CRINMAIL 30:
Children in Court

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INTRODUCTION

The year may be drawing to a close, but courts around the world have remained busy with children's rights cases this month. In this edition of the Children in Court CRINmail, we bring you the latest news on children’s rights in the courts, from criminal penalties for child protesters in Egypt to upholding LGBT rights in Japan. We also have news on an upcoming funding opportunity from the European Union.

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LATEST NEWS AND CASES

Juvenile justice: inhuman sentencing in the United States and Afghanistan

The long running dispute in the United States over mandatory sentences of life imprisonment without parole for offences committed by children continued in November. The District Court of Michigan became the most recent court to require a state to comply with the U.S. Supreme Court decision in Miller v. Alabama, issuing an order requiring the state to provide the opportunity for parole for people who had been sentenced to life without parole for crimes committed while under the age of 18 after they have served 10 years in prison. The order also requires the state to establish an administrative structure to determine parole for child offenders sentenced to life without parole, to give notice to all such persons who have completed 10 years imprisonment that their eligibility for parole will be considered in a meaningful and realistic manner, and to schedule proceedings for a public hearing for all eligible prisoners. Almost 350 people are serving mandatory life imprisonment sentences in Michigan for crimes committed while under 18. Read more here.

The Attorney-General for Michigan has since expressed his intention to appeal the decision.

In the US state of Massachusetts, the Supreme Judicial Court ruled in November that juvenile court judges have discretion to throw out charges against children before their arraignments where it is in both the best interests of the child and the interests of justice. This will ensure that the alleged crimes are not entered on children's records and have no impact on their futures. In a split ruling by the state’s highest court, Justice Gants for the majority stated that “protecting a child from the stigma of being perceived to be a criminal and from the collateral consequences of a delinquency charge is important even where the complaint is supported by the evidence”. Full story.

Meanwhile in Afghanistan, the reinstatement of physical punishment was on the agenda as the State discussed reforms to the Penal Code. Amendments proposed by the Ministry of Justice and the Ministerial Committee of Sharia and Traditional Penalty and Investigating Crimes included the reintroduction of stoning to death for adultery by married people, flogging for sex outside of marriage and amputation of limbs for theft or robbery. Such physical punishments have been prohibited since the ousting of the Taliban. It is not clear whether the penalties would apply to children.

Afghan president, Hamid Karzai has since distanced himself from the proposal, stating that such penalties would not be returning. Speaking about the reforms, Heather Barr of Human Rights Watch said, “[o]f course it's a huge relief that the government appears eager to disown this proposal now, but this is not an aberration that appeared out of the blue … It is just the latest in a long string of efforts to roll back women's rights over the last half year, many of which have been successful.”

Criminal penalties for protests in Angola and Egypt

In Angola, a 17-year-old boy has become the first person accused of insulting the President. The teenager was arrested while collecting t-shirts he had ordered to be printed with slogans including “out disgusting dictator” and “when war is necessary and urgent”, a reference to a book published in 2011 which called on young Angolans to participate more fully in public life. The offence of “insulting the President [in] public meetings or by disseminating words, images, writings or sounds” was introduced by the 2010 state security law and carries a sentence of up to three years imprisonment.

Following his arrest in September, the boy was held incommunicado for three weeks before being able to speak to his lawyer and family. He has since been detained with adults in conditions of poor hygiene and with no drinking water or food provision. Amnesty International says the teenager is a prisoner of conscience who was arrested for peacefully exercising his right to freedom of expression, and is calling for his immediate release. Read more here.

In a related story, 21 women and girls were sentenced to 11 years imprisonment in November for participating in a peaceful protest in Egypt. Members of the group - seven of whom were under 18 - were arrested while forming a human chain and handing out flyers in Alexandria. Hamdy Khalaf of the Egyptian Initiative for Personal Rights, described the verdict as “unprecedented in its harshness and absolutely unfair against peaceful protests”. A court in Alexandria has since overturned the convictions and ordered the release of the protesters.

Detention of migrant children in Bulgaria and Israel

The Bulgarian government adopted a bill in November that would introduce the systematic detention of asylum-seekers and allow for the detention of asylum-seeking children. Children would be eligible for detention in “centres of a closed type”. The International Detention Coalition has been critical of the Bill, reporting that it will not allow for timely judicial review of detention; it will not oblige authorities to provide information to asylum-seekers on the reason for their detention and their right to challenge that detention; and that it was not published or submitted for consultation before being adopted. The Bill will be discussed in committees before reaching parliament, and Bulgarian civil society has urged the government to organise side consultations to ensure it meets international standards and EU law.

In related news, the Israeli Cabinet has adopted amendments to the Law for the Prevention of Infiltration, which would permit the detention of undocumented immigrants for up to 12 months. More than 55,000 such migrants - termed “infiltrators” by national legislation - live within Israel and as many as 2,000 are held in detention. The amendment is a direct response to the decision of the Supreme Court in September 2013, which invalidated the provisions which permitted detention of immigrants without documents for up to three years, on the basis that that these provisions constituted an unjustified restriction on the right to liberty enshrined in the Basic Law on Human Dignity and Liberty. In the September judgment, the Supreme Court held that there were less restrictive measures that could be applied to “infiltrators”, including requirements that they be held in facilities that were only locked at night. These measures have been included in the latest amendment and it remains to be seen whether they will be sufficient to make the law compatible with the Israeli Basic Law.

Israeli court fines woman for not circumcising her son

An Israeli rabbinical court has ordered a mother to circumcise her son against her will or to face daily fines of £90.  Under Jewish religious tradition, boys are circumcised on the eighth day after birth, but the mother in this case said the boy - now one year old - was born with a medical problem that prevented him undergoing ritual circumcision. She was also quoted as saying that "[a]s time went on, I started reading about what actually happens in circumcision, and I realised that I couldn't do that to my son. He's perfect just as he is." According to the mother’s lawyer there is no legal obligation to circumcise boys in the country.

Rabbinical courts are part of the national justice system and maintain jurisdiction over religious matters, including marriage and divorce of Jewish citizens. The courts can also rule on matters of custody, inheritance, child support and alimony and are able to enforce their judgments in the same way as civil courts. The mother has expressed her intention to appeal to the High Court of Justice to set aside the rabbinical court’s decision.

Child abuse in Catholic institutions: Poland and the United States

This month saw courts on both sides of the Atlantic tackling the issue of sexual abuse of children by Catholic priests. In December, a local court in Rawa Mazowiecka in central Poland sentenced a Roman Catholic priest to eight and a half years in prison for sexually abusing five boys. This is the toughest punishment given to a priest in Poland in a child sexual abuse case. In Poland’s first such case, a priest in southern Poland was handed a two-year suspended prison term in 2004; he was moved to another parish and never served his term. Full story.

Meanwhile in Minnesota, USA, the Roman Catholic Archdiocese of St Paul and Minneapolis has identified 30 priests accused of sexually abusing children in the archdiocese. A county court judge in Minnesota had ordered the archdiocese and the Diocese of Winona to release the details, which include the clerics' names, dates of birth and ordination, their assignments in the archdiocese, their status with the church and where they now live. Child sex abuse litigation has cost the US Catholic Church some $3 billion in settlements in the last two decades. Full story.

LGBT rights in Japan and India

It has been a mixed month for LGBT rights around the world. In December, the Supreme Court of Japan ruled in favour of a transgender man on appeal, recognising him as the legal father of a child born to his wife. The man married his wife in 2008, one month after his transition was complete and he was legally recognised as male. In 2009, his wife gave birth to their son who was conceived through in vitro fertilisation using sperm from the man’s brother. The Tokyo District Court and Tokyo High Court both denied the man’s application to be recognised as his child’s legal parent. The ruling of Japan’s highest court overturned these decisions, with the effect that a child born to the legal wife of a transgender husband will no longer be automatically registered as "illegitimate". Full story.

Meanwhile, in India, the Supreme Court upheld a ban on sexual intercourse between consenting members of the same sex. The offence dates back to the 1861 Indian Penal Code which punishes the offence of “carnal intercourse against the order of nature with any man, woman or animal” with a penalty of up to 10 years imprisonment. The High Court of Delhi found the provision unconstitutional in 2009, but this month the Supreme Court overturned that decision, ruling that the issue was one that should be left to the legislature. The decision has sparked protests in India, by LGBT activists. Speaking out against the judgment, veteran gay rights campaigner Gautham Bhan said, “[i[t’s a tremendous blow. It’s unprecedented for a court with a long history of expanding rights to reduce dignity, not protect it.”

Looking forward to the new year, the Supreme Court of India is also set to hand down its verdict on a public interest petition on the question of whether transgender persons can be given legal recognition. The petition was filed by the National Legal Services Authority (NALSA) in October 2012 seeking equal rights and protection for transgender persons, including recognition of a third gender category in identification documents, educational institutions, hospitals, and toilet allocations. Full story.

High Court rules on school fees in Bangladesh

The High Court of Bangladesh has ruled that private schools under the Monthly Payment Order scheme will be held in contempt of court if they continue to charge fees in excess of the level set by the Ministry of Education guidelines. The decision also requires the Government to ensure that private schools only charge fees permitted by these guidelines, which prevent schools from charging more than Tk 8,000 in Dhaka and a series of lower caps outside of the capital. The limits on school fees were introduced as a means of making education more affordable for children in the State.

The judgment comes after high profile reports in the national press about schools that have charged admission fees in excess of six-times the lawful amount. Barrister Ashraful Hadi, who represented the complainants, said, “this is a landmark judgment that will facilitate proper access to education as part of fundamental rights of every citizen. It was a positive step for the Ministry of Education in issuing those Circulars concerned and the Government must be responsible to ensure that these progressive measures are implemented for greater public benefit.”

For more on this story, see the latest newsletter from Bangladesh Legal Aid and Services Trust.

Settlement reached in Australian thalidomide case

More than 100 people who were born with birth defects as a result of Thalidomide are set to share AUS$89 million in compensation following a settlement in Australia. The settlement will end a class action suit brought by Lynette Rowe who, with her family, has been pushing for recognition of the role the drug played in her disability for 50 years. The distributor of the drug, Distillers Co. (Biochemicals), was acquired by Diageo in 1997, and so Diageo became the target of the suit. The drug was used throughout the 1950s and 60s to treat nausea and morning sickness in pregnant women, but can seriously affect the development of babies, including affecting the formation of limbs and causing kidney and heart problems. Speaking about the decision Ms. Rowe’s lawyer, Peter Gordan, said, “[the victory] is an enduring tribute to the courage of Lynette Rowe (and others) that they were prepared to commence proceedings against some of the biggest companies in the world and challenge the medical and legal orthodoxy which has endured and inured for 50 years and say no, that's wrong."

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Funding opportunity: European Union

The European Union’s programme on Fundamental Rights and Citizenship is accepting applications for its 2013 action grants, with one of its priorities being children’s rights. Priority will be given to proposals that focus on or explicitly include a majority of children from vulnerable groups. These include transnational projects involving:

• the training of staff dealing with children in residential care or detention, as well as in the context of judicial proceedings;

• initiatives to empower Roma children through their participation at all levels; and

• the effective provision of information to children on their rights, namely on legal/rights-related advice for children, which is grounded in the rights contained in the EU Charter of Fundamental Rights and the UN Convention on the Rights of the Child.

The deadline for submission of applications is 12:00 on 12 March 2014. More details here.

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CRIN ANNOUNCEMENTS: New website, new office!

CRIN will soon be unveiling its brand new website! However, while we transition from our current site to the new one, hitches may occur. During the transition, we may be unable to update the website with new content. We therefore ask our users to be patient during the next few weeks, and rest assured that we will endeavour to accommodate any requests for information sharing as soon as is possible.

CRIN would also like to announce that we have moved office, and therefore have a new address. Please take note that as of 16 December, our new address is:

Child Rights International Network - CRIN
Unit W125-127, Westminster Business Square
1-45 Durham Street
London, SE11 5JH
United Kingdom

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THE LAST WORD

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