CRPD COMMITTEE 10TH SESSION, DIALOGUE WITH AUSTRALIA
3-4 SEPTEMBER 2013, GENEVA
AUSTRALIAN CIVIL SOCIETY PARALLEL REPORT GROUP
RESPONSE TO THE LIST OF ISSUES
RESPECT FOR HOME AND THE FAMILY
List of Issues Question 7, 19, 29 and 30
Disability Rights Now paragraphs 398-426 (article 23)
The National Disability Strategy (NDS) contains limited recognition and no comprehensive actions to address the rights of people with disability to marry, form intimate partner relationships, have a family and be parents. The NDS recognises the need for early intervention and supports for children with disability and their families, but there are few actions to address this comprehensively as a means to prevent family breakdown.
Removal of children from parents with disability (paras 408-411 DRN)
The National Framework for Protecting Australia’s Children 2009–2020 does not contain any recognition or actions to address the support required by children or parents with disability to protect their rights to family life. Parents with disability, particularly those with intellectual and psychosocial disability are significantly over represented in the child protection system, and children of people with disability are subject to removal from their parents at a higher rate than the general population.[1] In many circumstances children are removed pre-emptively despite there being no evidence of any neglect, abuse and/or parental incompetence.[2]
Forced/Involuntary or coerced sterilisation (paras 307-314 & 405-407 DRN)
Forced/involuntary or coerced sterilisation of people with disability, particularly women and girls with disability is an ongoing practice in Australia.
In September 2012 the Senate commenced an Inquiry into the involuntary or coerced sterilisation of people with disability in Australia, and released the Inquiry Report in July 2013.[3] The Australian Government is to be congratulated for commissioning the Inquiry, and for ensuring that people with disability, particularly women with disability, were able to participate in the Inquiry and express their views.
Although several of the Report’s recommendations are welcomed - particularly those emphasising the need for reproductive and sexual health education, training and support for people with disability, the medical workforce, judicial and legal officers - it is deeply alarming that the Inquiry recommendations, if accepted by the Australian Government, would permit the practice of forced and coerced sterilisation of children and adults with disability to continue in Australia.
Critically, the Report recommends that national uniform legislation be developed to regulate sterilisation of children and adults with disability, rather than to prohibit the practice, as has been recommended to Australia by international human rights treaty bodies, UN special procedures, and international medical bodies since 2005.[4]
The Report recommends that for an adult with disability who has the ‘capacity’ to consent, sterilisation should be banned unless undertaken with that consent. However, based on Australia’s Interpretative Declaration in respect of Article 12, the Report also recommends that where a person with disability does not have ‘capacity’ for consent, substitute decision-making laws and procedures may permit the sterilisation of persons with disability. The Report further recommends that the financial costs incurred by parents or guardians in child sterilisation cases be covered by legal aid, which could in fact; make it easier rather than more difficult, for sterilisation procedures to be sought.
If the Australian Government accepts the recommendations of the Senate Inquiry, it will mean that the Australian Government remains of the view that it is an acceptable practice to sterilise children and adults with disabilities, provided that they ‘lack capacity’ and that the procedure is in their ‘best interest’, as determined by a third party.
Disability Rights Now Recommendations
· That Australia develops and enacts national uniform legislation prohibiting, except where there is a serious threat to life or health, the use of sterilisation of children, regardless of whether they have a disability, and of adults with disability in the absence of their prior, fully informed and free consent.
· That Australia conducts an urgent national inquiry into the legal, policy and social support environment that gives rise to the removal and / or threat of removal of babies and children from parents with disability.
· That Australia establishes comprehensive and intensive gender specific parenting and family support measures for parents with disability, to assist with maintaining children with their parents and within their own family homes.
· That Australia establishes measures to raise awareness in the general community, specifically people with disability, their families, the judiciary and agencies involved in child protection about the right to parent, particularly for people with intellectual and psychosocial disability and promote positive images of parents with disability in the community.
· That Australia resources sexuality, relationship and human rights training and information for people with disability, including providing support for agencies that provide access to sexual services, including in residential facilities.
· That Australia ensures that at the next review of the National Child Protection Framework, specific issues and comprehensive strategies for both children and young people with disability and parents with disability are identified and included for implementation.
[1] Standing Committee on Social Issues, Legislative Council, Parliament of New South Wales, Care and Support — Final Report on Child Protection Services (2002) 144; Standing Committee on Social Issues, Legislative Council, Parliament of New South Wales, Making it Happen — Final Report on Disability Services (2002) 126; G Llewellyn, D McConnell and L Ferronato, ‘Prevalence and Outcomes for Parents with Disabilities and their Children in an Australian Court Sample’ (2003) 27Child Abuse and Neglect 235; Women with Disabilities Australia, ‘Parenting Issues for Women with Disabilities in Australia’ (Report, 2009) 19–22.
[2] Reported during consultations by social and legal advocacy organisations; D McConnell and G. Llewellyn, ‘Stereotypes, Parents with Intellectual Disability and Child Protection’ (2002) 24 Journal of Social Welfare and Family Law 297.
[3] Available at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=clac_ctte/involuntary_sterilisation/first_report/index.htm
[4] See UN Docs: CRC/C/AUS/CO/4; A/HRC/WG.6/10/L; CEDAW/C/AUS/CO/7; CRC/C/15/Add.268; A/67/227; A/HRC/22/53. See also: FIGO (International Federation of Gynecology and Obstetrics), Female Contraceptive Sterilization. Available at: http://www.wwda.org.au/FIGOGuidelines2011.pdf