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Buffalo Human Rights Law Review

First Page

65

Document Type

Article

Abstract

This article describes the right of all children to live and grow up in a family as it has evolved thirty years after the adoption of the U.N. Convention on the Rights of the Child (CRC) and since the 2006 adoption of the U.N. Convention on the Rights of Persons with Disabilities (CRPD). The article examines the implications of this right for the millions of children placed in orphanages, residential care, and group homes around the world.

The CRC favors the placement of children with a family, but it does allow for the placement of children in "suitable institutions" when families are unavailable. In General Comment No. 9, the U.N. Committee on the Rights of the Child states that institutions should be "transformed" into smaller residential facilities and used only as a "last resort." The United Nations Guidelines on Alternative Care calls for the elimination of large institutions but also allows for long-term placement in smaller residential homes. The more recently adopted U.N. Convention on the Rights of Persons with Disabilities (CRPD) now creates stronger protections through a combination of Article 23 (respect for home and family) and Article 19 (living independently and being included in the community).

In 2017, the U.N. Committee on the Rights of Persons with Disabilities adopted General Comment No. 5, stating that, for children, the right to community integration entails a right to live and grow up with a family. The Committee stated that placement in a family-like residence and group home is not a substitute for the right to a family under the CRPD. The protections established in the CRPD are consistent with new research revealing that institutions and residential care are inherently detrimental to children. Experience shows that all children, no matter how severe their disability, can and should receive the support and protection they need to live and grow up with a family. This article makes the case that the protections recognized by the CRPD apply to all children - not just children with disabilities. To implement this right, governments are under an obligation to create the range of supports needed so that all children can live in families and not institutions, residential care, or group homes. Protections for the family under the CRC should reflect these developments in international law and knowledge about child development. Article 41 of the CRC recognizes evolving international standards for the protection of children. Thus, the Committee on the Rights of the Child should update General Comment No. 9 to comply with new legal standards that protect the right of all children to live and grow up with a family. The U.N. Guidelines for Alternative Care can be preserved, so long as they are used in a manner consistent with the requirements of the CRPD and are not used to justify permanent placement in group homes or other residential facilities.

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