Children in Court CRINMAIL 11:

CRC in Court: Cases in brief

In this issue:

To view this CRINMAIL online, click here.

In CRC in Court: Cases in brief, CRIN provides shortened case briefs with links to full summaries and full-text decisions for recent additions to our CRC in Court case law database. This database contains judgments from high-level national and international courts around the world, with plain English explanations of cases' backgrounds and significance, as well as CRIN's assessment of each decision's consistence with the CRC as we understand it.

As this is an ongoing project, we hope and plan to add new cases to the database on a regular basis. If you are aware of any cases that should be included or have additional information on cases that have already been summarised, we would greatly appreciate your input. Our goal is to make this project as helpful to you and your work in children's rights as possible; please email [email protected] with suggestions on ways that we could add to or improve the database.

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International

ILO (Myanmar)

Report of the Commission of Inquiry to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (1998)

Complaint filed against Myanmar alleging a systemic and widespread practice of forced labour, including allegations that children were sent to work on construction sites and military camps. Given the abundance of evidence to support these claims, the ILO Commission found Myanmar's laws and practices to be in contravention of the Convention on Forced Labour and recommended that the country take steps to prohibit forced labour and put an end to the practice without delay. The Commission also highlighted concerns expressed by the Committee on the Rights of the Child relating to violence against children, recruitment of child soldiers, and child labour.

CRIN Comments: CRIN believes this inquiry is consistent with the CRC. Under Article 32 of the Convention, children have the right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.” This provision undoubtedly includes forced labour, particularly in the context of public infrastructure projects and military activities. Given the serious and systemic nature of the violations of this sort examined in Myanmar and that country's obligations under the CRC to protect children from economic exploitation, the Commission appears to have been well within its authority to demand that laws and practices enabling the forced labour of children be addressed without delay.

Full summary: http://crin.org/Law/instrument.asp?InstID=1576
Full judgment: Download here via http://www.ilo.org/ilolex/english/index.htm

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Africa

Namibia

N.S. v. R.A.H. (2011)

Custody dispute between the mother and father, both foreign nationals, of a child adopted in Namibia. The Court sought to determine the best interests of the child, ultimately awarding custody to the mother despite her intention to return to her home country of India. The Court also discussed Namibia's lack of a legal framework to consider international adoptions and the importance of passing legislation to implement the CRC and minimise the risks of situations like the one at issue occurring.

CRIN Comments: CRIN believes this decision is consistent with the CRC in that the best interests of a child must be a primary consideration in all decisions concerning children. Although the Court's reference to the CRC's standards on inter-country adoption is not misplaced, the Court would also have been wise to cite Article 3's articulation of the best interests principle, Article 9's provisions on separation from parents, and Article 12's mandate that children be given an opportunity to be heard in all decisions affecting them.

Full summary: http://crin.org/Law/instrument.asp?InstID=1556
Full text: http://www.saflii.org/na/cases/NAHC/2010/109.html

Swaziland

Stapley v. Dobson (2008)

Custody suit filed by the biological father of a child born out of wedlock. Although the Court considered that a change in the Constitution legitimised the relationship between father and son, it failed to see that any new rights had been granted to unmarried parents of these children with regards to custody or access. As such, the Court saw no reason to award custody to the father, even given the mother's stated intention to leave the country.

CRIN Comments: CRIN believes this case is inconsistent with the CRC in that the Court failed to examine the matter from the child's perspective or to account for children's right to maintain relationships with both of their parents under Article 9 of the Convention. While the Constitutional change recognising the legitimacy of children born out of wedlock was in no doubt positive, it is disappointing that the Court failed to infer from this a greater respect for children's relationships with both of their parents, whether married or not. The Court's decision may ultimately have been in the best interests of this particular child, but it seems in no way to have advanced children's rights in custody proceedings in line with the CRC.

Full summary: http://crin.org/Law/instrument.asp?InstID=1568
Full text: http://www.swazilii.org/sz/judgment/high-court/2008/11

Uganda

Shamira v. Kampala City Council (2009)

Property dispute filed against two young children who technically held a lease on a commercial property. In reviewing the evidence, it became clear that the father of the children had fraudulently obtained the lease in their name. Finding that the children did not have the capacity to enter into a legal agreement, the Court voided the lease and ordered the father to pay damages to its rightful holder.

CRIN Comments: This case is consistent with the CRC in that children should not be forced to accept the legal obligations of their parents or guardians stemming from decisions made without their knowledge or participation.

Full summary: http://crin.org/Law/instrument.asp?InstID=1557
Full text: http://www.ulii.org/ug/cases/UGCommC/2009/8.html

Zimbabwe

State v. Chikungurese (2004)

Sentencing for an offender guilty of child sexual abuse. The Court considered the growing problem of sexual abuse of young children in the country, and its own mandate to ensure that children are protected from violence and provided with adequate rehabilitation services where necessary. Given the legislature's adoption of the Sexual Offences Act, which increased maximum sentences for sexual offences against children to 10 years' imprisonment, the Court found it appropriate to sentence the offender to 5 years' imprisonment.

CRIN Comments: CRIN believes this decision is consistent with the CRC in that States should pass laws to prohibit all forms of violence against children, including sexual abuse, and that these laws must be adequately enforced in order to be effective.

Full summary: http://crin.org/Law/instrument.asp?InstID=1572
Full judgment: http://www.saflii.org/zw/cases/ZWHHC/2004/125.html

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Asia

Bangladesh

BLAST v. Secretary of the Ministry of Education and others (2011)

Complaint filed to challenge the legality of corporal punishment in educational settings. Following an initial order directing the Ministry of Education to take action to eliminate corporal punishment in schools, the Court went on to find that corporal punishment in general was a violation of children's rights and ordered the practice to be prohibited across all settings. In reaching this decision, the Court relied heavily on the Government's obligation under the CRC to prohibit all forms of violence against children.

CRIN Comments: CRIN believes this decision is consistent with the CRC. As noted by the Court, Article 19 of the Convention on violence against children has been interpreted by the Committee on the Rights of the Child to mandate the prohibition of all forms of corporal punishment in all settings. With this in mind, the Court's order that the Government ban and prevent corporal punishment from being imposed on children not only in school, but also at home and in the work place, is very much in line with Bangladesh's obligations under the CRC.

Full summary: http://crin.org/Law/instrument.asp?InstID=1570
Full judgment: http://www.blast.org.bd/content/judgement/wp_5684of2010.pdf

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Europe

Ireland

CA and SOA v Minister for Justice, Equality and Law Reform et al. (2007)

Appeal against an order of deportation applying to a mother but not her infant child. The Court considered, among other things, whether it would be legitimate to deport a mother to Nigeria while allowing her child to remain in the country. The Court found no violation of the mother's rights, and left it to her as to whether to leave her child in Ireland or to take him with her to Nigeria.

CRIN Comments: CRIN believes this decision is inconsistent with the CRC in that under Article 3 of the Convention, the best interests of children must be a primary consideration in all proceedings that concern them. Article 9 of the Convention further clarifies that children have a right to live with their parents, and that they should not in general be separated from parents against their will. In failing to consider these two Articles in its review of this case, the Court did not adequately consider the rights or interests of the child involved.

Full summary: http://crin.org/Law/instrument.asp?InstID=1569
Full judgment: http://www.courts.ie/__80256F2B00356A6B.nsf/0/417F7D08D1D0DC63802573C60054706F?Open

Lithuania

A.D. (R.Z.) v. V. D. (M.F.) (2008)

Dispute between unmarried parents over child maintenance payments and the child's residence. Although the mother and father of a child had never married, they lived together for five years after the child was born until the father sold the family residence without the mother's knowledge, leaving mother and child with no place to live. Given these actions and the father's refusal to provide adequate financial support, the Court ruled that both parents have a duty to secure a child's right to housing regardless of their marital status and that no child can be left without a place to live, adequate care, or the fulfilment of basic needs.

CRIN Comments:  CRIN believes that this judgment is consistent with Lithuania's obligations under the CRC. As recognised by the Court, Article 3's mandate is that the best interests of the child be a primary consideration in all actions concerning children. In this case, the Court was also right to declare that a child's connection with both of his or her parents is established at birth and to recognise that parents have a joint primary responsibility, within their means, to – in the words of Article 27 - “secure the conditions of living necessary for the child's development.”

Full summary: http://crin.org/Law/instrument.asp?InstID=1559
Full judgment: http://www.lat.lt/3_nutartys/senos/nutartis.aspx?id=33502

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THE LAST WORD

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