Problems related to discrimination against children with Special Educational Needs
Problems related to discrimination against children with Special Educational Needs
Reasons for judgment of 14.03.2013 in case № 192/2010 of the CPD,
"Children with special educational needs" according to § 3a pt. 2 of the Additional Rules for the implementation of the Education Act - "children with special needs" children and students with sensory, physical, with mnozhestvouvrezhdaniya with umstvenaizostanalost with obuchitelnitrudnosti with language-govorninarusheniya. "
"Discrimination on the basis of disability" under Article 2 of the Convention on the Rights of persons with disabilities means any distinction, any limitations or exclusions based on disability which has the purpose or effect of impairing or nullifying the respect, recognition or equal enjoyment of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.
Persons with special educational needs are under the special protection of the state and society. Special protection requires the application of specific measures to equalize opportunities for adaptation and social integration in need of such protection entities. Some of these special measures is analyzing the individual needs of each person with mental or physical disabilities to ensure implementation of further effective measures for integrated or special training, which must be undertaken with the consent and active participation of parents, guardians or trustees the persons concerned. This will be implemented principles and provisions of the special state care and support for families or guardians of children with special needs in their efforts towards effective social integration and realization of the individual in society.
Legal regulation is mentioned children to be educated integrated. Integrated education is a form of education of children with special educational needs where each train mass groups (schools, kindergartens) on schedule to suit individual needs. The goal of educating children with special educational needs through forms of integrated education is cited children to develop maximum capacity to learn and educate themselves on a par with their peers, ie Children are expected to change and meet the set in general education standards. The process of introduction of integrated education in Bulgaria started after 2002, when adopted legislation regulating the basic conditions necessary for the integration of SEN children in the public education system - amendments to the Education Act of 24.09.2002, Art .21 and Article 27 of the implementing Regulations of the Public education Act under which child with special educational needs trained and educated in integrated kindergartens under Art. 18 of the Education Act, as such children were legally regulated is the ability to create and special kindergartens and servicing units under Art. 21, para. 3 of PDO. The provision of Art. 21, para. 2 of PDO requires kindergartens to admit children with SEN and / or chronic illnesses. Moreover, the provision of Art. 21, para 4 of PDO provides that children with SEN enter the special kindergarten, when other opportunities for training and education in state and municipal kindergartens and servicing units have been exhausted and in writing expressed request of parents or guardians.
The main objective of that legislation is to provide full social integration of children with SEN. States are not required to accommodate a child who suffers from a developmental disorder in private kindergarten when the child has a place in a public kindergarten, which offers special facilities for children with disabilities. Otherwise the law would be illusory, especially for people who do not have sufficient funds to pay fees for full-time training in private kindergartens. Similar is the fact in the present case (...). If a person is denied the opportunity to receive pre-school education and training leading to significant implications for the development of the person and for the full exercise by him of fundamental rights and freedoms. Pravatana these groups of persons to whom should not be allowed a situation in which the exercise will be under less favorable conditions or impossible based on any of the protected signs are:
Right of Education Education is a means of realization in public life and social integration into society. It is apparent from the general sectoral legislation, education, training and acquisition of skills is encouraged by the state. The rules in carrying a 16-year old citizens as age, to which the individual is subject to compulsory education, should be applied literally, not be seen as grounds for fixing this age limit as to education. The rules which govern the 16-year-old mandatory for Bulgarian citizens in obtaining education and training are: - CRB - Article 53 (1) - Everyone has the right to education as a fundamental right of citizens; (2) Schooling up to the age of 16 is compulsory; - PDO - art. 4 (1) - Citizens have the right to education; . - PDO - art. 7 (1) Schooling up to the age of 16 is compulsory; - PDO - art. 22 (1) - School education provides training and education of students in accordance with society's needs and their individual abilities and expectations for success in civil society.
To the exposed facts, this Panel considers to be relevant on the right to education along with the cited regulations and these regulations by the current Bulgarian and international law:
- Article 13 of the International Covenant on Economic, Social and Cultural Rights (prom. SG. 43 of 28.05.1976), who says: par. 1 "States - Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. ... ";
- Art. 23 of the UN Convention on the Rights of the Child (prom. SG. 55 of 12.07.1991), who says: par. 1 "Member - States Parties recognize that a child with mental or physical disabilities should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in society";
- Art. 24 of the Convention on the Rights of People with Disabilities (prom. SG. 37 of 15.05.2012, effective from 21.04.2012), which states: "Member - Parties to this Convention recognize the right to education disability ....... "
- Article 17 of the European Social Charter - Revised (prom. SG. 43 of 4.05.2001), who states: "In order to ensure the effective exercise of the right of children and young people to grow up in an environment that provides full development of their personality and their physical and mental capacities, the Contracting parties undertake, directly or in cooperation with public and private organizations, to take all necessary and appropriate measures to: 1a. Providing for children and young people and given rights and obligations of their parents, have the care, support, education and training than they need, in particular by ensuring conditions for the establishment or maintenance of institutions and services sufficient and adequate for this purpose. " and Art. "E" of the Charter, which concerns the general prohibition of discrimination;
- Art. 2 of the Additional Protocol to the European Convention on Human Rights enshrines the right to education as a fundamental human right related to personality development - equal access to education and quality education, which states: "No one shall be deprived of the right of education. "
- Art. 4 pt. 2 and Section II of the Integration of Persons with Disabilities. Particular attention should be paid to article 17, section 1 and 2 of the same Act. The provision of Art. 17, items 1 and 2 obliges the Ministry of Education to provide education for children with disabilities from preschool and school age in schools of art. 26, para. 1, p. 1-10 of the Education Act and in kindergartens under Art. 18 of the same Act and providing a supportive environment for integrated education of children with disabilities;
- Art. 32 of the Law for Protection against Discrimination - "Training institutions take appropriate measures to equalize opportunities for the effective exercise of the right to education and training of persons with disabilities .........".
The subject of the dispute is relevant decision of the European Committee of Social Rights of the Council of Europe on complaint № 41/2007 of MentalDisabilityAdvocacyCenter (MDAC) v Bulgaria. The decision under appeal № 41/2007 The European Committee of Social Rights CE ruled that meet the accepted educational standards, education of persons with SEN should be available, accessible, appropriate and adaptive.
Cited law guarantees the right to education on the one hand and on the other hand requires the State to respect the right of parents to give their children education in conformity with their own convictions and to grant access to any person to any existing educational opportunities in line with the rules. (...)
Equal access to education, which is universally recognized right of every child does not mean equal care to all children, and differentiation of care to their various potrebnosti.Ot other hand, national legislation has provided for an exception to the rule that any unequal treatment is discrimination exhaustive lists of exceptions that do not constitute discrimination in Article 7 of the Law on protection against discrimination. Different treatment of persons with disabilities in the conduct of training and education to meet the specific educational needs aiming at equalization of their opportunities not constitute discrimination (Article 7, section 10 PfDA.) The special measures in favor of persons or groups of persons disadvantaged on the basis of protected attribute does not constitute discrimination. (Article 7, section 13 PfDA.) And the special protection of minors and persons with disabilities, established by law (Article 7, p.14 PfDA.). Such special protection constitute "special kindergartens" and the special adaptation, motivation, orientation, socialization and subsequent educational integration (...) designed to meet their specific educational needs and providing equal opportunities to children who do not need specific conditions on a training.
Child protection against discrimination is legally covered by the preamble of the Convention on the Rights of the Child / adopted by the UN General Assembly on 11.20.1989, the ratified by decision of the Grand National Assembly 11.04.1991 - SG. 55 of 07.12.1991, effective from 03.07.1991 years / recorded "..... child because of his physical and mental immaturity, needs special safeguards and care ..." In the case of art. 2 pt. 2 of the Convention reads "States Parties shall take all appropriate measures to ensure the protection of children against all forms of discrimination ...."
Right to work and occupation of parents - regarding the balance of these rights, acceptance of a SEN child in a kindergarten, in a specially created group adaptability, motivation, orientation and socialization (...) or giving up the child to be a full-time stay except violates the right to education of the child, but also the right to work of parents. Forced have all day to care for their child because of their health status and to leave the job due to inability to combine work commitments or to attend an all-day private kindergartens, making it difficult family financially.
According Classifier for children and students with special educational needs (Annex №2) to methodological guidelines of the Ministry of Education on the activities of teams for complex pedagogical assessment in regional education inspectorates, B. falls so. 7.3.1., Which covers cases of mental disorders typical of childhood and adolescence (item 7.3.), known as hyperkinetic disorder from the group of generalized disorders of mental development ICD - 10 (International classification of diseases - tenth revision) code F 84. These are a group of disorders characterized by qualitative impaired social relationships, ways of communication and restricted, repetitive stereotypes complex of interests and activities. These are generalized abnormosti sign of the individual in all situations, unlike those of mental retardation, and there are more areas of development, primarily in the social orientation and communication in general. According to the description given in the above item. 7.3.1. classifier as a direct result of them show problems in training and embedding in the school environment. Based on this characteristic of hyperkinetic disorders, from whatever suffers B. according to the diagnosis made by the Clinic of Pediatric Psychiatry "Sv. Nicholas "University Hospital" Aleksandrovska "EAD and according to the conclusion of the team for complex pedagogical assessment at the Regional Inspectorate of Education -. Sofia recommendations in that classification are generally: the problems of hyperactivity and attention deficit lead to maladjustment or dezadaptirane to institutions - kindergarten, school and others because it needs tailored training, facilitating the integration of the child at school; suitable group with fewer children, a resource teacher and accompanying psychological support. The data in the file indicate that such support was not given. (...) These are all manifestations result of generalized developmental disorder suffered by a child which are described in section. 7.3.1. Classification of children and students with SEN. The director and the special educator of the Task Force and other specialists from the team that had a task to work with the child can not link these events as evidence that the child can not be adapted and integrated. Back - ought to suggest specific measures tailored to the child's condition and to address this condition to adapt to the child and its integration into the real environment of kindergarten. Such measures none of these experts does not indicate it does not describe. Remarkably mandatory provisions of Art. 2 para. 2 of the current Decree № 1 of 23.01.2009 for the education of children with special educational needs and / or chronic diseases, under which children and students with special educational needs provides psychological and educational support to correct and compensate of their disability, disorder or difficulty, as well as promote the overall development of successful social and vocational integration. In providing psychological support is a key role of the resource teacher. It is a special teacher who helps with various methods inclusion of children with SEN in an educational environment. Depending on individual needs and abilities of the child, he supports his participation in group activities with others, advises teachers to the most appropriate methods of training, communicate directly with parents of children etc. Protocol and presented evidence establishing that the child has not been assigned a resource teacher who has provided in Article 7 of Regulation № 1 of 23.01.2009 for the education of children with special educational needs and / or chronic diseases to be included in a team of specialists who train and educate children with SEN. Evidence shows that the child is provided with individual work with a speech therapist, psychologist and group socialization in his stay in a special group under the leadership of a special educator. The composition is of the opinion that even if measures were taken by the head of the kindergarten and the team measures a child's development B., within an hour or hour and a half insufficient adaptation and its integration. Fifth Specialized Permanent Panel to indicate that the child in this case has not received the necessary training, limited him was the opportunity to interact with their peers and its capabilities and social skills remain underdeveloped. Limited access to education can not provide adequate education and care for this child, namely, to be an integrated education, the child must spend at least 50% of classroom time in kindergarten among his peers. (...)
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