DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS
CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS
Country Report on Italy
for the Study on
Member States' Policies for Children with Disabilities
STUDY
Abstract
This study looks at the situation of children with disabilities in Italy to identify the gaps in the legal frameworks and its implementation, the obstacles faced by children with disabilities and best practices. This country study is part of a larger study which analyses 18 Member States. Based on a comparative analysis of the country studies, the report ‘Study on Member States' Policies for Children with Disabilities’ provides some recommendations for EU action to enhance the situation of children with disabilities.
PE 474.426 EN This document was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs.
AUTHOR(S)
Emanuela Canetta Marilena Verbari Under the supervision of Milieu Ltd. (Belgium); Project Managers: Marta Ballesteros and Nathalie Meurens, e-mail: [email protected] and [email protected]; Milieu Ltd, 15 rue Blanche, B-1050, Brussels, Tel: +32 2 514 3601; Fax +32 2 514 3603; web address: http://www.milieu.be/.
RESPONSIBLE ADMINISTRATOR
Erika Schulze Policy Department C - Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected]
LINGUISTIC VERSIONS
Original: EN Translation: IT
ABOUT THE EDITOR
To contact the Policy Department or to subscribe to its newsletter please write to: [email protected]
European Parliament, manuscript completed in June 2013. © European Union, Brussels, 2013.
This document is available on the Internet at: http://www.europarl.europa.eu/studies
DISCLAIMER
The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.
Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy.
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TABLE OF CONTENTS
LIST OF ABBREVIATIONS 5 EXECUTIVE SUMMARY 6 INTRODUCTION 8 1. OVERVIEW OF THE SITUATION AND CHALLENGES FOR CHILDREN WITH DISABILITIES IN ITALY 10 1.1. Introduction to the situation of children with disabilities in Italy 10 1.2. Review of issues and identification of possible regulatory gaps 11 2. OVERVIEW OF THE LEGAL FRAMEWORK IN ITALY 13 2.1. General overview of the national legal and institutional framework 13 2.2. Children with disabilities specific legal and institutional framework 15 2.2.1. Legal framework 15 2.2.2. Institutions and authorities 19 2.2.3. Definitions 22 3. LEGAL FRAMEWORK AND IMPLEMENTATION ASSESSMENT 23 3.1. Implementation of the provisions of the CRPD and CRC 23 3.1.1. Best interests of the child (Art. 3 CRC; Art. 7 CRPD) 23 3.1.2. Non-discrimination (Art. 2 CRC; Arts. 3 and 5 CRPD) 24 3.1.3. Evolving capacities of the child (Art. 5 CRC and Art. 3 CRPD) 25 3.1.4. The right to be heard/to participation (Art. 12 CRC; Arts. 7 and 30 CRPD) 26 3.1.5. Freedom from violence (Art. 19 CRC; Art. 16 CRPD) 28 3.1.6. Right to family life (Art. 9 CRC; Art. 23(3) CRPD) 30 3.1.7. Right to assistance (Art. 23 CRC; Arts. 23(5), 26 and 28 CRPD) 30 3.1.8. The right to education and inclusion (Art. 28 CRC; Art. 24 CRPD) 31 3.2. Specific issues faced by children with disabilities 32 3.2.1. Gender vulnerability 32 3.2.2. Violence 32 3.2.3. Children as vulnerable suspects 33 3.2.4. Inclusive education 35 3.2.5. Other particular issues faced by children with disabilities in Italy 35
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4. ASSESSMENT OF THE PRACTICAL IMPLEMENTATION OF THE RIGHTS AND LEGAL PRINCIPLES 37 4.1. Enforcement and reporting mechanisms 37 4.2. Gaps, problems and issues in the implementation 38 4.3. Best practices 39 4.4. Data and monitoring mechanisms 40 4.5. Recommendations given by the literature 41 5. CONCLUSIONS 43 REFERENCES 44 ANNEX 1 – SUMMARY TABLE 49 ANNEX 2 – STATISTICAL INFORMATION 59 ANNEX 3 – TYPOLOGY OF PERSONS REPORTING CASES ON DISCRIMINATION 60 ANNEX 4 - STUDY ON MEMBER STATES' POLICIES FOR CHILDREN WITH DISABILITIES - EXECUTIVE SUMMARY 61 ANNEX 5 - OVERVIEW OF RELATED STUDIES 72
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LIST OF ABBREVIATIONS
Art. Article
Charter The Charter of Fundamental Rights of the European Union
CICLOPE Inter-ministerial Coordinating Committee for the Fight against Paedophilia
CISIS Interregional Centre for IT, Geographical and Statistical Systems
CJEU Court of Justice of the European Union
CRC United Nations Convention on the Rights of the Child
CRPD United Nations Convention on the Rights of Persons with Disabilities
CTS Scientific and Technical Committee
DPI Disabled People International
ECHR Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms
EU European Union
ISTAT Italian Statistic Institute
TEU Treaty on the European Union
TFEU Treaty on the Functioning of the European Union
UN United Nations
UNAR Ufficio Nazionale Antidiscriminazioni Razziali (National Office against Racial Discrimination)
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EXECUTIVE SUMMARY
The Italian legal framework provides a relatively good protection1 of the rights of children with disabilities, focusing mainly on inclusive education, adoption and assistance provided to children with disabilities and their families. Children with disabilities’ rights are also covered by the general provisions applying to children or to people with disabilities.
Italy ratified the CRC in 1991 and the CRPD in 2009. The implementation of CRPD and CRC rights and principles is overall good:
The protection of the best interests of the child is a fundamental principle of the legislation focusing on children; Equality is ensured both formally and in substance through preferential treatment arrangements; The evolving capacities of the child are taken into account in education and adoption; The Constitutional Court has declared Article 12 CRC on children’s participation self- executing; Some measures are in place to protect either children or people with disabilities against violence as well as their right to family life; Assistance in the form of, inter alia, economic support, personal care and consultancy facilities is provided to children, persons with disabilities and their families; The right to education and inclusion is well implemented, with 99,6% inclusion of students with disabilities in mainstream education.
A number of gaps, problems and challenges relating to children with disabilities have been identified including:
Lack of economic resources; Absence of a national definition of the minimum level of assistance by social services; Inconsistent level of social protection throughout the country; Lack of legislation and policies on abuse of children with disabilities, especially for girls; Lack of promotion for participation in the decision making process; Lack of protection for children and adolescents with light mental disability; Lack of training of judicial and police authorities; Lack of data and information.
A number of successful projects have been implemented to enhance the learning process of students with disabilities, to develop relationship and emotional responses to the issues of
1 This assessment is based the opinion of the authors based on the findings of the Italian report.
6 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______children with disabilities, to promote the participation of children and adolescents in the decision-making process and to promote the creation of inclusive sport activities.
The following measures would contribute to strengthening the rights of children with disabilities in Italy: consistent level of social protection throughout the country; adequate economic resources provided for families and schools; creation of mechanisms that ensure children’s participation in the decision-making processes.
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INTRODUCTION
In December 2010, the European Union (EU) became a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). In doing so, the EU recognised the challenges persons with disabilities face in securing their rights and highlighted the need for EU actions in that to be firmly on the agenda of the European Union and its Member States.
Children with disabilities are already vulnerable because they are children. Their disability renders them particularly vulnerable. As such, they deserve specific safeguards and protection from the EU and its Member States.
The key legal framework for EU action in this field is the EU Decision ratifying the CRPD, the requirement under Article 10 TFEU for the EU to combat discrimination based on disability, as well as the EU objective of promoting the rights of the child found under Article 3 TEU. This framework provides the EU with a unique position to push forward for further protection of the rights of children with disabilities, and to develop legislative or policy initiatives. The UN Convention on the Rights of the Child (CRC) provides another basis for action in this area.2
This country report for Italy is part of a larger study which aims at providing the European Parliament with an overview of the situation of children with disabilities in selected Member States, with a view to evaluating the need for European legislation to enhance the rights of children with disabilities in the European Union. The project reviews the existing legal, policy and institutional frameworks in 18 Member States. Each country report analyses the implementation of international principles and rights stemming from the CRPD and the CRC to uncover any particular issues that necessitate further policy and legislative actions at national and EU level. The results from the country reports also form the basis for the comparative analysis in the report ‘Study on Member States' Policies for Children with Disabilities’.
The key elements deriving from the CRC and CRPD, with regard to children with disabilities include:
The obligation to act in the best interests of the child; The right to non-discrimination; The consideration of the evolving capacities of the child; The right to participate / the right to be heard; The right to be free from violence; The right to family life; The right to assistance; The right to education, including inclusive education.
Given their ratification of both UN Conventions, Member States are obliged to take
2 All the 27 Member States have ratified the CRC, and all 27 Member States have signed the CRPD (Finland, Ireland and the Netherlands have signed but not yet ratified).
8 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______necessary measures to ensure the respect of the rights set forth for each child or person with a disability within their jurisdiction. Member States should take the appropriate measures to ensure that children are protected against all forms of discrimination or violence, including adopting all appropriate legislative, administrative and other measures for the implementation of those rights. Moreover, the protection of the rights of children with disabilities should be mainstreamed in all policies and programmes in accordance with Article 4(3) of the CRPD on the involvement of persons with disabilities in all decision- making processes.
Due to the scale of this subject and the scarcity of materials available, the scope of this study does not cover in detail the wide range of issues arising from and relating to the situation of children with disabilities. It does not aim to provide an in-depth analysis but rather an overview of the situation of children with disabilities’ rights in Italy. This study presents a snapshot of some of the major issues and obstacles faced by children with disabilities and their families, a legal analysis of the implementation of the main rights and principles recognised in the CRC and CRPD and relevant in the context of the situation of children with disabilities and points to some potential solutions at national and EU level to improve their situation.
Each country report is structured as follows: it first looks at the situation of children with disabilities at the national level. It describes the national legal and institutional framework for the protection of children with disabilities and analyses national implementation of principles and rights developed in the UN Conventions (CRC and CRPD). It then considers specific issues relevant to the situation of children with disabilities, including children as suspects, gender issues, violence and education. Finally, the report covers the mechanisms in place to implement the legal framework, highlighting gaps, problems, best practices, and recommendations found by the literature or via interviews with stakeholders.
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1. OVERVIEW OF THE SITUATION AND CHALLENGES FOR CHILDREN WITH DISABILITIES IN ITALY
KEY FINDINGS The national action focuses on the following areas: inclusive education; adoption; assistance to children and their families. The following gaps, problems and challenges have been identified by the literature: lack of economic resources; lack of legislation and policies on abuse of children with disabilities; reporting mechanism for cases of abuse are not easily accessible; lack of promotion of children’s participation in decision making processes; difficulties in monitoring the process of deinstitutionalisation; and lack of relevant data and information.
1.1. Introduction to the situation of children with disabilities in Italy
Italy ratified the UN Convention on the rights of the child on 27 May 1991, therefore recognising that the child is entitled to rights as an individual and as member of a family and social community.3 Italy ratified the UN Convention on the Rights of Persons with Disabilities and its optional protocol on 3 March 2009. The CRPD and the CRC reinforce each other for what concerns the rights of children with disabilities.4
Inclusive education is the sector where national legislation and policies have been mostly focusing its efforts. Italy is, so far, the only European country which has reached 99,6% inclusion of students with disabilities in mainstream education.5 Almost all segregated educational institutions have been abolished and all nurseries, schools and universities are required to accept any child or student regardless of their disability, including the most severe impairments. This goal has been reached thanks to the support provided to enhance the learning process of students with disabilities given by educators, trainers, teachers, etc.6 However, recent severe cuts to welfare resources have negatively affected the
3 ‘Consideration of reports submitted by States parties under Article 44 of the Convention. Third periodic report of States parties due in 2003 Italy’, available at http://www2.ohchr.org/english/bodies/crc/crcs58.htm (last accessed on 1 October 2012). 4 Forum Italiano sulla disabilitá, International disability alliance (IDA), ‘Submission by the Italian Disability Forum, European Disability Forum and International Disability Alliance to the 58th session of the UN Committee on the Rights of the Child’ available at https://docs.google.com/viewer?a=v&q=cache:ATpmWGb3SFAJ:cms.horus.be/files/99909/MediaArchive/what news/CRC%2520Italy_FID%2520IDA%2520EDF%2520submission_August%25202011%2520FINAL.doc+(IDA),+ Submission+by+the+Italian+Disability+Forum,+European+Disability+Forum+and+International+Disability+Allian ce+to+the+58th+session+of+the+UN+Committee+on+the+Rights+of+the+Child&hl=fr&gl=be&pid=bl&srcid=AD GEEShgSzdvaULmLJ57MDthR9I2Yo9osPZv8uXUADdfqzO561x5mmZriC0cbYUNlOpi7C9YdM0wB3D8VO854vsdzaxkU 8Eq81xIlPI9UW07NL8kpM3Nk0LHprpEfTxn7lHqr TL665Q&sig=AHIEtbQznBgOSeTIB5wdhVV87EaATLVsnQ (last accessed on 2 October 2012). 5 International study on the implementation of the UN convention on the rights of persons with disabilities, ‘Zero Project Report 2012’, available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012). 6 ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’ available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012).
10 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______implementation of inclusive education policy.7 Italian legislation also promotes and protects the rights of children with disabilities in the field of adoption by foreseeing measures that encourage and promote the adoption of children with disabilities such as support services, also of economic nature, for families that decide to adopt a child with disabilities.8
Overall it has to be noted that Italian legislation and policies on children with disabilities are still limited to a few sectors.9 However, in some of those areas, such as inclusive education, measures taken by the government are relatively advanced.
1.2. Review of issues and identification of possible regulatory gaps
Reports from the association Inclusion Europe10 and the Italian Disability Forum11 identified the following gaps:
Although the family is considered as the primary protection and care network, the lack of assistance from social services and the insufficient provision of financial aid from the State or the regional authorities cause heavy economic burden for families with children with disabilities.12 Cuts in economic and human resources is a major concern, including limitation of resources aimed to guarantee inclusive education, which has been the goal of Italian policy for children with disabilities. The 2008 reform of the education system, based on Law Decree on urgent provisions on education and university13, decreased the budget and staff resources. The outcome of this law was a serious decrease in the number and quality of education services, including decrease in the number of hours of support offered to individual students with disabilities and the overall number of support teachers.14 There are no national laws or policies on the issue of abuse of children with disabilities. Actions for prevention, combating and reporting of violence do not take into consideration the fact that children with disabilities are more prone to become victims of abuse. In addition, reporting mechanisms are not easily accessible to children with disabilities, especially those with severe impairments, as they may
7 ‘Children’s Rights for All: Monitoring the Implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities. National report of Italy, December 2010’. Available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/National Reports/Italy EN.pdf (last accessed on 1 October 2012). 8 ‘Overview of Italian Adoption Law’, available at http://www.adoptionpolicy.org/pdf/eu-italy.pdf (last accessed on 3 October 2012). 9 ‘Children’s Rights for All: Monitoring the Implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities. National report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/National Reports/Italy EN.pdf (last accessed on 1 October 2012). 10 ibid. 11 ‘Forum Italiano sulla disabilitá, International disability alliance (IDA), Submission by the Italian Disability Forum, European Disability Forum and International Disability Alliance to the 58th session of the UN Committee on the Rights of the Child’, see footnote 4. 12 ‘Children`s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 13 Law Decree n. 137/2008 of 1 September 2008 on urgent provisions on education and university (Disposizioni urgenti in materia di istruzione e universitá). 14 ‘Forum Italiano sulla disabilitá, International disability alliance (IDA), Submission by the Italian Disability Forum, European Disability Forum and International Disability Alliance to the 58th session of the UN Committee on the Rights of the Child’, see footnote 4.
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frequently involve the use of telephone or internet.15 There is no coordination to promote the participation of children and adolescents in the decision-making processes. Children with disabilities have difficulties to participate in many aspects of their lives, including culture, leisure, sport and recreation. The barriers they encounter are not only linked to physical inaccessibility of places, buildings, transport, etc. but also to the lack of adequate communication support (Braille, sub-titles or ‘easy to read’ language).16 Monitoring the effectiveness of the process of deinstitutionalisation17 is difficult due to the lack of uniform national criteria on quality, working methodologies, qualifications of staff, and relations with public structures.18 Available data on children with disabilities does not allow a breakdown by type of disability and therefore the policies concerning disability lack effective strategies and clear and measurable objectives, especially for early childhood (0-5). The lack of data prevents policy-makers to have an overview of the situation of children with disabilities and to take appropriate action, with the risk to render those children even more vulnerable to exclusion and abuse.19
According to DPI Italy (Disabled People International), the fact that there is no reference in the Italian legislation to the risk run by women or girls with disabilities of being victims of sexual abuse and violence and the consequent lack of data on this issue, is the result of the lack of policies and services in favour of women with disabilities.20
Finally, the Committee on the Rights of the Child raised three main issues on the report submitted by Italy under Article 44 of the Convention21:
There is limited information on children with disabilities.22 Disability is still considered from a medical point of view and the process of ensuring the social inclusion of those children remains difficult especially due to regional disparities in the provision of specialist teachers in schools.23 The Committee raised concerns about the provision of special care for children with disabilities in early childhood and about the lack of statistical data for children with disabilities in the age group of 0-6.24
15 ibid. 16 ibid. 17 As foreseen by Law n. 184 of 4 May 1983 on adoption and foster care (Disciplina dell'adozione e dell'affidamento dei minori), amended by law 149/2001. 18 ‘Forum Italiano sulla disabilitá, International disability alliance (IDA), Submission by the Italian Disability Forum, European Disability Forum and International Disability Alliance to the 58th session of the UN Committee on the Rights of the Child’, see footnote 4. 19 ibid. 20 Dpi Italy and CND, ‘Report Women with Disabilities and their Human Rights in Italy’. 21 ‘Concluding observations of the Committee on the rights of the child on the report submitted by Italy under Article 44 of the Convention’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 22 ibid. 23 ibid. 24 ibid.
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2. OVERVIEW OF THE LEGAL FRAMEWORK IN ITALY
KEY FINDINGS Italy ratified the CRC in 1991 and the CRPD in 2009. The Italian legal framework provides a relatively good protection of the rights of children with disabilities, focusing mainly on inclusive education, adoption and assistance provided to children and their families. Children with disabilities are also covered by general provisions applying to children or to people with disabilities. The Ministry of Labour and Social Policies, Directorate-General for Inclusion and Social Policies is the focal point for policies on disabilities and childhood. Moreover, several bodies are competent for policies focusing on children or people with disabilities at national and regional level including the National Conference on policies for disabilities; the National Office against Racial Discrimination; the National Observatory for the Conditions of Persons with Disabilities; the National Observatory on Childhood and Adolescence; the Observatory for the Fight against Paedophilia and Child Pornography and the National Ombudsman for Childhood and Adolescence. The main bodies competent for collecting data and providing information on children and disability are the Statistical Information System on Disability by the Italian Statistics Institute and the Italian National Childhood and Adolescence Documentation and Analysis Centre.
2.1. General overview of the national legal and institutional framework
The Italian legal system is based on the continental system of codification. The sources of law highest in hierarchy are the Constitution, the laws amending the Constitution25 and other constitutional laws. Constitutional laws are those so defined by the Constitution, those that only derogate from a Constitutional provision without amending it in a definitive way, and any other laws that the Parliament wishes to adopt with the special procedure referred to in Article 138 of the Constitution. International treaties, including EU treaties, need to be ratified to be legally binding in Italy, while EU secondary law is directly legally binding in Italy.
The primary sources of law rank as follows:
Ordinary laws of the Parliament (leggi ordinarie dello Stato), which are the laws adopted by the Parliament according to the procedures mainly set in Articles 70 to 74 of the Constitution; Acts having the same status as the laws of the Parliament, namely Legislative Decrees and Law Decrees. Law Decrees are issued on an urgent basis – i.e. in case
25 Leggi di revisione costituzionale, i.e. the laws that revise the text of the Constitution, whether by amending it, replacing it or repealing it.
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of an extraordinary and urgent need – and must be converted into law by the Parliament within a short deadline (i.e. 60 days) otherwise they lose effect ex tunc. Legislative Decrees are issued by the Government pursuant to a delegated law issued by the Parliament; Repealing referendums (referendum abrogativi), referred to in Article 75 of the Constitution; Regulations governing parliamentary procedures; and Regulations governing the Constitutional Court and other bodies having constitutional relevance.
Other sources of law are:
Regional statutes (Statuti regionali); Regional laws and regulations; Statutes and regulations of the Municipalities, provinces and metropolitan cities (città metropolitane).
Court judgments are an essential instrument for the implementation of the law. The judiciary does not have law-making powers that are inherent to common law systems. As a general rule, as laws and other legislative acts are considered binding legal sources, the courts cannot deviate from them. The role of jurisprudence in Italy is mainly to guide interpretation of the various sources of law.
The Supreme Court (Corte di Cassazione) of the Italian ordinary jurisdictional system (civil and criminal) ensures, inter alia, compliance with and uniform interpretation of the law. The rulings of the Supreme Court are only binding for the proceedings to which they refer. However, they are usually followed by the judges of lower courts.
The highest administrative court in Italy is the Council of State (Consiglio di Stato). The Council of State has jurisdiction on acts of administrative authorities. Usually, the jurisdiction follows the subjective rights/legitimate interests criterion unless a matter is given to the administrative courts under the so-called ‘exclusive jurisdiction’. Decisions taken by public administration at all levels (State, regional, provincial, local), can be appealed before administrative courts (Administrative Tribunals –TARs) and judgments of the TARs can be appealed before the Council of State.
The Constitutional Court is responsible for verifying the constitutionality of laws of the State and the regions. Where a law or one of its provisions is deemed unconstitutional by a ruling of the Constitutional Court, this law or provision ceases to apply as of the day after publication of the judgment (with retroactive effect).
National laws contrary to EU legislation must apply in a way that is consistent with EU law or set aside by all courts.
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2.2. Children with disabilities specific legal and institutional framework
2.2.1. Legal framework
Constitutional Law n. 3 of 18 October 200126 and its subsequent implementing regulations, amended Article 117 of the Constitution and renewed the system of competences and the division of functions between the Central Government and the provinces/regions. As a result of this new division of legislative power, matters that concern childhood and adolescence have been assigned exclusively to the regions. Social services for minors (that include health protection, education and school) are, however, assigned to the combined competence of the regions and the State.27
Essential services regarding civil and social rights that must be ensured throughout the country, are defined (and funded) by the State and can be further improved by the regions and by the Local Authorities within the framework of their autonomy, and within the framework of their regulatory and planning powers. However, the State has not yet defined the minimum level of assistance by social services that need to be established together with the Conference State-Regions, also including local bodies and the competent Ministries. This situation has led to different programmes, management of resources and competences, creating differing regional policies for childhood and adolescence.28
As mentioned above, the Italian Constitution does not mention children with disabilities as such, but its Article 34 focuses on children’s rights to education and Article 38 guarantees the right to education to persons with disabilities. The Constitution also provides for general principles of law applicable to all.
For what concerns sectorial law, the below measures are relevant for children with disabilities.
One of the first laws dealing with children with disabilities and inclusive education is Law n. 517 of 4 August 1977 on the assessment of students and the abolition of remedial examination as well as other changes introduced in the school system29, which is the cornerstone for the integration of students with disabilities in mainstream schools. This Law had the merit to emancipate children with disabilities from special schools, guaranteeing them the right to study in mainstream education system with a supporting teacher trained in special education strategies (Article 2).30 In 1987, judgment n. 215 of the Italian Constitutional Court31 recognised the full unconditional right of students with disabilities, even those with severe disabilities, to attend secondary schools, and imposed on all competent authorities the duty to provide their services to support general inclusion
26 Constitutional Law n. 3 of 18 October 2001 modifying title V of the second part of the Constitution (Modifiche al titolo V della parte seconda della Costituzione). 27 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 28 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 29 Norme sulla valutazione degli alunni e sull'abolizione degli esami di riparazione nonché altre norme di modifica dell'ordinamento scolastico. 30 International Disability Alliance (IDA), ‘Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’, available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012). 31 Judgment of the Constitutional Court n. 215 of 3 June 1987.
15 Policy Department C: Citizens' Rights and Constitutional Affairs ______in schools.32
The implementation of an inclusive education system led to the adoption of several regulations that were codified in Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities33 which does not only deal with education but it also establishes a comprehensive legal framework to promote the assistance, social integration and rights of persons with disabilities. Article 1(a) of this Framework Law commits the Republic to guarantee ‘full respect for human dignity and the rights of freedom and autonomy of the person with disabilities and promotes their full integration into the family, at school, at work and in society’.34
In particular, this Framework Law gave a definition of person with disabilities (Article 3); furthermore it provided that persons with disabilities `regardless of their type and degree of disability’ attend mainstream education from kindergarten to the level of education that they are able to attain according to their personal capacities (Article 12); it ensured coordinated planning of educational, health, social, cultural, leisure and sport services for students with disabilities (Article 23); and it ensured that schools are provided with technical equipment and educational material as well as any other kind of technical help (Article 13).35
The Framework Law also sets rules to promote the accessibility of people with disabilities to public or private buildings, including schools, and the provision of facilities in the use of public transport (Article 8).36 Moreover, special rights for parents of children with disabilities are guaranteed, such as the one provided by Article 33 stating that mothers and fathers of children with disabilities, including adopted children, can dispose of three years of optional work leave or of two hours a day of special permission until the child is three years old. After the child has turned three, the parents can dispose of three days off a month for assisting their children. They also have the right to choose a place of work closer to home and they cannot be transferred to another location without their consent.37
The Framework Law provides in particular guarantees with regard to education. Teachers, professionals and the parents of children with disabilities establish an educational plan aiming at setting the goals and the curriculum for students with disabilities. Support activities are provided by specialised ‘mobile’ teachers, at all educational levels (primary, secondary, etc.), when children cannot attend school due to temporary sickness or hospitalisation (Article 12). All supporting teachers have to follow training and refresher courses on subjects related to school integration for students with disabilities (Article 14). For what concerns examinations, in compulsory schools, exams are carried out on the basis of the study programme drafted for each specific pupil with disabilities while in secondary schools, students with disabilities can take an exam in a way which is equivalent to that of other students. Students with disabilities are also given more time during written exams and can be assisted by personnel for their independence and communication needs (Article
32 ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’, available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 01 October 2012). 33 Legge-quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate. 34 ibid. 35 ibid. 36European agency for development in special needs education, ‘Legal system-Italy’, available at http://www.european-agency.org/country-information/italy/national-overview/legal-system (last accessed on 4 October 2012). 37 European agency for development in special needs education, ‘Legal system-Italy’, available at http://www.european-agency.org/country-information/italy/national-overview/legal-system (last accessed on 4 October 2012).
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16). Students with disabilities have the right to take their exams with the help they need (Article 16).38
The right of students with disabilities to attend mainstream education has been reinforced by the Legislative Decree n. 297 of 16 April 1994, called ‘the Single Act’.39 The Single Act increased the right of students with disabilities to have a preferential treatment in education settings, a longer time to complete compulsory education (up to the age of 18, with three repetition allowed for each class) (Article 182 and Article 316) and the lowering of the maximum number of students allowed in every classes, which include students with disabilities (Article 322). It also describes the provisions applying to the few special schools still existing in the country (Article 322-324).40 Moreover, Article 8 of Decree of the President of the Council of Ministers n. 172 of 9 April 200141 provides a tuition fee exemption for students with severe disabilities who attend university.42
Other laws address other aspects of life which are relevant for children with disabilities.
Framework Law n. 328 of 8 November 2000 on the implementation of the integrated system of interventions and social services43established a National Fund for Social Policies, which includes a National Fund for Children. Law 328/2000 provides that actions for children must aim both to support children in difficult situations (including children with disabilities) and to promote the rights of childhood and adolescence in the context of social services (Article 22).44
In order to implement equality principles promoted by the Constitution, Law n. 4 of 9 January 2004 on access to informatics tools by people with disabilities45provides specific rules aimed at enhancing access to ICT tools for persons with disabilities, applying to educational and didactic materials used at every level in all schools. 2. Article 5 states that ‘agreements drawn up between the Ministry of Education, Universities, Research Institutes and publishers' associations concerning the supply of books to school libraries should always provide for the supply of digital copies of the essential didactic material which should be accessible to students with disabilities and to assistant teachers, if funds are available in the budget’.46
The Italian legal system promotes and protects the rights of children with disabilities also in
38 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 2 October 2012). 39 Legislative Decree n. 297/1994 Single Act on the existing provisions in the field of education for all school’ s levels, Testo unico delle disposizioni legislative vigenti in material di istruzione, relative alle scuole di ogni ordine e grado. 40 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 2 October 2012). 41 Decree of President of Ministers 9/2001, Disposition on uniformity of treatment on the right to study at University pursuant Article. 4 of Law n. 390 of 2 December 1991, Disposizioni per l'uniformità di trattamento sul diritto agli studi universitari, a norma dell'art. 4 della L. 2 dicembre 1991, n. 390. 42http://www.coordinamentouniversitario.it/documenti/scheda%20tecnica%20su%20Dsu3.pdf (last accessed on 24 October 2012). 43 Legge quadro per la realizzazione del sistema integrato di interventi e servizi sociali. 44 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 45 Disposizioni per favorire l'accesso dei soggetti disabili agli strumenti informatici. 46‘Fifth Disability High Level Group Report On The Implementation Of The Un Convention On The Rights Of Persons With Disabilities’, available at http://ec.europa.eu/justice/discrimination/files/dhlg 5th report en.pdf (last accessed on 2 October 2010).
17 Policy Department C: Citizens' Rights and Constitutional Affairs ______the field of adoption governed by Law n. 184 of 4 May 198347 on adoption and foster care.48 Article 6 obliges the State and Regional or Local Authorities to promote support services, including economic support, for families who decide to adopt children with disabilities. Article 22 states that, at the start of the adoption process, the couple applying to juvenile courts to be considered for the placement of children in the pre-adoptive probationary period, must also state in the application whether they are willing to adopt children with disabilities. Priority must be given to applications for adoption of children with disabilities. The fact that a couple is willing to adopt a child with disabilities will be regarded as favourable in the selection process. Unmarried couples may also adopt in case the adoptee has disabilities and has lost his mother and father. When the adoptee has disabilities, the minimum age difference required by law is less than usual (only 18 years).49
In the Italian penal system, persons with disabilities and children also receive specific protection. According to Article 61 of the Italian Penal Code50, any offence can be aggravated if the offender took advantage of his/her authority, such as parental guardianship, over the victim or took advantage of personal conditions, such as the age of the victim, diminishing the victim`s defence. Instigating a person who cannot be punished due to his/her personal condition to commit an offence is sanctioned under Article 111 of the Italian Penal Code. The offence will be further aggravated if the person who instigates has a relation of parental guardianship with the person that committed the offence. The Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities51 established as special aggravating circumstances the fact that the offence is carried out against a person with disabilities (Article 36).52
Finally, with respect to non-nationals, Law Decree n. 89 of 23 June 2011 on urgent provisions for the completion of the implementation of Directive 2004/38/EC53 foresees, in the provisions dedicated to vulnerable categories of citizens, that the refoulement or the execution of the expulsion of persons with disabilities, children, members of single-parent families with underage children as well as children, or victims of grave forms of psychological, mental and sexual violence have to be performed with a procedure appropriate for the particular personal condition of the person involved.54
47 Law n. 184/1983 on adoption and foster care. 48 Disciplina dell'adozione e dell'affidamento dei minori. Law n. 184 has been amended by Law n. 149/2001 modifying Law n. 184 of 4 May 1983 on ‘Adoption and Discipline of the Child’, and Title VIII of Book I of the Civil Code, Modifiche alla legge 4 maggio 1983, n. 184, recante «Disciplina dell’adozione e dell’affidamento dei minori», nonché al titolo VIII del libro primo del codice civile. 49 Article 44, Title IV of Law n. 184 on adoption in special circumstances. ‘Overview of Italian Adoption Law’, available at http://www.adoptionpolicy.org/pdf/eu-italy.pdf (last accessed on 3 October 2012). 50 Codice Penale of 19 October 1930. 51 Framework Law n. 104/1992, on assistance, social integration and rights of people with disabilities, Legge quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate. 52 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 3 October 2012). 53 Law decree n. 89/ 2011 on urgent provisions for the completion of the implementation of Directive 2004/38/CE on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and for the transposition of Directive 2008/115/CE on common standards and procedures in Member States for returning illegally staying third-country nationals repealing Legislative Decree n. 286 of 25 July 1998 Single text of provisions governing immigration and the status of foreigners, Disposizioni urgenti per il completamento dell'attuazione della direttiva 2004/38/CE sulla libera circolazione dei cittadini comunitari e per il recepimento della direttiva 2008/115/CE sul rimpatrio dei cittadini di Paesi terzi irregolari. 54 ‘Written replies by the Government of Italy to the list of issues (CRC/C/ITA/Q/3-4) in connection with the consideration of the third and fourth periodic reports of Italy (CRC/C/ITA/3-4)’ available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012).
18 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
2.2.2. Institutions and authorities
In Italy, there are no specific authorities dealing specifically with matters concerning children with disabilities. Nevertheless, a number of institutions and bodies deal with issues affecting children and persons with disabilities.
The Ministry of Labour and Social Policies, Directorate-General for Inclusion and Social Policies is the focal point for policies on childhood and disabilities.55 It works in cooperation with other relevant ministries and departments, as well as regional and local authorities.56
Below is a list of authorities competent for what concerns policies on people with disabilities.
The National Conference on the policies for disability57 is a conference organised every three years by the Ministry of Labour and Social Policies and includes people with disabilities and the organisations representing them. The Conference is aimed to involve persons with disabilities in the decision making process at national, regional and local level, on issues concerning them. The Conference should provide a Communication to the Parliament on its conclusions.58
The Ufficio nazionale antidiscriminazioni razziali (UNAR) (National Office Against Racial Discrimination) is the equality body established by Legislative Decree n. 215 of 9 July 2003 on the implementation of the Directive 2000/43/EC on the equal treatment between persons irrespective of racial or ethnic origin.59 Although its competences and activities focus on racial discrimination, UNAR has called lately for wider competences, including actions against discrimination based on disability.60 UNAR can receive complaints from victims or witnesses of discrimination through its website and a free public telephone number. UNAR can also carry out investigations and enquiries aimed at verifying discriminating behaviours; it can ask for relevant documents or information. On the basis of the information gathered, it can file a complaint with the competent authorities.61 From 2010, UNAR has also started to receive complaints on cases of discrimination that are not based on racial or ethnic grounds. See section 4.4 on data on the number of complaints. In July 2012, the office started a preliminary investigation on websites that published offensive and discriminatory messages against children with disabilities. At the end of the investigations UNAR filed a complaint with the Internet police.62
55 Ministry of Labour and Social Policies, Directorate-General for Inclusion and Social Policies website, available at http://www.lavoro.gov.it/Lavoro/Istituzionale/Ministero/AmministrazioneCentrale/DG Inclusione.htm (last accessed on 3 October 2012). 56 ‘Fifth Disability High Level Group Report on the Implementation of the UN Convention on the Rights of Persons with Disabilities, available at http://ec.europa.eu/justice/discrimination/files/dhlg_5th_report_en.pdf (last accessed on 2 October 2010). 57 The National Conference was introduced by Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities Legge-quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate. 58 ‘Fifth Disability High Level Group Report on the Implementation of the Un Convention on the Rights of Persons with Disabilities’, available at http://ec.europa.eu/justice/discrimination/files/dhlg 5th report en.pdf (last accessed on 2 October 2010). 59Attuazione della direttiva 2000/43/CE per la parità di trattamento tra le persone indipendentemente dalla razza e dall'origine etnica. Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 60 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 2 October 2012). 61 Decree of the President of Ministers of 11 December 2003. 62 UNAR website available at http://www.unar.it/ (last accessed on 14 February 2013).
19 Policy Department C: Citizens' Rights and Constitutional Affairs ______
The National Observatory for the Conditions of Persons with Disabilities63 is competent to facilitate the link between the government and persons with disabilities, their families and supporting organisations. It also fosters discussion on the various needs of persons with disabilities. The Scientific and Technical Committee (CTS) within the Observatory deals with scientific analyses in relation to the activities and tasks of the Observatory itself.64 The Italian Observatory is in charge of drafting every two years a detailed report on the measures adopted to implement efficiently the rights and principles stated in the CRPD, in conformity with Article 35 CRPD.65
Below is a list of authorities competent for what concerns policies on children.
The National Observatory on Childhood and Adolescence66 is in charge of drawing up official documents concerning childhood and adolescence and preparing a National Action Plan for the protection of the rights and development of children and adolescents, which is elaborated every two years with the aim of establishing the priorities of programmes concerning minors and strengthening cooperation for the welfare of children around the world.67 The activities of the Observatory are organised in plenary sessions and in working groups focusing on specific topics such as children in difficult situations; support to parents; foster care; establishment of the Ombudsman for Children; closing down of institutes.68 The Observatory has also the task to draft every five years a report on the measures adopted to implement efficiently the rights and principles stated in the CRC (Article 1, paragraph 6),69 in conformity with Article 44 of the CRC.70 The members of the Observatory are representatives of national and local administrations, institutions and associations, voluntary and third sector organisations, experts in childhood and adolescence.
The Observatory for the Fight against Paedophilia and Child Pornography71 acquires and monitors data and information regarding activities carried out by all public administrations for the prevention and repression of sexual abuse and exploitation of children.72 It is important to mention also the Inter-ministerial Coordinating
63 The National Observatory was established by Law n. 18 of 3 May 2009 implementing the United Nation Convention of the Right of Persons with Disabilities and its optional Protocol and establishing the National Observatory for the conditions of persons with disabilities, Ratifica ed esecuzione della Convenzione delle Nazioni Unite sui diritti delle persone con disabilita', con Protocollo opzionale, fatta a New York il 13 dicembre 2006 e istituzione dell'Osservatorio nazionale sulla condizione delle persone con disabilita. 64 Ibid. 65 According to Article 3 paragraph 5(a) of Law 18/2009. 66 The National Observatory on Childhood and Adolescence (Istituzione della Commissione parlamentare per l'infanzia e dell'Osservatorio nazionale per l'infanzia) was introduced by Law n. 451 of 23 December 1997 establishing the Parliamentary Commission for childhood and the national Observatory for childhood. 67 ‘National Observatory on Childhood and Adolescence’ available at http://www.minori.it/en/italian-national childhood-and-adolescence-documentation-and-analysis-centre/national-observatory-on (last accessed on 3 October 2012). 68 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 2 October 2012). 69 Presidential Decree 103 of 14 May 20072007 on the reorganisation of the National Observatory on Childhood and Adolescence and the Italian National Childhood and Adolescence Documentation and Analysis Centre pursuant Article 29 of legislative decree of 4 July 2006, n. 223, transposed with modification, by Law n.248 of 4 August 2006, Regolamento recante riordino dell’Osservatorio nazionale per l’infanzia e l’adolescenza e del Centro nazionale di documentazione e di analisi per l’infanzia, a norma dell’articolo 29 del D.L. 4 luglio 2006, n. 223, convertito, con modificazioni, dalla L. 4 agosto 2006, n. 248. 70 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 71 The Observatory for the Fight against Paedophilia and Child Pornography was established by Law n. 38 of 6 February 2006 on combating the sexual exploitation of children and child pornography also via the Internet. Disposizioni in materia di lotta contro lo sfruttamento sessuale dei bambini e la pedopornografia anche a mezzo Internet. 72 ibid.
20 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
Committee for the Fight against Paedophilia (CICLOPE) and the existence of several regional and provincial Observatories on bullying, upon initiative by education authorities competent at the various local levels.73
The Ombudsman for childhood and adolescence74 is an independent organ composed of people of clear independence and specific and proven experience in the field of children rights, as well as in the field of family and education, for the promotion and protection of people under 18 of age. Anybody can report children’s rights violations or situations of risk to the Ombudsman, using free telephone numbers.
The Ombudsman has the following competences:
Expresses his/her opinion for the protection of children’s rights; Promotes, at national level, studies on childhood and adolescence issues; Gives advice to the Government on legislation on the protection of the rights of children and adolescents; Request competent administrations to provide information and inspect public and private structures hosting minors; Receives claims on children’s rights violations and reports directly to the competent authorities about situations of danger or abandonment; Collaborates with other similar institutions as well as the international Ombudsman networks, in order to adopt common actions and to promote them at the international level.75
Data on children and adolescents are collected from various sources by several actors including NGOs active in the field.
The Statistical Information System on Disability76 is promoted by the Ministry of Labour, Health and Social Policies and implemented by ISTAT (Italian Statistics Institute).77 Other statistical bodies include: CISIS (Interregional Centre for IT, Geographical and Statistical Systems), various Ministries competent on children’s issues (Ministry of the Interior; Ministry of Labour, Health and Social Policies; Ministry of Education, University and Research; Ministry of Justice), the regions and the Autonomous provinces through the Centre and Observatory on children and adolescents and the Italian National Childhood and Adolescence Documentation and Analysis Centre mentioned above.78
73 ibid. 74 The Ombudsman was established by Law n. 112/2011 on the establishment of the Ombudsman for childhood and adolescence, Istituzione dell'Autorità garante per l'infanzia e l'adolescenza. 75 ‘Written replies by the Government of Italy to the list of issues (CRC/C/ITA/Q/3-4) in connection with the consideration of the third and fourth periodic rep last accessed on 9 October 2012). 76 See Statistical Information System on Disability website available at www.disabilitaincifre.it. 77 International Disability Alliance (IDA), ‘Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’, available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012). 78 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 2 October 2012).
21 Policy Department C: Citizens' Rights and Constitutional Affairs ______
2.2.3. Definitions
In legal texts, the terms ‘minori’ (minors) and ‘minorenni’ (underage)79 is common80 to refer to persons younger than 18 years by contrast with the term ‘maggiorenni’ (adults).81
Finally, Article 3 of Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities82 defines a person with disabilities as a person with physical, psychological or sensory impairment, whether stable or developing, causing problems with learning, relationships or occupational integration likely to bring about a disadvantage and a marginalising process.
79 Article 609 quarter of the Italian Penal Code of 19 October 1930. 80 See Articles 22 of Law 328/2000 published on Gazzetta Ufficiale n. 265 of 13 November 2000. 81‘The Rights of Children in Italy’ available at http://www.crin.org/resources/infoDetail.asp?ID=3261&flag=legal (last accessed on 1 October 2012). 82 Framework Law 104/1992 on assistance, social integration and rights of people with disabilities, Legge-quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate.
22 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
3. LEGAL FRAMEWORK AND IMPLEMENTATION ASSESSMENT
KEY FINDINGS The implementation of the CRPD and CRC rights and principles is overall satisfactory: the protection of the best interests of the child is a fundamental principle of the legislation focusing on children; equality is ensured both formally and in substance through preferential treatment arrangements; the evolving capacities of the child are taken into account in the education and adoption field; the Constitutional Court has declared Article 12 CRC on children’s participation self- executing; certain measures are in place to protect either children or persons with disabilities against violence and to guarantee their right to family life; assistance in the form of economic support, personal care and consultancy facilities is provided to children, persons with disabilities and their families; the right to education and inclusion is well implemented. The main specific issues faced by children with disabilities in Italy are: early school leave; lack of protection against violence especially for girls with disabilities; bullying at school; lack of protection for children and adolescents with light mental disabilities especially when they are suspects; lack of training of judicial and police authorities; and lack of participation in the decision-making process.
3.1. Implementation of the provisions of the CRPD and CRC
3.1.1. Best interests of the child (Art. 3 CRC; Art. 7 CRPD)
The Italian Constitution does not mention the best interests of the child as such. However Article 2 of the Constitution guarantees the inviolable rights of the person both as an individual and as a member of social groups. The Italian Constitutional Court affirmed in its jurisprudence that the principle of best interests of the child is considered implicit to the provisions of the Italian Constitution concerning human rights and the protection of children.83 In addition, the Constitutional Court84 stated that the protection of the best interests of the child and the protection of women are the aim of measures supporting motherhood.85
Moreover, the principle of the best interests of the child has gradually become present in national sectoral legislation.
With respect to non-national children and immigration the best interests of the child must
83 Hassan Beshir F., ‘Article 3 of the Convention on the Rights of the Child The Best Interest of the Child In all actions concerning children taken by legislative bodies, the best interests of the child shall be a primary consideration’, available at http://dppcr.files.wordpress.com/2012/09/best-interest-of-the-child-fatma-beshir cairo1.pdf (last accessed on 10 October 2012). 84 In judgment n. 385 of 14 October 2005. 85 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012).
23 Policy Department C: Citizens' Rights and Constitutional Affairs ______be given priority in all proceedings regarding family reunification.86 In addition, special protection87 should be provided to persons with particular needs including children and persons with disabilities and programmes implemented by the Ministry of Interior aimed at finding the relatives of unaccompanied children should be carried out in compliance with the best interests of the child.88
In adoption and foster care89, the best interests of the child must be taken into account in case a child needs to leave his/her family and to be included in another family or family- type communities, under the form of foster care or adoption. Similarly, the best interests of the child must be taken into account in proceedings of separation of parents and shared custody.90
For what concerns inclusive education, Framework Law n. 104 on assistance, social integration and rights of people with disabilities91 establishes that three repetitions of a single class are allowed taking in consideration the interest of the student.
In the field of criminal law, the principle of the best interests of the child has been affirmed once again by the Constitutional Court.92 Provisions governing the sentencing of children aim at allowing the child to leave criminal proceedings as soon as possible, through alternative measures. The Constitutional Court stated that the protection of the best interests of the child cannot automatically equal to his/her immediate release from trial. It requires that the release from trial does not go against the need to ensure to the child the most complete defence opportunities.93
The principle of best interests of the child is also the fundamental criterion of the social policies taken by local authorities in relation to childhood and adolescence support and promotion.94
3.1.2. Non-discrimination (Art. 2 CRC; Arts. 3 and 5 CRPD)
Article 3 of the Italian Constitution describes two aspects of the equality principle: the formal equality and the substantive equality. The principle of formal equality entails that all citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, and personal and social conditions. The
86 Law n. 40/1998 1998 on immigration and on the status of foreigners, Disciplina dell'immigrazione e norme sulla condizione dello straniero and Hassan Beshir F., ‘Article 3 of the Convention on the Rights of the Child The Best Interest of the Child In all actions concerning children taken by legislative bodies, the best interests of the child shall be a primary consideration’, available at http://dppcr.files.wordpress.com/2012/09/best-interest-of-the child-fatma-beshir-cairo1.pdf (last accessed on 10 October 2012). 87 Article 8 of Legislative Decree n. 140 of 30 May 2005 on the implementation of Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, Attuazione della direttiva 2003/9/CE che stabilisce norme minime relative all'accoglienza dei richiedenti asilo negli Stati membri. 88 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 89 Article 4, Article 10, Article 14, Article 19 of Law n. 184 of 28 March 1983 on adoption and foster care (Disciplina dell'adozione e dell'affidamento dei minori), as it was amended by law 149 of 28 March 2001. 90 Law n. 54/2006 on parental separation and shared custody, Disposizioni in materia di separazione dei genitori e affidamento condiviso dei figli. 91 Article 14 of Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities (Legge-quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate). 92 Constitutional Court Judgment n. 149 of 9 May 2003. 93 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 94 ibid.
24 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______substantive equality principle provides that it is the duty of the Republic to remove obstacles of economic or social nature which constrain the freedom and equality of citizens and impede the development of the human person. The Constitution makes therefore a commitment to grant integration and equal opportunity to disadvantaged persons.95
Law n. 67 of 1 March 2006 on the judicial protection of persons with disabilities victims of discriminations96 prohibits discrimination against persons with disabilities in any field not covered by employment law. It defines indirect discrimination as situation where suspect measures effectively create a disadvantage to persons with disabilities and harassment occurs when the relevant conduct actually violates the victim’s dignity (Article 2). As a remedy against discrimination, a special simplified judicial procedure applies. Actions may be raised by the persons with disabilities concerned or by associations who are also entitled to challenge discriminatory administrative acts on their behalf (Article 4).97
The Italian legislation does not provide for a general requirement of reasonable accommodation in areas other than employment.98 Nevertheless, it ensures some forms of reasonable accommodation with regard to education and accessibility. Preferential treatment arrangements are allowed to implement the substantive equality principle for people with disabilities.99 An example of preferential treatment can be found in the Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities100, that provides that children with disabilities attend mainstream education with the support of a specialised teacher and that special rules apply to them for what concerns exams, educational plans, longer time to complete compulsory education, etc.101 The Framework law also foresees rules to promote accessibility of people with disabilities to public or private buildings, schools included, and the provision of facilities in the use of public transport (Article 8).102
3.1.3. Evolving capacities of the child103 (Art. 5 CRC and Art. 3 CRPD)
There are no specific provisions in the Italian legislation clearly describing what is meant by the notion of ‘evolving capacities of the child’. However, Article 3 of the Italian Constitution protects and promotes the development of the human personality.
95 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 3 October 2012). 96 Misure per la tutela giudiziaria delle persone con disabilità vittime di discriminazioni. 97 ibid. 98 The right to non-discrimination requires reasonable accommodation in the sense that ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, [must be made] where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’ (Article 2 CRPD). As a result, the application of the right to non-discrimination ‘does not mean identical treatment’, it may require ‘taking special measures in order to diminish or eliminate conditions that cause discrimination’. 99 ibid. 100 Legge-quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate. 101 ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 102 International Disability Alliance (IDA), ‘Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’, available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012). 103 The concept of evolving capacities of the child establishes that as children acquire enhanced competencies and experience, there is a reduced need for direction and a greater capacity for children to take responsibility for decisions affecting their lives. In light of the CRC, the concept of evolving capacities of the child entails that parents (or persons legally responsible) should have the right to provide, in a manner consistent with the evolving capacities of the child, appropriate guidance in the exercise by the child of his/her rights. See the report ‘Study on Member States' Policies for Children with Disabilities’ for more details on this concept.
25 Policy Department C: Citizens' Rights and Constitutional Affairs ______
Stakeholders underlined that the educational plan establishing goals and curriculum of the student with disabilities is in practice established by the parents, the teachers and the competent authorities taking into account the opinion of the child according to his/her evolving capacities.
Finally, according to Law n. 184 of 4 May 1983 on adoption and foster care104, the opinion of the minor has to be taken into account according to his/her evolving capacities, at any stage of the adoption procedure.
During judicial proceedings, the Judge’s decision to hear the child is usually done on case by case bases according to the personality and maturity of the child.105
3.1.4. The right to be heard/to participation (Art. 12 CRC; Arts. 7 and 30 CRPD)
The Constitutional Court attributed to Article 12 of the CRC a self-executing nature. The content of Article 12 was declared immediately applicable and no further implementation measures are necessary.106
However, at national level there is no coordination to promote the participation of children and adolescents in decision-making processes. As a consequence, children with disabilities, especially intellectual disabilities, very often live in a state of being ‘substituted, interpreted and mediated’.107 The barriers to participation encountered by children with disabilities are not only linked to physical inaccessibility but also to the lack of adequate communication support (for example, Braille, sub-titles or ‘easy to read’ language).108
For specific aspects of children with disabilities’ life, a number of measures provides for them to be heard.
According to Law n. 285 on the promotion of the rights and opportunities for children and adolescents109, measures aimed at promoting the participation of children and adolescents to the policies and administrative life of the local community should be established. Examples of such measures are the Junior Town Councils. These bodies involve the participation of primary schools with the aim to teach children the principles of democracy and active citizenship, to encourage children to be protagonists and to participate in proposing changes in their communities. Such projects have a positive impact on the children involved as they promote listening to children and supporting their ability to
104 Disciplina dell'adozione e dell'affidamento dei minori. 105 CRC Day of General Discussion 15 September 2006: To Speak, Participate and Decide – The Child’s Right to Be Heard. Analysis of the practice in the field of the hearing of child victims of violence- Italy (Istituto degli Innocenti, Florence, 2006). 106 Constitutional Court judgment 1 of 16 January 2002. ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 107 ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.htm (last accessed on 2 October 2012). 108 ‘Short Information about Disability Chapter of the Submission of Information to the United Nations Committee on the Elimination of Racial Discrimination Eightieth Session 13 February – 9 March 2012 in Connection with the Consideration of the Sixteenth-Eighteenth Consolidated Periodic Reports of Italy’, submitted by the Italian Disability Forum, member of European Disability Forum and of the Italian Working Group for the Convention on the Rights of the Child, available at http://www.gruppocrc.net/The-activity-of-the-Italian-NGO-Group-for-the-CRC in-Italy (last accessed on 16 October 2012). 109 Article 7 paragraph 1(c) of Law n. 285/1997 of 28 August 1997 on the promotion of the rights and opportunities for children and adolescents, Disposizioni per la promozione di diritti e di opportunità per l'infanzia e l'adolescenza.
26 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______develop and express their opinion.110
Children have the right to express their views and to have them taken into account in all matters concerning education, including school discipline. However, the process of decentralisation, giving greater autonomy to the school system, has resulted in different experiences that lead to a scattered situation with pursue a common national strategy.111
In civil proceedings, the right to be heard is implemented in two areas. One relates to adoption procedures and child custody, where the child in trials for cancellation or limitation of parental authority has the right to be heard and must be considered as a party to the proceeding and, as such, has the right to be represented by a lawyer.112
In separation/divorce proceedings of the child’s parents cases, the judge should always hear the child. 113 The law recognises a qualified interest of the child with respect to the parental separation trial, in consideration of the consequences that the decisions taken during the trial will have upon him.114
In the field of criminal law, the rules on hearing the child provide that the child (suspect/defendant, investigated or victim) is given written information. In addition, if the child is the defendant, the judge has to verbally describe the meaning of the trial to the child.115
During preliminary investigations, Article 392 of the Procedural Criminal Code116 establishes that, for certain crimes, the interlocutory witness examination can be utilised to take the statement of a child aged under 16. The aim of this provision is to avoid the child-victim or witness being obliged to testify during trial.117
The judge has the possibility to hear a child younger than 16 that has been victim of sexual abuse, exploitation, slavery and trafficking, deciding on the place, time and other procedures adequate to the needs and protection of the child (protected hearing).118 For this purpose, the hearing can take place in the child’s home or in specialised institutes. The witness statements must be fully documented by means of phonogram or audio-visual systems. When recording equipment or technical personnel are not available, the judge makes use of expert reports or technical advice. The interlocutory witness exam is also accepted in case of family violence, abuse of disciplinary measures, consensual abduction
110 ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 111 ibid. 112 Law n. 149 of 28 March 2001 modifying Law n. 184 of 4 May 1983 on Adoption and Discipline of the Child, and Title VIII of Book I of the Civil Code, read in conjunction with the decision of the Constitutional Court on Article 12 CRC. ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 113 Article 155 sexies of the Civil Code as elaborated by Law n. 54 of 8 February 2006 on parental separation and shared custody, Disposizioni in materia di separazione dei genitori e affidamento condiviso dei figli. 114 ‘Children`s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project_CRC/Results/index.html (last accessed on 2 October 2012). 115 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 116 Italian Code of Criminal Procedure, 22 September 1988, Codice di procedura penale. 117 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 118 Article 398 of the Procedural Criminal Code.
27 Policy Department C: Citizens' Rights and Constitutional Affairs ______of children, and abandonment of children.119
Interviews of children during a trial follow the rules of Article 498 of the Code of Criminal Procedure120, which foresees that the judge only leads the cross-examination upon request submitted by the parties. A relative or an expert in child psychology can be present to support the child. If the judge believes that a direct cross-examination is not detrimental to the child, and after hearing the parties, (s)he can allow cross-examination of the child to be carried out in the same manner as of an adult. Moreover, during the debate, if the party requests so, or if the judge considers it necessary, the cross-examination is carried out as a protected hearing.121
During trial, further protection can be provided for the minor or for the person with intellectual disabilities (including those older than 18), when they are victims of slavery, sexual exploitation, sexual violence, trafficking, such as examination by using mirror glass together with an interphone, if the party or the counsel so requests.122
In Italy, child-related proceedings require participation of various experts and persons contributing to proceedings, hence it allows for specialised knowledge and more elements to be taken into account in judgments.123
3.1.5. Freedom from violence (Art. 19 CRC; Art. 16 CRPD)
The Italian Constitution requires that human dignity is respected during medical or correctional treatment. There is no general principle of freedom from violence stated as such in Italian legislation but a number of measures protect against violence.
For what concerns people with disabilities, the case-law states that coercion may be applied only by those having legal authority over persons with disabilities and it may be used only when it is necessary to prevent patients endangering themselves. Any unnecessary coercion by those having legal authority over people with disabilities is punished as maltreatment.124 Very often, abuses of legal authority over persons with disabilities are punished as offences of a more general type, such as private violence and false imprisonment.125
In 2007, a Ministerial Directive on the prevention and fight against bullying was adopted.126 It resulted in the implementation of some key initiatives such as the creation of
119 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 120 Royal Decree n. 1443/1940, Endorsement of the Code of Civil Procedure. 121 Following the rules under Article 398 of the Code of Criminal Procedure. ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 122 Article 498 of the Procedural Criminal Code. ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, Concluding observations, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 123 Ibid. 124 High Court, section V of 23.May -30 June 2003. 125 Articles 610 and 605 Italian Penal Code. ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country report/2012/country-thematic-reports-fundamental-rights-persons-intellectual-disabilities (last accessed on 3 October 2012). 126 Ministerial Directive n. 16 of 5 February 2007 on the general guidelines and actions at the national level for the prevention and fight against bullying. Linee di indirizzo generali ed azioni a livello nazionale per la prevenzione e la lotta al bullismo.
28 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______a toll-free number to report case of bullying and the creation of several regional observatories in order to ensure that bullying is monitored and to implement best practises.127
NGOs, local organisations, regions and local authorities are active in promoting awareness campaigns on violence on children and child abuse. The regions and the local authorities have developed initiatives to combat violence against children such as the creation of counselling services for the detection and treatment of cases of abuse and the development of reception services (childcare communities, family homes, etc.).128
With respect to sex crimes and the sexual exploitation of children, several new crimes and new rules concerning pornography on the Internet were introduced.129 Furthermore, Law n. 38/2009130 established urgent measures to contrast sexual violence and introduced significant changes concerning important criminal and procedural aspects related to sex crimes against minors.131
For what concerns abuse, there are no national laws or policies relating in particular to children with disabilities. Italy has not yet transposed the Recommendation of the WHO contained in the first Report on Violence and Health of 2002 which provides for the definition of a National Action Plan for Violence Prevention.132 In addition, there is no national system and monitoring body for implementation for the protection and prevention of children from all forms of physical and mental violence.133
The Emergency Phone Service is a valuable source of data of the risk and violence involving children and adolescents. The Emergency Phone Service was introduced in 2002134 and that, after a public selection, is now managed by the charitable association Telefono Azzurro Onlus. According to Telefono Azzurro and Eurispes’ 8th National Report on the Condition of Children and Adolescents, 27.5% of children and 35.6% of adolescents are victims of violence, especially bullying at school. The report also points out the increasing phenomenon of cyber-bullying (bullying through internet or mobile) in Italy. The report estimates that the 16.2% of the total phone calls received by Telefono Azzurro in 2010, concerned bullying and cyber-bullying.135
127 ‘Written replies by the Government of Italy to the list of issues (CRC/C/ITA/Q/3-4) in connection with the consideration of the third and fourth periodic reports of Italy (CRC/C/ITA/3-4)’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 11 October 2012). 128 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 129 Law n. 38/2006, published on combating the sexual exploitation of children and child pornography also via Internet, Disposizioni in materia di lotta contro lo sfruttamento sessuale dei bambini e la pedopornografia anche a mezzo Internet. 130 Law n. 38 of 23 April 2009 on emergency measures in the field of public security and the fight against sexual violence and persecution (Conversione in legge, con modificazioni, del decreto-legge 23 febbraio 2009, n. 11, recante misure urgenti in materia di sicurezza pubblica e di contrasto alla violenza sessuale, nonchè in tema di atti persecutori). 131 ‘Written replies by the Government of Italy to the list of issues (CRC/C/ITA/Q/3-4) in connection with the consideration of the third and fourth periodic reports of Italy (CRC/C/ITA/3-4)’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 11 October 2012). 132 ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy, December 2010’, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 133 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003, Italy, Concluding observations’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 02 October 2012). 134 By the Inter-Ministerial Decree of 14 October 2002. 135 http://www.azzurro.it/index.php/it/contenuti2/bullismo-e-cyberbullismo/bullismo-e-cyberbullismo (last accessed on 24 October 2012).
29 Policy Department C: Citizens' Rights and Constitutional Affairs ______
In addition, the National Observatory on Children and Adolescents, the Inter-Ministerial Committee for the Fight against Paedophilia (CICLOPE) and the Observatory against Paedophilia and Child Pornography are in charge of monitoring the actions taken in the field of sex crime and sexual exploitation.136
3.1.6. Right to family life (Art. 9 CRC; Art. 23(3) CRPD)
Italian law provides several measures137 to support family life and family care138 for children and people with disabilities.139
The support given to parents is, most of the time, of financial nature or is provided in services designed for families and to facilitate the role of parents, including educational aids. Usually, the policies are focused on providing economic resources available to poor families through the instruments of tax benefit, monetary transfers and child allowances. In order to make the employment sphere compatible with the needs of families having children with disabilities, actions have been taken to promote flexible working time, part-time, training and assistance for a return to work after periods of family related leave.140 The stakeholders interviewed pointed out that the recent and the future economic cuts will reduce drastically the provision of tax benefits for persons with disabilities and the home care services that are provided by local authorities.
The Law on Adoption and Foster Care141 promotes the right of the child to be raised and educated in his/her family and stresses explicitly that the poverty of the parents cannot constitute an obstacle to the right of the child to live with their family. It also aims at the deinstitutionalisation of children with disabilities providing several rules that promote and facilitate the adoption of those children, such as economic support and services provided to families that decide to adopt a child with disabilities.142
3.1.7. Right to assistance (Art. 23 CRC; Arts. 23(5), 26 and 28 CRPD)
As mentioned above, Framework Law n. 104/1992 on assistance, social integration and rights of people with disabilities states that children with disabilities are entitled to learn according to an individual educational plan and to be supported by specialised teachers and staff who assist them during their daily activities.
The State and the Local Authorities are competent to take measures, to sustain parents and families in order to prevent cases of children being abandoned and
136 ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 137 Measures such as optional work leave or special permission for the parents of children with disabilities ; the possibility to choose a place of work closer to home ; assistance in the form of home care and personal help; psychological consultancy facilities; economic support. 138 Framework Law 104/1992 on assistance, social integration and rights of people with disabilities; Law n. 184/1983 on adoption and foster care. 139 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last last accessed on 3 October 2012). 140 ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 141 Law n. 184/1983 on adoption and foster care. 142 ibid.
30 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______institutionalised. Parents should be able to build and maintain an adequate family context and safe environment for raising children.143 To that aim, assistance in the form of home care, personal help, technical aids, psychological consultancy facilities and economic support144 are provided to families of children with disabilities, including to families that decide to adopt a child with disabilities.145
In extreme cases, when a family is unable to take care of the child (despite the support and help available), the child can be taken away from the family. In this case, for placement, priority is given to the custody of a family, preferably with children, or to a single person, able to afford maintenance, instruction, education and the emotional relationships. In the case where this is not possible, the child can be placed in a family community or in a specialised institution located close to the family of origin.146
3.1.8. The right to inclusive education (Art. 28 CRC; Art. 24 CRPD)
Since 1977147, children with disabilities have the right to study in mainstream education system. In 1992, Framework Law n. 1048/1992 on assistance, social integration and rights of people with disabilities148 established that persons with disabilities regardless of the type and degree of disability attend mainstream education from nurseries to the level of education that they are able to attain according to their personal capabilities with the help of specialised teachers and following a personalised educational plan.149
Nurseries, schools, universities, including private institutions, have the obligation to accept students with disabilities.150 Schools are required to remove all barriers (architectural and sensorial). Local authorities are required to provide free transport for people with disabilities.151 Teachers, professionals and families must establish a personalised educational plan for the student with disabilities. For what concerns school programmes, curricula and school exams, specific rules apply to children with disabilities.152
Finally, it should be noted that the contribution of the State to the scholarship funds decreased from EUR 246 million in 2009 to EUR 175 million in 2012. However, notwithstanding the heavy economic cuts experienced by Universities, the exemption from
143 Law n. 184/1983 on adoption and foster care. 144 Framework Law n. 104/1992 on assistance, social integration and rights of people with disabilities; Law n. 184/1983 on adoption and foster care. 145 ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy, December 2010’, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 146 ‘Consideration of reports submitted by States parties under article 44 of the Convention, Third periodic report of States parties due in 2003, Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 147 Law n. 517/1977 on the assessment of students and the abolition of remedial examination as well as other changes introduced in the school system. 148 Framework Law n. 104/1992 on assistance, social integration and rights of people with disabilities, Legge quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate. 149 ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’, available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012). 150 ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’, available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012). 151 ‘European agency for development in special needs education, Legal system-Italy’, available at http://www.european-agency.org/country-information/italy/national-overview/legal-system (last accessed on 4 October 2012). 152 Framework Law 104/1992 on assistance, social integration and rights of people with disabilities. For a more detailed presentation of these provisions please refer to chapter 2.
31 Policy Department C: Citizens' Rights and Constitutional Affairs ______tuition fees for students with heavy disabilities is still in force153 in all national territory.154
3.2. Specific issues faced by children with disabilities
3.2.1. Gender vulnerability
According to stakeholder’s information, the last data available on abuse and violence of girls with disabilities dates from 1997. The data showed that 39% to 68% of girls with intellectual or psychosocial disabilities were sexually abused before the age of 18. The risk to be abused is very high, especially for girls living in institutions.155
There is no reference to women with disability in Law n. 66/1996 on rules against sexual violence, although, women with disabilities are more exposed to violence of sexual, physical and psychological nature. In the report on violence and maltreatment against women commissioned by the Ministry for Rights and Equal Opportunities and carried out by ISTAT156, there is no information on women with disabilities.157
No reporting system and no specific support in making a complaint is foreseen and there are few anti-violence centres that are accessible to (young) women with disabilities.158
3.2.2. Violence
The phenomenon of bullying in school (especially against students with disabilities) has increased in recent years. In 2007159, general guidelines160 were adopted at the national level to promote guidelines and actions to prevent and fight bullying.161 This resulted in the implementation of some initiatives which unfortunately did not focus on children with disabilities who are often the victims of bullying behaviours.162
For what concerns abuse, there are no national laws or policies relating in particular to children with disabilities. Italy has not yet transposed the Recommendation of the WHO contained in the first Report on Violence and Health of 2002 which provides for the definition of a National Action Plan for Violence Prevention.163
153 Decree of the President of the Council of Ministers n. 172/2001 on uniformity of treatment on the right to study at University pursuant to Article 4 of Law n. 390 of 2 December 1991. 154 Technical Fiche on the new Decree for the right to university studies, available at http://www.coordinamentouniversitario.it/documenti/scheda%20tecnica%20su%20Dsu3.pdf (last accessed on 24 October 2012). 155 Dpi Italy and CND, ‘Report Women with Disabilities and their Human Rights in Italy’. 156 ‘La violenza e i maltrattamenti contro le donne dentro e fuori la famiglia’, available at http://www3.istat.it/salastampa/comunicati/non calendario/20070221 00/ (last last accessedon 16 October 2012). 157 Information gathered through interview with stakeholders. 158 Dpi Italy and CND, ‘Report Women with Disabilities and their Human Rights in Italy’. 159 Ministerial Directive n. 16/2007 on the general guidelines and actions at the national level for the prevention and fight against bullying. 160 Ministerial Directive n. 16 of 5 February 2007 on the general guidelines and actions at the national level for the prevention and fight against bullying (Linee di indirizzo generali ed azioni a livello nazionale per la prevenzione e la lotta al bullismo). 161 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 162 Information gathered through interview with stakeholders.
32 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
3.2.3. Children as vulnerable suspects
The Italian Criminal Code does not contain any provision regarding children with disabilities as suspects. General rules protecting children or persons with disabilities apply to children with disabilities.164
The general rule on child hearing provides that the child (suspect/defendant, investigated or victim) is given written information and the judge explains verbally the meaning of the trial to the child defendant.165
Interviews of children during preliminary investigation follow the provision of Article 392 of the Code of Criminal Procedure whereas interviews of the children during a trial follow the provision of Article 498 of the Code of Criminal Procedure.166 Both provisions foresee the possibility to carry out the cross-examination of a minor in the form of protected hearing, as explained in section 3.1.4.167
The justice system acts on the basis of the fundamental right to education when dealing with child offenders. The principles governing criminal proceedings are the promotion of education and of the sense of responsibility of children. To that aim, educational projects for every underage offender focusing on behavioural requirements, schooling commitments and training activities are created. Such projects also aim at rendering the child responsible for their implementation.168
A child suspect/offender will be dealt with by the juvenile criminal justice system (the Juvenile Court more specifically). The juvenile criminal system is based on the following principles:
The principle of adequacy: criminal proceedings must be adequate to the evolving capacities and personality of the child and to his/her educational needs. The juvenile criminal proceeding aims at the reintegration of the child in society. The social services, judicial authorities and psychologists should interact and work together.169 The principle of minimum offensiveness: the authorities must protect the child from the risks related to the criminal judicial system and ensure the development of his /her personality, social relations and educational process.170 The principle of de-stigmatisation: Anonymity and confidentiality are important in order to avoid stigmatisation. To that aim, it is necessary to prohibit the diffusion of information on the child’s identity; to carry out trials behind closed doors and to allow the deletion of the crimes from judicial records when reaching 18 years old.171 The principle of detention used as extreme measure and only when it is
164 Information gathered through interview with stakeholders. 165 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 166 Royal Decree n. 1443/1940, Endorsement of the Code of Civil Procedure. 167 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’, Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 168 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Third periodic report of States parties due in 2003’ Italy, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 2 October 2012). 169 ‘Il D.P.R. 448/88 e la sua applicazione’, available at http://www.altrodiritto.unifi.it/ricerche/minori/rugi/cap2.htm (last accessed on 13 November 2012). 170 ibid. 171 ibid.
33 Policy Department C: Citizens' Rights and Constitutional Affairs ______
justified.172 The principle of selection of the criminal proceedings: if the crime is of minor importance, the judge can decide either to dismiss the case, to suspend the trial, or to order a period of probation.173
For what concerns persons with disabilities in criminal proceedings, the judge may decide that the disability element is a basis for acquittal.174 Beside acquittal, the judge may assess the defendant’s intellectual or psychosocial capacity and may order the suspension of proceedings.175 If during a proceeding the defendant needs psychiatric assistance, the judge informs the competent authorities.176 The judge can order temporary placement in a psychiatric hospital until the competent body takes a decision.177
In practice, problems could arise in cases where children or adolescents with light intellectual or psychosocial disabilities commit an offence. If the disability has not been officially recognised by the competent authorities, this can lead for the child or the adolescent being treated as any other suspect adolescent or child. Therefore he/she will not be provided any special care or treatment. In addition, his/her behaviour during investigations or cross-examinations could be misunderstood and be considered reluctant or aggressive. This situation makes the child with disabilities more vulnerable than other children or adolescents.178
For example, in October 2012, the police carried out a check on an adolescent that seemed to be walking confused in a car parking. The adolescent did not have any identity card and did not answer to the questions addressed to him by the police, becoming nervous and aggressive. The police thought that such behaviour was due to an abuse of drugs. They arrested him and took him to hospital were the doctors gave him a sedative. Neither the doctors nor the police authorities had been able to understand that he was autistic and, therefore, not able to speak or clearly express himself.179 Adequate training of authorities dealing with such situations would help immediately detect any possible intellectual or psychosocial disability, even the light ones, in order to provide adequate support and protection.180
172 ibid. 173 ibid. 174 Article 72 Code of Criminal Procedure. 175 Article 71 Code of Criminal Procedure. 176 Article 73 Code of Criminal Procedure. 177 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 3 October 2012). 178 Information gathered through stakeholders interviews. 179 ‘Mother accusing the police: My son with autism treated as a smuggler’, available at http://www.lastampa.it/2012/10/13/italia/cronache/madre-accusa-la-polizia-mio-figlio-autistico-trattato-da spacciatore-6AIlGpmyK9YZvJApAK742I/pagina.html (last accessed on 25 October 2012). 180 Information collected through stakeholders interviews.
34 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
3.2.4. Inclusive education
In Italy, 99.6% of pupils with disabilities are included in mainstream schools.181 Almost all segregated educational institutions were abolished and all students with special needs can benefit from inclusive education and develop their full potentials in the learning process, socialisation and relationship.182
As mentioned above, children with disabilities, regardless of their type and degree of disability, attend mainstream education from kindergarten to the level of education that they are able to attain according to their personal capacities. Both private and public schools of every level have the obligation to accept students with disabilities. Teachers, professionals and families are involved in the establishment of a personalised educational plan for student with disabilities.183
It must be noted that students with disabilities are exempted from paying tuition fees.184 This rule is still in force notwithstanding the heavy economic cuts experiences by Universities.185
In Italy, there are still very few special schools. Legislative Decree n. 297186 describes the provisions applying to such education facilities. According to stakeholders, they are public or private special schools recognised by the Ministry of education and they often belong to medical or rehabilitation centres. The parents decide whether the student should attend a special school or a mainstream school. Special schools are mainly attended by blind students, deaf students or students with heavy intellectual or psychosocial disabilities. The number of students with disabilities that attend and spend the night in these special institutes is very limited.187
Stakeholders pointed out that a solution towards the creation of a complete inclusive education would consist of having only one teacher for each class, who would be adequately trained to support students with disabilities and would, therefore, be capable of supervising the learning process of all children, including the ones with disabilities.
3.2.5. Other particular issues faced by children with disabilities in Italy
In Italy, while education is compulsory for students with disabilities and the education
181 International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’ available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012). 182 ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’ available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012). 183‘ Framework Law 104/1992 on assistance, social integration and rights of people with disabilities. For a more detailed presentation of these provisions please refer to chapter 2. 184 Decree of the President of the Council of Ministers n. 172 of 9 April 2001 Disposition on uniformity of treatment on the right to study at University pursuant to Article 4 of Law n. 390 of 2 December 1991. 185 Technical Fiche on the new Decree for the right to university studies, available at http://www.coordinamentouniversitario.it/documenti/scheda%20tecnica%20su%20Dsu3.pdf (last accessed on 24 October 2012). 186 Articles 322-324 of the Legislative Decree n. 297 of 16 April 1994 Single Act on the existing provisions in the field of education for all school levels (Testo unico delle disposizioni legislative vigenti in material di istruzione, relative alle scuole di ogni ordine e grado). 187 According to the stakeholder interviewed, there are no blind students attending special schools or special classes and very few deaf students and students with heavy mental disabilities go to schools dedicated to them. The students attending these special schools amount to 5.000 out of 200.000 students with disabilities.
35 Policy Department C: Citizens' Rights and Constitutional Affairs ______requirement is followed, disaffection and irregular attendance is a very common phenomenon. The situation gradually becomes more critical in secondary schools but this phenomenon is not properly quantified. It is a common practice for students with disabilities (particularly for those with intellectual disabilities) to attend school without qualifications to follow the class. It is also a common practice for students with disabilities to repeat a year in order to allow them to stay longer in school.188
According to stakeholders, authorities are slow or inactive in providing protection to children with disabilities that come from difficult situations. While the action of competent authorities is very efficient for what concerns general cases of children neglected or maltreated by their families, competent authorities are very slow in taking decisions about a child with disabilities living in the same difficult situation. According to stakeholders, this discriminatory behaviour stems from the fact that cases concerning children with disabilities require more time and effort. Children with disabilities often cannot directly denounce their problems. In the few cases where they are able to do so, their testimony may be unreliable and verifying the abuse may require more time and investigation. When the maltreatment is verified, it is difficult to place the child with disabilities in another family or in a family kind community because they require more care and attention.
188 ‘Update on the situation of minor with disabilities - Committee on the Rights of the Child, session 20th September 2011’, available at http://www.gruppocrc.net/The-activity-of-the-Italian-NGO-Group-for-the-CRC-in- Italy (last accessed on 16 October 2012).
36 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
4. ASSESSMENT OF THE PRACTICAL IMPLEMENTATION OF THE RIGHTS AND LEGAL PRINCIPLES
KEY FINDINGS There are several reporting systems but only the ones provided by Telefono Azzurro and UNAR are currently fully operative. Italian welfare and education systems are experiencing cuts of economic resources. The absence of a national definition of the minimum level of assistance by social services creates inconsistency in the level of protection provided to children throughout the country. The fact that girls with disabilities are more likely to be victims of violence and abuse is ignored by the Italian legislation. The absence of reliable statistics as well as of a common definition of disability makes it difficult to take adequate decisions on policies and actions focused on children with disabilities. A number of successful projects have been implemented to enhance the learning process of students with disabilities, to develop awareness and emotional responses to the issues of children with disabilities, to promote participation of children and adolescents in the decision-making process and to promote the creation of inclusive sport activities. The literature recommends: consistent level of social protection for children with disabilities throughout the country; adequate economic resources to families and schools; and the creation of mechanisms ensuring the participation of children with disabilities in decision making processes.
4.1. Enforcement and reporting mechanisms
For what concerns the reporting mechanism, the Ombudsman for Childhood and Adolescence can carry out visits and can inspect public and private structures hosting minors. Anyone can report to the Ombudsman on cases of children’s rights violations (free phone numbers are available) and the Ombudsman can refer to competent authorities about situations of danger or abandonment.189 However, the Ombudsman became operative only on 14 October 2012 and, at that time, the Ombudsman did not have a complete and user-friendly website and was not able yet to provide exhaustive data and information on issues concerning children with disabilities.190
According to the information provided by stakeholders, the Ministry of Labour and Social Policies, Directorate General for Inclusion and Social Policies, as the focal point for the policies on persons with disabilities, should also be in charge of receiving complaints through free phones numbers or the website. Unfortunately, this is not happening yet but important steps have been taken in order to render such a system fully operational as soon as possible.
As mentioned above, the Emergency Phone Service was introduced by the Inter
189 ibid. 190 Information gathered through interviews with stakeholders.
37 Policy Department C: Citizens' Rights and Constitutional Affairs ______
Ministerial Decree of 14 October 2002 and is now managed by the charitable association Telefono Azzurro Onlus.191
UNAR (National Office Against Racial Discrimination) can receive complaints on cases of discrimination192 and can also carry out investigations on discriminating behaviours. UNAR can file a complaint with competent authorities, on the basis of information gathered through interviews or analysis of documents.193 From 2010, UNAR has also started to receive complaints on cases of discrimination that are not based on racial or ethnic grounds. A considerable number of complaints consisted of cases of discrimination based on disability (for further details see section 2.2.2).194
4.2. Gaps, problems and issues in the implementation
The literature identified the cuts of economic resources, especially in the field of education, as the main problem related to the situation of children with disabilities.
Although, the judgment n. 80 of 26 February 2010 of Constitutional Court195 established that availability of teaching support cannot be determined according to budget constraints and must be always granted196, numerous cuts of funds and resources have occurred: the number of teachers in general was reduced of 87,000 units between 2007 and 2011 and of 20.000 units from 2011 to 2012 for a total of 107,000 units less in 5 years. The total budget of the Ministry of Research and Education decreased from 43,370 million euros in 2010 to 41,420 million euros in 2011.197
This had obvious implication for the provision of teaching support for children with disabilities. For example, with regard to the number of supporting teachers, Law n. 244 of 24 December 2007 on the 2008 Budget198 foresaw one specialised teacher per two students with disabilities, or one teacher per one student with complex disabilities.
Through stakeholders’ consultation, the following problems have been identified:
There is a lack of national definition of the minimum level of assistance by social services and the monitoring on those services is left to the regions which implement them according to their understanding and their means. Furthermore, certain matters such as, for example, compulsory education, nurseries, home care, management of schools buildings and provision of trained professionals helping children with disabilities to communicate at school, fall under the competence of the local authorities which are currently encountering serious economic problems due to cuts of funds and lack of resources. As result of
191 Information gathered through interview with stakeholders. 192 UNAR website, available at www.unar.it (last accessed on 24 October 2012). 193 Decree of the President of Ministers of 11 December 2003 on the establishment and internal organisation of the Office for the promotion of equal treatment and elimination of discrimination according to art. 29 Community Law March 1, 2002, n. 39. 194 ‘UNAR Report 2011’, available at http://2.114.23.93/unar/ image.aspx?id=fddf67ab-5f6d-449c-bc55 1fdbb702b360&sNome=Relazione%20attivit%C3%A0%20UNAR%202011.pdf (last accessed on 24 October 2012). 195 Judgment of the Italian Constitutional Court n. 80, of 26 February 2010, published on Gazzetta Ufficiale Special Edition I, n 9 of 3 March 2012. 196 This refers specifically to the number of support hours made available to each student with disability which, have been reduced over the last years. ‘Update on the situation of minor with disabilities - Committee on the Rights of the Child, session 20th September 2011’ available at http://www.gruppocrc.net/The-activity-of-the Italian-NGO-Group-for-the-CRC-in-Italy (last accessed on 16 October 2012). 197 ‘What are the cut in education’, available at http://www.forumscuole.it/rete-scuole/superiori/materiali-per informare/miniguida autogestioni1.pdf (last accessed on 24 October 2012). 198Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2008).
38 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______this fragmentation and of heavy economic cuts of resources, the provision of social services (including the ones provided to children with disabilities) varies from region to region. There are no common minimum standards followed throughout the national territory.199
In Italy, there is a lack of specific reference to women with disabilities in legislation and policies. Law n. 66 of 15 February 1996 against sexual violence of women does not refer to women or girls with disabilities. The report on violence and maltreatment against women commissioned by the Ministry for Rights and Equal Opportunities and carried out by ISTAT does not provide information on women with disabilities either.200 According to stakeholders, the lack of data and information is at the base of the lack of policies and services in favour of women with disabilities.
Finally, children with light intellectual or psychosocial disabilities experience more problems in accessing services and adequate protection as no specific policies dealing with intellectual or psychosocial disabilities have been created. The children encounter problems to access specific rehabilitation programmes or specific educational projects. This is not the case of children affected by Down Syndrome, for example, because, given the formal recognition of the syndrome, several policies and specific programmes are in force in order to help these children access the services and support they need.
4.3. Best practices
In 2005, the New Technologies and Disabilities Project was created in order to enhance the learning process of students with disabilities and autonomy in school through the use of IT. The project foresaw the creation of 90 technology centres, based at schools active in helping students with disabilities using technology during their daily school activities. The project also makes available electronic resources for teachers: software, best practices, educational courses for specific disabilities, online consulting for technological support.201 The E-inclusion project encouraged the dissemination of new technologies in Southern Italy, providing schools with hardware aimed to promote the educational integration of pupils with disabilities.202
The ‘I Care’ project on children with disabilities began in 2007 and was based on both research and action. It sought to encourage reflection about practices, relations, organisation and teaching involved in relation with students with disabilities.203
Good practices in the promotion of participation of children and adolescents in the decision- making processes are represented by spontaneous initiatives of local administrations of associations, which have achieved involvement of young people including the ‘Councils of children and young people’ bringing together the Commune Councils of Young People, Municipal Councils of Young People, Children’s Council and Young People’s Consultancy. However, children with disabilities are not yet taking part in such activities. The same is true with regards to the preparation of the supplementary reports to be sent to the UN
199 Information collected through stakeholder interviews. 200 Information gathered through interviews with stakeholders. 201 ‘International Disability Alliance (IDA), Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’ available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012). 202 ibid. 203 ibid.
39 Policy Department C: Citizens' Rights and Constitutional Affairs ______
Committee by the CRC.204
According to stakeholders, some examples of good practice can also be found in the sport sector. Some sport associations, originally created for children with disabilities, have recently opened their doors also to other children, creating events for both to foster exchanges.
4.4. Data and monitoring mechanisms
The Statistical Information System on Disability (www.disabilitaincifre.it) by ISTAT (Italian Statistics Institute)205, CISIS (Interregional Centre for IT, Geographical and Statistical Systems), the various Ministries competent on children’s issues (Ministry of the Interior; Ministry of Labour, Health and Social Policies; Ministry of Education, University and Research; Ministry of Justice), the regions and the Autonomous provinces through the Centre and Observatory on children and adolescents and the Italian National Childhood and Adolescence Documentation and Analysis Centre206 provide relevant data on the situation of children with disabilities.
The recent general picture of statistics on disability in Italy, delivered by ISTAT, has been produced gathering information from several overlapping multi-purpose surveys. Those focused on physical disability without including aspects linked to intellectual and/or psychosocial disability and the condition of disability of children under six years of age. Persons who are institutionalised are also excluded from the data collection.207 A few attempts to collect information on issues concerning discrimination, bullying, access to health have been made but no concrete result can be seen, yet.208
According to stakeholders, the lack of statistical data concerning vulnerable groups of children is among the main causes of direct and indirect discrimination against children on the basis of their disabilities.209 Furthermore, there are no reliable statistical data on the number of children with disabilities aged 0-5 in Italy. The absence of such statistics has been officially confirmed in writing by the Ministry of Health in 2008.210
In addition, the absence of a common definition of disability between the bodies which are involved in various ways in protecting rights of children with disabilities makes it
204 ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 205 International Disability Alliance (IDA), ‘Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’, available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012). 206 ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports fundamental-rights-persons-intellectual-disabilities (last accessed on 2 October 2012). 207 ‘Update on the situation of minor with disabilities - Committee on the Rights of the Child, session 20th September 2011’, available at http://www.gruppocrc.net/The-activity-of-the-Italian-NGO-Group-for-the-CRC-in- Italy (last accessed on 16 October 2012). 208 ‘Short Information about Disability Chapter of the Submission of Information to The United Nations Committee on the Elimination of Racial Discrimination Eightieth Session 13 February – 9 March 2012 in Connection with the Consideration of the Sixteenth-Eighteenth Consolidated Periodic Reports of Italy, Submitted by the Italian Disability Forum, member of European Disability Forum and of the Italian Working Group for the Convention on the Rights of the Child’, available at http://www.gruppocrc.net/The-activity-of-the-Italian-NGO-Group-for-the CRC-in-Italy (last accessed on 16 October 2012). 209 Information gathered through stakeholders. 210 Information gathered through interview with stakeholders.
40 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______difficult to compare data and take adequate decisions on policies and actions.211 Lack of policies targeting the youngest children with disabilities renders them more vulnerable to exclusion, abuse and discrimination based on their disability.212
As regards the system of monitoring, the recent appointment of the National Ombudsperson for Children represents an important step forward. However, no methodology has been established, yet, to monitor the level of involvement of children with disabilities, especially those with intellectual disabilities.213
UNAR is competence since 2011 to receive complaints on discrimination based on disability. The cases of discrimination based on other grounds amounted to the 11.5% of the total number of complaints in 2011. 31.5% of the complaints based on other grounds consisted of cases of discrimination based on disability (second biggest group, after cases of discrimination based on sexual orientation and gender identity). The complaints on cases of discrimination based on disability were reported by victims, witnesses, associations and UNAR itself (for a detailed overview see table in Annex 3).214
4.5. Recommendations given by the literature
The literature on children with disabilities expresses concerns on the heavy cuts in resources that the welfare system has been experiencing in recent years. It also notes the lack of consistency in the different regions, due to the fiscal federalism, for the implementation of laws and policies on persons with disabilities and children.215
The following recommendations have been put forward by the literature:
Ensuring the implementation of consistent level of social protection throughout the country.216 Providing adequate economic resources,217 especially in the field of education, in order to ensure better implementation of the legal measures adopted to promote inclusive education.218 Supporting coverage of children with disabilities in services, policies and programmes aimed at the general population of children. This may include, for
211 ‘Short Information about Disability Chapter of the Submission of Information to The United Nations Committee on the Elimination of Racial Discrimination Eightieth Session 13 February – 9 March 2012 in Connection with the Consideration Of The Sixteenth-Eighteenth Consolidated Periodic Reports Of Italy, Submitted by the Italian Disability Forum, member of European Disability Forum and of the Italian Working. Group for the Convention on the Rights of the Child’. Available at http://www.gruppocrc.net/The-activity-of-the Italian-NGO-Group-for-the-CRC-in-Italy last accessed on 16 October 2012. 212 ‘Update on the situation of minor with disabilities - Committee on the Rights of the Child, session 20th September 2011’, available at http://www.gruppocrc.net/The-activity-of-the-Italian-NGO-Group-for-the-CRC-in- Italy (last accessed on 16 October 2012). 213 Data gathered through interviews with stakeholders. 214 ‘UNAR Report 2011’, available at http://2.114.23.93/unar/_image.aspx?id=fddf67ab-5f6d-449c-bc55 1fdbb702b360&sNome=Relazione attività UNAR 2011.pdf (last accessed on 24 October 2012). 215 ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 216 ibid. 217 ‘Consideration of reports submitted by States parties under Article 44 of the Convention, Concluding observations: Italy’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm (last accessed on 5 October 2012). 218 ‘International Disability Alliance (IDA), Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’ available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012).
41 Policy Department C: Citizens' Rights and Constitutional Affairs ______
example, study visits as well as cultural and leisure activities.219 Providing reasonable accommodation to enable children with disabilities to participate in all school activities.220
In addition, the literature recommends that the allocation of budget should focus on both inclusive education and the promotion of good quality of life within the family. This is essential to eliminate the institutionalisation of children by providing community based services as well as support (financial aid, social assistance, welfare benefits) to children with disabilities and their families, including foster and adopting families.221
Other recommendations include ensuring adequate (in terms of age and format) reproductive health education to boys and girls with disabilities.222
To address the risk for children with disabilities (especially girls) of becoming victims of violence and abuse, the literature recommends adopting adequate measures to ensure access to services and information for victims to children with disabilities living in institutions and in communities, as well as ensuring the functioning of the database for the Observatory against Paedophilia and Child Pornography in order to render more effective the fight against child abuse.223
To achieve more effective policy making, the literature pleads for the reinforcement of participation mechanisms, by children with disabilities and their families, in the formulation of policies and programmes concerning their lives.224 This would give them the right and opportunity to express their views on matters such as treatment, services and support.225
Lastly, the literature recommends creating a database in order to collect disaggregated data on children with disabilities. These data would allow more precise analysis of the nature of disabilities and would support more effective policymaking.226
219 ‘Children’s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project_CRC/Results/index.html (last accessed on 2 October 2012). 220 ‘Forum Italiano sulla disabilitá, International disability alliance (IDA), Submission by the Italian Disability Forum, European Disability Forum and International Disability Alliance to the 58th session of the UN Committee on the Rights of the Child’, see footnote 4. 221 ibid. 222 ibid. 223 ibid. 224 ‘Children`s Rights for All: Monitoring the implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities, National Report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project CRC/Results/index.html (last accessed on 2 October 2012). 225 ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’ available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf (last accessed on 1 October 2012). 226 International Disability Alliance (IDA), ‘Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’, available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal (last accessed on 2 October 2012).
42 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
5. CONCLUSIONS
The Italian legal framework provides a relatively good protection of the rights of children with disabilities in areas such as inclusive education, assistance to families and adoption. Italy ratified the CRC in 1991 and the CRPD in 2009 and the implementation of CRPD and CRC rights and principles is overall satisfactory:
Italy is at the forefront for what concerns inclusive education. However the system is often challenged by problems related to lack of economic resources.
A number of gaps, problems and challenges relating to children with disabilities have been identified including:
Lack of economic resources to target all spheres of children’s lives; Absence of a national definition of the minimum level of assistance by social services; Inconsistent levels of protection throughout the country; Lack of legislation and policies on abuse of children with disabilities especially for girls; Lack of promotion for participation in the decision making process; Lack of protection for children and adolescents with light intellectual or psychosocial disabilities; Lack of training of judicial and police authorities; Lack of data and information.
A number of successful projects have been implemented to enhance the learning process of students with disabilities, to develop awareness and emotional responses to the issues of children with disabilities, to promote participation of children and adolescents in the decision-making process and to promote the creation of inclusive sport activities.
The following measures would contribute to strengthen the rights of children with disabilities in Italy: consistent levels of child protection throughout the country; adequate economic resources provided to families and schools; creation of mechanisms that ensure the participation in the decision making processes.
43 Policy Department C: Citizens' Rights and Constitutional Affairs ______
REFERENCES
1. Legislation a. International Law
United Nations Convention on the Rights of the Child. United Nations Conventions on the Rights of Persons with Disabilities. b. EU Law
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. c. National Law
Italian Penal Code (Codice Penale) of 19 October 1930. Royal Decree n. 1443 of 28 October 1940 on Endorsement of the Code of Civil Procedure (Approvazione del codice di procedura civile). Constitution of the Italian Republic of 1 January 1948 (Costituzione della Repubblica Italiana). Law n. 517 of 4 August 1977 on the assessment of students and the abolition of remedial examination as well as other changes introduced in the school system (Norme sulla valutazione degli alunni e sull'abolizione degli esami di riparazione nonché altre norme di modifica dell'ordinamento scolastico). Law n. 184 of 4 May 1983 on adoption and foster care (Disciplina dell'adozione e dell'affidamento dei minori). Italian Procedural Criminal Code of 22 September 1988 (Codice di procedura penale). Framework Law n. 104 of 5 February 1992 on assistance, social integration and rights of people with disabilities (Legge-quadro per l'assistenza, l'integrazione sociale e i diritti delle persone handicappate). Law n. 205 of 25 July 1993 on racial ethnic and religious discrimination (Misure urgenti in material di discriminazione razziale, etnica e religiosa). Legislative Decree n. 297 of 16 April 1994 Single Act on the existing provisions in the field of education for all schools levels (Testo unico delle disposizioni legislative vigenti in material di istruzione, relative alle scuole di ogni ordine e grado). Law n. 285 of 28 August 1997 on the promotion of the rights and opportunities for children and adolescents (Disposizioni per la promozione di diritti e di opportunità per l'infanzia e l'adolescenza). Law n. 451 of 23 December 1997 establishing the Parliamentary Commission for childhood and the national Observatory for childhood (Istituzione della Commissione parlamentare per l'infanzia e dell'Osservatorio nazionale per l'infanzia). Law n. 40 of 6 March 1998 on immigration and on the status of foreigners (Disciplina dell'immigrazione e norme sulla condizione dello straniero). Legislative Decree n. 286 of 25 July 1998 Single text of provisions governing
44 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
immigration and the status of foreigners (Testo unico delle disposizioni concernenti la disciplina dell'immigrazione e norme sulla condizione dello straniero). Framework Law n. 328 of 8 November 2000 on the implementation of the integrated system of interventions and social services (Legge quadro per la realizzazione del sistema integrato di interventi e servizi sociali). Decree of the President of Ministers n. 172 of 9 April 2001 on the uniform treatment regarding the right to higher education, in accordance with art. 4 of Law December 2, 1991, n. 390 (Disposizioni per l'uniformitá di trattamento sul diritto agli studi universitari, a norma dell'art. 4 della L. 2 dicembre 1991, n. 390). Law n. 149 of 28 March 2001 modifying Law n. 184 of 4 May 1983 on ‘Adoption and Discipline of the Child’, and Title VIII of Book I of the Civil Code (Modifiche alla legge 4 maggio 1983, n. 184, recante «Disciplina dell’adozione e dell’affidamento dei minori», nonché al titolo VIII del libro primo del codice civile). Inter-Ministerial Decree of 14 October 2002 on Emergency Phone Service. (Decreto interministeriale registrato alla Corte dei conti in data 21 ottobre 2002, registro n. 3, foglio n. 211, con cui si e' destinato il codice 114 all'istituzione di uno specifico servizio telefonico di emergenza finalizzato a ricevere segnalazioni riguardanti situazioni di rischio per lo sviluppo psico-fisico di bambini ed adolescent). Legislative decree n. 215 of 9 July 2003 on the implementation of the Directive 2000/43/EC on the equal treatment between persons irrespective of racial or ethnic origin (Attuazione della direttiva 2000/43/CE per la parità di trattamento tra le persone indipendentemente dalla razza e dall'origine etnica). Decree of the President of Ministers of 11 December 2003 on the establishment and internal organisation of the Office for the promotion of equal treatment and elimination of discrimination according to art. 29 Community Law March 1, 2002, n. 39 (Costituzione e organizzazione interna dell'Ufficio per la promozione della paritá di trattamento e la rimozione delle discriminazioni, di cui all'art. 29 della legge comunitaria 1° marzo 2002, n. 39). Law n. 4 of 9 January 2004 on access of people with disqbilities to informatics tools (Disposizioni per favorire l'accesso dei soggetti disabili agli strumenti informatici). Legislative Decree n. 140 of 30 May 2005 on the implementation of Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers (Attuazione della direttiva 2003/9/CE che stabilisce norme minime relative all'accoglienza dei richiedenti asilo negli Stati membri). Law n. 38 of 6 February 2006 on combating the sexual exploitation of children and child pornography also via Internet (Disposizioni in materia di lotta contro lo sfruttamento sessuale dei bambini e la pedopornografia anche a mezzo Internet). Law n. 54 of 8 February 2006 on parental separation and shared custody (Disposizioni in materia di separazione dei genitori e affidamento condiviso dei figli). Law n. 85 of 24 February 2006 modifying the criminal code in relation to crimes of opinion (Modifiche al codice penale in materia di reati di opinion). Ministerial Directive n. 16 of 5 February 2007 on the general guidelines and actions at the national level for the prevention and fight against bullying (Linee di indirizzo generali ed azioni a livello nazionale per la prevenzione e la lotta al bullismo). Decree n. 103 of 14 May 2007 on the reorganisation of the National Observatory on Childhood and Adolescence and the Italian National Childhood and Adolescence
45 Policy Department C: Citizens' Rights and Constitutional Affairs ______
Documentation and Analysis Centre pursuant Article 29 of legislative decree of 4 July 2006, n. 223, transposed with modification, by Law n.248 of 4 August 2006 (Regolamento recante riordino dell’Osservatorio nazionale per l’infanzia e l’adolescenza e del Centro nazionale di documentazione e di analisi per l’infanzia, a norma dell’articolo 29 del D.L. 4 luglio 2006, n. 223). Ministerial Decree n.. 242 of 30 October 2007 establishing the National Observatory on the Family (Regolamento recante "Istituzione e funzionamento dell'Osservatorio nazionale sulla famiglia). Law no. 244 of 24 December 2007 on Budget Law for the year 2008 (Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2008). Law Decree n. 137 of 1 September 2008 on urgent provisions on education and university (Disposizioni urgenti in materia di istruzione e università). Law n. 18 of 3 May 2009 implementing the United Nation Convention of the Right of Persons with Disabilities and its optional Protocol and establishing the National Observatory for the conditions of persons with disabilities (Ratifica ed esecuzione della Convenzione delle Nazioni Unite sui diritti delle persone con disabilita', con Protocollo opzionale, fatta a New York il 13 dicembre 2006 e istituzione dell'Osservatorio nazionale sulla condizione delle persone con disabilita). Law Decree n. 89 of 23 June 2011 on urgent provisions for the completion of the implementation of Directive 2004/38/CE on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and for the transposition of Directive 2008/115/CE on common standards and procedures in Member States for returning illegally staying third-country nationals (Disposizioni urgenti per il completamento dell'attuazione della direttiva 2004/38/CE sulla libera circolazione dei cittadini comunitari e per il recepimento della direttiva 2008/115/CE sul rimpatrio dei cittadini di Paesi terzi irregolari). Law n. 112 of 12 July 2011 on the establishment of the Ombudsman for childhood and adolescence (Istituzione dell'Autorità garante per l'infanzia e l'adolescenza).
2. National Case-Law
Judgment of the Constitutional Court n. 215 of 3 June 1987. Judgment of High Court section V of 23 May 2003. Judgment of the Constitutional Court n. 385 of 14 October 2005. Judgment of Constitutional Court n. 80 of 26 February 2010.
3. Literature
Belloci M., Passaglia P., ‘La dignita`dell’uomo quale principio costituzionale. Quaderno predisposto in occasione dellìncontro trilaterale delle Corti Costituzionali italiana, spagnola e portoghese’, Roma, 2007, available at http://www.cortecostituzionale.it/documenti/convegni_seminari/STU_196_La_dignita.p df. ‘Children’s Rights for All: Monitoring the Implementation of the UN Convention on the Rights of the Child for Children with Intellectual Disabilities. National report of Italy’, December 2010, available at http://inclusion europe.org/images/stories/documents/Project_CRC/Results/National_Reports/Italy_EN.
46 Country Report on Italy for the Study on Member States' Policies for Children with Disabilities ______
pdf. ‘Concluding observations of the Committee on the rights of the child on the report submitted by Italy under Article 44 of the Convention’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm. ‘Consideration of reports submitted by States parties under Article 44 of the Convention. Third periodic report of States parties due in 2003 Italy’, available at http://www2.ohchr.org/english/bodies/crc/crcs58.htm. ‘European agency for development in special needs education, Legal system-Italy’, available at http://www.european-agency.org/country-information/italy/national overview/legal-system. ‘Country thematic reports on the fundamental rights of persons with intellectual disabilities and persons with mental health problems’, available at http://fra.europa.eu/en/country-report/2012/country-thematic-reports-fundamental rights-persons-intellectual-disabilities. ‘Fifth Disability High Level Group Report on the Implementation of the Un Convention on the Rights of Persons with Disabilities’, available at http://ec.europa.eu/justice/discrimination/files/dhlg_5th_report_en.pdf. ‘Forum Italiano sulla disabilitá, International disability alliance (IDA), Submission by the Italian Disability Forum, European Disability Forum and International Disability Alliance to the 58th session of the UN Committee on the Rights of the Child’, available at https://docs.google.com/viewer?a=v&q=cache:ATpmWGb3SFAJ:cms.horus.be/files/999 09/MediaArchive/what news/CRC%2520Italy_FID%2520IDA%2520EDF%2520submission_August%25202011 %2520FINAL.doc+(IDA),+Submission+by+the+Italian+Disability+Forum,+European+ Disability+Forum+and+International+Disability+Alliance+to+the+58th+session+of+th e+UN+Committee+on+the+Rights+of+the+Child&hl=fr&gl=be&pid=bl&srcid=ADGEES hgSzdvaULmLJ57MDthR9I2Yo9osPZv8uXUADdfqzO561x5mmZriC0cbYUNlOpi7C9YdM0w B3D8VO854vsdzaxkU8Eq81xIlPI9UW07NL8kpM3Nk0LHprpEfTxn7lHqr_TL665Q&sig=AHI EtbQznBgOSeTIB5wdhVV87EaATLVsnQ. ‘Group for the Convention on the Rights of the Child’, available at http://www.gruppocrc.net/The-activity-of-the-Italian-NGO-Group-for-the-CRC-in-Italy. Hassan Beshir F., ‘Article 3 of the Convention on the Rights of the Child The Best Interest of the Child in all actions concerning children taken by legislative bodies, the best interests of the child shall be a primary consideration’, available at http://dppcr.files.wordpress.com/2012/09/best-interest-of-the-child-fatma-beshir cairo1.pdf. ‘International Disability Alliance (IDA), Suggestions for disability-relevant questions to be included in the list of issues for Pre-sessional Working Group, CRC 58th Session’, available at http://www.crin.org/resources/infoDetail.asp?ID=25361&flag=legal. ‘International study on the implementation of the UN convention on the rights of persons with disabilities, Zero Project Report 2012’; available at http://www.zeroproject.org/wp-content/uploads/2011/11/Zero-Project-Report 2012.pdf. ‘La violenza e i maltrattamenti contro le donne dentro e fuori la famiglia’, available at http://www3.istat.it/salastampa/comunicati/non_calendario/20070221_00/. Nocera S., ‘La normative sull’educazione inclusiva delle persone con disabilitáin Italia, La storia gli aspetti istituzionali e le prassi operative’, available at
47 Policy Department C: Citizens' Rights and Constitutional Affairs ______
http://www.diversabileonline.com/istituzioni/interventoscuola.htm. ‘Overview of Italian Adoption Law’, available at http://www.adoptionpolicy.org/pdf/eu italy.pdf. Dpi Italy and CND, ‘Report Women with Disabilities and their Human Rights in Italy’. ‘Short Information about Disability Chapter of the Submission of Information to the United Nations Committee on the Elimination of Racial Discrimination Eightieth Session 13 February – 9 March 2012 in Connection with the Consideration of the Sixteenth- Eighteenth Consolidated Periodic Reports of Italy, Submitted by the Italian Disability Forum, member of European Disability Forum and of the Italian Working’, available at http://www2.ohchr.org/english/bodies/cerd/docs/ngos/GruppoDiLavoro_Italy80.pdf. ‘The Rights of Children in Italy’ available at http://www.crin.org/resources/infoDetail.asp?ID=3261&flag=legal. ‘UNAR Report 2011’, available at http://2.114.23.93/unar/_image.aspx?id=fddf67ab 5f6d-449c-bc55-1fdbb702b360&sNome=Relazione attività UNAR 2011.pdf. ‘Update on the situation of minor with disabilities - Committee on the Rights of the Child, session 20th September 2011’ , available at http://www.gruppocrc.net/The activity-of-the-Italian-NGO-Group-for-the-CRC-in-Italy. ‘Written replies by the Government of Italy to the list of issues (CRC/C/ITA/Q/3-4) in connection with the consideration of the third and fourth periodic reports of Italy (CRC/C/ITA/3-4)’, available at http://www2.ohchr.org/english/bodies/crc/sessions.htm.
4. Other
Committee on the Rights of the Child: http://www2.ohchr.org/english/bodies/crc/crcs58.htm. Coordinamento Universitario: http://www.coordinamentouniversitario.it/documenti/scheda%20tecnica%20su%20Dsu 3.pdf. Euroblind: http://www.euroblind.org/convention/article-24--education/nr/109. Forum scuole: http://www.forumscuole.it/rete-scuole/superiori/materiali-per informare/miniguida autogestioni1.pdf. Ministry of Labour and Social Policies: http://www.lavoro.gov.it/Lavoro/Istituzionale/Ministero/AmministrazioneCentrale/DG I nclusione.htm. La Stampa: http://www.lastampa.it/2012/10/13/italia/cronache/madre-accusa-la polizia-mio-figlio-autistico-trattato-da-spacciatore 6AIlGpmyK9YZvJApAK742I/pagina.html. National Observatory on Childhood and Adolescence: http://www.minori.it/en/italian national-childhood-and-adolescence-documentation-and-analysis-centre/national observatory-on. UNAR: http://www.unar.it/. Telefono Azzurro: http://www.azzurro.it/index.php/it/contenuti2/bullismo-e cyberbullismo/bullismo-e-cyberbullismo.
48
Country Report on Italy for the Study on Member States' policies for children with disabilities ______
ANNEX 2 – STATISTICAL INFORMATION Number of Violence Gender Other Criminal violation227 discrimination discrimination suspects
Year
2007
2008
2009
2010
2011
No data identified on the table’s issues.
227 Cases reported to any relevant body; depending on the availability of data.
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ANNEX 3 – TYPOLOGY OF PERSONS REPORTING CASES ON DISCRIMINATION Discrimination based on other grounds – Typology of the persons reporting cases (in percentage)
Discrimin Victim Witness Association UNAR ation ground 36.1 32.3 / 22.2 Disability 25.0 51.6 66.7 50.0 Sexual orientatio n 16.7 9.7 33.3 5.6 Gender Age 16.7 / / 11.1 Religion, 5.6 6.5 / 11.1 personal faith TOTAL 100.0 100.0 100.0 100.0
Source: UNAR/IREF-ACLI 2012
60 Country Report on Italy for the Study on Member States' policies for children with disabilities ______
ANNEX 4 - STUDY ON MEMBER STATES' POLICIES FOR CHILDREN WITH DISABILITIES - EXECUTIVE SUMMARY
There are about 100 million children in the European Union and about 80 million European persons with disabilities. While the number of children and the number of persons with disabilities is well documented, the same cannot be said of children with disabilities. Children with disabilities combine different factors of vulnerability. As children the protection of their rights requires the adoption of special measures that are recognised by the UN Convention on the Rights of the Child (CRC). As individuals with disabilities, they are particularly vulnerable EU citizens who deserve specific safeguards and protection as acknowledged by the UN Convention on the Rights of Persons with Disabilities (CRPD).
Children with disabilities and their families face on a daily basis specific problems such as the lack of assistance and support for their inclusion in schools, experiences of violence and the lack of proper tools for reporting them, difficulties in accessing buildings or services or troubles in being heard and participating in decisions affecting their lives.
The Conventions include provisions addressing these concerns and providing protection to the right to enjoy all human rights and freedoms with no discrimination ensuring equality of opportunities and accessibility, the best interests of the child as a consideration in all actions concerning them, the evolving capacities of children with disabilities as a consideration in decisions affecting them, the right to be heard in proceedings and decision-making processes affecting the child and the right to a full and effective participation, the right to family life, the right to effective access to education and inclusive education, the right to health care, the right to assistance, and freedom from violence.
This study is structured to mirror the requirements of both conventions reflecting the main rights of children with disabilities to be implemented generally in the EU due to the high rate of ratification by EU Member States. Moreover, in December 2010, the European Union became a party to the CRPD. In doing so, the EU recognised the challenges persons with disabilities face in securing the fulfilment of their rights and assumed the responsibility for its implementation alongside Member States. The EU’s responsibility towards the implementation of the CRC is of a different scale. Despite the lack of ratification by the EU, the CRC rights and principles guide the EU policies and action since the Treaty recognises the rights of the child as an EU objective.
This study assesses the current situation with respect to the rights of children with disabilities in the EU and the need for EU legislation or for other measures. The options to act at EU level are framed within the extent of the competences conferred by the Treaties, which can be exclusive, shared or supporting competences (Article 2 TFEU).
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The current EU legislative and policy framework give recognition to the Conventions’ rights and principles applicable to children with disabilities and a certain degree of implementation. However, the existing EU legislation relevant to this area is mainly sectoral (i.e., employment or immigration). The legislation addresses the situation of persons with disabilities separately from the rights of the child, whereas there is a need to consider children with disabilities as they face multiple discrimination, on the basis of age as well as disability, and to tailor measures to ensure that their rights are respected.
A. Comparative analysis of national legal frameworks
The comparative analysis of the national legal frameworks on children with disabilities’ rights in 18 Member States228 is based on a set of criteria developed to enable an assessment of comparable data reported in each national study. The criteria are based on the requirements within each right and principles identified as pertinent to the situation of children with disabilities.229 The criteria are derived from the text of both conventions and the CRC General Comments on their interpretation.
Overall, the 18 Member States have in place comprehensive legal frameworks reflecting the main aspects of the rights and principles identified under the CRPD and CRC. While it may be stated that the rights of children with disabilities are broadly recognised under national legal systems either through general or specific legislation, their practical implementation revealed to be problematic in most Member States.
Consideration of the principle of best interests of the child is generally recognised under national laws. However, implementation is mostly limited to family and social protection decisions affecting children and the specific needs of children with disabilities are not recognised. The country studies found a lack of understanding of what the principle entails, along with insufficient development of the concept through law or jurisprudence and an overall lack of implementing rules.
The right to non-discrimination based on disability or age is reflected in national legislations, however, the implementation of the right is generally only partial and the reasonable accommodation measures are generally insufficient to guarantee the right. In practice, accessibility remains a key problem in most Member States. Reference to the multi-discrimination factors faced by children with disabilities or girls with disabilities is rarely acknowledged. There is a lack of monitoring results and of data on cases of right’s violations that could help define more effective measures.
Most countries partially take account of the evolving capacities of the child mainly on the basis of considerations of age, maturity and development of the child. However, the situation of children with disabilities is not specifically acknowledged. The implementation is limited to a certain type of decisions and Member States tend to primarily take into consideration the child’s age, which for children with disabilities may not be relevant and which can effectively exclude them from decision making processes that affect them.
228 For this study 18 Member States legal frameworks have been analysed: Belgium, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Ireland, the Netherlands, Malta, Poland, Romania, Slovenia, Spain, Sweden and the United Kingdom. Those countries have been selected by the European Parliament in the Terms of Specifications of this study. 229 8 rights and principles have been identified as most relevant to the situation of children with disabilities: the best interests of the child, the right to non-discrimination, the consideration of evolving capacities, the right to participation/to be heard, the right to be free from violence, the right to family life, the right to assistance and the right to education.
62 Country Report on Italy for the Study on Member States' policies for children with disabilities ______
The rights to participation and to be heard in decision making processes affecting children with disabilities are recognised under the legislation of the 18 Member States. However, their implementation is often limited to some sectoral procedures mostly regarding family law and at a certain extent in education. In practice, children with disabilities are not systematically involved and do not get to participate in public and private life at the same level than their able-peers.
In general freedom from violence is recognised by Member States’ legislation. However, abuse against children with disabilities is a key problem acknowledged in all country reports. Violence occurring in institutions is of particular concern. The lack of systematic data and the difficulty for victims to report abuses do not allow an overview of the situation needed for the adoption of appropriate policies and measures.
The right to family life is widely recognised in the laws of the selected Member States. However, insufficient guidance and support to families for the integration of the child with disabilities and for helping them in their day to day lives is a key problem in most of the 18 Member States. Without proper assistance, families with difficulties might give up on their responsibility leading to a situation where alternative options are unlikely and institutionalisation is the only response available.
Overall the right to various forms of assistance (financial, social, health care, etc.) both for children with disabilities and for their families is recognised in legislation or regulatory rules. However, again in most cases assistance is sectoral (mainly social and health) and insufficient (financially and human assistance). The economic crisis is contributing to the removal and reduction of assistance in most Member States. Access to assistance is often perceived not as an instrument enabling protection of rights but rather as a discretionary measure subject to budget constraints.
All Member States recognise the right to education in their Constitutions or legal frameworks; however, the ability to access the school of choice for children with disabilities remains very challenging in practice. Mainstream schools remain largely inaccessible to children with disabilities in many Member States, while in other countries schools have insufficient resources and support for the child with disabilities is scarce. In addition, teachers in mainstream schools lack training and awareness on the needs of children with disabilities and programmes are not systematically adapted to them.
Compliance mechanisms are weak and lack adaptation to the situation of children with disabilities. Lack of information and guidance to families with children with disabilities on their rights, procedures and competent authorities decreases their ability to access these tools.
On the basis of these findings, the study sets forth conclusions and recommendations for EU action, taking into account the competence of the EU conferred by the Treaties on a range of policy areas, including disability and children’s rights.
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B.1 The role of the European Union
The EU has no explicit competence on children with disabilities. However the EU framework contains provisions recognising the EU’s role to promote the protection of the rights of the child as an EU objective as well as its competence to combat discrimination based on disability. Furthermore, the Charter of Fundamental Rights of the European Union, with similar legal value as the Treaties, recognises the right to non-discrimination on ground of disability in Article 21 and the rights of the child under its Article 24. This recognition, while important, cannot extend the competences of the EU as conferred by the Treaties.
The EU, together with Member States in areas of shared competence or national competence, is bound by the CRPD obligations and is required to take the necessary measures to combat discrimination on the grounds of disability within the framework of Article 19 TFEU or in other matters falling within EU competence. Article 19(1) TFEU provides the legal basis for EU action (see among others the proposal for equal treatment Directive of 2008230) but the unanimity requirement makes achieving agreement under this legal base difficult. Article 19(2) provides the possibility for the EU to adopt basic principles and incentive measures to support Member States’ action to combat discrimination through the ordinary legislative procedure.
Neither the above mentioned proposal for an equal treatment Directive nor any other EU measures provide for a definition of disability. Prior to the adoption of the CRPD, in a judgment in July 2006, the Court of Justice of the European Union (CJEU) defined disability in the same sense as the CRPD within the context of employment policy as ‘a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life’.231 Recently, the CJEU has further developed this concept232 stating that disability results from barriers hindering the full and effective participation of the person concerned in professional life on an equal basis with other workers and calling on the employer to take reasonable accommodation measures.
EU action is also possible when linked to other policy areas of EU competence. Several issues related to the rights of the child with disabilities are linked to EU policies such as social policy, economic, social and territorial cohesion, transport, freedom, security and justice all of which are shared competence. In addition, the EU has the option to take action to support Member States policies in a number of areas affecting children with disabilities such as education, sports, youth or health.
B. 2 Existing relevant EU secondary legislation
The best interests of the child as primary consideration in actions relating to children is a fundamental requirement recognised in EU legislation. Article 7 of the Mediation Directive 2008/52233 requires the mediator to take into account the best interests of the child when deciding whether the child can give evidence in judicial proceedings. The
230 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM/2008/0426 final, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0426:en:NOT (last accessed 6.5.13). 231 Judgment C-13/05 of the Court (Grand Chamber) of 11 July 2006, Sonia Chacón Navas v Eurest Colectividades, pt 43. 232 Judgment of the Court, Joint cases C-335/11 and C-337/11 of 11 April 2013, HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C-335/11) and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening acting on behalf of Pro Display A/S (C-337/11), pt 47. 233 Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters.
64 Country Report on Italy for the Study on Member States' policies for children with disabilities ______
Family Reunification Directive234 requires Member States’ authorities to consider the best interests of children when examining an application for family reunification (Article 5)235. The protection of the best interests of the child is explicitly mentioned in Council Directive 2004/81/EC236 on victims of trafficking in human beings.
Non-discrimination at EU level is currently addressed by four EU Directives to combat discrimination on the basis of protected grounds such as sex, racial or ethnic origin, religion or belief, age and sexual orientation, most of them restricted to the area of employment.237 They lay down rules ‘for combating discrimination (…) with a view to putting into effect in the Member States the principle of equal treatment’.238 Disability is recognised as grounds for discrimination under Directive 2000/78/EC and, furthermore, protection of equality between men and women in matters of employment and occupation under Directive 2006/54/EC applies to persons with disabilities. Directive 2000/43/EC on equal treatment between persons irrespective of racial or ethnic origin does not include disability as a protected ground. Directive 2004/113/EC on equal treatment between women and men in access to supply of goods and services refers to discrimination on grounds of sex but not on age or disability.
The European Commission has acknowledged the differences of protection provided across the various grounds and published a proposal for a Directive in 2008 aiming at completing the legal framework on anti-discrimination law and providing for a more equal level of protection across the grounds239.
Other measures in policy areas such as the internal market or transport have an impact on children with disabilities’ access to services with no-discrimination. For example, Directive 2001/85/EC on the carriage of passengers, requires accessibility features for persons with reduced mobility and visually impaired persons. Other instruments cover rights of persons with disabilities when travelling by air, accessibility to lifts, in carrying out public procurement or in measures for telecommunication240.
Within the remit of its competences, the EU’s action to combat discrimination is complemented with activities by the EU Institutions to improve knowledge about discrimination (e.g. by raising awareness), support intermediary actors (e.g. NGOs, social partners and equality bodies) to improve their capacity to combat discrimination and to encourage the exchange of national good practices.
The consideration of children’s evolving capacities is recognised in the Brussels IIbis
234 Council Directive 2003/86/EC, on the right to family reunification. 235 ‘Developing indicators for the protection, respect and promotion of the rights of the child in the European Union’ FRA, March 2009, available at http://fra.europa.eu/sites/default/files/fra uploads/358 RightsofChild summary-report en.pdf. 236 Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who has been the subject of an action to facilitate illegal immigration. 237 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast directive); Directive 2004/113/EC on the principle of equal treatment between women and men in the access to and supply of goods and services; Directive 2000/43/EC on the principle of equal treatment between persons irrespective of racial or ethnic origin and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. 238 Article 1 Directive 2000/43/EC. 239 Proposal for a Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (COM(2008)426). It is currently blocked in the Council. 240 ‘Study on challenges and good practices in the implementation of the UN Convention on the Rights of Persons with Disabilities VC/2008/1214’, European Commission, Brussels, 2010, Executive Summary available at http://www.efc.be/programmes_services/resources/Documents/UN_Covention_Summary_EN.pdf.
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Regulation 2201/2003 which requires courts to hear the view of the child according to his/her age or degree of maturity. The same formulation is found in EU legislation concerning immigration and asylum in relation to unaccompanied minors.
Children’s right to participation is recognised in some Commission strategic documents including the 2005 ‘European policies concerning youth’, the 2006 ‘EU strategy on the rights of the child’, the Youth in Action Programme and the EU Agenda for the Rights of the child of 2011. EU legislation on immigration and asylum recognise the right of the child to be heard during proceedings under the Brussels IIbis Regulation 2201/2003.
The EU has adopted a number of measures on the protection of children from violence241 relating to child trafficking, to the sexual exploitation of children and to the protection of victims including several Directives242 that have been adopted to replace some of these instruments. For example, the Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, focus on the protection of children which are more vulnerable than adults and establishes more severe penalties when the offence is committed against vulnerable persons such as children and persons with disabilities.
The Directive 2012/29/EU establishing minimum standards on the rights, support and protection of the victims of crime recognises that a victim of crime should be treated without discrimination based on any ground including age and disability. Lastly, Directive 2011/92/EU on combating sexual abuse, the sexual exploitation of children and child pornography243 provides the need for specific protection of children with disabilities.
The right to family life and the maintenance of the child in family context is at the heart of Council Regulation 2201/2003 Brussels IIbis (EC)244. In the field of immigration policies, the right of the child to family life is ensured by the rules on family reunification245 and the provisions of the Directives on asylum246 regarding unaccompanied minors and the respect for the family unit.
241 Framework Decision 2002/629/JHA on combating trafficking in human beings; Council Directive 2004/81/EC on the residence permit issued to third-country nationals victims of trafficking in human beings; Council Framework Decision 2004/68/JHA on combating sexual exploitation of children and child pornography; Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings; Council Resolution 2001/C 283/01 on the contribution of civil society in finding missing or sexually exploited children. Decision No 1351/2008/EC establishing Safer Internet Programme 2009-2013. 242 Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography and replacing Council Framework Decision 2004/68/JHA, Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. 243 Article 1 Directive 2011/92/EU. 244 Council Regulation (EC) No 2201/2003, concerning jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. 245 Council Directive 2003/86/EC on the right to family reunification; Council Regulation (EC) No 343/2003, establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national; Council Directive 2004/83/EC of on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who need international protection; Directive 2008/115/EC, on common standards and procedures in Member States for returning illegally staying third-country nationals. 246 Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons; Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers; Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals, stateless persons or refugees as persons who otherwise need international protection; Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting or withdrawing refugee status.
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The principle of maximum inclusion in society of children with disabilities is reflected in strategy documents such as the Disability Strategy 2010-2020247 and the EU 2020 Programme in relation to education and training248. The 2003 Council Resolution on equal opportunities for Pupils and Students with Disabilities 249 addressed the problem of access to education by children with disabilities. In 2010, the Resolution of the European Parliament on mobility and inclusion of children with disabilities250 stressed the need to ensure full respect for the rights of the child, including the right to education and the right to participate in community life of children with disabilities. The EU Institutions also support the European Agency for Development in Special Needs Education, the independent organisation acting as a platform for collaboration on special educational needs and the promotion of full participation within mainstream education and training251.
C. Recommendations for EU action
When evaluating the need for specific recommendations aimed at improving the situation of children with disabilities, it is important to highlight that children with disabilities are first and foremost children with the same needs as any other children and who should be beneficiaries of all rights recognised by the CRC. Their intrinsic difference with their peers needs to be recognised for designing appropriate legislative and policy measures.
Horizontal issues
As a first and general recommendation, all EU Member States which have not already done so should ratify the two conventions referred to in this study and implement their provisions by adopting national legislation and ensuring its practice. The European Commission, liaising with the UN Secretariat for the CRPD and the UN Secretariat for the CRC, should ensure Member States understanding and implementation of several definitions of the Conventions that are cornerstones for the implementation of the rights of children with disabilities, namely the definition of “disability”, the “best interests of the child” and the “evolving capacities of the child”. They should lead the development of initiatives to ensure that the specificities of children with disabilities are taken into account. To that end, it is recommended that the Commission takes the initiative to provide clarification at EU level of the CRDP definition of “disability” as it is considered to be too broad in practice and its implementation at national level is therefore difficult. The development of guidance documents, exchange of best practices and promotion of existing manuals are recommended. The European Commission should take action to promote that children with disabilities are considered in existing mainstreaming initiatives for non-discrimination and equal treatment. The EP, the Council and the Commission should promote the development of national
247 Area of action 5 of the Commission Communication European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe COM(2010) 636 final. 248 Council Conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (‘ET 2020’), 2009/C 119/02, OJ C 119/2, of 28 May 2005. 249 Council Resolution of 5 May 2003 on equal opportunities for pupils and students with disabilities in education and training, 2003/C 134/04. 250 European Parliament Resolution of 25 October 2011 on mobility and inclusion of people with disabilities and the European Disability Strategy 2010-2020 (2010/2272(INI)). 251 European Agency for Development in Special Needs Education website available at http://www.european agency.org/about-us.
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information tools to assist families with children with disabilities to understand the legal frameworks applicable to them, including access to assistance measures, competent authorities, procedures and compliance mechanisms. Specific tools addressed to these families could include an EU web portal which could be linked, where possible, to national portals providing full information on rights, requirements, criteria for implementation, competent authorities, and coordination systems. This initiative could bring citizens closer to the EU. The EU Institutions should take a leading role in promoting awareness-raising on issues concerning the rights of children with disabilities, their interests and specific needs in order to promote the full implementation of the principle of best interests of children with disabilities. The EP and the Council could also use their budgetary powers to provide for financing of awareness-raising campaigns.
Best interests of the child
While most countries have legislation recognising the principle of best interests of the child, only few Member States contain in their legislation a general requirement for its systematic consideration in all decisions affecting children. Some Member States (such as Sweden and the UK) have introduced child impact assessments of proposed legislation. It is recommended that the European Commission promotes the exchange of these initiatives and develops a guide on methodologies for carrying out these child impact assessments implementing the best interests of the child principle.
Right to non-discrimination
The concept of reasonable accommodation in relation to the specific situation of children with disabilities needs clarification and further development to define the boundaries for the use of disproportionate burden. The EU, through the Commission, could support this through exchange of best practices at national level on the implementation of reasonable accommodation covering different situations. This would help defining the baselines from which the respect of the right requires public authorities’ action and prevents it from being subject to arguments of disproportionate costs. The 2008 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, if adopted, has the potential of addressing the situation of children with disabilities. Amendment 37 introduced by the European Parliament refers to multiple discrimination. Within this context, clarification could be introduced in the recitals of the proposed Directive in order to ensure that the situation of children with disabilities is considered as a part of its scope. The European Commission’s draft for an upcoming European Accessibility Act should explicitly cover children with disabilities’ access to goods and services, at least with a reference to multiple discrimination cases.
Evolving capacities of children with disabilities
The EP should consider ways to raise awareness and promote taking into account the evolving capacities of children, including children with disabilities, with the aim to have the principle applied in all decision making processes affecting them. Any new legislation on child-friendly justice should include consideration of the ability of the child with disabilities to be heard in judicial proceedings affecting them. The
68 Country Report on Italy for the Study on Member States' policies for children with disabilities ______
Commission should ensure that these provisions are included in the anticipated EU law on special safeguards for suspected or accused persons who are vulnerable, including children, or the anticipated EU law for the recognition and enforcement of decisions on parental responsibility. Furthermore, it is recommended that the European Commission, the Council and the EP promote the use of the Council of Europe Guidelines on child-friendly justice and support training for the relevant professionals at all levels.
Right of participation of children with disabilities
The anticipated European Accessibility Act could provide for the development of tools to ensure the participation of children with disabilities in the consultation processes of the legislative and policy initiatives affecting them. The EP should explore ways to raise awareness on the requirements needed to ensure the right of participation of children with disabilities through concrete measures such as simulation of plenary meetings in the EP involving children with disabilities, guaranteeing physical access to the EP buildings or designing tools to ensure non physical participation.
Right to be heard of children with disabilities
In order to enable effective implementation of the right to be heard by children with disabilities, changes in the attitudes of judicial, administrative and enforcement officers are needed. To that end, the EP, the Council and the Commission should encourage Member States to develop awareness-raising actions and training addressed at public authorities. The Commission in preparing legislation on child-friendly justice, should ensure that adequate steps are taken to identify the ability of the child to express his/her views in judicial proceedings affecting them, enabling a climate of trust between the child and the judicial and enforcement officers and providing reasonable accommodation to ensure the effective right to be heard of children with disabilities.
Freedom from violence
It is recommended that the EP, the Council and the Commission promote the development of statistical information on the situation of violence affecting children, and in particular children with disabilities. Furthermore, they should promote the development of indicators (such as disability, children, girls, family environment) to be mainstreamed in other policy or general surveys so as to provide systematic data on the situation of children with disabilities. The European Commission and the EP should promote FRA to examine the situation of violence against children, particularly in institutions, including children with disabilities as they are particularly vulnerable. The necessary funding should be proposed to the budgetary authority. The European Commission should consider in particular the need for measures at EU level aimed at reducing the number of cases of violence against children, especially children with disabilities, in Member States (both in a domestic context and in public institutions). The Commission could start preparatory work by organising working
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groups with Member States experts to consider: proposals for ensuring that Member States set up preventive measures and proper monitoring systems to detect cases of violence and abuse against children, the set up of control mechanisms and regular inspections, peer reviews or the Open Method of Coordination for implementation of proposals, access to information and communication services targeted at improving the system of complaints concerning children’s right to freedom from violence.
The Commission could promote the organisation of specialised EU-wide training and workshops amongst professionals to share knowledge on complaint procedures, reporting measures and accessibility of communication services for children with disabilities, especially for children with severe disabilities or intellectual impairments. The budgetary authority should provide adequate funding for these activities.
Right to family life of children with disabilities
The Commission, the Council and the EP should encourage Member States to set up appropriate support structures for families with children with disabilities in order to reduce the risks of the child losing family life while safeguarding the best interests of children with disabilities. Within the Open Method of Coordination, the Commission should develop Guidelines on minimum requirements of residential institutions with regards to children with disabilities. The Guidelines would aim at ensuring that residential care centres have a small number of users and the capacity to host children with autism or with intellectual disabilities. The Commission should propose to the budgetary authority the use of EU funds for the protection of children’s right to family life, prioritising funds for families while ensuring that the good quality of the institutions is maintained.
Access to assistance
A special single national body (with regional offices) responsible for the management of services, budget and assistance of children and their families should be established in order to ensure consistency, coordination, effectiveness, increase accessibility and better guidance for families on the funding support available. The EP should continue to lead actions on children with disabilities to inform Member States on the negative impacts of budget cuts on implementation of their rights, especially in the field of education, social protection and health care. Within the European Semester process, the Commission should provide appropriate recommendations to Member States on how to use existing resources effectively instead of just cutting the necessary assistance for children with disabilities who belong to the most vulnerable citizens.
Access to inclusive education
The Commission should develop actions to support Member States in improving education systems for children with disabilities through the Open Method of Coordination or peer review while respecting their general competence for matters
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related to education. Action at EU level could include:
Development of best practice guides and recommendations on the minimum type of resources needed in mainstreaming schools, and on the role of parents and children with disabilities in decision-making processes affecting children with disabilities or the development of education objectives; Promotion of training for teachers on better understanding of children with disabilities’ needs and evolving capacities, teaching methodologies and handling of children with specific disabilities in a class together with their able-peers; Promotion of teaching tools that help the inclusion of children with disabilities in schools and outside of schools such as the Council of Europe’s COMPASS manual; Promotion of anti-bullying and anti-stigmatisation initiatives, including awareness- raising campaigns promoting inclusion of children with disabilities; and Development of quality objectives for education offered to children with disabilities and the promotion of initiatives to maintain the support for higher education.
EU Funding
The EP, the Council and the Commission should promote among Member States the use of the Structural Funds to foster the development of quality social services provided for children with disabilities, while facilitating the implementation of the Voluntary European Quality Framework for Social Services; The EP, the Council and the Commission should promote the development of family and community-based alternatives with the purpose of de-institutionalisation. The EP, the Council and the Commission should encourage the use of structural funds for improving accessibility and inclusive education.
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ANNEX 5 - OVERVIEW OF RELATED STUDIES
Name of the Study PE number ISBN number
Study on Member States' Policies for PE 474.416 978-92-823-4548-1 Children with Disabilities
Country Report on Belgium for the Study PE 474.417 978-92-823-4542-9 on Member States' Policies for Children with Disabilities
Country Report on the Czech Republic for PE 474.418 978-92-823-4549-8 the Study on Member States' Policies for Children with Disabilities
Country Report on Estonia for the Study PE 474.419 978-92-823-4561-0 on Member States' Policies for Children with Disabilities
Country Report on Finland for the Study PE 474.420 978-92-823-4552-8 on Member States' Policies for Children with Disabilities
Country Report on France for the Study on PE 474.421 978-92-823-4562-7 Member States' Policies for Children with Disabilities
Country Report on Germany for the Study PE 474.422 978-92-823-4553-5 on Member States' Policies for Children with Disabilities
Country Report on Greece for the Study PE 474.423 978-92-823-4563-4 on Member States' Policies for Children with Disabilities
Country Report on Hungary for the Study PE 474.424 978-92-823-4554-2 on Member States' Policies for Children with Disabilities
Country Report on Ireland for the Study PE 474.425 978-92-823-4564-1 on Member States' Policies for Children with Disabilities
Country Report on Italy for the Study on PE 474.426 978-92-823-4555-9 Member States' Policies for Children with Disabilities
Country Report on Malta for the Study on PE 474.427 978-92-823-4565-8 Member States' Policies for Children with Disabilities
Country Report on the Netherlands for the PE 474.428 978-92-823-4556-6 Study on Member States' Policies for Children with Disabilities
Country Report on Poland for the Study on PE 474.429 978-92-823-4566-5 Member States' Policies for Children with
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Disabilities
Country Report on Romania for the Study PE 474.430 978-92-823-4567-2 on Member States' Policies for Children with Disabilities
Country Report on Slovenia for the Study PE 474.431 978-92-823-4557-3 on Member States' Policies for Children with Disabilities
Country Report on Spain for the Study on PE 474.432 978-92-823-4558-0 Member States' Policies for Children with Disabilities
Country Report on Sweden for the Study PE 474.433 978-92-823-4568-9 on Member States' Policies for Children with Disabilities
Country Report on England, Wales and PE 474.434 978-92-823-4559-7 Northern Ireland for the Study on Member States' Policies for Children with Disabilities
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