CRINMAIL 26:
Children in Court
In this issue:
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INTRODUCTION
In this month’s Children in Court CRINmail we’ll be sharing the latest legal news and cases affecting children, from challenging discriminatory inheritance laws in Japan to trying children as adults across the globe. We’re also asking for your help in working out how we can better support your work and keeping you up to date on the latest opportunities to engage with the EU and UN on access to justice for children.
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CRIN USER SURVEY
First this month, we have a small favour to ask: tell us how we can better support your work as children’s rights campaigners by filling in our 2013 Users Survey.
We rely on our users for key information, breaking news and leads on issues that need attention. We need your feedback to enable us to continue to effectively support the children's rights community.
If there are children’s rights issues that you struggle to find reliable information on, you are looking for more information on engaging with the UN, or there is something that CRIN could do to be of more use to you - this is your opportunity to let us know.
We hope that you will take the time to complete this short survey (which should take no longer than 10 minutes). To complete the survey, click here.
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LATEST NEWS AND CASES
Japan’s highest court to consider inheritance for children born out of wedlock
The Supreme Court of Japan considered in July whether a law that prescribes lesser inheritance rights to children born out of wedlock violates the Constitution's prohibition on discrimination. Currently, in the absence of a will, the Civil Code dictates who will inherit a deceased person’s assets. Where the deceased person had children born out of wedlock as well as children born within marriage, Article 900 of the Civil Code provides that the child born out of wedlock is entitled to only half of the share in the estate that a so-called “legitimate” child is entitled to receive.
This case presents an opportunity for the court to revisit the issue which it addressed in 1995. In the earlier decision, the court found that such different treatment on the basis of the marital status of a child’s parents was justified as it respected the status of legal marriage, while providing protection for children born outside of marriage. In that judgment, however, a minority of judges dissented arguing that the provision unreasonably discriminated against children born out of wedlock, and was therefore incompatible with the Japanese Constitution’s prohibition of discrimination.
The UN Committee on the Rights of the Child has raised the discriminatory treatment of children born out of wedlock every time it has reviewed a State report from Japan, and it is hoped that this case will finally bring Japanese law into conformity with the Convention on the Rights of the Child.
Read more here.
Pregnancy and the right to education in South Africa
Pregnancy policies that require the exclusion or suspension of pregnant girls from schools in South Africa may violate their rights to education, human dignity, psychological integrity and the prohibition on discrimination, according the the South African Constitutional Court. The case arose out of a dispute between school principals, school governing bodies and the department of education, as to who had the authority to determine pregnancy policies. At the heart of the case, however, was the issue of whether excluding or suspending pregnant students from schools on the ground that they are pregnant violates their constitutional rights.
Two schools had implemented policies that required pregnant students to leave school for periods during the pregnancy itself or after giving birth, and suspended the two girls. If fully carried out, the policy would have required both of the students to resit a year of their education, but the Department of Education intervened to ensure the students returned to school. The case before the court then emerged from the disagreement between the Department and the school over who had the authority to determine school pregnancy policies.
As the Constitutionality of the pregnancy policies had not been the focus of the appeal, and the principals and school governing bodies had not made submissions on the issue, the Court was unable to declare the policy invalid, but did require the school to review its policy and resubmit it to the Court. In making the decision, Justice Khampepe placed emphasis on the different treatment of male and female students who become parents, the substantial interferences with student’s rights to education, particularly in light of the large number of students who do not return to school after pregnancy, and the failure to place the best interests of the child at the centre of the decision.
Juvenile justice: trying children as adults in New York and New Delhi
In July, the Indian Supreme Court upheld 18 as the age at which children become liable to receive adult criminal penalties. The case was brought by several public petitions which aimed to lower the age at which children can be sentenced as adults from 18 to 16, petitions that have been fueled by the furore over the high profile rape of a young women in New Delhi, in which a 17 year old boy was allegedly involved.
The Juvenile Justice (Protection of Children) Act sets out maximum penalties for all persons under the age of 18 and includes provisions that allow for detention of no more than three years in a special home. Rejecting the argument that adopting such a rehabilitative juvenile justice model for all children under the age of 18 violated the Constitution’s protection of life and personal liberty, the Chief Justice gave a judgment that took account of international standards on juvenile justice and recognised that children continue to mature up to and beyond the age of 18.
The case of the boy allegedly involved in the notorious Delhi rape case has not been settled, however, as steps have begun in the courts to try him as an adult as an exception to the general law on juvenile justice. This second case is now pending before the Supreme Court.
Read more here.
Meanwhile, in the United States, pressure is mounting to raise the age at which children can be tried as an adult in the state of New York from 16 to 18. Fifty thousand children a year are arrested, charged and processed as adults in New York. Speaking out against the current law, State Legislator Karim Camara said, “It’s bad policy, it’s bad practice, it’s bad for children [and] it’s bad for the community”. Several proposals have been tabled, including one proposed by Chief Justice of the New York Court of Appeals, Jonathan Lippman, which would institute a system of specialist judges, prosecutors and defence lawyers to work collaboratively on the cases of 16 and 17 year olds in the justice system.
Read more here.
For more on children’s rights and criminal responsibility, you can read CRIN’s policy paper, “Stop Making Children Criminals”, which is available in Arabic, English, French Russian and Spanish.
United States to sue Florida over “segregation” of children with disabilities
In July, the United States Department of Justice filed a lawsuit against the state of Florida alleging that the state had failed to provide adequate care for disabled children. The case relates to nearly 200 children who, the suit alleges, have been “unnecessarily segregated in nursing facilities when they could be served in the family homes of other community-based settings.”
The suit has been filed under the Americans with Disabilities Act (ADA), which requires the State to eliminate unnecessary segregation of persons with disabilities. The suit is seeking a declaration that the treatment is unlawful, an injunction preventing the ongoing ill-treatment of children, as well as compensation for those children and families affected by the Florida’s actions.
Speaking for the Department of Justice, Ece Hill said, “children have a right to grow up with their families, among their friends and in their own communities … The violations the department has identified are serious, systemic and ongoing and require comprehensive relief for these children and their families.”
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CALLS FOR SUBMISSIONS
Deadlines are fast approaching for two opportunities to address children’s access to justice rights in the international human rights mechanisms.
Access to justice : Annual Day on the Rights of the Child
The Human Rights Council’s Annual Day on the Rights of the Child, which will take place next March, is one of the biggest days for children’s rights at the UN. This year, CRIN is pleased to note that the theme is “access to justice for children” - an area that CRIN has campaigned for because of its importance for the realisation of all of children’s rights.
To help shape the day, the Office of the High Commissioner for Human Rights is calling for NGOs to submit evidence to help the preparation of the report to be published ahead of the day. You can find more information here about how to submit information, including the topics the OHCHR is particularly looking for information on, which range from the existence of child-friendly justice procedures, to barriers children face in accessing justice and effective remedies for children. The deadline for submissions is 10 September 2013.
European Union: access to justice in environmental matters
The European Commission has opened a public consultation on how to improve access to justice in environmental matters. It invites the general public and other interested parties to give their views on whether legislative action could improve access to justice in environmental matters across European Union Member States, and if so, what issues should such legislation address. The deadline for submissions is 23 September 2013.
More details are available here.
For more information on how to engage with the UN on access to justice issues, see the latest Child Rights at the United Nations CRINmail
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THE LAST WORD
Is teaching yoga in schools in the United States unconstitutional? That was the question in one of the stranger cases to cross CRIN’s path this month. Dean Broyles, who represented a parents group before San Diego Superior Court, argued that yoga as taught at the school had “a consistent anti-Christian bias … and a pro-Eastern or strange religion bias”.
Rejecting the case as “almost like trial by Wikipedia”, Judge Meyer noted that the religious elements of Ashtanga yoga had been stripped from the programme, which used colloquial names such as “crisscross applesauce” in place of terminology such as “the lotus position”.
Read more here.
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