Abstract

Despite the welfare of the child being afforded special legal and moral importance, it appears that the law is currently not objective in its application to children. There is an undeniable link between healthy child development and education, with the latter greatly impacting on mental health and general well-being. Drawing on the example of the differential treatment of gifted children in an educational context, I argue that the legal framework with regard to learning disabilities and cognitive impairments operates contrary to the proclaimed goal of protecting and promoting the welfare of the child. This, I argue, constitutes unjustified discrimination, especially since there is a case to be made that highly cognitively able children could be considered disabled under a social model of disability. Whilst the group of affected children is small at present, developments in cognitive enhancement technologies mean that many more children might in the future be affected. Since the law currently fails gifted children, it will by analogy also likely fail cognitively enhanced children.