CRINMAIL 28:
Children in Court

In this issue:

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INTRODUCTION

In this month’s Children in Court CRINmail, we bring you the latest legal news and children’s rights cases worldwide, including the new report from the International NGO Council on Violence against Children on creating a non-violent juvenile justice system, recent ratifications of the CRC Optional Protocol on a complaints procedure, developments concerning infant male circumcision and other medical consent matters, and various new decisions affecting children’s rights.

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

New report: Creating a non-violent juvenile justice system

As a follow-up to the 2006 UN Study on Violence against Children, the International NGO Council on Violence Against Children has launched its latest report, "Creating a non-violent juvenile justice system", in New York. The report aspires not only to clarify the many ways in which governments fail to protect children in conflict with the law, but also to present a non-violent vision of juvenile justice. In effect, the Council proposes a model of what a non-violent juvenile justice system would look like.

The report illustrates the violent realities of juvenile justice by taking the reader through a hypothetical journey which compares the two systems - violent and non-violent - side by side. This journey is based on juvenile justice laws, policies, practices, reports and studies from around the world. By presenting information in this way, this report not only highlights how flawed juvenile justice systems perpetuate violence against children, but also how these systems can be reformed to ensure that every child who comes into conflict with the law is fully protected from all forms of violence.

You can read a special edition violence CRINmail on the launch of the report here.

Juvenile justice developments: Australia, Philippines and United States

In a decision handed down in September, the Supreme Court of New South Wales (NSW) in Australia found that the NSW Police have unlawfully imprisoned a large number of children in recent years. The class action was brought in 2011 following the detention of children on the basis of inaccurate or out-of-date bail information on the NSW Police computer system. The Court, emphasising the importance of personal liberty, determined that the police could not rely on the Bail Act to justify the mistaken arrest of any child who was not on bail at the time of arrest. The Court’s decision paves the way for the victims to be compensated. Full story.

In October, the President of the Philippines signed into law a bill amending the Juvenile Justice and Welfare Act. Under the amended law, a child who is 15 or under at the time of the commission of an offence will be exempt from criminal liability, but may be subjected to a community-based government intervention programme. A child over 15 but under 18 will also be exempt from criminal liability and subjected to an intervention programme, unless they have “acted with discernment”. A child over 12 and up to 15 who has committed a serious crime such as murder shall be mandatorily placed in a special juvenile facility.

Despite extensive debate on lowering the minimum age of criminal responsibility during the passage of the Bill, the minimum age of 15 remains unchanged. The amended law also mandates the creation of the Juvenile Justice and Welfare Council to ensure the effective implementation of the law, and provides for the appropriation of 400 million pesos for the construction of rehabilitation centres in areas with a high incidence of children in conflict with the law. Full story.

In the United States, a report released in October by the Washington-based Campaign for Youth Justice found that, over the past eight years, 23 US states have enacted 40 pieces of legislation to reduce the prosecution of children in adult criminal courts and end the placement of children in adult jails and prisons. However, despite juvenile justice reforms, about 250,000 children are tried in adult courts and nearly 100,000 children are placed in adult jails and prisons each year across the United States. Full story.

CRC complaints procedure: new ratifications and guide

Portugal and Montenegro have become the seventh and eighth states to ratify the Optional Protocol to the Convention on the Rights of the Child on a complaints procedure. They now join the ranks of Thailand, Gabon, Bolivia, Germany, Spain and Albania. Eight States have now ratified the treaty and we are just two ratifications away from the mechanism’s entry into force. In the meantime, 44 States in total have signed the Optional Protocol, including Benin, Cote d'Ivoire, Ghana, Guinea-Bissau, Seychelles, Poland and Mongolia.

The Special Representative of the Secretary-General (SRSG) on Violence against Children has also launched a child-friendly guide to the CRC’s complaints procedure entitled: ‘Raising Understanding among Children and Young People on the Optional Protocol on a Communications Procedure’. The guide aims to raise children’s awareness about their rights and enhance their confidence to speak up and seek support. Download the guide here.

CRIN has produced a toolkit explaining how the complaints procedure works, and includes an annotated guide, as well as a comparative guide to other international communications procedures of the UN. The toolkit is available in Arabic, English, French and Russian.

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LATEST CASES

Circumcision of boys in Europe

A German court has forbidden a woman from having her six-year old son circumcised because of a risk of inflicting psychological damage on the child. The mother, who is German-born and of Kenyan descent, wanted to have her son circumcised before visiting Kenya, where circumcision of boys is common practice, stating that her son would not be accepted by his relatives unless he had the operation. The court in Hamm in North Rhine-Westphalia said that the mother was not fit to make the decision about the operation because neither child nor mother were aware of the risks involved in the procedure, and that such “damage” was not necessary and should not be allowed, particularly as both mother and child lived in Germany and rarely travelled to Kenya. Full story.

The issue of male circumcision remains controversial in Germany. In July last year, a court in Cologne ruled against the ritual circumcision of young boys, even when their parents have consented to the procedure (see previous CRINmail here). This decision was followed by the adoption of a law by Germany’s parliament last December which granted parents the right to authorise circumcision if carried out by a trained practitioner.

In September, Sweden's Ombudsman for Children, Fredrik Malmberg, called for the country to ban male circumcision, stating that circumcising a child without medical reasons or the child’s consent violates the Convention on the Rights of the Child as well as basic medical and ethical principles. Malmberg recommended that Sweden's 2001 legislation authorising circumcision be changed to only permit circumcision without medical grounds if the boy is of the age and maturity required to understand information about the procedure and and to consent himself. Full story.

This statement was followed by a resolution by the children's ombudspersons from the five Nordic countries (Sweden, Norway, Finland, Denmark and Iceland), and the children's spokesperson from Greenland, in addition to representatives of associations of Nordic paediatricians and paediatric surgeons, to work with their respective national governments to achieve a ban on non-therapeutic circumcision of boys unable to consent.

Re-victimisation of rape survivors in Bangladesh: the “two finger test”

In October, the Bangladesh High Court directed the government to show cause in four weeks as to why its failure to prohibit the “two-finger test” carried out on rape victims should not be declared to be a breach of its constitutional duties and a violation of fundamental rights under the Constitution. Under an 1872 law, doctors are required to use two fingers to determine whether a woman or girl who has alleged rape is “habituated to sex”. The petition, which was brought to the Court by six human rights, legal services, women’s rights and development organisations and two other experts, submitted that the “two finger test” has no evidential value or scientific merit, is humiliating and degrading, and violates women and girls’ fundamental rights to equality and dignity.

The Court also directed the Secretary of Health and Family Welfare to set up a committee of experts on criminal justice, forensic science, public health and women’s rights to develop comprehensive guidelines for police, physicians and judges of Nari o Shishu Nirjatan Tribunals regarding the examination and treatment of women and girls subjected to rape and sexual violence, and to report to the Court on this within a period of three months. Full story.

Medical consent in the United States: abortion and chemotherapy

In October, Nebraska's Supreme Court rejected the request of a 16-year-old ward of the state to waive parental consent requirements to get an abortion, agreeing with a district court that she was “not sufficiently mature” to decide whether to have an abortion. This was despite evidence of the girl’s maturity, including the fact that she raised her siblings, plans to graduate high school early, and brought the case to court. The district court had also determined that the girl had to obtain her foster parents’ consent to have an abortion, a decision which was also upheld by the Supreme Court. However, Justice Connolly in dissent stated that it was impossible for her to obtain consent - the parental rights of her biological parents had been terminated by a juvenile court because of abuse and neglect, the Nebraska Department of Health and Human Services (as her legal guardian) will not give her consent, and the consent of her foster parents would be ineffective as they are neither her parents or guardians. Full story.

Meanwhile, the Ohio Supreme Court has ruled on appeal that Akron Children’s Hospital can force a 10-year-old Amish girl, S.H., to resume chemotherapy against her parents’ wishes, finding that it is “in the best interest of S.H. to undergo treatment aimed at saving and preserving her life”. In its decision, the Court stated that “[p]arental rights, even if based upon firm belief and honest convictions can be limited in order to protect the 'best interests' of the child” and that "when parents cannot or will not consent to potentially life-saving treatment for a minor, then a court may appoint another to approve the procedure and thereby protect the child's life and health". This ruling overturns two previous decisions by a county court judge denying the appointment of a medical guardian. Full story. For further background on this story, see our previous CRINmail here.

Right to nationality: children of migrants and surrogate children

In the Dominican Republic, thousands of children of migrants may be stripped of their nationality following a decision of the Constitutional Court in September. The decision found that the constitutional provision that recognises as a citizen anyone born in the country does not apply to children of parents who were not “legal residents” at the time of their birth because their parents were considered to still be “in transit”. The decision will affect the descendants of Haitian migrants who have settled in the Dominican Republic since the Constitution came into force in 1929, and may leave the vast majority stateless.

In a statement on the case, UNICEF said, “[the decision] could have a devastating impact on thousands of children. Without a nationality, stateless children can be denied access to basic social protection programmes, cannot earn education certificates or graduate or obtain an identity card or passport. Without these basic protections and opportunities, these children are more vulnerable to exploitation and abuse.”

The decision also clearly contravenes a previous decision of the Inter-American Court of Human Rights, in which the Court held that the denial of nationality to children living in the Dominican Republic who would otherwise be stateless violated their rights to nationality, equal protection and social assistance. Full story.

In France, the Court of Cassation, the country's highest appeals court, quashed a decision by a lower court that had authorised the births of two children born via surrogacy in India to be recorded in the French civil registry. The Court of Appeal of Rennes had previously decided that it was asked to pass a judgment solely on the registration of the births, and not on the validity of any surrogacy agreements (which are legal in India but not legal in France). The Court of Cassation also cancelled the declaration of paternity made prior to the births, stating that the French father had evaded the law by resorting to surrogacy. The Court’s decision appears to contradict a January circular from the Ministry of Justice asking courts to accept citizenship applications for children born via surrogate mothers abroad. Full story.

Cherokee child returned to adoptive parents, ending years-long custody dispute

In September, the Oklahoma Supreme Court lifted a district court order that kept a Cherokee child with her biological father, allowing the child to be returned to her adoptive parents. The decision by the Court, which stated that it did not have jurisdiction over the child, left in place a South Carolina court order validating the adoption. In October, the biological father and the Cherokee Nation said that all proceedings regarding the child within the Oklahoma and Cherokee court systems had been dropped.

The child, who was fathered by a Cherokee man, was put up for adoption by her mother. A non-Cherokee couple in South Carolina adopted the child, but once the biological father was notified about the adoption proceedings, he attempted to revoke the adoption and gain custody. The South Carolina Supreme Court initially ruled for the biological father, but in June the Supreme Court reversed the decision, stating that protections under the Indian Child Welfare Act of 1978 did not apply to the proceedings. Following this decision, a South Carolina state court in July awarded custody of the girl to the non-Cherokee couple. In August, however, the Oklahoma Supreme Court halted the child’s transfer to the couple while it considered the case. Although the child lived with the non-Cherokee couple for the first two years of her life, she then resided with her father and extended family in Cherokee territory in Oklahoma for nearly two years. Full story.

International child abduction in the United Kingdom and Pakistan

In September, the UK Supreme Court allowed the appeal of a mother concerning whether the court had the power to order the “return” of a child (H) with British nationality to the United Kingdom (UK), even if that child had never been to the UK.

The case arose when a mother, who claimed she was abused by the child’s father and kept in Pakistan against her will, sought the return of her four children to the UK from Pakistan, including H, who was born in Pakistan and had never been present in the UK. The father challenged the jurisdiction of the court to make orders for the return of the children. The judge who initially heard the case determined that all four children were habitually resident in the UK as the mother had not agreed that the children should live in Pakistan. The Court of Appeal, however, allowed the father’s appeal in relation to H, as H has not been physically present in the UK and therefore did not acquire habitual residence there.

The issue on appeal to the Supreme Court was whether the High Court has jurisdiction to order the “return” to the UK of a child who has never lived or even been to the UK, on the basis either that he is habitually resident in the UK or has British nationality. The Court stated that it was not necessary to decide whether H could be considered to be “habitually resident” in the UK (as it found jurisdiction on the basis of H’s nationality), however Lord Hughes gives an additional judgment explaining why he would have held that H was habitually resident in the circumstances of this case. The Court has sent the case back to the High Court to consider as a matter of urgency whether to exercise this jurisdiction. Full story.

Sex offender whose victim was described as “predatory” sentenced to imprisonment on appeal

In October, the sentence of a convicted sex offender, who received a 12 month suspended prison term after his 13-year-old victim was described as “predatory” and “sexually experienced”, was raised to two years’ imprisonment by the Court of Appeal of England. The 41-year-old man admitted to engaging in sexual activity with the girl, as well as offences of making indecent images of a child and of possessing an extreme pornographic image. According to the Court of Appeal, "[t]o reduce punishment on the basis that a person who needed protection was encouraging the commission of an offence is simply wrong”. The prosecuting barrister in the original case who made the comments against the victim has been suspended from handling sexual offence cases. Complaints about remarks made during sentencing in the original case by Judge Nigel Peters, who said he was taking into account how the girl looked and behaved, are being considered by the Judicial Conduct and Investigations Office. Full story.

South African law criminalising consensual sexual activity between children declared unconstitutional

In October, South Africa’s Constitutional Court declared certain provisions criminalising consensual sexual activity between children aged 12 to 16, including kissing and hugging, unconstitutional. The Court found that sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act infringed on the rights of children to dignity and privacy, and further violated the best interests of the child principle in section 28(2) of the Constitution. This decision upholds a January ruling of the Pretoria High Court. Full story. See, also, our previous coverage of the issue here and here.

Challenging corporal punishment in Europe and Honduras

In September, Honduras amended its Civil Code and Family Code to explicitly ban corporal punishment of children in the home and in all other settings, becoming the fourth Latin American state to prohibit corporal punishment in all settings. Full story.

Meanwhile, complaints continue before the European Committee on Social Rights regarding corporal punishment laws across Europe. See this month’s Children & Violence CRINmail for more information.

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CALL FOR SUBMISSIONS

CRIN questionnaire: legal clinics

This month we’d like to ask for your help to get an accurate picture of the organisations that provide legal assistance to children or carry out litigation on children’s rights issues. Our aim is to help children gain access to justice by sharing information on where and how these legal clinics work and how children can make use of them. We’d also like to build on the experience of successful clinics to help people set up their own.

You can assist us by completing a short questionnaire about your legal clinic - please email your answers to [email protected]; alternatively you can email us indicating if you would be willing to complete the questionnaire by phone. The information you provide will help us to understand the work you do, and will give us a valuable insight into the legal services that are available to children in your country.

There are separate questionnaires for legal clinics that specifically focus on children’s rights and those that work on human rights more generally.

Thank you in advance!

The CRIN team

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THE LAST WORD

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