Children in Court CRINMAIL 16:

CRC in Court: Cases in Brief

In this issue:

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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 compatibility 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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AFRICA

Zimbabwe

Chiramba and Others v. Minister of Home Affairs N.O. and Others (2008)

Lawsuit challenging the arbitrary detention of twelve individuals, including a woman imprisoned with a small child.  The Court found that the police had failed to uphold Zimbabwe’s international obligation to protect and promote children’s rights to protection and privacy.  The protection afforded to children should be over and above that set out in Zimbabwe’s Constitution and other statutes, and detaining a small child because his or her mother may have committed a criminal offence is totally unconscionable and immoral.  The prohibition against detention of minors is implicit in the Children’s Act; however, there is a need for legislation to expressly state this in clear terms, as a gap exists in domestic law.

CRIN Comments:
CRIN believes this decision is consistent with the CRC. While it may in some instances be appropriate for very young children to be cared for by an incarcerated mother, this in no way justifies the continued and arbitrary detention of a mother and child. As further recognised by the court, Zimbabwe should take steps to clarify laws around the detention of mothers and their young children.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1616
Full judgment: http://www.saflii.org/zw/cases/ZWHHC/2008/82.html

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AMERICAS

Argentina

R. 390. XLVI, Return of Son (2010)

International custody dispute where a mother moved a child out of the country in violation of the Hague Convention on International Child Abduction.  The Court ruled that the child should be returned to the father, and that there is no need to assess the best interests of the child individually as the Hague Convention was specifically designed to protect the best interests of the child in international custody issues. 

CRIN Comments:
CRIN believes this decision is consistent with the CRC in that, as recognised by the court, the Hague Convention on Civil Aspects of International Child Abduction was drafted with the best interests of the child in mind. The best interests of the child must be a primary consideration in every action concerning children under Article 3 of the CRC, and much like the CRC itself, the Hague Convention must be accepted as a binding obligation on ratifying countries and should be directly enforceable in the courts as here.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1615
Full judgment: Download here via http://www.csjn.gov.ar/cfal/fallos/cfal3/cons_fallos.jsp

Canada

R. v. D. B. (2008)

Appeal by a child against a law requiring children in conflict with the law to prove their eligibility for reduced juvenile sentences.  The Court agreed that the prosecution must prove that a child deserves an adult sentence where they believe that such a sentence should be imposed.  Presuming that children deserve adult sentences is inconsistent with the principle of fundamental justice that young people typically have diminished moral culpability as recognised in the CRC. This does not mean that an adult sentence cannot be imposed on a young person due to the seriousness or circumstances of the offence, but rather that the Government should have the burden of proving beyond a reasonable doubt that an adult sentence would be warranted.

CRIN Comments:
CRIN believes that this decision is consistent with the CRC in the sense that children should not be treated as adults in the criminal or juvenile justice systems. As noted by the Court, assuming that a child would be best served by an adult criminal sentence runs against Article 40 of the Convention. However, the Court's assertion that adult sentences would be appropriate for children in some instances is troubling. CRIN believes that children should never be subjected to adult sentences; rather, the aims of juvenile justice as recognised in the CRC are rehabilitative as opposed to punitive. Accordingly, any sentence imposed on a child should promote that child's reintegration and assumption of a constructive role in society.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1603
Full judgment: http://canlii.ca/en/ca/scc/doc/2008/2008scc25/2008scc25.html

Mexico

Guardería ABC (Unadopted opinion of Justice Zaldívar) (2009)

Draft opinion on the Government's duty to protect children following a fatal fire at a warehouse and adjoining day care centre.  In his unadopted individual opinion, the Supreme Court Justice found that the federal, state and local authorities failed in their duty to protect the children in the day care centre, and that they should therefore be held liable for the resulting deaths and injuries.  If the authorities had complied with their constitutional obligations to protect children in accordance with the best interests of the child principle, the deaths and injuries resulting from the fire would have been avoided. In interpreting the State's constitutional duty to “foster respect for the dignity of children and the full exercise of the rights of the child”, the Justice looked both to regional case law from the Inter-American Court of Human Rights and international standards including the Convention on the Rights of the Child.

CRIN Comments:
CRIN believes this draft resolution is consistent with the CRC. As recognised by Justice Zaldívar, the State has a duty to protect children and to guarantee their rights in accordance with regional and international obligations, including the Convention on the Rights of the Child. Among other things, this requires the creation of a proper legal and regulatory framework to ensure the safety of childcare institutions.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1605
Full judgment: http://www2.scjn.gob.mx/fi1-2009/Documentos/Informes/FacultadDeInvestigacion-1-2009V1.pdf

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ASIA

Hong Kong

Lai Hung Wai v. Superintendent of Stanley Prison (2003)

Challenge to an indeterminate sentence imposed on an offender under age 18 at the time the offence was committed.   The Court found that the indeterminate sentence imposed on the offender did not violate international human rights law.  The lack of certainty surrounding indeterminate sentences is not so severe that it would constitute cruel, inhuman, degrading or arbitrary punishment. Moreover, indeterminate sentences do not run contrary to Article 37 of the Convention on the Rights of the Child, which only forbids the imposition of sentences of life imprisonment without parole.

CRIN Comments:
CRIN believes this decision is inconsistent with the CRC. While the CRC does not expressly forbid the imposition of sentences of life imprisonment on children, Article 37 of the Convention obligates States to only detain children as a matter of last resort and for the shortest appropriate period of time. Sentencing juvenile offenders to life imprisonment with a mere possibility of release at an uncertain time in the future is not in the spirit of the Convention, and every effort must be made to ensure that children in conflict with the law are reintegrated into society as quickly and completely as possible.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1621
Full judgment: http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2003/639.html?stem=&synonyms=&query=lai%20hung%20wai&nocontext=1

Japan

Demand for rescission of a deportation and other order (2010)

Appeal by a family with a native-born child, all residing unlawfully in Japan, against their removal from the country. The Court noted that Article 3 of the CRC requires the best interests of the child to be taken into account when making any decision regarding that child, and that it would be very difficult for the native-born child to live and study abroad.  The Court further found that it would also not be in the child's best interests to be separated from her parents, and accordingly, any determination regarding the father, mother and child should be made as one. As such, the deportation order should be rescinded in its entirety.  

CRIN Comments:
CRIN believes this decision is consistent with the CRC. As recognised by the Court, the best interests of the child must be considered in any proceedings that concern children, whether or not they are the direct subject of these proceedings. Children also generally have the right to be raised by their parents, and Governments should make efforts to keep families together wherever possible.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1622
Full judgment: http://www.courts.go.jp/hanrei/pdf/20110221105529.pdf

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EUROPE

Austria

File No. OGH - 6Ob2398-96g (1997)

Lawsuit filed by a mother on behalf of her child to establish the child's right to have visits with the biological father.  While the Court, citing the CRC, held that Austrian law provides children with a “fundamental constitutional” right to receive visits from their parents, it also limited the enforceability of this right, noting that denying a parent the right not to visit his or her child would be inconsistent with the corresponding right of a child that has come of age to reject visits from a parent. In addition, the Court found that a forced visit would ultimately run against the best interests of the child.

CRIN Comments:
CRIN believes this decision is consistent with the CRC. As recognised by the Court, children have the right to maintain personal relations and direct contact with both of their parents on a regular basis under Article 9 of the Convention. In addition, although the Convention is silent on the matter, it would seem to run against a child's best interests to force separated parents to maintain personal relationships with their children against their will.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1604
Full judgment: Download here

Ireland

D. v. Refugee Appeals Tribunal (2011)

Request for asylum from an ethnic minority child on the basis of discrimination in the right to education.   The Court agreed that the child would likely be denied his fundamental right to an education because of his ethnic origin if returned to his home country, and that this entitled him to remain in Ireland as a refugee.  The Court looked to evidence from reliable international sources, including the Committee on the Rights of the Child, to determine the extent of the discrimination likely to be faced. Noting the pervasive nature of this discrimination, the Court found that denying a child the opportunity to pursue a basic education is a severe violation of human rights because it results in that child being excluded from any meaningful participation in society.

CRIN Comments:
CRIN believes this decision is consistent with the CRC. Children have a fundamental right to receive an education under Article 28 of the Convention, and, as here, this right must be considered when determining whether to grant a child refugee status.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1618
Full judgment: http://www.bailii.org/ie/cases/IEHC/2011/H431.html

Lithuania

I.B. v. R.R. (2004)

Lawsuit seeking to establish a deceased father's paternity by testing the DNA of his relatives.  The Court found that a prospective father's relatives could not be forced or expected to undergo DNA testing and that no assumptions could be drawn from this.  The best interests of the child and the child's right to know his or her biological parents are fundamental principles of family law and must be a primary consideration in paternity proceedings as required under the Convention on the Rights of the Child. However, these rights cannot be interpreted or expanded to essentially force the relatives of a prospective father to submit to DNA testing to establish a paternal affiliation with a child.  Paternity may, however, be confirmed by the existence of other circumstances like a shared life between the child's mother and prospective father, a common interest in the child's education, or the provision of maintenance payments to support the child.

CRIN Comments:
CRIN believes that this decision is consistent with the CRC insofar as the Court recognised that children's rights and best interests must be a primary consideration in proceedings that concern them. In line with children's right to know and be raised by their parents, States should also take steps to facilitate the establishment of paternal affiliation as here in legal proceedings or otherwise.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1619
Full judgment: http://www.lat.lt/3_nutartys/senos/nutartis.aspx?id=27456

Slovakia

IV. ÚS 176/03 (2003)

Complaint filed following long delay in court determination of a matter relating to child maintenance payments.  The Court found that the delay in reaching a decision on the requested revision of a child support award did not violate the child's rights and rejected the complaint as unfounded.  The procedures of general courts in cases regarding child support do not have any connection to a child's rights under the CRC. The child did not claim this connection was present; her complaint related to overall court proceedings and alleged only a general infringement of the Convention.

CRIN Comments:
CRIN believes this decision is inconsistent with the CRC in that legal proceedings relating directly to children should be resolved without delay. In line with Article 3 of the Convention, as cited by the Court, it would undoubtedly be in a child's best interests to have a matter related to his or her standard of living settled in a reasonable time period.

Full summary: http://www.crin.org/Law/instrument.asp?InstID=1617
Full judgment: http://www.concourt.sk/rozhod.do?urlpage=dokument&id_spisu=15763

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