CRINMAIL 29:
Children in Court

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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 on attempts to challenge corporal punishment, settlements on the marketing of pharmaceuticals to children and challenges against restrictions on welfare provision for families with children.

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

Challenging corporal punishment in France, Australia and the Caribbean

In October, the Limoges Criminal Court fined a father €500 for spanking his nine-year-old son, describing the act as a "violent gesture combined with humiliation”. This is the first time a French court has convicted a parent for physically punishing their child. There is currently no legislation that prohibits spanking or other forms of corporal punishment of children in France, but the Court judged the case under provisions of the Penal Code relating to violence against vulnerable individuals. Following this decision, the Minister for Family Affairs, Dominique Bertinotti, became the first French minister to publicly declare her opposition to corporal punishment, stating that "violence towards children is like domestic violence: we mustn't accept the first blow. We need an important symbolic act so that society can say that smacking is not tolerable and not an educational tool." However, she did not indicate whether this would take the form of new legislation. Full story.

France is among the seven States currently under scrutiny by the European Committee of Social Rights for failing to prohibit corporal punishment of children, which is still legal in France in the home, alternative care settings, day care, schools and penal institutions.

In a related story, an Australian woman narrowly avoided a criminal conviction for spanking her ex-partner’s eight-year-old daughter. The girl told police her mother had asked the woman to smack her because she did not pull out weeds. Charged with both intentionally and recklessly causing injury, the woman pleaded guilty to the latter charge, which carries a maximum penalty of five years' imprisonment. She was placed on a good-behaviour bond for a year, without conviction, and ordered to pay AUS$600 to the court fund. Full story.

In recent months several States have made positive steps towards abolishing corporal punishment. In September, Honduras became the fourth Latin American State to prohibit physical punishment of children in all settings, including the home. Jamaica, meanwhile, has finally removed corporal punishment as a criminal sentence from its statute books. The Jamaican Court of Appeal ruled that corporal punishment as a criminal sentence is unconstitutional in 1998, but until now the sentence remained in legislation.

For the latest news on legal reform on corporal punishment, read the October newsletter of the Global Initiative to End all Corporal Punishment of Children here.

Pharma giant settles over allegations of fraudulent marketing of drugs to children

Johnson and Johnson and its subsidiaries are set to pay more than US$2.2 billion to resolve criminal  and civil liability related to the marketing of off-label, unapproved uses for three prescription drugs. One of the drugs involved was Risperdal, which federal investigators allege was promoted as a treatment for attention deficit hyperactivity disorder and other behavioural problems in children despite evidence that it posed health risks to children. United States Attorney General, Eric Holder, said that Johnson & Johnson's conduct "recklessly put at risk" the health of children.

The settlement is the latest in a series of high profile fraud cases the U.S. government has pursued against the pharmaceutical industry in recent years. The Justice Department has recovered nearly US$17 billion since 2009 by bringing cases under the False Claims Act.

Read more about children’s rights and the pharmaceutical industry, as well as about the overmedication of children with perceived behavioural difficulties.

Juvenile justice in the United States: “kids for cash” and life without parole

In the United States, a US$2.5 million settlement has been reached in the “Kids for Cash” juvenile justice sentencing scandal. The scandal emerged in 2009 following claims brought by thousands of children who were wrongfully detained between 2003 and mid-2008 in the PA Child Care, Western PA Child Care and Mid-Atlantic Youth Services Corp., often for minor offences. Former President Judge Mark Ciavarella was sentenced to 28 years in prison after he was convicted of offences including racketeering and conspiracy, while former Judge Michael Conahan was sentenced to 17 and a half years in prison after pleading guilty to a racketeering charge. In 2009, the Supreme Court of Pennsylvania overturned 6,500 juvenile offender convictions issued by Ciaverella. The settlement will now go to US District Judge Caputo for final approval. Full story.

In 2009 the Supreme Court of Pennsylvania overturned 6,500 juvenile-offender convictions issued by one of the judges. For a chronology of developments in the scandal, click here.

A year and a half after the United States Supreme Court’s ruling that mandatory sentences of life imprisonment without parole (LWOP) for crimes committed while under 18 are unconstitutional, the struggle over implementation of the decision continues throughout the States’ courts. In October, the Supreme Court of Pennsylvania found that this ban on mandatory LWOP will not be applied retroactively, with the effect that people serving such sentences in Pennsylvania who had run out of appeal opportunities as of June 2012 will not be able to appeal against their sentences.

More than 2,000 people in the United States are currently serving mandatory LWOP sentences for crimes committed while children, 444 of these within Pennsylvania. Such sentences do not allow judges discretion to consider a child’s youthfulness, maturity, role in the crime, home environment or potential for rehabilitation. Speaking out on the issue, Jody Kent Lavy of the Campaign for the Fair Sentencing of Youth said, “we cannot predict what a teenager will be like in five, 10 or 15 years. We should never declare children to be throwaway people by imposing a sentence to die in prison”.

Read more about life imprisonment affecting children on CRIN’s Inhuman Sentencing Campaign homepage.

Children sexually abused in orphanages to be compensated under government scheme in India

In October, the Bombay High Court directed the Department of Women and Child Welfare to swiftly finalise compensation for 24 girls with learning disabilities who were sexually abused in two orphanage shelters - the Kavdas shelter home at Shahapur, Thane, and the Kalyani Mahila Bal Seva Sanstha at Panvel. The High Court-appointed Committee for Child Protection (CCP) first raised the issue of compensating these victims in March last year and the Commissionerate of Women and Child Development (WCD) has sent a proposal to the Department approving the compensation as per the 'Manodhairya' scheme, which aims to provide financial, medical, legal aid, rehabilitation and counselling for victims of rape and child abuse.

Under this scheme, a child victim of sexual offences will receive a minimum of Rs 200,000 in compensation, which can be increased to a maximum of Rs 300,000 in special cases. The girls could be the first such victims in the State to receive compensation under this scheme, which came into effect in October. The Court also directed the WCD Commissioner to prepare a plan to ensure that the funds are used for the education, vocational training and rehabilitation needs of the girls. The State informed the Court that it has prepared an exit plan for children of shelter homes, which are to be shut down due to non-compliance with regulations. The case will now be heard on 17 December. Full story.

European Court of Human Rights condemns Greece for detaining unaccompanied child

In October, the European Court of Human Rights ruled that Greece violated the rights of an unaccompanied Afghan child by keeping him in a detention centre alongside adults. The child, was arrested and detained in 2011 for illegally entering Greece; he was seven-years-old at the time and unaccompanied by an adult. The Court found that the boy’s detention for nearly two months in an adult detention centre violated his right to liberty under Article 5(1) of the European Convention on Human Rights. The court also found a violation of Article 5(4) as the Greek courts had failed to consider the legality of his detention. However, regarding the detention conditions, the Court found no violation of Article 3 (prohibition of degrading treatment) as the boy had not exhausted domestic remedies. The Court also found no violation of Article 9 (freedom of religion) regarding his claim that, as a Muslim, he was forced to choose between eating pork and going hungry. It said that, even if all domestic remedies were exhausted, there was no reason to question the evidence of the meal programme provided by the Government. The Court ordered Greece to pay €12,000 in compensation for the Article 5 violations. Full story.

Challenge to benefits cap fails before United Kingdom courts

This month a challenge to the UK’s welfare policy - which places a limit on benefits including housing benefit, child benefit and child tax credit - was denied by the High Court of England and Wales. Three single parents, on behalf of themselves and their children, argued that placing an absolute limit on the financial support available to people out of work discriminates against single parent families and breaches their right to private and family life. While noting that the benefit cap has a disproportionate impact on women, who make up 92 per cent of single parents who have children living with them, the court found that the scheme “was not so manifestly unfair or disproportionate as to justify an interference by the courts”.

Rebekah Carrier, a solicitor who acted on behalf of the families, said “We are disappointed by this judgment. Two of the claimants had fled domestic violence. The court failed to grapple with the difficulties caused by the way that women seeking a safe space for themselves and their children are charged for their accommodation, including in women’s refuges.” A report by the Chartered Institute of Housing published in October found evidence of women who had chosen to stay with violent partners who were employed for fear of facing the economic hardship of the benefit cap if they left with their children. Lawyers acting for the affected families have expressed their intention to appeal. Read more here.

Canadian child soldier appeals Guantanamo conviction

Canadian-born Omar Khadr, previously Guantanamo Bay’s youngest inmate, has filed an appeal with the US Court of Military Commissions Review against his war crimes conviction, claiming that he was convicted for a crime that did not exist when he was captured by US forces in Afghanistan in 2002. Khadr, who was 15 when he was captured, received an eight year prison sentence in 2010 after pleading guilty to throwing a grenade that killed a US soldier during a firefight in Afghanistan and for planting landmines intended to kill US soldiers. He spent 10 years imprisoned in Guantanamo Bay before being transferred to Canada in 2012 to serve the rest of his term in a maximum security prison.

In his appeal, Khadr’s lawyers claim that the conviction must be overturned and Khadr released immediately, as the war crime offences were only established as US law in 2006, and Khadr should not have been prosecuted retroactively. His appeal also claims that he was mistreated in US custody, terrorised by barking dogs, threatened with rape, sleep-deprived, held in isolation, restrained in stress positions and physically assaulted. According to his lawyers, “the government’s decision to treat Khadr as an adult war criminal, rather than a trafficked child soldier, resulted in unjust and unreasonably punitive conditions of confinement”. Full story.

Kiribatian man seeks climate change asylum in New Zealand

A man from Kiribati has asked the New Zealand High Court to let him pursue his claim for asylum as a climate change refugee. Ioane Teitoa, 37, whose refugee application was rejected by an immigration tribunal, appeared in the High Court in October with his wife and three young children, who were all born in New Zealand. According to his appeal, he and his family would suffer serious harm if forced to return to Kiribati because of flooding, sickness, and water and food shortages caused by rising sea levels. “There’s no future for us when we go back to Kiribati”, Teitoa told the Court, adding that a return would pose a risk to his children’s health. The High Court is yet to deliver its decision. Full story.

Ban upheld on sexual orientation “conversion therapy”

A New Jersey law banning the use of sexual orientation “conversion therapy” for children has been upheld by a US federal judge as constitutional. The lawsuit, filed by two therapists, the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors, claimed that the law violates their constitutional right to free speech because counsellors are barred from talking about “conversion therapy”. Judge Freda Wolfson said that the law did not violate the rights of therapists because it only regulated conduct, not protected speech. In a separate lawsuit filed this month, parents of a 15-year-old boy, who had been undergoing “conversion therapy”, unsuccessfully claimed that the law violates their rights to religious freedom and free speech and their parental right to direct the upbringing of their children, as well as the boy’s right to self-determination. Full story.

For more information about US legal developments concerning sexual orientation “conversion therapy” for children, see our previous Children in Court CRINmail.

Meanwhile, the Court of Justice of the European Union has declined to find that the criminalisation of consensual same-sex activity constitutes “persecution” for the purposes of EU asylum law. The judgment has been heavily criticised as a setback for refugees who flee their home countries because of persecution based on their sexual orientation. Read more here.

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LATEST REPORTS AND PUBLICATIONS

This month, CRIN is also highlighting some of the reports that have come our way on juvenile justice and child-friendly justice.

Penal Reform International has published a new manual, “Protecting children’s rights in criminal justice systems”. Based on international and regional standards, the report takes a practical approach to the issues that arise for children in the justice system, illustrated by examples from around the world.

UNICEF Argentina has also published a major guide this month on good practice for dealing with child victims and witnesses of sexual abuse. The report is available in Spanish here.

The Ombudsman for Children in Sweden too launched a new publication, “From the inside: children and young persons in police cells and remand prisons”. The report examines Sweden’s record on depriving children of their liberty, and is based on interviews with affected children as well as an examination of detention records, a survey of police authorities and the statistics on the use of police cells for children.

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THE LAST WORD

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