Associate Professor Lee Ann Basser, Associate Head of School at La Trobe Law School spoke on 28-31 May 2015 at the Law and Society Association Annual Meeting in Seattle, USA. Her paper was titled ‘Respect for Home and Family – Article 23 CRPD & Law’s Promise of Access and Equality for Parents with Disabilities in the Family Justice System’.
The UN Convention on the Rights of Persons with Disabilities (CRPD) is ground breaking in many ways – not only for recognizing that people with disabilities, like all of humanity, are rights bearers but for articulating those rights in the context of the social model of disability and identifying the content of particular rights as they apply to people with disabilities. Law’s promise, as embodied in the CRPD, moves beyond nondiscrimination and the protection of the vulnerable and involves more than the removal of barriers. The CRPD affirms the legal personhood and capacity of people with disabilities and identifies the steps that are required to ensure dignity, equality and full inclusion in society.
This paper considers the challenges of giving effect to Law’s promise of respect for home and family as set out in Article 23 CRPD and more particularly as it relates to the rights of parents with disabilities within the family justice system. These challenges are significant and persist in many jurisdictions. (NCD, 2012; Disability Rights Now Report, 2012; Women with Disabilities Australia, 2009; McConnell & Llewellyn, 2002). They encompass issues relating to legal standing and legal capacity, the imposition of litigation guardians, the disproportionate representation of parents with disabilities in child protection proceedings and the increased likelihood of child removal in both protection and parenting proceedings. Further, facially neutral legislative provisions such as the best interests principle may have a disparate and detrimental impact on parents with disabilities particularly where the person contesting care is able bodied; while assumptions about disability and capacity and attitudes grounded in deficit models of disability pose a further challenge to access and equality within the family justice system. Using the family justice system in Australia as a case study, this paper will interrogate the extent to which the promise of Article 23 has been fulfilled and will consider what steps are necessary to ensure access and equality for parents with disabilities.