Time for the European Court to recognise that children with disabilities also have a right to education

The European Court of Human Rights (‘the Court’) has generated comparatively little case law under Article 2 of Protocol 1 on the right to education, only a tiny proportion of which is related to children with disabilities. There are only a few hopelessly dated inadmissibility decisions dating back to the days of the old Commission in the 80s and 90s (although also note the more recent decision in the case Groza v. Romania, summarised here). The Commission’s scrutiny in cases such as Graeme v the United Kingdom and Klerks v the Netherlands was generally very deferential, leaving contracting states almost full discretion to decide what the best way for providing education to children with disabilities was.  The putative explanation for this state of affairs resides in the negative formulation of Article 2 of Protocol 1, guaranteeing solely a right of access to existing educational facilities. In addition, States benefit from a wide margin of appreciation in social and economic matters, presumed to encompass almost any provision aimed at facilitating the inclusion and equality of people with disabilities more generally, whether we talk about accessibility, social benefits, deinstitutionalisation, support with exercising legal capacity or reasonable accommodation. The Court has traditionally felt much more at large managing psychiatric compulsion, including involuntary detention, incapacitation, prison conditions, which is a story better left for a different occasion.

Three things have happened since the early Commission cases that may signal a change of course at the Court. First, the U.N. Disability Convention came into force, including a commitment to inclusive education under Article 24, and was ratified by most Council of Europe Member States. Second, a more solid consensus emerged that inclusive education delivers the best outcome for children with disabilities and is otherwise beneficial for society as a whole. Third, the Court has in the recent years adopted a number of judgments concerning the discrimination of Roma minority children in education that are also relevant to children with disabilities. On the one hand, these rulings demonstrate that the Court could be persuaded to tackle ingrained discrimination in education, overruling its previous hands-off approach. On the other hand, they leave disabled children in an uncertain position. The Court by and large accepted that certain Central and Eastern European states routinely and unfairly directed Roma children towards special schools that use a more basic curriculum and which isolates them from the wider population. Thus, it implicitly appeared to validate the very existence of special schools as the natural solution for educating “truly” disabled children. It is therefore high time we challenged the Court to review and update its approach to the right to education of children with disabilities, by bringing the right cases to its attention. This is easier said than done, considering the very substantial and well-documented obstacles that restrict the access to justice of people with disabilities in general, and children with disabilities in particular. 

A case that we lodged recently has the potential to lay down the markers for the principle of inclusive education in the Court’s jurisprudence, much like the seminal judgment in the case D.H. and Others v Czech Republic did for Roma children. The case Stoian v Romania  appears to have all the right ingredients: a child with substantial support needs, a monumental failure by the state to meet these needs, illustrative of deeper systemic problems, and years of substantial and largely fruitless engagement with the state by a militant (and legally-trained) mother, before finally going to Court.

 (credit: MEDIAFAX FOTO// OCTAV GANEA)

Stefan (pictured above), a thirteen-year old child with spastic tetraplegia, a condition characterised by severely impaired functioning in all limbs, was referred to a mainstream school in 2007. He required extensive support and assistance: intermittent but substantial personal assistance with walking, going to the toilet and other tasks on a daily basis, personalised support with studying, including from remedial teachers, a range of reasonable accommodation measures to adapt the physical space in school and the learning processes to his needs, an accessible environment, and substantial medical services during and outside school to ensure his rehabilitation, and prevent a deterioration in his health. The authorities’ failure to ensure almost any support was comprehensive and on-going – Stefan’s needs were not evaluated in any detail, his progress was not monitored, he lacked the support from a remedial teacher, the school was largely inaccessible, he lacked a personal assistant, he was not able to undertake any meaningful therapy, with irreversible and life-long damage to his health.

The applicants engaged in an increasingly confrontational exchange of letters with authorities, as well as extensive litigation aimed at securing the support that the authorities had to provide under the law. School staff, other children and their parents gradually became more hostile towards Stefan and his mother, who suffered low level and on-going abuse and harassment, withholding at the same time the limited support that had previously been provided on an informal basis. In addition, the authorities constantly put pressure on Stefan’s mother to accept home schooling, notwithstanding the fact that year after year Stefan had formally been referred to a mainstream school. The conflict culminated on 3 April 2013, when police officers invited by the headmaster forcefully and violently removed the mother from school, while she was helping her son with his daily physical exercises, causing her extensive injuries which required 45 days to heal. Stefan had to drop out, and with great difficulty obtained a transfer to a different school, where he continues to encounter similar problems.

The applicants’ violent removal from school is a very tangible illustration of the fact that mainstream schools in Romania are unwelcoming and downright hostile territory for children with disabilities.  More broadly, the case demonstrates the huge discrepancy between the official rhetoric on inclusion and the reality on the ground for children and adults with disabilities living in the community. The school and the state agencies involved, as well as parents of non-disabled children made it constantly clear that the only way Stefan could be integrated in school was on the system’s own terms, and that no changes could be made to the existing environment. The only alternative was home schooling, which in practice meant no education and perpetual exclusion.

For additional analysis and information on new developments in this case (and other disability cases at the European Court, including the Grand Chamber case Gherghina v Romania, also about the right to education, and where also I represent the applicant) please follow this blog. Besides being extremely interesting and compelling, this case is also very complex factually and legally requiring extensive engagement from the applicant’s mother and the two lawyers involved (Catalina Radulescu,  a Bucharest-based lawyer is co-counsel in this case), acting on a pro bono basis. Extensive litigation takes place at the national level in parallel with the case before the Court, while at the same time the applicant’s position in his new school continues to be difficult.  It shapes up to be a long fight, but we very much trust that the Court will right the injustice done to the applicant, and in the process bring its case-law in line with international standards on the rights of persons with disabilities.

PS: The Court has communicated the case Stoian v Romania to the Romanian Government in record time, on 8 July 2014, four months after it was lodged. The communication and the questions addressed to the parties, available HERE, are well worth reading if you are interested in the right to inclusive education.