Children in Court: CRINmail 39

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17 September 2014 subscribe | subscribe | submit information
  • CRINmail 39:
    Children in Court

    In this issue:

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    Child asylum seeker sues Australian government in class action

    A six-year-old girl is leading a class action against the Australian federal government and the Immigration Minister over their failure to provide adequate healthcare to injured asylum seekers held in immigration detention. The pro bono case was filed in the Victorian Supreme Court in August by law firm Maurice Blackburn on behalf of the girl and potentially hundreds of other asylum seekers who have suffered an injury while detained on Christmas Island in the past three years. The lead plaintiff, a six-year-old girl known as A.S., has been detained on Christmas Island for over a year and assessed as having Post Traumatic Stress Disorder. She arrived with her parents but was separated from her mother soon after arrival, and has since suffered from an ongoing dental infection, allergies, separation anxiety and bed-wetting, has developed a stammer and is refusing food. Immigration Minister Scott Morrison has “failed in his duty of care to protect the health and wellbeing of asylum seekers held in detention on Christmas Island” and “asylum seekers are entitled to compensation for the injuries and illnesses they have suffered as a result”, said Jacob Varghese, the lawyer leading the case.

    This month the High Court of Australia unanimously struck out the Immigration Minister’s plan to prevent a stateless refugee from applying for permanent residency, ruling that the grant of a temporary visa, which precluded the plaintiff from applying for a permanent protection visa, was invalid. According to the Refugee & Immigration Legal Centre, the “broader implications of this decision remain very unclear”, though another commentator suggests that the decision could potentially affect thousands of asylum seekers and refugees, including children, held by the Australian government in mandatory detention.

    US court ruling allows Nestlé and others to be sued for child slavery

    In the United States, a court has ruled that Nestlé and other major companies can be sued for importing cocoa harvested by child slave labourers in the Ivory Coast. The plaintiffs in the case, three victims of child slavery, were forced to work on Ivorian cocoa plantations for up to 14 hours per day six days a week, given only scraps of food to eat, and whipped and beaten by overseers. They were locked in small rooms at night and not permitted to leave the plantations, knowing that children who tried to escape would be beaten or tortured. The plaintiffs filed claims under the Alien Tort Statute against Nestle, Archer Daniels Midland and Cargill alleging that the companies aided and abetted child slavery by providing assistance to Ivorian farmers. The suit covered the years between 1994 and 2000, when they were aged 12 to 20. According to the Ninth US Circuit Court of Appeals, the companies knew they were selling products of child slavery, but insisted on "finding the cheapest sources of cocoa” and "placed increased revenues before basic human welfare”, thereby facilitating child slavery. In a 2-1 ruling allowing the lawsuit to proceed, the Court concluded that the "prohibition against slavery is universal” - it applies to state and non-state actors alike, and may be asserted against the corporations in this case.

    US court ruling allows public nuisance claim against Catholic Church

    In an unprecedented case, a US court has allowed a clergy abuse victim to sue the Catholic Church for public nuisance. The case, which is scheduled for trial in November, alleges that former priest Thomas Adamson was a known abuser at the Diocese of Winona before he was transferred to the Archdiocese of St Paul and Minneapolis, where he allegedly abused the plaintiff almost 40 years ago. According to Ramsey District Judge Van de North, failing to disclose information about an accused priest and moving known offenders to other parishes where they could re­-offend created an ongoing public nuisance. The judge also allowed negligence claims against the archdiocese to move forward, including negligent retention and supervision of priests. “There is a question for trial on whether the Archdiocese and [Winona] Diocese for decades intentionally failed to exercise their common law duty of due care to the public by not disclosing information about credibly accused and accused pedophile priests”, wrote the judge. The nuisance claim has allowed the victim’s attorneys to obtain 50,000 pages of church documents related to how it has handled abusive priests, and compelled the archdiocese to release the names of more than 30 priests who have been credibly accused of sexually abusing children. This case represents the first time in the United States that a public nuisance claim against any Catholic diocese is going to trial, and may expose church officials in dioceses across Minnesota to new public nuisance claims.

    For more information on child sexual abuse in the Catholic Church, see CRIN’s campaign to end sexual violence in religious institutions.

    Alaska court dismisses climate change case brought by children

    In the United States this month, the Supreme Court of Alaska dismissed a climate change case brought by six children from communities across Alaska against the State. The children - aged from nearly one to 16 years old - claimed that the State had failed to take steps to protect the atmosphere from the impacts of climate change, thereby violating its obligations under the Alaska Constitution to hold public resources in trust for public use. However, the Court dismissed the request for court-ordered emissions limits as ‘non-justiciable’ as this was a political question for other branches of government. While recognising that the children “do make a good case” that the atmosphere is an asset of the public trust, the Court said that declaring the atmosphere to be subject to the ‘public trust doctrine’ “would have no immediate impact on greenhouse gas emissions in Alaska, it would not compel the State to take any particular action, nor would it protect the plaintiffs from the injuries they allege in their complaint”. The plaintiffs will ask the Court to reconsider its essential role in enforcing the public trust.

    European court finds Belgium did not violate right to family life of child born through surrogacy

    According to a ruling this month by the European Court of Human Rights, checks carried out by Belgian immigration authorities before allowing a child born through surrogacy abroad to enter the country did not violate the right to private and family life. Two Belgian nationals applied for a passport for their child who was born to a surrogate mother in Ukraine, but were refused on the ground that they had not presented enough information concerning the surrogacy and confirming a family relationship with the child. This effectively resulted in the child being separated from the parents for four and a half months. It was only after the parents presented additional documents establishing a genetic link between the child and the father that a Belgian court ordered travel documents to be issued. In the European Court’s opinion, the interference in the applicants’ private and family life was in pursuance of several legitimate aims, namely the prevention of crime, especially human trafficking, and the protection of the rights of others – those of the surrogate mother and of the child. Considering that the period of separation had not been unreasonably long, the Court decided that the State was justified in refusing to allow the child to enter the country until it was satisfied that the required information was provided.

    For more information on this case, see CRIN’s case summary.

    Recognition of legal status of children born to same-sex couples

    The past month saw several decisions by courts in Europe and South America advancing the legal status of children born to same-sex couples using assisted reproduction techniques.

    A court in the Swiss canton of Saint Gallen has recognised a foreign birth certificate naming two men as the legal parents of a child born through a surrogacy arrangement with a woman in the United States. Despite the fact that surrogacy and adoption by same-sex couples are illegal in Switzerland, the court ruled that the child’s well-being is the paramount consideration in the case. The order required the two men to be recognised as legal parents and the child’s genetic parentage to be recorded in the register in addition to the legal parent-child relationship.

    In Italy, a Rome court allowed a step-child adoption by a same-sex couple for the first time. The case concerned a child conceived using fertility treatment received abroad using genetic material from one of the women. The court allowed the non-biological parent to adopt, relying on the best interests of the child and the need to maintain the emotional relationship and cohabitation with the ‘social’ parent. However, it still remains illegal for same-sex couples and single persons to receive IVF treatment in Italy.

    The Colombian Constitutional Court also allowed a woman to adopt her female partner’s child who was conceived through an artificial insemination procedure. However, it was made clear that the effect of this judgment will not be to legalise adoption by same-sex couples in all circumstances. The decision will only apply to ‘second-parent adoption’ cases where there is a biological connection between the child and one of the parents.

    In an unprecedented decision, a court in Brazil has allowed for three parents to be included in a child’s birth certificate - the biological mother, her wife and the biological father. The birth certificate also includes the names of the six grandparents. The father agreed to help the women conceive a baby on the condition that he also be recognised as a parent. All three parents had been involved during the pregnancy in the preparations for the arrival of the child. In Judge Cunha’s own words, “it is important to note that this girl will have, from birth, the unusual record of a multi-parental family… the decision is entirely natural and was taken without controversy”.

    Achieving equality for same-sex couples seems less certain in Israel, however, where a woman has petitioned the Supreme Court to overturn an order made by a rabbinical court in Jerusalem preventing her from introducing her children to her female partner. The order was requested by the father of the children during divorce proceedings where he agreed that the woman should have custody of the children but allegedly refused to consent to the divorce unless such an order was made.

    English court expands right to access information on adoption

    Earlier this month, the Family Division of the High Court in England granted a woman the right to access information about the adoption of her deceased father. Current legislation provides that regulations can be made to allow descendants of adopted persons to access the adoption files, however, such regulations do not exist. Nonetheless, courts have discretionary power to grant access in exceptional circumstances. In his decision, Sir James Munby recognised the lack of any exceptional circumstances, but decided to allow access on the basis of a number of factors, including the fact that: the plaintiff was the daughter of the adopted person; the adopted person was deceased and his birth parents were likely to be deceased as well; and the plaintiff did not express any intention of contacting any blood relatives. The judge also acknowledged that his decision concerns the interests of any surviving relatives of the plaintiff’s father, however, he decided not to impose any restrictions on the plaintiff’s access to the file, saying that “her reasons for wanting access to this information are entirely genuine and understandable” and “the fact that any upset that might be caused to any [...] surviving relatives is no more than speculative”.

    Right to education in the United States

    Two challenges to teacher tenure laws have been filed by advocacy groups representing a number of parents and children in New York, claiming that existing laws violate the civil rights of children to quality education by making it difficult to fire ineffective teachers. This month the two suits, previously Davids v. New York and Wright v. New York were consolidated into a single suit, Davids v. New York, to be heard by the Staten Island Supreme Court. Both complaints are modelled after the recent case in which a California court struck down the teacher tenure laws in that State, finding that the laws “disproportionately affect poor and/or minority students” and therefore violated their right to an equal education under the State Constitution. An important difference between the laws in the two States, however, is that while in California tenure was obtained after only 18 months, in New York teachers are subject to a three-year probationary period.

    Last month, a Texas County Court ruled against the State in a case brought by over 600 school districts. The judge ruled that by cutting the education budget by $5.3 billion in 2011, the State had failed to meet its constitutional duty to establish and provide adequate support and maintenance of the free public school system. The judgment holds that the current state of the school system cannot provide a constitutionally adequate education for all Texas schoolchildren and gives the government one year to remedy the deficiencies. The judge found that, even after the State reinstated $3.5 billion, the school system was underfunded, over-extended and unfairly distributed, resulting in gaps in educational testing scores between poor and rich Texas students.

    In another education-related case in Texas, a court dismissed an appeal by parents against truancy complaints related to their failure to homeschool their nine children. The parents argued that the authorities had interfered with their constitutional right to “free exercise of religion”, citing a precedent providing that Amish people can stop sending their children to school past the eighth grade. This argument was rejected by the court as the appellants had not demonstrated that their religious belief was substantially burdened by the state-imposed regulations on basic education. The court also emphasised that the situation was “so exceptional that the same treatment has never been extended to any other individual or religious group”.

    Child marriage in Indonesia, India and Bangladesh

    In Indonesia, the Constitutional Court is considering a challenge to the law which sets the minimum age for marriage for girls at 16 years old. The age is set by the 1974 Marriage Law, which remains applicable despite the definition of a minor as a person under 18 years of age in the 2002 Child Protection Law. The complaint is brought by child rights activists who are challenging the provision of the Marriage Law as it creates legal uncertainty. The petitioners are also asking the Court to review another provision of the Marriage Law which permits younger people to get married if their parents obtain the approval to that effect of a religious court.

    In a case concerning child marriage in India, a magistrate’s court in New Delhi has ordered that legal proceedings be instituted under the Prohibition of Child Marriage Act and the Dowry Prohibition Act against the parents of a girl who allowed her to marry at 14 years of age and the parents of her husband who received money in the form of a dowry. The case initially reached the court as a domestic violence complaint by the girl’s parents who were alleging that the in-laws were using physical violence to extract more money as a dowry. The in-laws claimed that they were not aware that the girl was a minor. Child marriage remains a serious problem in India with almost half of all girls getting married before they are 18 years old.

    In Bangladesh, a Child Marriage Prevention Act has been approved by Cabinet. Although the current minimum age for marriage is set by legislation at 18 for girls and 21 for boys, Bangladesh has the highest rate of child marriage in the South Asian region, with two out of every three girls getting married before they are 18. Under the new legislation, anyone responsible for child marriage is liable for a jail sentence of up to two years and/or a fine. This includes the groom, parent or guardian of the child or the marriage registrar, but not the child victim. The Bill is expected to be passed during the current session of Parliament.

    Anti-homosexuality laws in Kenya, Gambia and Uganda

    An Anti-Homosexuality Bill was introduced to the Justice and Legal Affairs Committee in Kenya by the Republican Liberty Party last month. Although homosexuality is currently criminalised in Kenya with a maximum sentence of 14 years’ imprisonment, this new Bill envisages tougher sentences, including capital punishment and life imprisonment. In particular, a new offence of “aggravated homosexuality”, which includes acts of homosexuality committed against a person under 18 years old, is to be punishable by death by stoning. Among the other proposed provisions are a prohibition of marriage other than between a man and a woman, a ban on organisations which support homosexual behaviour, and prohibition of the ratification of any international treaty which contradicts the provisions of the Bill. Although the Party's secretary has defended it as necessary for the protection of children and youth, the Bill has attracted much criticism from NGOs. According to a statement by the Equal Rights Trust, the Bill “violates both the Kenyan Constitution and international human rights law. It is hard to believe that such a piece of legislation will even be discussed in the Kenyan parliament.”

    In Gambia, the National Assembly has passed a Bill which amends the Criminal Code to provide for life imprisonment for a category of "aggravated homosexuality", which includes acts committed against persons under 18 years of age. In August the Bill was passed to the President, who has 30 days to sign it into law. International human rights organisations have called for the President to reject the proposed amendments, however, such a  development seems unlikely taking into consideration the President’s previous homophobic statements.

    Following the annulment of Uganda’s Anti-Homosexuality Act by the Constitutional Court last month, it has emerged that the law will be re-tabled in Parliament. The law in question, which provided for life imprisonment for a number of consensual homosexual acts, was annulled on a technicality as the Court found that there was no quorum in Parliament when the Bill was passed. This time around, the Speaker of Parliament has ensured supporters of the legislation that the legislative process “will be smooth”.

    Access to justice for child victims of crime in Kenya

    A Victim Protection Bill, which significantly increases the protection afforded to victims of crime by providing them a range of legal rights, was passed by the Kenyan Parliament last month. The aim of the Bill is to secure higher conviction rates in human trafficking cases by encouraging more victims to testify in court. The new law includes provisions granting courts the power to award restitution to victims, as well as the right of victims to make impact statements and have those taken into account by the court when sentencing the offender. Vulnerable child victims can be provided a place of safety where they must be separated from adults and placed in conditions that reduce the risk of harm to the child. In such cases children will have the right to adequate food and water, medical treatment and reasonable visits by parents, guardians, social and health workers and others. In addition, the law also provides that courts and other bodies must be guided by the principles of non-discrimination and that every victim must be given an opportunity to be heard in relation to any decision affecting them and addressed in a manner appropriate to their age and development.

    For more information on access to justice for children in Kenya, see CRIN’s report.

    Correction: 17 September 2014

    A previous version of this CRINmail said that under the Kenya Anti-Homosexuality Bill a sentence of death by stoning is applicable to children who commit homosexual acts. Section 3 of the Bill provides that a person who commits an offence of aggravated homosexuality against a child will be liable to be sentenced to death by stoning, but this does not appear to apply to children. Nevertheless CRIN is concerned that section 25(2) of the Penal Code requires any child offender to be sentenced to detention “during the President's pleasure” in lieu of the death penalty. CRIN is also concerned about the use of child protection arguments to justify discrimination against and the imposition of the death penalty on sexual minorities.

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    Last Word

    "Child marriage is an evil worse than rape and should be completely eradicated from the society. This would not be possible if the stakeholders like the State fail to take appropriate action against the offenders. The court is not expected to sit as a mute spectator and let the evil perpetrate".

    - Magistrate Shivani Chauhan quoted in the Mumbai Mirror.

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