CRINMAIL 27:
Children in Court

In this issue:

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INTRODUCTION

In this month’s Children in Court CRINmail, we update you on the latest legal news and cases affecting children’s rights worldwide, from several United States court rulings concerning children’s right to health, to new domestic protections for children from violence and exploitation.

If you know of any cases decided or underway on children’s rights that you’d like to share, please let us know at [email protected].

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LATEST NEWS AND CASES

Judge again blocks Ohio’s hospital’s attempt to force 10-year-old Amish girl to resume cancer treatments

In September, a judge again rejected an application made by an Ohio hospital for guardianship over a 10-year-old Amish girl with cancer, blocking the hospital’s attempt to resume chemotherapy on the girl after her parents decided to stop the treatments. In his second decision on this matter, Medina County Court Judge John Lohn found that allowing for a guardian would go against the girl’s wishes, interfere with the parent’s “natural rights”, and interfere with the girl’s “need and desire to be cared for by her loving parents”. The Judge stated that it was not certain that the chemotherapy would cure the girl’s cancer, with 15 per cent of treatments being unsuccessful. He also stated that the treatment would cause her “pain, abject suffering and incapacitation”, and potentially also infertility and serious health risks for the rest of her life. This decision was handed down just a week after an Ohio state appeals court ruled in favour of Akron Children’s Hospital and sent the case back to the Judge for reconsideration.

The girl's parents discontinued her treatment in June after she underwent the first of five prescribed rounds of chemotherapy at the Hospital which they had said caused terrible side effects. The Hospital applied for the appointment of a limited guardian to make medical decisions for the girl, believing that she would die without chemotherapy and that it is in the best interests of the child to receive proper care. Full story.

Bans on sexual orientation “conversion therapy” for minors in the United States

In August, a federal appeals court upheld a state law in California prohibiting licensed therapists from administering “conversion therapy” aimed at reversing homosexuality in children. In a unanimous ruling by a three-judge panel, the 9th US Circuit Court of Appeals found that the bill does not violate the free speech rights of practitioners or minor patients, nor does it violate parents’ fundamental rights. The panel held that California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful. The ruling resolved two lawsuits and reinstated the ban, though the decision will likely be challenged by Liberty Counsel, a Christian legal aid group.

The California law states that “[b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming”, and cites findings by an American Psychological Association task force that “sexual orientation change efforts can pose critical health risks”. The law prohibits mental health providers including doctors, psychologists, family therapists and social workers from attempting “sexual orientation change efforts” on patients under 18. It provides that such efforts are considered unprofessional conduct, and that violators are subject to discipline by state licensing boards.

California became the first US state to prohibit “conversion therapy” when its Governor, Jerry Brown, signed the ban into law in September last year. New Jersey followed, with Governor Chris Christie signing a similar bill in early August prohibiting counselling to change the sexual orientation of minors. Liberty Counsel has filed a suit in federal court challenging the New Jersey law. Forty-eight US states still allow mental health professionals to administer “conversion therapy” for homosexual minors. Full story.

Protecting the rights of transgender children

In other news in California, Governor Jerry Brown signed a bill into law in August to protect transgender public school students from discrimination. The bill prohibits public schools from discriminating on the basis of gender identity and gender expression, and allows students the right to participate in sex-segregated school programs and activities and use facilities consistent with their own gender identity, irrespective of the gender listed on their records. The law gives transgender students the ability to choose whether to use male or female toilets and whether to play boys’ or girls’ sports at school.

Massachusetts and Connecticut have state-wide policies granting the same protections for transgender students, but California is the first US state to put them into law and require them in all school districts. Full story.

The rights of transgender individuals remains a contentious issue worldwide. In May, several human rights groups urged Cameroon authorities to discontinue the prosecution of two transgender youths on charges of homosexual conduct. Also in May, Hong Kong's Court of Final Appeal ruled that a law prohibiting a transgender woman from marrying her boyfriend was invalid under the Chinese constitution. In March, a bill was approved by the Canadian House of Commons outlawing discrimination against transgender individuals, however it has yet to pass the Senate.

See our CRINmails here and here for previous coverage of the rights of transgender children.

Oklahoma judge temporarily blocks law that restricts access to emergency contraception

In August, an Oklahoma judge granted a temporary injunction of a state law that restricts women and girls’ access to the emergency contraceptive drug Plan B One-Step. The law requires girls under 17 to have a prescription and women and girls aged 17 and over to show identification to the pharmacist to access the emergency contraception. The Center for Reproductive Rights successfully brought the legal challenge, stating that the law placed arbitrary and unjustified restrictions on women’s access to contraception. Full story.

UN Human Rights Committee finds Australia guilty of 143 violations of international law for indefinite detention of refugees

In August, the UN Human Rights Committee found Australia guilty of 143 violations of international law in relation to the indefinite detention of 46 refugees, including four children. The plaintiffs - 42 Tamils from Sri Lanka, three Rohingya from Myanmar and a Kuwaiti - were recognised as refugees, but remained in Australian immigration detention centres because Australia’s intelligence organisation ASIO deemed them a security risk.

According to the Committee, the Government's indefinite detention of the refugees on security grounds was arbitrary and violated Article 9 of the International Covenant on Civil and Political Rights as “the refugees were not told the reasons for the negative security assessment and so were unable to mount a legal challenge to their indefinite detention”. The Committee also found that "the combination of the arbitrary character of the authors’ detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the authors and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them”, and constitute cruel, inhuman and degrading treatment contrary to Article 7 of the ICCPR. The Committee called on Australia to release the refugees, who have been in detention for almost four years, under “individually appropriate conditions” and to provide them with rehabilitation and compensation. The Committee also reaffirmed that Australia's practice of mandatory detention of asylum seekers violates international human rights law.

This is the largest complaint ever upheld against Australia, according to Professor Ben Saul who represented the refugees. Seven of the refugees who filed complaints have since been released, but between 40 and 60 people are still in indefinite detention and most of them have been held for about four years. A separate complaint involving five more refugees has been made to the Committee and is yet to be decided. Full story.

The Committee's two decisions can be found here and here.

Japan’s Supreme Court rules children born out of wedlock entitled to equal inheritance

In September, Japan’s top court ruled that a Civil Law clause stipulating that a child born out of wedlock is entitled to half the share of inheritance that a child born in wedlock is entitled to is unconstitutional. Chief Justice of the Supreme Court, Hironobu Takesaki, said that the provision “runs counter to the Constitution, which guarantees equality for all under the law, and therefore is void”. This decision reverses the Court’s 1995 ruling, in which its grand bench ruled that the provision was constitutional from the viewpoint of protecting marriage. Full story.

See our coverage of the case in last month's Children in Court CRINmail for more information.

Petition filed in the Indian Supreme Court to reinterpret the definition of “juvenile”

India's Supreme Court is currently hearing a petition filed by opposition politician and lawyer, Subramanian Swamy that calls for a reinterpretation of the definition of “juvenile” under the Juvenile Justice Act. The petition asks for a child offender's "emotional, intellectual and mental maturity" instead of their age to be considered when deciding whether to try them as a juvenile. Currently, the Act defines a “juvenile” as a person under 18.

This petition comes amidst pressure in India for harsher punishments for juvenile offenders and a reduction in the upper age limit for juveniles from 18 to 16 following the “Delhi gangrape case”, in which a 23-year-old woman died following a gang-rape and attack by a group of males, including one 17-year-old boy, in December. In August, the Juvenile Justice Board sentenced the juvenile offender in this case to three years in a protective home - the maximum term available under the Act - a decision which the victim’s family has said it will appeal in a higher court. All four co-accused men were sentenced to death by a Delhi court in September.

In July, the Supreme Court dismissed eight petitions that asked the Court to rule that crimes of rape and murder committed by juveniles be tried and punished under adult laws, and that the juvenile age be lowered from 18 to 16. In 2000, India raised the juvenile age to 18 as part of its obligations under the Convention on the Rights of the Child, which it signed in 1992. Full story.

For more background on the issue of juvenile justice in India, see our previous CRINmail here.

Maldives court overturns girl’s 100 lashes sentence

A 15-year-old girl who was sentenced to 100 lashes for engaging in premarital sex had her punishment overturned by a Maldives court in August. The High Court ruled that the girl, whose stepfather is on trial for raping her, had been wrongly convicted by a juvenile court of having premarital sex with another man, finding that she had been “unfit for trial” after the alleged rape. Premarital sex is illegal in the Maldives. Full story.

In her earlier visit to the Maldives, UN Special Representative of the Secretary General on Violence against Children Marta Santos Pais stated that the case is “paradigmatic of the wider situation of violence against children”, and called on the Maldives to provide in national legislation for "a clear legal prohibition of all forms of violence against children, including in the home, in care and justice institutions, as well as a form of criminal sentencing.”

For further information, see CRIN’s inhuman sentencing campaign page and resources.   

Saudi Arabia outlaws domestic violence

In August, Saudi Arabia adopted a new law that makes domestic violence a punishable crime for the first time. The "Protection from Abuse" law aims to protect women, children and domestic workers from all forms of domestic abuse, provide shelter and "social, psychological, and medical aid" for victims of abuse, and hold law enforcement agencies accountable for investigating and prosecuting abuse allegations. Under the law, those found guilty of committing abuse could face prison sentences of up to one year and up to $13,300 in fines. Full story.

UK to introduce “modern slavery” bill

In August, UK Home Secretary Theresa May announced that a “modern slavery” bill will be introduced to tighten UK laws on human trafficking. The bill would introduce new trafficking prevention orders to prevent a person convicted of a trafficking offence from owning a company, visiting certain areas, or working with children or women after their release. It would also seek a commitment from companies not to use slave labour, and create the role of “modern slavery commissioner” to hold law enforcement and government bodies to account. Full story.

This announcement was followed by a report released by the UK Human Trafficking Centre, which identified 2,255 potential victims of human trafficking in 2012. Of these potential victims, at least 549 (24%) were children - a 12% increase from 2011. For potential child victims, the most prevalent countries of origin were Vietnam, Nigeria, Slovakia, Romania, and the UK, and the most prevalent exploitation types were sexual exploitation (28%) and criminal exploitation (24%).

In June, three Vietnamese children who were trafficked to the UK by criminal gangs and forced to commit drug offences had their convictions overturned. See our previous CRINmail here.

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NEW LEGAL RESOURCE

IPJJ-PRI joint tool on complaints

The Interagency Panel on Juvenile Justice (IPJJ) and Penal Reform International (PRI) has released a joint briefing paper on ‘The right of children deprived of their liberty to make complaints’. This paper reaffirms that children deprived of their liberty have the right to complain about their conditions, treatment and care through mechanisms that are safe, child-sensitive, effective and easily accessible. It highlights what the right to complain involves and requires, covering both informal and formal complaint mechanisms. It shows that the accessibility, safety and effectiveness of complaint procedures are key for ensuring that children have a voice in detention.

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CALL FOR SUBMISSION

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 Children's Rights at the United Nations CRINmail.

THE LAST WORD

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