Children in Court CRINmail 41
Focus on strategic litigation in India
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Introduction
In this month’s edition of the Children in Court CRINmail, we are happy to present our new focus section on strategic litigation and related legal news on children’s rights concerning a particular region or theme. This month we highlight recent strategic litigation cases in India. As usual, we also bring you the latest news about case law and legislative developments around the world, including stories about harmful practices against girls, business and children’s rights, and violence against children in schools. We also feature CRIN’s latest case study on strategic litigation on children’s rights concerning child testimony in court in India.
Latest news and cases
Sexual abuse by religious officials in Afghanistan and the United States
In October an Afghan court sentenced a religious teacher to 20 years’ imprisonment for the rape of a 10-year-old girl in his mosque. Judge Rasuli said the mullah’s admission that he had sex with the girl could not be considered adultery because of her young age. He also dismissed the defence’s request that the perpetrator be given the Shariah law punishment for a single person accused of adultery, 100 lashes, and then released. The successful prosecution of the mullah, which was carried out under the 2009 Elimination of Violence Against Women law, is seen as a victory for girls’ and women’s rights in a country where rape victims are often accused of adultery. Before that law was passed, rape was not even a criminal offence in Afghanistan. Nonetheless, there are reports that the law remains largely unimplemented and violence against women is on the rise.
A court in the United States has ordered the organisation that oversees Jehovah's Witnesses churches to pay US$13.5 million in compensation to a man who was abused as a child by his bible study teacher. The plaintiff accused the Watch Tower of covering up the abuse for years and harbouring the abuser, noting that the organisation refused to produce documents showing the scale of sexual abuse within congregations across the United States. According to the plaintiff’s lawyer, the compensation awarded reflects the impact of the abuse, with US$10.5 million in punitive damages awarded in response to “the reprehensible conduct of the Watch Tower”. The organisation says it plans to appeal the decision.
In another case in the United States, the victims of Richard Hokanson, a former scoutmaster in the 1970s and 80s who was convicted of sexually abusing several young boys in his troop, are suing both the Boy Scouts of America and St Pius Catholic Church in Minnesota, claiming the two groups knew about the abuse but did nothing to stop it. The three Catholic priests who supervised Mr Hokanson are still active in the church.
First Congolese General convicted of rape
This month the Congolese High Military Court convicted General Jerome Kakwavu for committing war crimes, including murder, rape of two children and torture. He was also given a 10-year prison term, a tougher sentence than that requested by the prosecution. Kakwavu is the highest ranking official in the Democratic Republic of Congo to be convicted since the start of the first Congo War in 1996, as well as the highest official to be convicted in relation to sexual violence.
Harmful practices against girls in Africa and the United Kingdom
This month an Egyptian court handed down not guilty verdicts for a doctor and the father of a 13-year-old girl who died while undergoing female genital mutilation (FGM) in the country’s first criminal trial over FGM. FGM is banned by law in Egypt, but the practice remains widespread. The court’s decision was met with disappointment by anti-FGM activists who had hoped it would be a landmark case in trying to achieve the full implementation of the FGM ban. "We hope that more cases are brought forward and that every single Egyptian girl is protected from this extremely severe form of violence against women which limits the hugely beneficial potential of women and girls", said a consultant for Equality Now, the NGO which helped bring the case.
In the United Kingdom, despite hopes of a first FGM prosecution earlier this year, the Crown Prosecution Service (CPS) has decided that "no further action" could be taken in 10 out of the 12 cases referred to it by police. According to the CPS, in one case a victim was reluctant to testify against a suspect; in another case a gap in legislation made it impossible to prosecute a woman who allegedly subjected her daughter to FGM abroad. In the case of three suspects found with items that were believed to be used for FGM, charges were dropped as the items could also be used for other "traditional practices" that were lawful. New anti-FGM measures were introduced via amendments to the Serious Crime Bill tabled in parliament last month, which include a new legal duty on parents to protect their daughters from FGM, or face prosecution if they fail to do so.
In October a constitutional challenge of Zimbabwe’s marriage laws was filed by two women who were both married at the age of 15. They are asking the Constitutional Court to declare that the Marriage Act, which sets the minimum age of marriage at 18 for boys and 16 for girls, violates the right to equal treatment before the law under section 81 of the Constitution of Zimbabwe. They are also challenging the Customary Marriage Act, which does not prescribe any minimum age for marriage, by arguing that the minimum age for marriage should be 18 years for both men and women in all circumstances.
A man from the Ivory Coast has for the first time been found guilty of trying to arrange his 11-year-old daughter’s marriage. The man has been sentenced to one year in prison and was ordered to pay a fine of 360,000 CFA francs (550 euros) for attempting to force the girl to marry one of her cousins, aged 27. The matter reached the courts after the girl’s school reported her absences to the police.
In Tanzania, advocates are urging lawmakers to set a minimum age for marriage in the country’s draft Constitution - which currently provides no minimum age - as a first step towards eradicating child marriage.
For more information on harmful practices against girls, see the joint General Recommendation/General Comment released this month by the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women. This General Recommendation/General Comment seeks to clarify the obligations of States parties to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women by providing authoritative guidance on legislative, policy and other appropriate measures that must be taken to ensure full compliance with their obligations under the two Conventions to eliminate harmful practices.
Dominican Republic rejects IACtHR’s jurisdiction
This month the Dominican Republic’s Constitutional Court handed down a decision declaring unconstitutional the instrument accepting the jurisdiction of the Inter-American Court on Human Rights (IACtHR). This decision follows the Dominican government’s dismissal of the recent judgment of the IACtHR in Expelled Dominican and Haitian Persons v. the Dominican Republic as “out of season, biased and inappropriate”. In that case, for the third time in its history, the IACtHR found the Dominican Republic responsible for rights violations due to discriminatory policies towards, and the arbitrary detention and mass expulsion of, individuals of Haitian descent, including children. The Inter-American Commission has dismissed the decision by the Constitutional Court, saying that the “judgment has no basis whatsoever in international law, and therefore it can have no effect… a State that has adopted a certain position that has legal consequences may not subsequently adopt a different position that contradicts the first one". At present, it is not yet clear what the Dominican Republic’s status will be at the IACtHR.
Business and children’s rights in the United States, Malaysia and the United Kingdom
In the United States, the Washington Supreme Court is hearing a case about whether to allow a human trafficking lawsuit against a website, on which three children - the petitioners in the case - were sold for sex online. The website Backpage.com denies liability, claiming that it is a content platform and not a content provider. A joint letter by the Attorney-Generals for Connecticut, Mississippi, South Dakota and Wisconsin urges Congress to take action against websites such as this one that allow children to be sold for sex, calling such websites “virtual brothels where children are bought and sold using euphemistic labels such as “escorts””.
In October a lawsuit against the Malaysian government and Malaysian Airlines was filed by two children in what is considered to be the first legal case related to the disappearance of flight MH370 in March. The father of the two boys, aged 13 and 14, who was travelling from Kuala Lumpur to Beijing is currently presumed legally dead. The action alleges breach of contract, claiming that the airline carrier had failed to take all measures to ensure a safe flight, as well as negligence by civil aviation authorities, the immigration department and the air force.
A group of 14 children in the United Kingdom who were assaulted in secure training centres by staff of two private security companies - G4S and Serco - have been awarded £100,000 in compensation. The abuse took place between 2004 and 2008 and resulted in the deaths of two boys. One of the boys, aged 15, died after being unlawfully restrained by three officers for refusing to clean a sandwich toaster, which he denied using. The other boy, aged 14, killed himself after being unlawfully restrained by four adult carers. Further investigation revealed that staff in England and Wales were routinely using force to discipline children, which is against the terms of their contracts with the government. The Youth Justice Board is responsible for protecting children in custody, but it had given unclear guidance on when force was appropriate. A third of the awarded sum will be paid by the Youth Justice Board and G4S and Serco will pay the rest, however, the two companies have not admitted liability.
Violence against children in schools in the United States
In October a San Francisco appeals court upheld the conviction of two police officers for handcuffing an 11-year-old student who refused to speak to school officials. The police officers were called by a teacher who wanted to get the boy to enter the school building against his wishes. On arrival, the police officers handcuffed the boy and transported him to the station, at which point his guardian was informed of the events. The appeals court ruled that the actions of the policemen were “unnecessary and excessively intrusive” in circumstances where the child was surrounded by numerous adults, complied with the officers’ instructions and was unlikely to flee.
In New York, a lawsuit has been brought concerning an after-school counsellor who taped shut the mouths of three children for being disruptive. Following the incident, the counsellor was criminally charged with three counts of endangering the welfare of a child, but was subsequently allowed to plead guilty to the lesser offence of “disorderly conduct” because the children were not physically injured. The civil suit brought by the mother of one of the victims against the counsellor, her employer and the Department of Education, however, alleges that her child did suffer not only physical discomfort, but also emotional pain.
A recently enacted law in Alaska bans state-run schools from sedating students with drugs or placing them in restraint chairs or positions where the child’s airway might be compromised. The ban is part of new statewide standards on the physical restraint and seclusion of students.
Right to health and right to die in the United Kingdom, Romania and Canada
In October a High Court judge in the United Kingdom allowed a mother to end the life of her seriously ill 12-year-old daughter. The child was born blind with hydrocephalus, meningitis and septicaemia, and could not walk, talk, eat or drink. This is the first time such an order has been granted in relation to a child not on life support and not suffering from a terminal illness.
Also in October a Romanian court awarded a woman who contracted HIV at a hospital as a baby a record sum of 4.6 million lei (1 million euros) after a 10-year trial. Romania is reported to have the highest number of child AIDS victims in Europe.
This month in Canada, an Ontario judge ruled that an 11-year-old Native girl with leukemia cannot be compelled by a hospital to undergo chemotherapy as it is her family’s constitutional right to choose traditional treatment. Justice Edward said that the mother’s “decision to pursue traditional medicine for her daughter is her aboriginal right”. According to the hospital’s president, there are currently no plans to appeal the decision. For more information on this case, see our previous Children in Court CRINmail.
Rights of asylum seekers in Australia and Switzerland
An Australian MP has asked the International Criminal Court to investigate the Australian government for breaches of international law in relation to its treatment of asylum seekers. Mr Wilkie’s letter to the Court alleges that the government's actions, including imprisonment and severe deprivation of personal liberty, deportation and forcible transfer of populations and other intentional acts causing great suffering and serious injury, constitute crimes against humanity. The letter also accuses the government of breaches of the Convention on the Rights of the Child, the Refugee Convention and the International Covenant on Civil and Political Rights.
This month the Grand Chamber of the European Court of Human Rights ruled that Switzerland cannot expel a family of Afghan asylum seekers, including six children, to Italy without guarantees from the Italian authorities that they would be taken charge of in a manner adapted to the age of the children and that the family would be kept together. Under the Dublin Regulation, asylum must be applied for in the country through which the person first entered the European Union, which in this case was Italy. The Court held that sending the family to Italy without such guarantees would constitute a breach of the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. The Court also noted that “it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant.”
Juvenile justice in the United Kingdom and United States
The UK Supreme Court will be deciding whether to allow police to publish photographs of children suspected of rioting and causing criminal damage. It is alleged that publishing such “naming and shaming” pictures amounts to a violation of human rights, in particular the right to respect for private life guaranteed under the European Convention on Human Rights.
In the United States, the Arizona Supreme Court has ruled that the right of parents of child victims of crime to refuse to be interviewed by defence lawyers does not expire once the child victim reaches 18. The decision clarifies this point of law after several of the state courts of appeal had issued conflicting judgments. The Supreme Court in this case based their reasoning on the goal of protecting victims of crime and aiding their recovery.
Lowering of MACR contemplated in Uruguay, Philippines and Denmark
A worrying trend of states attempting to lower the age at which children can be held criminally responsible continues. In October a referendum in Uruguay to lower the minimum age of criminal responsibility failed after reaching 45 percent in favour of the change.
The Philippines is considering lowering the minimum age of criminal responsibility again, despite legislating on this only last year when it decided to keep it at age 15. The proposal to reduce the age to 13, which is part of a new draft Criminal Code that would codify the criminal law for the first time, has been opposed by the Department of Social Welfare and Development and the Juvenile Justice and Welfare Council, as well as the Commission on Human Rights.
Finally in Denmark, a joint proposal from several major parties suggests an overhaul of the juvenile justice system and the establishment of a new juvenile court for 12 to 17-year-olds. It appears that this proposal, if accepted, would effectively lower the minimum age of criminal responsibility in the country to just 12-years-old.
New legal resource
As part of the new child-friendly section of their website, the European Union Agency for Fundamental Rights has produced a brochure explaining key terms in child-friendly justice. The brochure, which is currently available in nine languages, is aimed at children and anyone working with children who are involved in judicial proceedings.
Focus: Strategic litigation in India
India has emerged as an active jurisdiction for strategic litigation concerning children’s rights violations. This can be attributed to legal provisions that allow for ‘public interest litigation’ cases challenging the compatibility of national legislation or an act of government with the fundamental rights guaranteed by the Constitution. Public interest litigation can be initiated by anyone with a sufficient interest in the matter, including NGOs, before the Supreme Court of India or the High Courts without naming a specific victim of the alleged human rights violation. Additionally, courts in India may initiate cases suo motu, that is, on their own initiative, and have actively done so to seize themselves of cases concerning children’s rights.
In this new feature of the Children in Court CRINmail, we bring you a selection of recent strategic and public interest litigation cases before the Indian courts. We hope to illustrate the benefit of engaging with the legal system to seek redress for violations of children’s rights.
Education
A case alleging widespread violations of the right to education has been accepted in the Supreme Court. The petition filed by the Human Rights Law Network alleges that a lack of resources and failure to implement provisions of the Right of Children to Free and Compulsory Education Act (“RTE”) has resulted in a significant decline in educational performance.
In September the Bombay High Court issued a decision extending free education to all children with mental disabilities up to the age of 18. Previously free education was only available to those aged 14 and under with such disabilities. All eligible children will now be able to access the benefits under the RTE, bringing the provisions of that Act in line with the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act.
In Delhi, the High Court is considering a case seeking to ensure that the state government provides free school books and uniforms to economically disadvantaged students, as required by the RTE. According to a report by the Delhi government, out of approximately 70,000 economically disadvantaged children in the state, only 17,500 have been provided free books and 16,500 have been provided free uniforms.
Health
The Supreme Court is currently investigating a case alleging that cervical cancer vaccines manufactured by pharmaceutical companies Merck and GSK were tested on tribal children without their consent. According to the case, the HPV vaccine study, carried out by American NGO Program for Appropriate Technology in Health (PATH) and sponsored by the Bill & Melinda Gates, was conducted from 2009 on thousands of girls aged nine to 15, many of whom fell ill, and at least seven died. The girls were not informed of the nature of the disease or the vaccine. In many cases, consent was obtained from wardens of the hostels where the children stayed or thumbprint impressions of illiterate parents were affixed onto the consent form.
In August a Uranium mining company was ordered by the Jharkhand High Court to disclose radiation levels and the presence of any heavy metals in soil and water in an area with an unusually high reported number of physically deformed and ill children. The company has so far denied the allegation that its activities are related to the health issues of the local population.
Missing and trafficked children
In May last year following a petition filed by Bachpan Bachan Andolan, the Supreme Court issued landmark directions for the protection of missing children and other child victims of crime in India. This included directions to register First Information Reports for all cases of missing children in India and to investigate such cases, including the 75,000 missing children from 2009 to 2011, and to appoint a Juvenile Welfare Officer in each police station to investigate crimes against children. Furthermore, in all missing children cases, there will be a presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation.
Nonetheless, tracing missing children remains a serious problem in the country that continues to receive attention from the courts. The Supreme Court has recently criticised the governments of four states over their failure to file status reports in cases of missing children. Last month, the Court announced it will be periodically summoning government officials from those states with a large number of missing children.
In a case concerning the application of the Victim Protection Protocol regarding trafficked children, the Supreme Court stated that young girls who have been trafficked for prostitution must not be arrested. It expressed serious concern over the practice of arresting and detaining these girls in unsuitable conditions, where facilities such as separate female toilets are often lacking.
The Kerala High Court has initiated a suo motu case concerning trafficking of children from orphanages. It is alleged that over 500 children have been trafficked to Kerala from various other locations in India. The Court directed state governments to file a report on the matter. The Bihar government told the Court that the children were moved with parental consent in order to get free education, food and clothing.
Child labour
The Delhi High Court is hearing a case brought by the Save the Childhood Foundation which seeks to change the definition of child labour to include employment of children in family-run businesses and manufacturing as well as begging.
In a hearing of a suo motu public interest litigation case in September, the Bombay High Court stated that there should be a complete prohibition of children working in hazardous conditions and that children rescued from such labour should be regarded as victims, and therefore not transported to police stations together with adults.
Child sexual abuse
Last month, the Delhi High Court ruled in a landmark case involving the rape of a three-year-old girl, laying down new guidelines on the examination of child sexual abuse victims in court (for more information, see the case study at the end of this Court CRINmail).
Considering two cases in September related to child abuse, the Kerala High Court declared that the country’s latest law for protecting children from sexual abuse has failed to provide a system for detecting such abuse. The Court will draft guidelines to supplement the Protection of Children from Sexual Offences Act 2012 following consultations with the National Commission for Protection of Child Rights (CPCR), state CPCR, Ministry of Women and Child Development and the Department of Social Justice.
Children in vulnerable situations
Public interest litigation is also used to enforce the interests of vulnerable groups of children across India. In August the Supreme Court agreed to hear a case brought by the NGOs Advait Foundation and Sakhee, which is seeking a moratorium on foreign adoption of Indian children on the basis that such children faced post-adoption abuse due to the absence of any inter-country adoption guidelines in place. The Supreme Court has also accepted a case concerning the safety of children at unmanned railway crossings, given the many instances of children getting injured and dying as a result of accidents.
In Bombay, the High Court has initiated a case on the basis of a report concerning the situation of children of imprisoned mothers. The report deals with children who live with their mothers in prison as well as those who live outside prison without their mothers, and suggests that better facilities are needed to ensure protection of the rights of these children to health and education. The Bombay High Court has also directed the state government to appoint specialists as a response to the child deaths resulting from malnourishment in the region of Melghat. According to information provided by activists, malnourished children do not have access to medical attention due to a lack of gynaecologists and paediatricians in the area.
Juvenile justice
In March the Supreme Court upheld the constitutionality of the Juvenile Justice Act, rejecting a petition that the law be interpreted to allow juveniles to be treated as adults. This followed another positive decision in July last year in which the Supreme Court dismissed eight petitions that sought to lower the age at which children can be sentenced as adults from 18 to 16.
However, the Ministry of Women and Child Development has since introduced into parliament a revised Juvenile Justice Bill, which would give the Juvenile Justice Board discretion to transfer children aged 16 and 17 to adult courts if they are alleged or found to have committed offences punishable with more than seven years’ imprisonment. The National Commission for Protection of Child Rights has opposed the proposed amendment, calling it “against child rights”.
For more information on bringing cases to court within the Indian legal system, you can read CRIN’s report on access to justice for children in India. For further information and resources on strategic litigation, please visit our website. CRIN’s legal database also contains summaries of important cases from India, including cases in which the Convention on the Rights of the Child is cited.
Strategic litigation case study
State v. Sujeet Kumar: A toddler’s 18-month wait for justice
Amal* was three-years-old when she was raped by a neighbour in the Delhi slum she lived in with her family. What followed was a brutal cross-examination by defence lawyers, staggering incompetence from the legal system and extensive medical procedures. Her mother, a 24-year-old construction worker from Bihar, fought tirelessly for justice for her daughter in a case that went all the way to the Delhi High Court.
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.
*The name of the child victim has been changed to protect her identity.
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