Persone di minore età e disabilità

1. La disabilità e diritti che vi si ricollegano. – 2. Le norme pertinenti: un quadro articolato. – 3. Il divieto di discriminazione. – 4. La preminenza dell’interesse del minorenne disabile. – 5. Le azioni positive richieste agli Stati. – 5.1 Autonomia e inclusione. – 5.2 Cura e assistenza. – 5.3 Cooperazione. – 6. Conclusioni.

Article 23 of the UN Convention on the Rights of the Child provides, inter alia, that mentally and physically disabled children “should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community”. Other international rules are concerned with the protection of the fundamental rights of children with disabilities. That is notably the case of Article 7 of the UN Convention on the Rights of Persons with Disabilities, which requires that States take “all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children”. The provision further recognises the right of children with disabilities “to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right”. The rules that combat discrimination in the enjoyment of human rights also play an important role in this area, in that they include disability (either implicitly or explicitly) among the grounds on which discrimination is prohibited. The chapter provides an overview of the above rules in light of their connections. After discussing the notion of disability, as used by the international law of human rights, the paper examines the principle according to which the best interests of the (disabled) child must be regarded as a primary consideration, and the steps that States are required to take in order to promote the autonomy and social inclusion of children with disabilities, and to provide them the assistance they may need in the enjoyment of their rights. The chapter also highlights the relevance of international cooperation to the effective realisation of the fundamental rights of children with disabilities.