There are constant loud calls for the need to make sure that Child Rights are integrated into the legislation of every country, and rightly so. Except for the USA, all countries in the world have ratified the UN Convention on the Rights of the Child, meaning they have committed to upholding Child Rights, something that is only possible if these rights are embedded in national legislation. Therefore it is also right that every time a country takes the step to integrate Child Rights into their legislation – as Scotland did recently – this is applauded and highlighted. However, it turns out that countries claiming to uphold Child Rights and serving children’s best interests is not something that should be taken at face value. Because sometimes these claims are made to defend practices that are not in children’s best interests at all.
Recently, I came across an example of this, when I learned that the Belgian jurisdiction of Wallonia-Brussels does not allow children with intellectual disabilities or with mental health problems to be placed in regular alternative care provisions. When I looked into this closer, I found that this is actually stated in their legislation. Here is my translation of the relevant section:
“It is also specified that the young person cannot be placed in a public institution if he suffers from an intellectual disability or mental health issues (article 122, paragraph 2). The currently unfortunately still used practice of placing young people who should be accommodated in a facility specialising in the care of people with disabilities or in a psychiatric facility in public institutions. This limitation of access is justified by the best interest of the young person as the care in a public institution is not adequate for a young person with an intellectual disability and can even constitute a form of institutional violence against him.”
First of all, let’s get out of the way the fact that no child or young person should be placed in an institution of any kind because this is severely damaging. However, to the best of my understanding, this refers not only to institutional alternative care but also to family-based and small scale residential care. And there we encounter a big problem.
It is all very well to claim that it would not be in the child/young person’s best interest to be placed in a care placement where proper care is not provided, and this is hard to argue against. However, drawing the conclusion that the only alternative, the only thing that would be in the child’s best interest, is to place him in segregated specialised care, is not correct. It is an invalid course of reasoning. And segregation is almost never in the child/young person’s best interest.
While we can agree that children/young persons should not be placed in a setting where they do not receive the care they need, there is the additional option of providing additional staff or capacity building of current staff to make sure that the child/young person can have their needs met in an integrated, inclusive setting. The whole point of the UNCRC and the UNCRPD is not just that children should be yanked away from a situation that is not in their best interest, but that a solution or alternative needs to be found that IS in their best interest. Not just something that is not the first thing.
We need to be watchful that arguments of Child Rights and best interests are not used in ways that actually harm children. Such as segregating children with disabilities – rather than providing adequate inclusive care – because of their right to have their special needs taken into account. Or removing children from families because of their right to education. There always has to be a full assessment to ensure that an individual child’s overall best interests are served by the solutions that are provided.
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