CRINmail 34:
Children in Court

In this issue:

INTRODUCTION

It has been a big month for children using legal mechanisms to enforce their rights as the third optional protocol to the UN Convention on the Rights of the Child entered into force providing children with a new means of challenging rights violations at the international level. Meanwhile, in national courts children’s right to anonymity in court proceedings faced a serious setback in the United Kingdom, the Croatian Supreme Court upheld mandatory vaccinations of children and the Philippines grappled with the constitutionality of its new reproductive health law. Read on for news on this and much more.

LATEST NEWS AND CASES

Children's complaints mechanism enters into force

A children’s rights complaints mechanism at the UN has been a long time in the making. Almost 25 years have passed since the Convention on the Rights of the Child entered into force and nearly every country in the world has now accepted its duty to respect and uphold children’s international human rights. Since Monday 14th April, the third Optional Protocol to the Convention on the Rights of the Child (OP3) has been in force and children are now able to complain to the UN Committee on the Rights of the Child (CRC) when their rights are violated.

Welcoming the entry into force, four senior UN children’s rights experts made a joint statement: “Today marks the beginning of a new era for children’s rights. Children are now further empowered as this Optional Protocol recognises their capacity to exercise and claim their own rights.”

You can read our special edition English CRINmail marking the entry into force and find out more about the complaints procedure through our website. You can also keep up to date with the ongoing campaign for ratification through the Ratify OP3 CRC Coalition.

United Kingdom: anonymity of children expires on 18th birthday

This month, a UK court ruled that anonymity provided to children previously involved in court proceedings automatically expires once they turn 18. The claimants, aged 17 at the time, had the benefit of an order under section 39 of the Children and Young Persons Act 1933 restricting any newspaper or broadcast media outlet from reporting their names, addresses, schools or other identifying particulars. The High Court concluded that an order made under section 39 cannot extend to reports of the proceedings after the child has turned 18. However, recognising that victims and witnesses need “individual and tailor-made protection”, the Court called on Parliament to find a solution “as a matter of real urgency”.

As a result of this decision, children previously involved in court proceedings - as defendants, victims or witnesses - can be named once they turn 18. Just for Kids Law Director Shauneen Lambe warned that this decision could deter child victims and witnesses from coming forward, and impede the rehabilitation of young offenders. The claimants plan to appeal.

Read the judgment and CRIN’s case summary.

Juvenile justice developments in India and Australia

In March, the Supreme Court of India rejected a petition that sought a reinterpretation of the term “juvenile”. The petitioners had argued that the provisions of the Juvenile Justice Act must be read to mean that juveniles (under 18s) who are "intellectually, emotionally and mentally mature enough to understand the implications of their acts and who have committed serious crimes" should not come under the purview of the Act, and should instead be dealt with in the adult criminal justice system. The Court ruled that fixing the age of 18 years below which all alleged offenders must be tried under the Juvenile Justice Act was constitutional and in line with India’s obligations under international conventions, including the Convention on the Rights of the Child. Read the judgment and CRIN’s case summary.

In Australia, Queensland passed controversial amendments to the Youth Justice Act, making "the state the harshest in Australia for [child offenders]". The amendments include: allowing publication of identifying information about repeat offenders; opening the Children’s Court for repeat young offenders—so that media and the public can attend; transferring young offenders to adult prison when they turn 17; making juvenile criminal histories available to adult courts for sentencing purposes; and removing the principle of detention as a last resort. Critics have argued that these provisions are not consistent with Australia’s international obligations under the Convention on the Rights of the Child, which requires detention to be used only as a matter of last resort, and the Beijing Rules, which provides for the protection of privacy for juvenile offenders.

HIV infection case reaches the Inter-American Court

A case in Ecuador of a child who was infected with HIV through a blood transfusion with blood obtained from a private blood bank has been filed with the Inter-American Court of Human Rights. The complaint alleges that the State failed in its international responsibility to protect the child’s right to a life of dignity and humane treatment. The State is also accused of failing to provide the victim with the specialised medical care she needed, and for not meeting the minimum standards of due diligence to offer effective redress, claiming that the time for legal action had lapsed. The Inter-American Commission says the case gives the Court the chance to expand its case law on States’ obligations in relation to private entities that provide health services.

Croatian Constitutional Court upholds mandatory child vaccinations as child's right to health

Croatia’s Constitutional Court has rejected a proposal that the decision to vaccinate a child should only be taken by his or her parents. In doing so, the court has upheld a contested law that requires all children born in the country to receive vaccinations against a series of diseases, including hepatitis, measles, polio, whooping cough, tetanus, tuberculosis and diphtheria. Mandatory vaccination in Croatia began in 1999 and led to drastic reductions in the occurrence of these diseases. But in recent years an increasing number of children were not vaccinated: 28 in 2012, rising to 143 in 2013. The court took up the case following a petition signed by 10,000 people stating that “the vaccination of healthy children poses a threat to their health.” But the court ruled that private concerns do not take precedence over public safety, and supported the Croatian Ministry of Health’s decision that “the child’s right to health [is more important] over the rights of parents to the (wrong) choice.”

Philippines Supreme Court upholds reproductive health law

This month, the Philippines Supreme Court held that a landmark reproductive health law is constitutional, thereby expanding public access to reproductive health services and mandating sex education in schools. The law was approved by Parliament and signed by the President over a year ago, but has been stalled by a legal challenge from the Catholic Church and faith-based groups. While the Court upheld most of the law, certain provisions were struck down, including a provision allowing girls under 18 who have already had children or who have suffered a miscarriage access to birth control without their parents’ written consent. Advocates of the law said that “while the law is not perfect, it paves the way to removing some of the existing barriers in protecting women and girls’ human right to sexual, reproductive and maternal healthcare”. Read the main decision by Justice Mendoza.

Rights of transgender and intersex people in India, Australia and Canada

In Canada, the mother of a six-year-old transgender child has filed a complaint to the Saskatchewan's Human Rights Commission, arguing for the removal of any record of a person's sex on their birth certificate. The child was born with male genitalia but has identified as a girl since the age of three. The mother filed the complaint after a provincial government agency refused to change the child’s sex designation from "Male" to "Female" on birth records. Several human rights complaints have been filed on behalf of transgender children across Canada calling for changes to birth certificates.

This month, the Supreme Court of India recognised transgender people as a legal “third gender”. The Court said that by recognising transgender people as a third gender, “they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition”, and this begins with their “appropriate sex categorisation” at birth. The Court ordered the government to provide transgender people with quotas in education and employment in line with other minorities, and ensure that they have access to medical care and other facilities like separate public toilets. The public interest petition was brought by the National Legal Services Authority. Read the judgment.

In Australia, the High Court also recognised a third category of sex, allowing a person to be legally registered as being of “non-specific” sex. Norrie, who was born male but had a sex change and now does not identify as specifically male or female, had challenged the registrar’s refusal to register Norrie as being of non-specific sex. After several appeals, the High Court ruled in a unanimous decision that the law does recognise that a person may be neither male nor female. The ruling only applies to someone, like Norrie, who has had sex reassignment surgery. Read the judgment.

Nigerian Supreme Court upholds right of female child to inherit property in Igboland

The Supreme Court of Nigeria has voided the Igbo law and custom, which prohibited female children from inheriting their late father's estate, on the grounds that it is discriminatory and conflicts with the Constitution. The daughter of the deceased, who had died intestate, had sued the deceased's wife and son, claiming to be one of the deceased’s children and seeking to be included among those administering the deceased's estate. The Court stated that "no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father's estate… Consequently, the Igbo customary law, which disentitles a female child from partaking in the sharing of her deceased father's estate is [in] breach of Section 42(1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian”.

There have been a number of high profile cases in recent years challenging the legality of inheritance laws that discriminate on the basis of sex. In October 2012, the High Court of Botswana struck down provisions of customary law that prevented female children inheriting the family home. Read more in our previous edition of the Children in Court CRINmail.

Victims of clerical sex abuse sue the Catholic Church in Australia and the UK

At least 20 victims of Gerald Ridsdale, a former priest convicted of rape and other sexual abuse of children, are preparing to launch a class action against the Diocese of Ballarat in what will be the first test of Cardinal George Pell's recent commitment to make the Catholic Church less hostile to litigation from sex abuse victims. The victims argue that the Archdiocese of Melbourne knew since 1975 that Ridsdale was a sexual offender but failed to report these matters to the police or prevent Ridsdale having contact with children. Ridsdale is already serving a prison sentence, and this month received another eight years after pleading guilty to abusing 14 children over three decades. According to the Catholic Truth, Justice and Healing Council, all Catholic dioceses and religious orders have been told to make a legal entity that can be sued over child sex offences.

In the UK, a victim of sexual abuse has launched a claim for damages against the estates of two deceased Birmingham Archbishops for failing to "control" or "remove from post" former priest Samuel Penney. According to the victim’s lawyer, the Archbishops were vicariously liable for Penney’s sexual abuse of the former altar boy, which was committed in the course of, or closely connected with, Penney’s employment and duties. Penney was imprisoned for seven-and-a-half years in 1993 after he admitted to indecently assaulting seven children.

Read about CRIN’s campaign to end sexual violence in religious institutions, and CRIN’s report on ‘Child sexual abuse and the Holy See: the need for justice, accountability and reform’.

Irish court overturns refusal of financial support for autistic boy’s mother

The High Court of Ireland has overturned the decision to deny the mother of an autistic boy financial assistance - domiciliary care allowance - to help care for him. The boy’s mother had applied for the allowance on the basis that her son required continuous care and attention because of his interaction anxieties as well as his impulsive and sometimes aggressive behaviour. Solicitors acting for the mother presented evidence gained by a freedom of information request that in 3806 decisions made, the assessor responsible for making the decision to award the allowance had always agreed with the opinion of the desk- based medical assessment. The desk-based assessment excluded information provided by medical professionals who had personal knowledge of the individuals involved. Ruling on the case, Justice Barrett said that the person responsible for making the decision seemed to have a “disdainful mind-set” to other evidence, which indicated “inappropriate fettering” of the assessor’s discretion.

Family law reforms in the United Kingdom

Religious groups are seeking a judicial review of plans to appoint a named guardian for every child in Scotland. Last month the Scottish government passed the Children and Young People (Scotland) Bill, which assigns children up to 18 a “named person”, such as a teacher or health visitor, to support or safeguard their wellbeing. Parents would not be required to accept help or advice from the named person. According to the Christian Institute, the plans interfere with the right to a private and family life and potentially contravene the European Convention on Human Rights.

In the UK, new combined Family Courts have come into being in England and Wales as part of family justice system reforms. The reforms include rules to ensure that cases involving children taken into care are normally completed within six months in a single Family Court, which replaces the current three-tier court system in family cases, and the abolition of labels such as "residence" and "contact", which were thought to focus on the rights of parents rather than the needs of the child.

United States ban on conversion therapy for children put on hold

The US Court of Appeals has put its judgment upholding a ban on licensed therapists working to change the sexual orientation of minors on hold pending a petition to the US Supreme Court to hear the appeal. The 9th Circuit Court of Appeal had held that California law did not violate free speech rights of practitioners or minor patients, nor did it violate parent’s fundamental rights. The court held that California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful. The ban will not be enforced for the next 90 days while the US Supreme Court decides whether to hear the case and if the appeal goes ahead, this stay will continue.

California court upholds mother’s “right” to physically punish her child

A California appeals court has ruled that a mother who hit her 12-year-old daughter with a wooden spoon causing bruises should not have been placed on a state child abuse database. The judge, taking a line inconsistent with the prohibition of corporal punishment under the UN Convention on the Rights of the Child, found that the trial court had failed to consider the mother’s parental right to impose “reasonable discipline” on her child, who had refused to do homework and “started showing interest in gang culture”. Full story and judgment.

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