2015.
- 49.
See, infra, para. 4 on the prohibition of forced sterilization .
- 50.
See Byrne (2012), pp. 419 et seqq.
- 51.
See also Article 24 of the ICCPR on the child’s right to measures of protection on the part of his family, society, and the State, without any discrimination as to race, color, sex, language, religion, national or social origin, property, or birth. At regional level, Article 24 of the EUCFR sets out the child’s right to maintain on a regular basis a personal relationship and a direct contact with both parents.
- 52.
The CRC explicitly refers to the child’s best interests in Article 9 on the separation from parents, Article 10 concerning family reunification, Article 18 with regard to parental responsibilities, Article 20 concerning deprivation of family environment and alternative care, Article 21 on adoption, Article 37 (c) on the separation from adults in detention, Article 40, para. 2 (b) (iii) concerning procedural guarantees, including presence of parents at court hearings for penal matters involving children in conflict with the law. On Article 3 of the CRC, see Freeman (2007).
- 53.
See Schulze (2009), p. 89.
- 54.
See CRC Committee, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3, para. 1), CRC/C/GC/14, para. 15.
- 55.
See the Concluding Observations on the initial report of Argentina, CRPD/C/ARG/CO/1, October 8, 2012, para. 36; Azerbaijan, CRPD/C/AZE/CO/1, May 12, 2014, para. 37; Costa Rica, CRPD/C/CRI/CO/1, May 12, 2014, para. 44; Germany, CRPD/C/DEU/CO/1, April 17, 2015, paras. 43–44.
- 56.
See CRPD Committee, Concluding Observations on the initial report of Costa Rica, cit., para. 44; El Salvador, CRPD/C/SLV/CO/1, October 8, 2013, para. 48.
- 57.
See CRPD Committee, Concluding Observations on the initial report of Paraguay, CRPD/C/PRY/CO/1, May 15, 2013, paras. 55–56.
- 58.
See Articles 6, 8, 9, 10, 16, 18, 22, and 37 of the CRC. On the legal relevance of the CRC and the CRPD to protect children with disabilities, see McCallum and Martin (2013).
- 59.
See CRC Committee, General comment No. 14, cit., para. 61.
- 60.
Ibid.
- 61.
Ibid., para. 63.
- 62.
CRC Committee, General Comment No. 9 (2006): The rights of children with disabilities, CRC/C/GC/9, para. 41.
- 63.
See Dimopoulous (2009). In the Council of Europe “Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015,” it is affirmed that “the needs of children with disabilities and their families must be carefully assessed by responsible authorities with a view to providing measures of support which enable children to grow up with their families, to be included in the community and local children’s life and activities” (Chapter 4.4).
- 64.
See ECtHR, Kutzner v. Germany, Application No. 46544/99, judgment of February 26, 2002, para. 67. See also ECtHR, Saviny v. Ukraine, Application No. 39948/06, judgment of December 18, 2008.
- 65.
See UNGA Resolution 64/142. This not legally binding act has been adopted “to enhance the implementation of the Convention on the Rights of the Child and of relevant provisions of other international instruments regarding the protection and well-being of children who are deprived of parental care or who are at risk of being” (paras. 1 and 31).
- 66.
Ibid., paras. 3 and 8 (a). See Mulheir (2012).
- 67.
See UNGA Resolution 64/142, para. 20.
- 68.
Ibid., para 122.
- 69.
Ibid., para. 122.
- 70.
The Guidelines recall that “[i]n accordance with the predominant opinion of experts, alternative care for young children, especially those under the age of 3 years, should be provided in family-based settings” (para. 21).
- 71.
Ibid., para. 23. Also, the CRPD Committee has requested States Parties to engage in a well-planned and structured process of deinstitutionalisation of persons with disabilities (see Draft General Comment No. 4, Article 24: The right to inclusive education, para. 66 available at http://www.ohchr.org/EN/HRBodies/CRPD/Pages/GCRightEducation.aspx. Accessed February 3, 2016. General Comment No. 4 (2016), Article 24: Right to inclusive education, was adopted on August 26, 2016, see CRPD/C/GC/4, para. 64.
- 72.
By virtue of Article 46 of the CRPD, the Republic of Poland reserved “the right not to apply Article 23.1(a) of the Convention until relevant domestic legislation is amended. Until the withdrawal of the reservation a disabled person whose disability results from a mental illness or mental disability and who is of marriageable age, can not get married without the court’s approval based on the statement that the health or mental condition of that person does not jeopardize the marriage, nor the health of prospective children and on condition that such a person has not been fully incapacitated. These conditions result from Article 12 § 1 of the Polish Code on Family and Guardianship (Journal of Laws of the Republic of Poland of 1964, No. 9, item 59, with subsequent amendments).” https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en. Accessed April 12, 2015.
- 73.
The Republic of Poland made a reservation stating that “Article 23.1 (b) and Article 25 (a) shall not be interpreted in a way conferring an individual right to abortion or mandating state party to provide access thereto, unless that right is guaranteed by the national law.” Also Monaco “considers that articles 23 and 25 of the Convention must not be interpreted as recognizing an individual right to abortion except where expressly provided for under national law.” https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en. Accessed April 12, 2015. See Mykitiuk and Chadha (2011).
- 74.
See Scully (2012), p. 77.
- 75.
CRPD Committee, Concluding Observations on the initial report of Argentina, cit., para. 36.
- 76.
CRPD Committee, Concluding Observations on the initial report of Belgium, CRPD/C/BEL/CO/1, October 28, 2014, para. 35.
- 77.
The CRPD Committee found forced sterilization to be in breach of Article 17 in the Concluding Observations on the initial report of Argentina, cit., para. 31; in breach of Article 23 in the Concluding Observations on the initial report of Hungary, CRPD/C/HUN/CO/1, October 22, 2012, para. 38; and in breach of Article 6 in the Concluding Observations on the initial report of Paraguay, cit., para. 17. On this issue, see Boezaarf (2012).
- 78.
See the Concluding Observations on the initial report of China, CRPD/C/CHN/CO/1, October 15, 2012, para. 34; the Concluding Observations on the initial report of Peru, CRPD/C/PER/CO/1, May 16, 2012, para. 35; see also the Concluding Observations on the initial report of Hungary, cit., para. 38.
- 79.
CRPD Committee, Guidelines on treaty-specific document to be submitted by States Parties, CRPD/C/2/3, paras. 11–13.
- 80.
General comment No. 14, cit., para. 13.
- 81.
Ibid., para. 11. The CRC Committee underlined that the child’s best interests is a threefold concept: (a) a substantive right; (b) a fundamental, interpretative legal principle; and (c) a rule of procedure (ibid., para. 6). See also para. 38, where the Committee specified that concerning adoption (Article 21), the right of best interests is further strengthened; it is not simply to be “a primary consideration” but “the paramount consideration.”
- 82.
The CRPD Committee has strongly recommended Belgium “the establishment of a support mechanism for families of children with disabilities with a view to preventing their abandonment or institutionalization”; see the Concluding Observations on the initial report of Belgium, cit., para. 35.
- 83.
The right not to be separated from parents and the right to family reunification are also established in Articles 9 and 10 of the CRC.
Table of Cases
ECtHR 16.12.1992, Application No. 13710/88, Niemietz v Germany, [1992] 16 EHRR 97
ECtHR 29.09.1996, Application No. 20348/92, Buckley v the United Kingdom, [1996] 3 EHRR 101
ECtHR 19.02.1998, Application No. 14967/89, Guerra and Others v Italy, [1998] 26 EHHR 375
ECtHR 18.01.2001, Application No. 27238/95, Chapman v the United Kingdom, [2001] 33 EHRR 18
ECtHR 26.02.2002, Application No. 46544/99, Kutzner v Germany, [2002] ECHR–I
ECtHR 31.07.2003, Application No. 16219/90, Demades v Turkey, unreported
ECtHR 16.11.2004, Application No. 4143/02, Moreno Gomez v Spain, [2004] ECHR-633
ECtHR 18.12.2008, Application No. 39948/06, Saviny v Ukraine, unreported
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Fina, V.D. (2017). Article 23 [Respect for Home and the Family]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_27
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