Children in Court: CRINmail 40

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22 October 2014 subscribe | subscribe | submit information
  • CRINmail 40:
    Children in Court

    In this issue:

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    In this month's Children in Court CRINmail, we bring you an overview of recent case law and legislative developments from around the world, including cases concerning child sexual abuse by members of religious organisations, adoption, discrimination in the recruitment of children as soldiers, as well as news about the most recent ratifications of the third Optional Protocol to the Convention on the Rights of the Child.

    We are also pleased to share with you CRIN's first case study as part of our strategic litigation project, presenting the experiences of those involved in strategic litigation in the field of children's rights.

    Latest news and cases

    Child sexual abuse by clergy in the Vatican, United States, Australia and Israel

    The Vatican City State’s criminal court has opened a criminal trial against a former archbishop charged with sexually abusing children. Josef Wesolowski, currently under house arrest, is accused of sexually abusing teenage boys while serving as Vatican ambassador in the Dominican Republic. The criminal trial, which will be the first ever of its kind inside the Vatican, will proceed once the canonical appeal by Wesolowski against a decision to defrock him is complete. If found guilty, Wesolowski will be liable for up to 12 years’ imprisonment.

    In the United States, a Minnesota judge has approved a settlement between the Catholic Church and victims of sexual abuse in a case claiming that the church created a public nuisance by failing to warn parishioners about an abusive priest. The agreement includes new child protection protocols which compel church bodies to release relevant documents to the public once a sexual abuse claim has been substantiated, and to collect a signed statement from each clergy member affirming that he or she has not sexually abused a child and has no knowledge of any abuse by any other clergy member. This is the first clergy sexual abuse case in the United States to use the public nuisance argument in court. It is also the first suit filed in Minnesota since the 2013 Child Victims Act expanded the statute of limitations for sexual abuse cases. Read further coverage of the case in our previous Court CRINmail.

    In Australia, the New South Wales Police Integrity Commission has begun investigating an alleged agreement between the police and the Catholic Church to cover up child sexual abuse. This investigation follows a freedom of information request that revealed internal church documents referring to a memorandum of understanding between the police and the church to conceal evidence in child abuse cases and avoid reporting such crimes. It will also examine misconduct by a senior police officer who was a member of an internal church committee which dealt with allegations of child abuse by clergy.

    A Russian orthodox priest was arrested in Israel by Interpol on suspicion of child abuse. Gleb Grozovsky is suspected of abusing two girls, aged nine and 12, in Greece in June 2013, as well as committing a number of similar offences in St. Petersburg and the Leningrad Region. The Israeli courts will decide whether to allow his extradition to Russia.

    For more information, see CRIN’s campaign to end sexual violence in religious institutions.

    French court confirms life sentence for child

    An appeals court in France has confirmed a life sentence for a child offender. The offender, now 20, was sentenced to life imprisonment for the rape and murder of a 13-year-old when he was 17. Under French law, children in conflict with the law can only be given half the prison time he or she would face as an adult, or a 20-year sentence for offences carrying a life sentence. This applies to all children under 16, but those aged 16 and 17 can face the same sentence as an adult if a court decides to waive the “minority excuse”. Parole is possible - but not guaranteed - for those sentenced to life imprisonment, though only after spending 18 years in prison. This is only the second time in France that a life sentence has been handed down for a child since the juvenile justice law entered into force in 1945. The first time was in 1989, and the defendant was later acquitted.

    Read an analysis of the court's decision by Jean-Pierre Rosenczveig, former children’s judge (in French). For more information on life sentences for children, see CRIN’s campaign on inhuman sentencing and report on life imprisonment of children in the EU.

    British government sued for discriminating against child soldiers

    Child Soldiers International (CSI) have launched a judicial review against the UK Ministry of Defence, claiming that it discriminates against young soldiers who enlist at age 16 or 17. Although minors can drop out before their 18th birthday, those who stay are required to serve until they reach the age of 22 - effectively six years in total -  whereas adult soldiers only have to serve for four years before leaving. "[W]hatever you think the right age is for joining the Army, nobody can justify forcing the youngest recruits to serve for longer than their adult counterparts”, says CSI director Richard Clarke. "It's unfair, unnecessary and - we believe - unlawful. We think it is highly unethical for the [Ministry of Defence] to exploit young recruits in this way." The UK is one of just 19 countries in the world - and the only country in the European Union - that still recruits 16-year-olds into its armed forces.

    Immigration detention of children in Australia

    A federal judge in Australia has ruled that an Australian-born baby of an asylum seeker is not entitled to a protection visa. Baby Ferouz, now 11-months-old, was born in Brisbane after his mother was transferred from a detention centre on Nauru due to concerns about her pregnancy. The Federal Circuit Court agreed with the government’s position that Ferouz was an “unauthorised maritime arrival” and therefore could not be granted a visa. The court’s decision means that he and 100 other Australian-born babies can be transferred to Nauru. Lawyers have confirmed that an urgent appeal would be lodged on behalf of Ferouz and the other babies.

    The High Court is currently hearing a case on the lawfulness of the detention of 157 Sri Lankan asylum seekers, including 50 children, on board a customs boat. The asylum seekers set off from India by boat in June but were intercepted by Australian authorities and held in international waters, initially in secret and incommunicado, for 28 days while the government tried to negotiate their return to India. The UN High Commissioner for Refugees, which will give evidence in the case, has expressed its concern that Australia’s actions could breach its non-refoulement obligations under international law (to not return refugees or asylum seekers to a country where there is a risk of harm). For our earlier coverage of this event, see our previous Court CRINmail.

    This month the federal government launched an inquiry into claims of child sexual abuse by staff at an immigration detention centre in Nauru. It is alleged that child asylum seekers were forced to have sex in front of guards at the centre. The inquiry will also investigate allegations that Save the Children employees, who were contracted to provide welfare, education and protection for children on Nauru, encouraged the children to protest and coached self-harm in an effort to undermine the detention system, allegations that Save the Children rejects.

    Children and LGBTI rights in Russia and the United States

    Russia’s Constitutional Court has upheld a law banning the promotion of ‘gay propaganda’ in a case brought by three LGBTI activists. The activists alleged that the law discriminates against homosexuals and restricts their right to free speech. But the court dismissed both arguments, saying that the law was aimed at “saving a child from the information impact, which could push him to non-conventional sexual relationships, which in turn prevent him from building a family, as it is traditionally understood in Russia.”

    For more information about children’s right to access information, see CRIN’s campaign to protect children, end censorship and our paper ‘Access denied: Protect rights - unblock children’s access to information’.

    Earlier last month, a court in the United States dismissed an appeal challenging the legality of a law which prohibits the use of conversion therapy aimed at changing the sexual orientation of under 18s in New Jersey. The court held that the ban on such therapy is a legitimate restriction on the right to free speech, as the law is rationally related to a legitimate government interest to protect its citizens from harmful professional practices. “Here, New Jersey’s stated interest is even stronger because [the law] seeks to protect minor clients - a population that is especially vulnerable to such practices”, the court said.

    Conversion therapy, which is based on the belief that homosexuality is a disorder or an illness which can be treated through counselling and psychotherapy, is currently banned in only two states - New Jersey and California.

    Adoption in France, Canada and the United States

    The French Court of Cassation has confirmed the right of persons in a same-sex relationship to adopt the child of their spouse in cases where the child was conceived in the course of assisted reproductive treatment abroad. Although a 2013 law which legalised same-sex marriage allows same-sex spouses to adopt, such couples are still legally barred from using IVF in France. Therefore, lower courts refused to allow adoptions where the couple had travelled abroad for reproductive treatment. In an advisory opinion, the Court of Cassation clarified that, regardless of the fact that the child was conceived abroad in a treatment using donor sperm, the adoption must be allowed where the legal requirements are satisfied and the adoption is in the best interests of the child. Although advisory opinions of the Court of Cassation are not directly enforceable in French law, they are usually followed by the lower courts in the country.

    The news of the decision reignited public debate on family policies. French Prime Minister Manuel Valls declared that surrogacy will remain banned in France, describing it as “an intolerable commercialisation of human beings and commodification of women’s bodies”.

    Earlier this year, the European Court of Human Rights ruled that France had, in two separate cases, violated the rights of children conceived via surrogacy abroad by refusing to provide them with a French birth certificate.

    Last month the Federal Court of Canada dismissed an application for judicial review of the government's decision to refuse citizenship to a child adopted from Pakistan. Although by law children adopted abroad by Canadian citizens are granted automatic citizenship, the Canadian authorities refused to do so in this case because it did not recognise adoption in Pakistan. Instead, Pakistan’s civil law, which is based on Sharia law, provides for ‘kafala’, a form of guardianship in which there is no transfer of legal parenthood. In its judgment, the court stated that the applicants could not rely on the provisions allowing for citizenship for children adopted abroad as they had not shown that the pre-existing legal parent-child relationship was permanently severed by the adoption, as required by Canadian law.

    In the United States, the Supreme Court of Alaska allowed the adoption of a Yup’ik child by a non-Native couple instead of granting custody to the child’s extended family in the Native Village of Tununak. The appellant tribe relied on the Indian Child Welfare Act, which provides that state officials must first consider putting the child in the custody of a family member, other members of her tribe, or another Native family. However, the court found that the grandmother of the child had not submitted a formal application to adopt, which meant that the provisions of the Act were not triggered. The effect of this decision will be that all Native persons will have to file formal adoption applications in order to avail themselves of the Native preference built in the federal legislation. According to Anna Hoffmann, co-chair of the Alaskan Federation of Natives, “[t]his court has placed an almost insurmountable burden on Alaska families trying to adopt Native children of their own tribe.”

    A federal district court in South Dakota will be hearing a class action against the state concerning whether procedures for removing Native children from their families comply with the Indian Child Welfare Act. The complaint alleges that children are routinely removed from their families and placed into state custody as a result of care proceedings which fall short of minimum standards in the Act. According to the lawsuit, such hearings often last less than 60 seconds, and Native parents often appear in court unrepresented, are denied access to documents presented in the hearing and are rarely allowed to speak. The Justice Department has filed an amicus brief in support of the plaintiffs’ case.

    Right to privacy in the United States, Northern Ireland and Canada

    In the United States, in a case concerning the adoption of two children from Russia, a New York court has denied an application for a closed hearing due to the heightened public interest in the case, and the number of families that have adopted children and who will adopt in the future from Russia. The adoptive parents are seeking to vacate the adoption of the children, claiming fraudulent misrepresentation of their state of health by the adoption agency. Adoption-related proceedings are generally closed to the public. The court noted that its decision to have an open trial might be reconsidered should the media try to identify any of the parties in the case.

    A High Court judge has ended a policy of photographing and fingerprint-scanning children under 16 visiting Northern Ireland’s prisons. The judge ruled that requesting and retaining the images and biometric finger scans of a 12-year-old girl visiting her father in prison breached her right to privacy under the European Convention on Human Rights in circumstances where she posed no security risk.

    In Canada, a court in Nova Scotia made a ruling last month to protect the identity of a victim of child pornography. Photographs of an intoxicated 17-year-old girl having sex with a boy were taken by another boy and later sent out to other students. The two boys were charged with child pornography - one pleaded guilty and the other is awaiting trial - while the girl died from injuries after trying to commit suicide. Although the Criminal Code bans the publication of details revealing the identity of child victims of pornography, the Youth Criminal Justice Act allows for such privacy rights to be waived in certain cases. In this case, representatives of the media, with the support of the girl’s parents, asked the court to lift the ban on publishing the girl’s name in the public interest. However, Judge Campbell refused to make such an exception, saying that “it’s the ban that everybody wants, to protect the victims in child pornography cases. They just don’t want it for this case.”

    Children’s right to health in the United States, Canada, France and Spain

    In the United States a woman has asked the Tennessee Supreme Court to overturn her conviction of child neglect as she relied on prayer to heal her 15-year-old daughter’s cancer. The woman was sentenced to 15 months’ probation after it transpired that the girl would have likely died from the cancer, even if she had been taken to a hospital. Failing to provide children with medical care is an offence under state laws, however an exception exists for faith-based healing when performed by an accredited practitioner of a recognised church or religious denomination; the woman in this case relied on advice from a preacher who was not so recognised. She argued that the exception is unconstitutional because it allows faith-based healing only in relation to some religions.

    A Canadian hospital in Ontario has gone to court to force the public child welfare authority - the Children’s Aid Society (CAS) - to intervene in the case of a Native girl whose parents declined treatment for leukemia. The girl had undergone 10 days of chemotherapy at the hospital before her parents decided to pursue traditional indigenous healing methods instead. The hospital initiated legal action against CAS when it refused to remove the child from her family or take any action that would result in her resuming chemotherapy. Awaiting the decision of the court, the mother of the child stated that the "I will not have my decision of healthcare for my child debated and judged in the Canadian judicial system. I have a responsibility to protect the collective rights of my people."

    A couple who refused to vaccinate their children will have their case heard by the highest legal authority in France, the Court of Cassation, to decide whether parents’ right to refuse vaccinations is a constitutional issue. The couple, who refused to have their infants, aged three and 15 months, vaccinated against polio, diphtheria and tetanus, appeared before a court this month accused of mistreating their children. The couple argued that the obligatory inoculations may do more harm than good, and risk two years in prison and a €30,000 fine.

    Last month the Spanish government announced that it will scrap its anti-abortion bill, which would have permitted abortions only in cases of rape or serious risk to the health of the mother. However, it will maintain a proposal for legislative amendments requiring girls aged 16 and 17 seeking an abortion to obtain parental consent. This is despite a recommendation by the UN Committee on Economic, Social and Cultural Rights to pay special attention to the situation of adolescents in access to abortion services.

    Discrimination in schools in Bulgaria and Kenya

    In Bulgaria, a girl who was expelled from school in 2010 for refusing to remove her headscarf will appeal a court decision, which ruled that the expulsion was not religious discrimination. The Sofia Administrative Court said that the school, which is secular, acted in accordance with its internal rules and procedures, which do not make allowances on religious grounds. But the girl and her parents, who are Muslim, say that any prohibition on wearing a headscarf amounts to religious discrimination. Meanwhile in Turkey, the government has lifted a ban on wearing headscarves in schools, which it says should be considered as a move to strengthen freedom and democracy.

    A High Court judge in Kenya has ordered the parents of a six-year-old boy to cut his dreadlocks before he is allowed into school. The boy’s mother sued the Rusinga School in Nairobi after the boy was ordered to cut off his dreadlocks, on the basis that this was discriminatory. The judge dismissed the lawsuit after ruling that the mother failed to convince the court that the cultural and religious rights of the boy, whose father is Jamaican, had been violated. On the contrary, it was clear to the judge that the mother wanted the boy to keep the dreadlocks for fashion reasons, and had signed the school's code of conduct agreeing to observe rules and regulations.

    Argentina court rules that children born to political exiles are entitled to compensation

    Last month Argentina’s Supreme Court ruled that children born to political exiles should be seen as victims of the military dictatorship and therefore entitled to compensation. The case concerned two daughters of a couple who fled Argentina out of fear for their lives during the last military dictatorship from 1976 to 1983, during which around 30,000 people were killed or abducted. A lower court denied the women compensation under a 1991 law that allows for political prisoners held in illegal custody during the dictatorship to be compensated, as it said the women, who were born in Peru, had not been deprived of their freedom. But the Supreme Court recognised that “[n]either the children nor the exiles decided to stay in a foreign country voluntarily... The plaintiffs were forced — as a direct consequence of the illegal state action — to be raised in a different social and cultural background, that also affected their family ties.” The court said that judges in the country should have a broader understanding of the meaning of “detention”, to not only consider those who were held in clandestine prisons.

    Pakistan court requests that children be removed from protests

    Last month the Islamabad High Court requested that participants of the Pakistan Awami Tehreek (PAT) and Pakistan Tehreek-e-Insaf (PTI) sit-ins remove children from the protests on the basis that they should not be exposed to the harmful environment at the venue. While a PTI representative argued that all the children present at the site were in the company of their parents, the court stated that it was irresponsible of parents to expose their children to potential harm. The court also pointed out that the the right of assembly under the Constitution is not an absolute right as it entails certain reasonable restrictions imposed by law in the interest of public order.

    Children's right to freedom of assembly is protected under Article 15 of the Convention on the Rights of the Child. No restrictions may be placed on the exercise of this right other than those listed in Article 15.

    Access to justice for children in England and Canada

    A serious problem in access to justice for children was highlighted by the Children’s Commissioner for England in a recent report examining the effect of legal aid cuts. The Commissioner, Maggie Atkinson, said “[t]he system is so difficult to navigate that it leads to people having no legal representation. That in turn can prevent decision-makers making decisions properly, as well as stopping individuals obtaining the justice they need.” Shortly after the release of the report, Justice Minister Simon Hughes issued a press release asking the Ministry of Justice to initiate an urgent review of legal aid cuts and their impact on children.

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

    The Supreme Court of Canada has held that administrative court fees must not be so high as to prevent litigants from accessing the justice system, in a decision striking down the court fee system of British Columbia as unconstitutional. Although not specifically referring to children, the Court said that hearing fees must, as a general rule, be coupled with “an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non-frivolous or non-vexatious litigation to court. A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them.”

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

    Argentina bans corporal punishment

    This month Argentina banned all forms of corporal punishment of children, including in the home. Under Article 647 of the recently enacted Civil and Commercial Code, “[a]ll forms of corporal punishment, ill-treatment and any act that physically or mentally injures or impairs children and adolescents are prohibited”. With this new law, Argentina has become the 41st State worldwide, and the seventh in Latin America, to fully protect children from all forms of corporal punishment by law.

    OP3 ratification news

    Three more countries ratified the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OP3) over the past month - Ireland, Andorra and Monaco - bringing the total number of ratifications to 14. Chile is also in the process of ratifying the OP3. The lower house approved the OP3 this month, leaving the Senate to approve it for it to take effect.

    The OP3 allows children to bring complaints to the UN Committee on the Rights of the Child when their rights are violated. Read more about the complaints procedure on our website, and the ongoing campaign for ratification through the Ratify OP3 CRC Coalition.

    New legal resources

    The Inter-American Court on Human Rights recently released an Advisory Opinion on the rights and guarantees of children in the context of migration. The Advisory Opinion, which was requested by Argentina, Brazil, Paraguay and Uruguay, sets out the obligations of States in relation to the possible measures to be adopted regarding children, their immigration status or the status of their parents in light of the court’s interpretation of regional human rights instruments.

    Last month the International Commission of Jurists launched a new Practitioners Guide on adjudicating economic, social and cultural rights, which aims to help judges and lawyers working at the national level to litigate cases involving these rights.

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    Case study

    Maimuna Abdulmumini v. Federal Republic of Nigeria, Kastina State Government and the Nigerian Prison Service: A child bride, a dead husband and a long battle

    Accused of murdering her husband of five months when aged just 13, Maimuna Abdulmumini was sentenced to death by a court in Nigeria. After a legal battle lasting six years, lawyers from Avocats Sans Frontieres successfully worked to secure a reprieve, but her future remains uncertain.

    CRIN’s collection of case studies illustrates how strategic litigation works in practice by asking those involved about their experiences. By sharing these stories we hope to encourage advocates around the world to consider strategic litigation as a means to challenge children’s rights violations.

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    Last Word

    “[S]ome would say, ‘Just do it and let her name be heard. What’s the harm?’ Well, here’s the harm. When judges stretch the law to accommodate the needs of individual cases they risk creating precedents that are not what anyone intended … A judicial decision, even in youth justice court in Halifax, can have implications beyond the case itself.”

    Judge Campbell, in his decision rejecting a request to lift a ban on publishing the name of a child victim of pornography in Nova Scotia, Canada.

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