Court/Judicial body: The Constitutional Court of the Republic of Latvia
Date: 12 February 2008 CRC
Provisions: Article 3: Best interests of the child Article 23: Disabled children
Domestic provisions: Latvian Constitution, Section 91 (Equality before the law) Latvian Constitution, Section 110 (Special support for disabled children) Child Rights Protection Law, Section 6 (Best interests of the child) Law On The State Social Allowances, Section 7.1, Part 2 (“Care of disabled child benefit shall not be disbursed if one of the parents at the same period of time has been granted maternity of child care benefit due to the birth of this child.”)
Background: The applicant, who was the parent of two children, one of whom disabled, challenged the constitutionality of part 2 of Article 7.1 of the Law on the State Social Allowances, according to which, if one parent is granted the basic child care benefit, he or she may not claim an additional disabled child care benefit. The applicant argued that this contravenes the equality protection in Article 91 of the Constitution as it discriminates against parents of disabled children who should be end to the additional state benefits on top of the standard child care benefit rather than one or the other. It was also argued that this provision is contrary to the State’s constitutional responsibility to support the family and disabled children in particular under Article 110 of the Constitution and Article 23 of the CRC. At the time of the hearing of the case, the contested provision had already been repealed by the Government in recognition of the additional support that parents of disabled children need. However, the Constitutional Court decided to examine and rule on the case as it concerned the protection of basic fundamental rights and stated that it must assess whether the contested provision had violated the rights of the applicant and, if it had, whether all negative consequences have been prevented by deleting the contested provision from the Law.
Issue and resolution: State support for children with disabilities. Whether it was constitutional to preclude parents of disabled children from receiving disabled child care benefits if one of the parent is already receiving basic maternity and child care benefits. The Constitutional Court declared that the contested provision was unconstitutional during the time that it was in force.
Court reasoning: When interpreting the basic rights included in the Constitution, the Court has to simultaneously take into consideration the norms included in international human rights instruments and the practice of their application. One of the rights guaranteed by Article 110 of the Constitution is the right of disabled children to special support and protection by the State. Article 23 of the CRC also imposes an obligation to states to recognise the right of the disabled child to special care and to provide free of charge assistance designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development. In the Court’s opinion, the contested provision was contrary to the State’s positive duty – which arises both under the Constitution and the CRC – to create and maintain a system directed towards social and economical protection of the families, among them – the disabled children. Although the contested provision had since been deleted, it was declared to be illegal and invalid during the time that it was in force.
Excerpt citing CRC and other relevant human rights “ 5. […] Article 10 of the International Covenant on Economic, Social and Cultural Rights provides that “The widest possible protection and assistance should be accorded to the family, while it is responsible for the care and education of dependent children”. However, the rights of disabled children to a special care and assistance have been established in the 1989 UNO Convention on the Rights of the Child (hereinafter – the Convention on the Rights of the Child). According to Item 1 of Article 1 of the above Convention, “States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community”. It has been established in Item 2 of the same Article that States Parties recognize the right of the disabled child to special care. The State, according to its resources, favours and ensures provision of the care to the child that has rights thereto, as well to persons who are responsible for care of the disabled child. However, according to Item 3 of Article 23 of the Convention on the Rights of the Child, the above mentioned care shall be provided free of charge, whenever possible, taking into account the financial resources. The objective of the support shall be to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. Also the United Nation Committee on the Rights of the Child, when discussing the rights of the disabled children, has indicated that it is substantial to support families with a disabled child (see: Summary of the general discussion „The rights of children with disabilities” of the United Nation Committee on the Rights of the Child (CRC/C/69) Para. 319, 331 and 333). […] The first part of Article 3 of the above Convention provides the priority of the interests of the child. This principle provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. This is one of the main principles of the Convention of the Rights of the Child, which provides for interpretation of all rights and freedoms of the child. The above principle is included also in the first part of Article 6 of the Protection of the Rights of the Child Law.”
CRIN comments: CRIN believes this decision is consistent with the CRC. The court used the provisions of the Convention together with the protections afforded by national law to strengthen the right to special protection of children with disabilities.
Citation: Case No. 2007-15-01
Link to full judgement: http://www.satv.tiesa.gov.lv/upload/judg_2007-15-01.htm