Disability inclusive education case communicated by European Court of Human Rights

This is a short note regarding an inclusive education case v. Romania communicated recently by the European Court of Human Rights. I act as the applicants' co-counsel, along with Catalina Radulescu.

The case M.C. and others. v. Romania involves an 11-year old child with persistent disciplinary problems attributed to a diagnosis of oppositional disorder, and his parents. In 2010, an NGO contracted by the parents to evaluate and monitor his condition, issued the school in Bucharest where he was enrolled with detailed advice about handling the situation, including by creating a predictable, rule-based learning environment, using a support teacher and a school counsellor, highlighting positive behaviour and ignoring minor incidents, keeping criticism at a minimum. 

However, once the NGO team left, the situation deteriorated fast. The school failed to take any of the measures available under the law to evaluate and accommodate the child’s disability and started instead to blame him for the disruption.  At the beginning of 2011, the child’s parents installed a hidden recording device in his school uniform. Thus, they obtained many hours of recordings of intemperate and vicious abuse inflicted on the child by teachers and other children. Confronted by the parents, the school applied pressure on the applicants to seek a transfer, instigated other parents to complain about and campaign against the presence of a disabled child in school, blamed and denigrated the parents and the child and applied increasingly more severe disciplinary sanctions. The regulatory and supervisory agencies refused to get involved. The child was effectively forced to drop out from school. He started the next academic year with a private school where he received the support he needed and eventually flourished. 

Criminal proceedings focused narrowly on the liability of one teacher, who received a suspended prison sentence of one year for abusive behaviour. Civil proceedings focusing on bullying, the lack of reasonable accommodation and support were thrown out, with courts rejecting the use of audio recordings as evidence on the basis that they were done illegally, and ignoring the verdict rendered in criminal courts that they theoretically were bound to follow. The decisions handed down at the national level are rife with negative stereotypes regarding the ability of children with psychosocial disabilities to learn in mainstream schools and disregard for relevant regulations that would accommodate disability. 

We lodged the complaint with the European Court of Human Rights in September 2018. The Court communicated the case in in record time, in February 2109. All relevant issues are well represented in the questions asked by the Court – the States’ obligation to prevent, protect from and investigate bullying, the accommodations required in order to ensure equal access to education for children with psychosocial disabilities with challenging behaviour, access to justice with respect to abuses taking place in school, and in particular the use of evidence from hidden recording devices, disability-based discrimination. The evidence is very persuasive and the case has been argued reasonably well at all stages. 

This is an important opportunity for pushing the Court to develop its standards on inclusive education for children with psychosocial disabilities. We therefore invite support in any form, including third party interventions. The communication is available HERE.

This is the second disability education case against Romania that a team of lawyers involving Constantin Cojocariu and Catalina Radulescu have brought before the European Court of Human Rights. The first one, still pending, is Stoian v. Romania, which drew third party interventions from the U.N. Special Rapporteur on Disability Rights and the Council of Europe Commissioner for Human Rights among others. The Court communications in that case are available HERE and HERE.