Court/Judicial body: The Constitutional Court of the Republic of Latvia
Date: 11 February 2007 CRC
Provisions: Article 3: Best interests of the child Article 23: Disabled children
Domestic provisions: Constitution, Section 91 (Equality before the law) 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 (“Benefits shall be granted to a person who cares for a disabled child […] if the referred to person is not employed.”)
Background: The applicants in this case were parents of children with disability. Two of them were employed and the third wished to be employed, however, Section 7.1. Part 2 of the Latvian Law On State Social Allowances did not permit employed persons to receive state benefits in relation to a child with a disability. Therefore, two of the applicant were precluded from receiving that benefit and the third would cease receiving it if she started work. The applicants challenged the constitutionality of this provision by arguing that it is contrary to the right to equality in Section 91 and the state’s obligation to support disabled children in Section 110 of the Constitution. The applicants further argued that the amount of benefit was inadequate to provide basic subsistence and care for a disabled child, the unemployed carer and other members of the household including other children. The state has not assessed the impacts of its laws and policies which tended to result in long term unemployment for the carers which is ultimately detrimental to the long-term interests of the family as prolonged unemployment often result in difficulties re-joining the labour market after the disabled child reaches the age of 18.
Issue and resolution: State support for children with disabilities. Whether the requirement to be unemployed in order to receive benefits for the care of a disabled child was constitutional. The Constitutional Court held that it was not.
Court reasoning: The Court began its analysis by stating that the State has a positive obligation to form and maintain a system aimed at the social and economic protection of a family under Section 110 of the Constitution. Furthermore, the rights of disabled children for special care and aid are guaranteed by Article 23 of the CRC. Although, international human rights norms are formulated as general commitments and the State has wide powers and discretion when deciding on their implementation, irrespective of the level of its development, the State is liable to take all necessary and reasonable measures in order to provide social rights and benefits at the minimum level. It was said that such provision of minimum social rights and benefits by way of allowances is especially important for disabled children with serious physical and functional disorders. In the opinion of the Court, the contested legal provision served no legitimate interest to justify the interference with the constitutional right of children with disability to special protection. The Court further noted that the situation in Latvia where a person has to be unemployed and sacrifice income and professional qualifications is unacceptable and it materially affects the welfare of the disabled child and family.
Excerpt citing CRC and other relevant human rights “In turn, the rights of disabled children for special care and aid are guaranteed by the UNO Convention of 1989 on the Rights of the Child. Under Article 23, Paragraph 1 of the Convention, States Parties recognise 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. Paragraph 2 of the same Article provides that the States Parties recognise the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. In turn, Paragraph 3 provides that Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present Article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be 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, including his or her cultural and spiritual development. It follows from the provisions of the Convention that the State is obliged to favour the economic, legal and social protection of a disabled child. However, the Convention does not provide neither for any particular support structure, nor the scope thereof. The United Nations Committee on the Rights of the Child, when discussing the rights of disabled children, indicated that it is important to support the families with a disabled child. Furthermore, Section 23 of the Convention On The Rights of the Child is aimed at guaranteeing that disabled children were provided with all the rights determined in this Convention. [See: Summary of the general discussion “The Rights of Children With Disabilities” of the United Nations Committee on the Rights of the Child (CRC/C69) paragraphs 319, 331 and 333]. Both, the first part of Section 3 of the Convention On The Rights of the Child and the first part of Section 6 of the Child Rights Protection Law determine the priority of interests of the child. This principle provides for that in all actions and decisions that affect children, attention should first paid to meeting their needs as well as possible. This is one of the fundamental principles of the Convention, which defines the interpretation of all rights and freedoms of the child.”
CRIN comments: CRIN believes this decision is consistent with the CRC. The court recognised the right to special protection of children with disabilities and interpreted the national laws broadly to give effect to the provisions of the Convention.
Citation: No. 2006-08-01
Link to full judgement: http://www.satv.tiesa.gov.lv/upload/judg_2006_08_01.htm