Children in Court: CRINmail 37

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22 July 2014 subscribe | subscribe | submit information
  • CRINmail 37:
    Children in Court

    In this issue:

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    Latest news and cases

    ECtHR orders France to recognise children born through surrogacy

    France has violated the rights of children born as a result of surrogacy by refusing to legally recognise their parentage, according to the European Court of Human Rights (ECtHR). Ruling in two related cases, the Court held that the failure to recognise the parent-child relationship in France between children born as a result of surrogacy arrangements in the United States violated the rights of the children to respect for private life. In both cases, married couples of French nationality had travelled to the United States for fertility treatment but were unable to register the births upon their return to France. In 2011, the French Court of Cassation ruled that such births could not be recorded on the register of births, deaths and marriages as to do so would be to give effect to surrogacy arrangements which are null and void under the French Civil Code.

    The judgment of the ECtHR focused on the detrimental effects of this ban on the identity of the children involved. The Court pointed to the uncertainty created by recognising the parentage of the children in the United States but not France; the uncertainty as to the children’s ability to inherit French nationality from their French biological fathers; the less favourable inheritance rights to which the children would be entitled as a result of being born via surrogacy; and the negative impact on the children of being unable to legally establish their parentage.

    The full judgments are available through the website of the ECtHR (Mennesson v. France and Labasse v. France).

    The ECtHR ruling has also had repercussions in Spain where the Ministry of Justice has committed to changing the law to allow the registration of children born through surrogacy abroad. The announcement was made after the Ministry met with a group called "Son nuestros hijos" ("They are our children") which presented officials with a petition with 71,000 signatures. The move goes against a February ruling by the Supreme Court that children born to surrogate mothers cannot be registered in Spain.

    Legal recognition of children in South Korea, Japan and South Africa

    A South Korean court has for the first time acknowledged the existence of “Kopinos”, which refers to children born to a Korean father and Filipino mother, but who are then abandoned by the father. The Seoul Family Court ruled in June in favour of a Filipino woman and concluded that her two sons are the legitimate children of a Korean businessman. Similar paternity lawsuits are likely to follow, as it paves the way for securing child support. It is estimated that there could be up to 30,000 Kopino children living in the Philippines.

    This month, Japan’s highest court in an unprecedented ruling recognised cases of paternity without blood ties. The Supreme Court found that children in three cases conceived during marriage should be considered the legal offspring of the husbands even though DNA tests prove they are not the biological fathers. The court said that the Civil Code provision stipulating that a child conceived during marriage shall be presumed to be the child of the husband should be applied to all three cases.

    Also this month, a South African court set a precedent by recognising a child as stateless and declaring her to be a South African citizen. The six-year-old girl was born in South Africa to Cuban parents. She was issued with a birth certificate, but without an identity number, as her parents did not have permanent residency in South Africa at the time. Under Cuban law, the parents were not able to pass their citizenship to their child as they were “permanent emigrants”. Lawyers for Human Rights brought the case on behalf of the child, arguing that the child’s constitutional right to a name and nationality from birth had been violated and seeking clarification of section 2(2) of the South African Citizenship Act, which provides South African citizenship to those born on the territory and who are stateless. The North Gauteng High Court in Pretoria declared the child to be a South African citizen and directed the Home Affairs minister to issue her with a South African ID number and birth certificate. The court also directed the minister to draft regulations to section 2(2), which could include guidance on how to assess if an applicant is stateless.

    Israel’s High Court voids circumcision ruling by rabbinical court

    In June, the High Court of Israel voided a ruling by the Supreme Rabbinical Court that required a woman to circumcise her one-year-old son following a demand by the child’s father in divorce proceedings. The Supreme Rabbinical Court had upheld a ruling by the Netanya Regional Rabbinical Court which had ordered the mother to allow the father to circumcise their son, and imposed a fine of 500 shekels per day for every day that she refused (see previous Court CRINmail for more information). In overturning the rabbinical court, the High Court found that a demand for circumcision cannot be attached to a divorce proceeding, as it is “not an issue that requires a decision when a marriage breaks up… and it isn’t even an issue that is generally connected to divorce proceedings”. The court distinguished circumcision from other issues that are relevant to divorce proceedings “such as physical custody, allocating the burden of supporting the divorcing couple’s children and dividing the couple’s joint property”. In dissent, Justice Rubinstein defended the “right” to circumcise, but stated that the rabbinical court had not sufficiently examined what was in the child’s best interests and recommended returning the case to the rabbinical court for a second evaluation.

    Child abuse in religious and public institutions

    The past month has seen developments in a number of high profile cases of child abuse in religious and public institutions.

    In June, the Vatican's former ambassador to the Dominican Republic was found guilty of sexual abuse and defrocked by the Vatican’s Congregation for the Doctrine of the Faith, the first such sentence handed down against a senior papal representative. Polish-born Józef Wesołowski was recalled by the Holy See in August last year following allegations that he had sexually abused teenage boys in the Dominican Republic. Dominican and Polish authorities subsequently opened investigations into Wesolowski. At the time of the recall, the Vatican denied that it was shielding Wesolowski from investigations by Dominican authorities. In January, the Vatican refused to extradite him to Poland, stating that he is “a citizen of the Vatican, and Vatican law does not allow for his extradition”.

    Wesolowski is the highest-ranking Vatican official to be investigated for alleged sex abuse. For more information on child sexual abuse and the Holy See, see CRIN’s campaign to end sexual violence in religious institutions.

    In Australia, one of the most senior members of the Catholic Church has been charged with child sexual abuse. Bishop Max Davis was charged in June with abusing a student who was aged 13 at the time at a school in Western Australia over 40 years ago. Davis, who was made a Member of the Order of Australia in 1998 and elected Military Ordinary Bishop of Australia in 2003, is the first bishop in Australia to be charged with child sexual assault.

    In Puerto Rico this month, the Supreme Court ruled that leaders of a Roman Catholic diocese are allowed to withhold information about alleged abuse if the victims are adults who revealed the details during confession or wish to maintain their privacy. The court stated the Diocese of Arecibo must contact possible adult victims and allow them to decide whether to share information about their case with prosecutors. If the alleged abuse involves child victims, however, the court said the diocese must share information with prosecutors. The court ruling has outraged Puerto Rican authorities who are investigating sex abuse allegations against at least 17 priests and eight dioceses across the territory.

    In Wales, a senior Jehovah's witness has been jailed this month for 14 years for sexually abusing girls. A court heard how church elder Mark Sewell used his role to “exploit and abuse” members of his congregation between 1987 and 1995. Sewell was found guilty of sexually abusing two young girls, one of whom was aged 12 at the time. He was previously cleared of the complaints by a Jehovah's Witness judicial committee after the women reported his behaviour to the church.

    In Mexico, a woman at the centre of an abuse scandal at a children’s home in western Mexico has been freed without charges after a preliminary investigation cleared her of wrongdoing. Mexican police raided the home known as "La Gran Familia" (The Big Family) in the state of Michoacan this month, where around 450 children - some as young as two months old - were denied visits from their parents, kept in vermin-infested quarters and routinely subjected to physical, psychological and sexual abuse. Rosa Verduzco, who ran the home, was detained and questioned on suspicion of wilful deprivation of liberty and abuse at the refuge, but has been released. Six employees are facing criminal accusations.

    In Canada, the Nova Scotia Supreme Court has finalised a $29 million settlement between the provincial government and alleged survivors of abuse at the Nova Scotia Home for Colored Children, ending a nearly 15-year legal battle. Former residents of the home claim they suffered physical, psychological and sexual abuse mostly at the hands of caregivers while living in the orphanage, which opened in 1921 and operated for nearly 70 years. So far, about 185 claims for compensation have been filed. The province does not admit liability, according to the terms of the settlement.

    Juvenile justice

    Bolivia has reduced the minimum age of criminal responsibility (MACR) from 16 to 14, in a move that was criticised by the country’s ombudsman for violating children’s rights. Two weeks ago, Bolivian lawmakers approved the new Children and Adolescents Code, which was hailed for its many advances in children’s rights protection, except for in the area of juvenile justice. The proposal to lower the MACR was first raised in 2012 in response to rising crime rates, with supporters claiming that it is a way of preventing criminal gangs from recruiting children to carry out offences because they know they will not be prosecuted.

    However, prior to the law’s approval, the country’s ombudsman, Ronaldo Villena, said: “it’s an affront on the human rights of adolescents [and is] regressive… because it responds to the problem of social violence by criminalising a vulnerable population group [and] doesn’t respond to any of the [root] causes.” These, he says, include poverty, family break-up, discrimination and lack of education and employment opportunities. According to Mr Villena, in responding to public security concerns by lowering the MACR, the State has chosen to avoid its obligations.

    A new Interactive Map detailing the extent of flogging sentences in Iran aims to draw attention to a widely used but under-reported form of criminal punishment, including against children. Launched by the US-based Abdorrahman Boroumand Foundation, the Interactive Map details who, when, where and for what types of offences Iranians have been sentenced to flogging. The map disaggregates its data by age, gender, province, year and type of offence. While acknowledging that many flogging cases are not reported to the media, the organisation was able to document 46 cases of children who have received flogging sentences since April 2001. Among these were children who received 50 lashes for “insult” to the authorities, 99 lashes for having an “illicit” relationship, 228 lashes for robbery and drinking alcohol, 74 lashes for sedition, and 74 lashes for “facilitating immorality and hurting public modesty”.

    Read more about corporal punishment of children as a form of sentencing through the campaign to end the inhuman sentencing of children and the Global Initiative to End All Corporal Punishment of Children.

    Child asylum seekers in Australia and Sri Lanka

    In July, Australia’s High Court granted an injunction preventing the return of 153 Tamil asylum seekers to Sri Lanka over concerns about their safety. Thirty-seven children are believed to be on board the boat which was intercepted outside of Australian territorial waters by Australian border officials in late June after departing from southern India. Court documents show that the asylum seekers are being held in windowless locked rooms on a customs boat at sea, with no access to translators and with family groups being split up. A leading human rights lawyer has said that the Australian government’s holding of the asylum seekers at sea “looks for all the world like piracy”.

    A second boat with 41 asylum seekers already returned to Sri Lanka by Australian authorities reportedly face jail despite assurances from the Australian government they were in no danger of persecution. Nine children on board this second boat were acquitted by a magistrate’s court in Sri Lanka this month.

    The Australian government’s policies on asylum seekers and refugees have come under fire in recent months. In June, the High Court struck down a law which allowed the government to cap the number of protection visas it issues for refugees in Australia. The ruling followed two separate applications to the court from asylum seekers who were found to be refugees but denied protection visas because of the cap. One of the refugees was a 15-year-old boy from Ethiopia who travelled to Australia last year as a stowaway on a cargo ship. In April, the immigration department agreed not to transfer 26 babies born to asylum seekers in Australia to Nauru until a federal court rules on the “baby Ferouz” case, which will determine whether babies born in detention in Australia can be defined as “unauthorised maritime arrivals” and removed for offshore processing.

    Legal aid for migrant children in the United Kingdom and United States

    The United Kingdom’s Joint Committee on Human Rights (JCHR) has criticised proposals to prevent children accessing legal aid in the UK if they have been resident for less than a year. In a report published in June, the JCHR found that children who were unable to meet this residency requirement would “rarely be capable of representing themselves in legal proceedings in which their best interests are at stake” and the restriction would inevitably lead to breaches of the States' obligations under the UN Convention on the Rights of the Child. The Committee also questioned the Government’s claim that imposing the residency requirement on children would reduce the cost of legal services, highlighting the Government’s failure to produce data on the estimated savings in the cost of legal aid or the potential cost to the Courts and Tribunal Service in dealing with unrepresented children. Speaking about the Committee’s findings, Hywel Francis MP, chair of the JCHR said, "As long as children have a legal right to take part in proceedings which affect their interests, it is wrong – indeed unlawful – to make it more difficult for a particular group of children to exercise that right."

    Read the full report of the JCHR.

    Weeks later, the High Court ruled that the residence requirement as a whole was unlawful, as under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), the Secretary of State only had power to vary legal aid provision on the basis of need. Delivering the judgment, Lord Justice Moses said, “[n]o one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need. Non-residents who fall within those cases identified as being of greatest need are not in any less need by reason of their status as non-residents”. The ruling also found the residence test unlawful in that it unjustifiably discriminated against non-residents. Distinguishing legal aid from welfare benefits, LJ Moses found it “difficult to see how the rationale that legal assistance should be confined to those with a closer connection than non-residents, can possibly be applied to those who are subject to the laws of a state and seek no more than its protection”.

    This month has also seen high profile protests outside the White House in the United States over the deportation of unaccompanied child asylum seekers, many of whom are fleeing violence and poverty in Central America. According to reports, the Obama administration hopes to get Congress to amend the 2008 anti-trafficking law, which requires lengthy deportation proceedings for most child migrants, to allow for faster deportation of the tens of thousands of child migrants from countries that do not border the US.

    While these protests have garnered headlines, immigration advocacy groups have filed a class action suit challenging the lack of legal assistance provided to children facing deportation proceedings. Under current arrangements, children involved in such proceedings are reliant on pro-bono assistance or are forced to represent themselves. “It is simply unacceptable that children are forced to stand alone before an immigration judge, pitted against trained attorneys from the federal government,” said Matt Adams, legal director for Northwest Immigrant Rights Project. “Any notion of justice or fair play requires that these children be provided legal representation.”

    You can read the complaint in full through the website of the American Civil Liberties Union.

    Court rules New York cyberbullying law violates free speech

    This month, New York’s highest court ruled that a law criminalising cyberbullying was unconstitutional as it violated the right to free speech. The Albany County law, which banned electronic communication intended to "harass, annoy, threaten...or otherwise inflict significant emotional harm on another person", was challenged by a high school student who at age 15 pleaded guilty under the law after creating a Facebook page that included graphic sexual comments alongside photos of his classmates. The New York Court of Appeals ruled that while it was possible to pass a law outlawing bullying via social media or text message, this particular law was too broad and violated the First Amendment right to free speech. More than a dozen US states, including Maryland, Washington and Louisiana, have adopted criminal sanctions for cyberbullying, and others are considering similar laws.

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    Last Word

    “No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need. Non-residents who fall within those cases identified as being of greatest need are not in any less need by reason of their status as non-residents”.

    - Lord Justice Moses in Public Law Project v. Secretary of State for Justice [2014] EWHC 2365 (Admin)

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