MDAC fights for the rights of parents with disabilities

By Lycette Nelson, MDAC Litigation Director

A father in Russia has taken custody of his child after the Mental Disability Advocacy Center helped him battle for his parental rights. Father, mother and child have now started life as a family and the MDAC is calling for an end to similar violations of the right to family life.

When the daughter was born in 2007, both her parents were living in a social care institution for people with mental disabilities. The parents wanted to raise their child, but she was taken away simply because her parents had disabilities. The girl was placed in a children’s institution. Mr VK and his partner were devastated and began a long journey. Mr. VK was losing precious time as his daughter spent her early years in a children’s institution. In 2012 Mr. VK moved into an apartment fit for the whole family, but still the State refused to hand over his daughter.

Mr VK and his daughter, taken a couple of years ago, which we are using with Mr VK's permission. MDAC is not using an updated photograph, to protect the child's identity.

 

In March 2013 Russian attorney and MDAC’s senior lawyer Dmitri Bartenev provided free representation for Mr VK in its strategic litigation programme. Bartenev represented the parents in the district court in a legal attempt to have Mr VK’s parental rights restored, a lawsuit which was successful. The end of his journey this week sees the beginning of life together for the two parents and daughter, outside the walls of an institution.

On 22 May, six years from when his girl was born, Mr. VK walked into the children’s institution and took his daughter home to begin a life with him and her mother, as a family.

The circumstances of Mr. VK’s case are, sadly, far from unique. All around the world, parents with intellectual and psycho-social disabilities are denied the right to have children and to raise children. MDAC has clients other clients in Russia as well as in the Czech Republic and Ukraine, whose children were either taken from them at birth due to their disability or removed from their care and placed in institutions. In one case, the child was placed for adoption by the mother’s guardian and she has no chance to regain custody or even to see her child. In the other cases, MDAC is representing the clients in their efforts to have their parental rights restored.

A US non-profit organization, the National Council on Disability, released a 445-page report in 2012 entitled “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children” which found that parents with disabilities face discrimination in many aspects of family and reproductive rights including child welfare, family law, access to fertility treatment and adoption.

People with psycho-social and intellectual disabilities are at very high risk of having their children removed and/or their parental rights terminated. According the report, parents with psychiatric or intellectual disabilities lose their children at a rate as high as 80%.

According to the report “Parents with Disabilities”, rates for the removal of children vary from 30% and 80% depending on the country. In the UK, the evidence suggests that 4 to 6 out of every 10 children born into families headed by a mother and/or father with an intellectual disability are removed from the care of their parents, either temporarily or permanently, and looked after elsewhere.

Such practices continue in clear violation of Article 23 of the UN Convention on the Rights of People with Disabilities, which obliges States parties to:

“take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:

a.    The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;

b.    The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;

c.    Persons with disabilities, including children, retain their fertility on an equal basis with others.”

Under Article 23(4), “In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.”

What was unique in Mr. VK’s case was that he had support in his effort to gain custody of his child and was able to find an attorney with expertise in the rights of people with disabilities and international law to present his case to the courts. In addition to his case before the Russian domestic courts, MDAC filed an application to the European Court of Human Rights on behalf of both Mr. VK and his daughter in early 2013, claiming violations of their rights to private and family life and discrimination against Mr. VK on the basis of his disability. Although they are now united under one roof, recognition by a court that Mr. VK’s treatment by the courts was a violation of the European Convention and constitutes discrimination is crucial for other parents whose rights are being violated.

“The hardest thing is litigating such cases is to overcome stigmatisation and prejudice against people with mental disabilities. Such prejudice is deeply rooted in Russia and prevents professionals who in theory are required to protect people with mental disabilities from abuses from actually giving them the help they need. Moreover, there is little understanding by Russian authorities that people with disabilities may require support in exercising their parental rights,” said Dmitri Bartenev. “I hope this case will help the authorities to understand that a person’s disability or institutionalisation cannot justify restriction of parental rights” he added. 

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