CRINMAIL 25: Children in Court
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INTRODUCTION
In this month’s Children in Court CRINmail, we take the opportunity to share some of the initial results from our legal status of the child research project, which focuses on ways of challenging children’s rights violations through national legal systems, as well as a round-up of the latest children’s rights cases from around the world.
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LEGAL STATUS OF THE CHILD IN SOUTH ASIA
In January, CRIN launched the “legal status of the child” project aiming to discover how the law treats children involved in legal proceedings, the options open to challenge violations of children’s rights and the practical considerations involved in legally challenging violations. We have been working in partnership with NGOs and law firms based around the world - our thanks to all of you involved - and are now starting to publish the research. This month’s CRINmail will feature an overview of the results for South Asia to give a taste of the information we are trying to put together, and hopefully to pique your interest.
The purpose of this research is to help children, their families and local NGOs to engage with national legal systems to challenge rights violations. Litigation is likely to remain exceptional, but by sharing this information we hope to make it easier for those working on children’s rights to use legal mechanisms where it can help their work, or to work better with those from a more legal perspective.
If you would like to find out more, you can read the full reports for each country here: Afghanistan, Bangladesh, India, Nepal and Pakistan. We also welcome any comments or suggestions at [email protected].
Using the CRC in national courts
All States make the same commitment when they ratify the Convention on the rights of the Child, but this is not to say that the Convention enjoys the same status within each legal system. As part of this project we are looking at the use to which the CRC can be put in national legal systems to identify the opportunities for enforcing children’s rights at the national level.
Perhaps offering the greatest opportunity to use the Convention across the region, Nepal formally recognises the CRC as of superior force to national law and permits the courts to apply the rights contained within the treaty in place of competing national law. This stance has allowed Nepal’s courts to directly apply international children’s rights on cases involving birth registration, children’s associations, education rights and corporal punishment.
This approach to international law is unique across the region: Afghanistan, Bangladesh, India, and Pakistan all give domestic legislation priority over international law. This is not to say that the CRC cannot be used, the courts in these countries can and do treat Convention rights as an interpretive tool to inform their decisions, but the Convention would have to be incorporated through further legislation to make it directly enforceable. This deficit is, however, likely to limit the impact that internationally protected children’s rights can make at the national level.
If the Convention is not used it doesn’t matter what formal status it has at the national level. To this end, we are also tracking cases in national courts to see whether the formal status of the Convention is respected in practice. For more information on how the Convention has been used in national courts, including those in South Asia, see CRIN’s CRC in Court database.
Legal status of the child
Children face enormous challenges in accessing justice. The courts are intimidating enough for adults, but children face further significant barriers to upholding their rights, not least their lack of independence and full legal status.
Bangladesh, India and Pakistan have remarkably similar rules in this regard. Children are able to bring cases in their own name, but must do so through a “next friend”. While usually this will be a parent, recognising that this may sometimes be problematic, laws in these countries allow for legal representatives who are not part of the child’s immediate family.
Children in Afghanistan, however, do not have legal capacity to bring lawsuits in civil courts, a restriction that leaves them less able to challenge rights violations. While parents or legal guardians may represent their children in courts, the need for children to act through their parents in legal procedures may leave them more vulnerable where the parent is involved in the alleged violation or is not prepared to make a complaint.
Challenging violations
For rights to have meaning, effective remedies must be available to redress violations. This means children and their representatives must have access to courts and those courts must be able to review actions, laws and policies that violate, or threaten to violate children’s rights. Complaints can take many forms across the region, from a claim for damages under civil law, to a claim that national law is inconsistent with a child’s rights.
Individual civil and criminal complaints take a similar form across the region and provide children the opportunity to seek reparations for the harm they have suffered and to pursue the criminal prosecution of those whose actions constitute crimes. A marked difference among these States, however, is between those that allow children and their representatives to initiate criminal proceedings and those who retain that power for State officials. For example, while in Bangladesh individuals can seek permission of a magistrate to prosecute a criminal complaint against someone who has violated a child’s rights in a manner that might constitute a criminal offence, all criminal proceedings in Afghanistan must be initiated by the Attorney General, an arrangement which has the potential to close a route to children seeking redress for violations of their rights.
Collective and constitutional complaints, too, are a major feature of the legal systems across the region, and provide a direct means of challenging rights violations. The Public Interest Litigation model of India and Bangladesh provides perhaps the best known and most well established means of challenging large scale rights violations and carries the added advantage of allowing victims and potential victims anonymity. By alleging that a law or government action infringes a constitutional right, such procedures overcome the difficulties of involving individual children affected by human rights abuses, which can place a significant strain on children, and allow activists to challenge large scale violations of children’s rights. For example, Bangladesh’s experience of litigation against the use of corporal punishment challenged a nationwide violation of children’s rights without having to place the burden’s involved in bringing the challenge on individual children. See below for the latest case on corporal punishment proceeding through India’s courts.
The Nepali complaints procedure under the national Children’s Act provides an innovative alternative procedure to seek redress for rights violations. Any person may file a petition alleging a violation of a child’s rights under the Act and a parent or guardian may file a complaint that there has been a violation of their child’s rights in general. This open ended opportunity, at least formally, to challenge any violation of a child’s rights presents a valuable opportunity to enforce children’s rights.
Practicalities
Without addressing barriers related to the independence of the judiciary, perhaps the most formidable barriers children face in challenging violations of their rights inevitably lie in the practicalities. Courts able and willing to hold States to account for rights abuses are of little or no use if children can’t reach them, access free legal assistance to engage in the legal process or if the rules of evidence prevent them from proving their case.
These considerations are too numerous to give an overview here, making up as they do, the majority of the reports, but the research aims to highlight the issues that might occur in bringing court actions to challenge children’s rights violations. The reports address the issues of securing legal aid through government run programmes, approaching lawyers and NGOs who provide pro-bono legal assistance, dealing with time limits as well as the endemic delay that those working on human rights cases experience. The reports try to provide information and links to where to find more help and advice.
If you would like to find out more, you can read more about the project here. We also welcome any comments or suggestions for improvement at [email protected].
Further information:
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LATEST NEWS AND CASES
From addressing the revictimisation of trafficked children through the legal system to challenging discriminatory treatment against transgender children, June has been another interesting month for children in the courts. Read on for some of the highlights from this month’s children’s rights litigation.
Victims not criminals - court overturns convictions of victims of trafficking
Victims of trafficking, particularly children, should not be prosecuted for crimes committed as a consequence of being trafficked, according to a decision of the Criminal Court of Appeal of England and Wales. Overturning the convictions of four people convicted of crimes they were compelled to commit by their traffickers, the Court recognised that the levels of compulsion experienced by victims of trafficking, particularly when under the age of eighteen, can extinguish culpability.
Three of the relevant cases turned on the plight of Vietnamese children who had been forced to work in cannabis factories while a fourth case revolved around a woman in her thirties who had been trafficked for sexual exploitation. The case made it clear that both the Department of Public Prosecutions, when deciding whether to proceed with a prosecution, and the courts themselves have the power to halt a prosecution where issues relevant to the age, trafficking and exploitation of an accused person mitigate against proceeding with a prosecution.
Speaking on behalf of ECPAT UK, Chloe Setter said, “the Court has made it clear that these prosecutions should never have taken place and the four highly vulnerable victims should not have been treated as criminals and unfairly punished”. Read more here.
Also in the United Kingdom in June:
LIfe imprisonment of children in South Africa
Life imprisonment of children was on the agenda of the Supreme Court of South Africa in June, as the Court grappled with whether such a sentence could be appropriate for persons under the age of 18. Life imprisonment is no longer a legal sentence for offences committed by those under 18 years, but at the time the applicant in the present case was sentenced for murder, the sentence was possible. Unfortunately, the facts of the case did not allow the court to consider this broader concern of the constitutionality of life imprisonment for children.
Despite recognising the importance of a child’s age in the sentencing process, the majority of the court's judges were unwilling to consider the applicant’s case, as he could not demonstrate that he was under the age of 18 at the time he committed the relevant offence. In the absence of such evidence, the majority would not consider whether the sentence had violated the applicant’s Constitutional right, informed by the Convention on the Rights of the Child, to only be detained as a measure of last resort and for the shortest appropriate period of time.
In an extensive dissenting judgment, Justice Van der Westhuizen argued that uncertainty as to the age of the applicant at the time of the offence was substantial and that the trial court had not taken this into account, to the extent that it had misdirected itself in law. In a dissent in which two other judges joined, Justice Westhuizen would have set aside the life sentence imposed upon the applicant in favour of a fixed sentence of 20 years imprisonment. Read more here.
Corporal punishment in India’s schools - challenging the State’s inaction
Public interest litigation was launched in June to challenge the inaction of the state of Andhra Pradesh in preventing corporal punishment of children in schools. The complaint was lodged with the High Court of the state and contends that it has failed in its duty, as enshrined under the Convention on the Rights of the Child, to protect children from all forms of physical and mental violence, torture and other cruel and degrading punishment or treatment.
Andhra Pradesh is one of a small number of Indian states which has legislation at the state level to protect children from “physical punishment and mental harassment” in schools, but the complaint alleges that this prohibition has not been effectively implemented. Read more on the complaint here and on the legality of corporal punishment in India here.
Historical rights abuses - settlement agreed for Mau Mau victims
The United Kingdom government has finally laid out its plans to pay compensation to victims of torture, sexual abuse and other violence committed by the British administration during the 1950s Mau Mau uprising in Kenya. The proposal follows a decision of the High Court of England and Wales, delivered last October which would allow victims of abuses committed during the period to bring cases against the British government. Among those who brought the case was Jane Muthoni Mara who alleges that she was abused and raped while detained during the uprising while she was 15 years old.
In making the announcement, the Foreign Secretary explicitly recognised the British government’s responsibility, though not “legal responsibility” for torture and other ill-treatment committed during the 1950s. The announced payouts amount to a total of £19.9 million to be divided among 5,228 victims, but is unlikely to end legal proceedings on the issue. Bryan Cox, who is representing alleged victims who may not be covered by announced compensation, said that “thousands” of claims remained unresolved and that “the matter was far from over”.
The Kenyan Human Rights Commission has reported that 90,000 Kenyans were executed, tortured or otherwise physically abused and 160,000 people were detained in appalling conditions during the rebellion.
ECHR rules on ill-treatment in Bulgarian state care
Sixteen years on from the deaths of 15 children and young people in state care in Bulgaria, the European Court of Human Rights has found that the State has violated the children’s right to life under the European Convention on Human Rights. The judgment outlined how funding of the care home had been reduced significantly in the winter of 1996 after inflation rose in Bulgaria to over 1,000 per cent. The home was inaccessible by car as a result of weather conditions, the heating only came on for one hour in the morning and one hour in the evening, and the “food was highly inadequate” with staff and nearby villagers bringing in some provisions. The Court ruled that authorities could have prevented the deaths, as information about the serious risk to the lives of the patients had been available as early as September 1996. Read more here.
Transgender rights in the United States courts
The Colorado Civil Rights Division (CCRD) has broken new ground in the United States by ruling that a primary school discriminated against a transgender child who identifies as female, by preventing her using the girls’ toilets at school. The six-year-old had been permitted to use girl’s bathrooms at Eagleside Elementary School when she started attending the school, but the headteacher then made separate arrangements for her to use staff toilets. The school had argued that they had acted so as to avoid the girl being made the subject of bullying, but as the CRPD noted, segregating her from her peers would prove disruptive to her learning environment and overtly demonstrate her separateness from the other students.” The CCRD accused the local school district of "compartmentalising a child as a boy or girl solely based on their visible anatomy,” and criticised this as “a simplistic approach to a difficult and complex issue."
The case is the first of its kind to deliver a judgment in the United States, but the issue is currently before other courts in the country, including the Supreme Judicial Court of Maine, which held hearings on the issue in June. Read more here.
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THE LAST WORD
“Child victims of trafficking are routinely let down and criminalised by the very systems in place to protect them ... children who have been ruthlessly exploited for the financial gain of others and need our support, not our condemnation.”
- Chloe Setter, ECPAT UK Back to top
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