Children in Court CRINMAIL 14:
Legal Assistance / Cases in brief

In this issue:

To view this CRINMAIL online, click here.

Legal Assistance Toolkit for Children and Children's Rights Organisations

Access to justice for children requires that all children, however they come into contact with the law, be able to fully participate in legal proceedings. Broadly speaking, it is the idea that children must be able to use and trust the legal system to protect their rights, an idea which is regularly frustrated by the failure of justice systems to account for children's unique vulnerability. Indeed, legal proceedings all too often serve more as a source of fear and additional trauma for children rather than offering positive solutions to already complicated and distressing situations.

Following the ideals of child-friendly justice, CRIN believes that legal systems must take special care to respect the rights of all children they encounter. Legal systems can be immensely confusing and difficult if not impossible to navigate for children, especially without the help of a legal professional. Legal assistance provides children the means to understand legal proceedings, to defend their rights, and to make their voices heard. It is a necessary component of access to justice for children, and without it, it is difficult to see how children's rights can be truly respected and fulfilled.

With this in mind, legal assistance for children must not be viewed as a luxury or a privilege; rather, it must be recognised as a human right. Despite this, given the often high costs of legal services, finding legal assistance can be a complicated and challenging endeavour. This toolkit is designed to explain the ways that legal assistance can be obtained free of charge for children and children's rights organisations, to review the international standards that underlie children's right to legal assistance, and to clarify the different types of legal assistance that may be appropriate across the various contexts in which children interact with the legal system.

CRIN hopes that this information will inspire children and children's rights organisations alike to seek legal assistance where children's rights have been violated. Equally, we hope that it will draw the attention of lawyers, judges and government officials to the urgent need to expand legal assistance programmes for children and organisations that advocate on their behalf. Ultimately, we believe that respecting children's right to legal assistance is a critical first step if we are to work towards guaranteeing all children's rights.

Part I: Legal Assistance for Children

Children who come into contact with the legal system will often need the assistance of a lawyer. Depending on the context, children may be entitled to receive legal advice or representation free of charge. The lawyer, government department, institution or organisation offering legal assistance will likely vary with a child's particular legal needs, and some of the ways in which children may seek to obtain legal assistance without cost are detailed below. Building on the concept of child-friendly justice, which calls for all legal systems to be adapted to the rights and special situation of children, this section explores some of the most common circumstances in which children may find themselves in need of legal assistance.

Go to:  http://crin.org/resources/infodetail.asp?id=28582

Part II: Legal Assistance for Children's Rights Organisations

Children's rights organisations will often not have the resources to bring or participate in court cases that involve children's rights, to undertake extensive or complex advocacy campaigns that require legal expertise, or even to pay the full costs of legal assistance required for the day-to-day functioning of the organisation. To respond to these unmet needs, lawyers in many parts of the world may be willing to offer legal assistance to organisations that could otherwise not afford it on a pro bono basis, meaning that their services are provided free of charge.

Go to:  http://crin.org/resources/infodetail.asp?id=28597

Annex: Contact Information for Legal Assistance Resources

This section provides contact details for legal networks, international pro bono clearinghouses and organisations, and national pro bono clearing houses and resources.

Go to:  http://crin.org/resources/infodetail.asp?id=28599

To download the complete toolkit, click here. 

You can also read our guide to children's rights mechanisms here. 

To view CRIN's other toolkits, click here.

Back to top

_______________________________________________________

CRC in Court: Cases in Brief

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.

Back to top

_______________________________________________________

Regional

European Court of Human Rights

Costello-Roberts v. United Kingdom (1993)

Complaint filed by a pupil and his parent to challenge the legality of corporal punishment in schools in the United Kingdom.  Although noting that the UK could be held responsible for disciplinary practices at all schools in the country, both public and private, the Court found that the corporal punishment administered on the student was not degrading and that none of his or his mother's rights had been violated.

CRIN Comments: CRIN believes this decision is inconsistent with the CRC. Under Article 19 of the Convention, children have the right to be protected from all forms of violence. As interpreted by the Committee on the Rights of the Child, this includes the right to be protected from corporal punishment in all settings, including schools.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1588
Full judgment:  http://www.bailii.org/eu/cases/ECHR/1993/16.html

Keegan v. Ireland (1994)

Challenge to adoption proceedings initiated without the knowledge or consent of the father.  The Court found that the Irish Government's facilitating the adoption of a child without notifying or seeking the consent of the child's father violated the father's respect for family life.  The Court also noted that children, as a general rule, have the right to be cared for by their parents as far as possible under the Convention on the Rights of the Child.

CRIN Comments: CRIN believes this decision is consistent with the CRC. As recognised by the Court, Article 7 of the Convention gives a child, “as far as possible, the right to know and be cared for by his or her parents.” Article 21 further elaborates that adoption procedures should be conducted “in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption.” In these circumstances, it would seem important that both parents of a child to be placed for adoption be given an opportunity to express their opinion as a part of the proceedings.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1578
Full judgment:  http://www.unhcr.org/refworld/country,,ECHR,,IRL,,3ae6b6ff8,0.html

Back to top

_______________________________________________________

Africa

South Africa

C and Others v. Department of Health and Social Development (2012)

Lawsuit filed by parents to demand judical review of decisions to place their children in state custody on an emergency basis.  The Court agreed with the parents that both they and the children concerned must be given an opportunity to share their views on the child's best interests.  In view of the seriousness of removing a child from his or her home on an emergency basis, permissible for up to 90 days under South African law, the Court also found that it would be a necessary safeguard for the family and the child's rights to have a children's court review any decision to remove a child from the home within a reasonably short period of time.

CRIN Comments: CRIN believes that this decision is consistent with the CRC. Children have the right to know and be cared for by their parents as far as possible under Article 7 of the Convention, and, as noted and discussed by the Court, any decision to remove a child from his or her parents may only be made subject to stringent safeguards to ensure that this decision would be in the best interests of the child. Here, as ordered by the Court and mandated under Article 9 of the CRC, the emergency removal of a child even on a temporary basis would need to be reviewed by a court with consideration of the input of any persons affected.

Full summary: http://crin.org/Law/instrument.asp?InstID=1584
Full judgment: http://www.constitutionalcourt.org.za/site/candothersvhealth.htm

Back to top

_______________________________________________________

Americas

Canada

D.S. v. V.W. (1996)

International custody dispute where a father moved the child outside the country without notifying the child's mother.  Even though the mother only had supervised access rights in relation to the child and the father otherwise had full custody, the Court found that the child should be returned to the country of origin as that would be in the child's best interests.  In making its determination, the Court relied on the Convention on the Rights of the Child as international support for the principle that the best interests of the child should be a central consideration in reaching decisions that concern the child.

CRIN Comments:  CRIN believes this case is consistent with the CRC in that, as recognised by the Court, Article 3 of the Convention requires that the best interests of the child always be a primary consideration in reaching any decision concerning children.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1593
Full judgment:  http://www.canlii.org/en/ca/scc/doc/1996/1996canlii192/1996canlii192.html

In the matter of the Child and Family Services Act et al. (2004)

Lawsuit filed in the name of indigenous children to challenge a government policy requiring the consent of the children's community for their adoption.  The Court found the policy of requiring the children's indigenous community's consent before allowing them to be adopted unconstitutionally denied them the opportunity to be placed permanently for adoption.  The Court also held that the indigenous community does not have a special right to speak on behalf of its children that would trump the best interests of those children.  Nevertheless, culture would be an important consideration in determining those interests, and adoption would not necessarily mean that indigenous children would have to be cut off from their community.

CRIN Comments:  CRIN believes this decision is consistent with the CRC in that the best interests of children must be a primary concern in all actions concerning them under Article 3 of the Convention. Here, as recognised by the Court, this principle should be viewed comprehensively and incorporate respect for children's other rights, including the right to enjoy their culture.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1594

Colombia

Decision C-376/10 (2010)

Legal challenge to the imposition of fees for primary education.  The Court found that primary education is a fundamental right for all children, and that this must be provided free of charge.  In reaching this decision, the Court noted that the Colombian Government had assumed the obligation to provide free primary education to all children by signing and ratifying various international human rights treaties, including the Convention on the Rights of the Child.

CRIN Comments:  CRIN believes this decision is consistent with the CRC. As noted by the Court, Colombia has an obligation under Article 28 of the Convention to make primary education available to all children without charge.

Full summary: http://crin.org/Law/instrument.asp?InstID=1586
Full judgment: http://www.corteconstitucional.gov.co/RELATORIA/2010/C-376-10.htm

Back to top

_______________________________________________________

Asia

Japan

Demand for rescission of a deportation order (2007)

Foreign national parents with a Japanese-born child applied to have their deportation orders cancelled.  The Court found that it would not cause extraordinary hardship for a young child to start a new life in one of the parent's native countries, and denied the parents request to void their deportation order.  Although noting families' general right to stay together, the right of children to be protected by their parents and the importance of the best interests of the child, the Court also held that international conventions including the Convention on the Rights of the Child do not directly govern the decisions of Japanese immigration authorities. 

CRIN Comments:  CRIN believes this decision is inconsistent with the CRC. The Court recognised that children's rights and best interests are at stake in immigration proceedings, but failed to hold the Japanese government to its obligations under the CRC to respect these rights and interests in reaching its decisions. In addition, although the separation of families is not prohibited in all circumstances under the Convention, states should seek to keep children and their parents together wherever possible.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1595
Full judgment:  http://www.courts.go.jp/hanrei/pdf/20070330115208.pdf

Demand for rescission of a decision of the local authorities to admit a child into a child welfare facility (Japan)

Father sued to void the decision to take his child into state custody following reports of suspected child abuse, and additionally demanded the name of the facility where the child would reside while in care.  The Court upheld the decision of the family court that it would be in the best interests of the child to be admitted to a child welfare facility, and that the decision not to notify the father of the name or location of the particular child welfare facility did not violate any laws or international obligations.  Specifically, the Court noted that the Convention on the Rights of the Child's provision on separating children from their parents contains an exception where this would be in the best interests of the child.

CRIN Comments:  CRIN believes this decision is consistent with the CRC in that states have an obligation under Article 19 of the Convention to protect children from all forms of violence, including physical abuse in the home. Nevertheless, removing children from the home must not be taken lightly. Separating children from their parents in instances of abuse may be necessary in the best interests of the child, but as envisioned by Article 9, all interested parties must have an opportunity to participate in proceedings to determine whether a child should be removed from the home. Even where this is deemed necessary, children do generally have the right to maintain personal relations and direct contact with their parents.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1596
Full judgment:  http://www.courts.go.jp/hanrei/pdf/20090206161056.pdf

Back to top

_______________________________________________________

Europe

Ireland

N & anor. v. Health Service Executive & ors. (2006)

Adoption dispute bewteen the biological and prospective adoptive parents.  Although the biological parents had initially consented to their child's adoption and the child had already been residing with the proposed adoptive parents, the Court found that a later request by the biological parents to withdraw from the adoption process must be honoured.  Given Irish law's strong presumption in favour of children being raised by their biological parents, the Court felt compelled to rule that reuniting the biological family would be in the child's best interests.

CRIN Comments:  CRIN believes this decision is inconsistent with the CRC. Under Article 3 of the Convention, the best interests of the child should be a primary consideration in all actions that concern them, which undoubtedly includes adoption proceedings. Here, despite it having been determined that it would be in the best interests of the child to remain with her adoptive parents, the child was returned to her biological parents. In addition, as noted by Justice McGuinness, there was no attempt to determine the views or represent the interests of the child herself. CRC Article 12 would dictate that the court seek out the opinion of any child involved in a legal proceeding, giving the views of that child due weight in accordance with the child's age and maturity.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1598
Full judgment:  http://www.courts.ie/__80256F2B00356A6B.nsf/0/076DD22DC168C5A28025722500...

Russia

K.A.G. (2012)

Application for state benefits by a father caring for a disabled child.  The Court found that a provision of Russian law providing for early retirement benefits for mothers caring for disabled children but not fathers to be unconstitutional and a violation of international commitments, including the Convention on the Rights of the Child. 

CRIN Comments:  CRIN believes that this judgment is consistent with the CRC and that, as recognised by the Court, the best interests of children should be considered in all decisions that affect them. In addition, Article 18 of the CRC recognises that “both parents have common responsibilities for the upbringing and development of the child” and mandates that “States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities.” In line with these provisions, the Court sees mothers and fathers caring for disabled children as equals, and requires that legislation and social benefits treat them as such.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1577
Full judgment:  Download here via http://www.ksrf.ru/Decision/Pages/default.aspx

Back to top

_______________________________________________________

Oceania

Nauru

In re Lorna Gleeson (2006)

Mother sought to adopt a child despite an ordinance preventing her from doing so because her husband was a foreign national.  The Court concluded that the typical prohibition on adoption by Nauruan citizens with foreign spouses should not apply in this case as the adoption would be in the best interests of the child.  Disallowing the adoption would both be inconsisent with the constitutional right to respect for family life and run contrary to the spirit of the Convention on the Rights of the Child.

CRIN Comments:  CRIN believes this decision is consistent with the CRC in that the best interests of the child should be a primary consideration in all proceedings concerning them. As recognised by the Court and Article 21 of the Convention, this is especially important in adoption proceedings.

Full summary:  http://crin.org/Law/instrument.asp?InstID=1579
Full judgment:  http://www.paclii.org/nr/cases/NRSC/2006/8.html

Back to top

_______________________________________________________

THE LAST WORD

Back to top