CRINmail 42:
Children in Court

In this issue:

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Introduction

In the last issue of the Children in Court CRINmail for 2014, we bring you news about the latest cases and legislative developments in relation to the rights of children in vulnerable situations, including intersex children, children with disabilities and asylum seeker children, as well as children in armed conflict, harmful traditional practices, and others. At the end of the issue, you will also be able to find a link to CRIN’s latest case study.

Latest news and cases

High Court recognises intersex children in Kenya

Earlier this month the High Court of Kenya ordered that a birth certificate be issued to a five-year-old child born intersex, with both male and female genitalia. Following the birth of the child, known as Baby ‘A’, the hospital had entered a question mark for the child’s biological sex in the documentation. The Registrar of Births and Deaths refused to issue a birth certificate without selecting one of only two available options - male or female. The application to the Court alleged a violation of Baby A’s constitutional rights and relied on Article 7 of the CRC and the African Charter on the Rights and Welfare of the Child. The decision will, however, have a wider impact as the Court has asked the Attorney-General to designate a body which will collect data about intersex people in the country. The Attorney-General will also have to submit to the Court a report on the status of a statute regulating the place of intersex as a sexual category and guidelines and regulations for corrective surgery for intersex persons. For more information, read CRIN’s case summary.

Czech court recognises the right of children with disabilities to state support

This month in the first judgment of its kind in Central Europe, the Czech Supreme Administrative Court recognised as enforceable the right of children with disabilities to receive state support to enable them to continue living within their community. The case, which was brought on behalf of three boys, challenged the public authorities’ refusal to provide financial support for specialist social services to the children’s parents who wanted to continue caring for them at home and not send them to a state institution located over 100 kilometres away. The Court found that the authorities’ refusal was unlawful as they had failed to take into account the international law obligations of the Czech Republic, namely Article 19 of the UN Convention on the Rights of Persons with Disabilities, which requires State Parties to recognise the equal right of all persons with disabilities to live in the community and to take measures for the full enjoyment of that right. The Court also found that Czech law must be interpreted in line with the European Social Charter and the general comments of the UN Committee on Economic, Social and Cultural Rights.

Babies born in Australia to asylum-seeking parents allowed to stay in Australia, despite court ruling

The Australian government has decided to allow 31 Australian-born babies of people seeking asylum to remain on the mainland and apply for protection visas, despite a court ruling to the contrary which was upheld by the Federal Court in Brisbane this week. Hours before the Federal Court’s decision, Immigration Minister Scott Morrison announced that the babies and around 80 of their family members will not be transferred back to a detention centre in Nauru, but will instead be allowed to stay in Australia while their applications for refugee status are being processed. However, he also said this was a "special one-off arrangement" and that pregnant women seeking asylum currently in Australia who had not given birth before the announcement would be returned to Nauru. Murray Watt of law firm Maurice Blackburn, which represents the children, welcomed the announcement, which would spare the children and their families from the “inhumane” conditions on Nauru. Watt noted, however, that the appellants face other hurdles as their applications for refugee status still need to be considered, and any visa would only be temporary. For background on the case, please read CRIN’s case study ‘Australia: Baby Ferouz and the children kept behind bars’.

Juvenile justice in Egypt, United States and Australia

In Egypt, the Alexandria Juvenile Misdemeanor Court has sentenced 78 children to between two and five years’ imprisonment for taking part in demonstrations calling for ousted president Mohamed Morsi to be reinstated. The children, aged 13 to 17 years, were arrested for joining rallies organised by members of the Muslim Brotherhood during the past three months, but denied their involvement in protests or belonging to the group.

The US Supreme Court has granted a hearing in the case of Toca v. Louisiana, which will decide whether the judgment in Miller v. Alabama, abolishing mandatory sentences of life imprisonment without parole for juveniles, applies retroactively. The Louisiana Supreme Court has already ruled that the Miller ban does not apply in the case of Toca who was sentenced to life for a crime he committed at the age of 17. The same conclusion has been reached by the supreme courts of three other states - Pennsylvania, Michigan, and Minnesota - however, another nine have allowed retroactive application. The Supreme Court’s decision, which will settle the issue on a federal level, is expected by mid-next year.

A class action lawsuit alleging routine violations of the rights of children who are arrested and detained has been filed by the Children’s Law Centre in Ohio. Although the complaint targets Hamilton County, it claims that state-wide policies and practices of arresting and detaining children without a “probable cause” hearing, that is, a hearing to determine whether there is a reasonable basis for believing that a crime may have been committed, violate their constitutional rights to due process. The plaintiffs have also sought a preliminary injunction prohibiting Hamilton County from arresting children without having probable cause and detaining them for more than 48 hours without a probable cause hearing.

In the new Family Court building in Philadelphia, a short-lived policy of strip searching juvenile detainees before court hearings came to an end after an outcry by child advocates. The policy lasted for just one day, though according to a representative of the Defender Association of Philadelphia, it is not clear how many children were subjected to it.

In Australia, the president of the state’s children’s court has warned that Queensland’s child offender laws are in breach of the UN Convention on the Rights of the Child. In his annual report, Judge Michael Shanahan expressed “grave concerns” about the state government’s punitive laws, including the excessive jail sentences, mandatory “boot camps” and “name and shame” provisions, which he said were “unnecessary in the light of the statistics and the principles of juvenile justice”. For more information on the laws which were passed in March, see our previous Children in Court CRINmail.

Children in armed conflict

This month the Appeals Chamber of the International Criminal Court (ICC) upheld the conviction and 14-year prison sentence of Congolese militia leader Thomas Lubanga Dyilo. Lubanga was convicted in March 2012 by Trial Chamber I of the ICC after being found guilty of the war crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities in the Democratic Republic of Congo between 2002 and 2003. Child Soldiers International says the decision shows that such acts “around the world will not go unpunished, even if national authorities fail to take action”. But it warns that “many perpetrators are still evading accountability”.

In October the Inter-American Court of Human Rights held El Salvador responsible for the disappearance of five children during the Salvadoran Civil War. The children, aged nine months to 13 years, disappeared between 1980 and 1982 after being last seen in the company of state security forces during so-called counter-insurgency operations. The petitioners argued that the national authorities had failed to conduct a serious and diligent investigation into the disappearance of the children. The Court found that the State had violated the rights of the children to privacy, family life, fair trial, judicial protection and personal liberty under the American Convention on Human Rights. Moreover, the Court stated that the cases “are not isolated given that they formed part of a pattern of systematic forced disappearances of children”. A UN-sponsored truth commission found that at least 75,000 people were killed during the country’s war, including thousands of children.

Access to justice for child victims of sexual abuse by Catholic clergy

Last month news emerged that the Vatican’s “promoter of justice”, who was appointed by the Pope in September to prosecute priests accused of child abuse, was potentially involved in covering up large-scale child sexual abuse in the United States. Rev. Robert J. Geisinger, who was the second highest ranking official among the Chicago Jesuits in the 1990s, knew about complaints made against a fellow priest, now convicted and serving his term in prison, as early as 1995, but failed to advise officials until as late as 2002. The Vatican Press Office has stated that “the Holy See fully expects Father Geisinger to continue to do an excellent job as promoter of justice, based on his prosecution record, his commitment to justice, and his concern for victims”. However, commentators remain bewildered as to why such a high-profile position was not filled by someone with an unquestionable background.

In the United States, the Archdiocese of St Paul and Minneapolis has initiated legal action against eight insurance companies which are refusing to pay compensation to over 20 victims of sexual abuse by members of the clergy. The companies are claiming that their policies do not cover this type of compensation as the abuses are not “accidents” or “occurrences” but acts that caused harm that were expected or intended. Meanwhile, the Archdiocese said it is considering whether to declare bankruptcy as it faces an unprecedented wave of clergy abuse lawsuits. The Child Victims Act passed by the state last year suspended the six-year statutory limitation period for bringing civil suits for child sexual abuse for three years.

For more information, read CRIN’s preliminary report ‘Child sexual abuse and the Holy See: The need for justice, accountability and reform’.

Child anonymity in legal proceedings

In England, the Court of Appeal has refused to allow for the anonymity protection in Section 39 of the Children and Young Persons Act to be extended to children once they turn 18. The Court held that an order made under section 39 is effective only until the child’s 18th birthday as “the purpose of section 39 is not to promote rehabilitation of young offenders but to protect children and young persons who are caught up in legal proceedings from the adverse effects of publicity to which they might otherwise be exposed”.

Police are investigating a Canadian newspaper for allegedly violating the court-imposed publication ban concerning the name of a victim of child pornography, which was covered in a previous Children in Court CRINmail. The Chronicle Herald justified its decision to defy the court order as being in the public interest given the good that could come from a public debate of the issues in the victim’s story. The newspaper stated, however, that this case is unique and the court-ordered privacy rights of other victims of crime will be respected. The police investigation into the breach of the ban is ongoing.

Harmful traditional practices

In India, the Gujarat High Court has ruled that Muslim girls who have reached puberty or the age of 15 are “competent” to get married without parental consent. The case was brought under the Prohibition of Child Marriage Act 2006 after the father of a 17-year-old girl who was opposed to her marriage alerted the authorities. The Court concluded that, since both parties to the marriage are Muslims, their personal law should apply and found no breach of the Act.

Five people have been sentenced to four years’ imprisonment for aiding or procuring female genital mutilation (FGM) procedures in Uganda. The rare convictions are based on a 2010 law which criminalises participation in any event leading to FGM and prohibits discrimination against women who have not undergone the procedure. The rate of FGM in Uganda is lower than other countries in Africa, however it is reported that since the coming into force of the law, the practice is continuing in secret or people are travelling to neighbouring Kenya to carry out the mutilation.

This month the Irish Supreme Court refused to hear an appeal brought on behalf of a four-year-old girl born in Ireland whose application for refugee status was refused despite an alleged risk of FGM if she were to return with her mother to Nigeria. The judges held that judicial review is not the appropriate remedy in the case; rather, the mother should appeal the refusal, made by the Refugee Applications Commissioner, to the Refugee Appeals Tribunal. However, while the case was being considered at the Supreme Court, the mother’s appeal was also rejected by the Tribunal, which did not find the threat of FGM to be credible.

Last month an appeals court in the United States refused an appeal against a court decision allowing a four-year-old boy to be circumcised. About a year after the child’s birth, the parents entered into an agreement in which the father would schedule and pay for the circumcision. However, at a later date the mother objected to the proposed procedure on the basis that it is not medically necessary or in the best interests of the child. The court of first instance upheld the terms of the agreement and imposed a gag order on the mother, preventing her from telling the child she opposed the procedure and discussing the matter with the press, a decision which was upheld on appeal. Earlier this year, the High Court of Israel voided a ruling by a rabbinical court that ordered a mother to allow her one-year-old son to be circumcised on the father’s demand, saying the court had not sufficiently examined what was in the child’s best interests.

Right to health

This month, Slovakia’s Constitutional Court affirmed the legality of laws requiring the compulsory vaccination of children. The case concerned the imposition of a fine for a parent who refused to allow her child to be vaccinated. The Constitutional Court of Croatia reached the same conclusion in a case covered in a previous Children in Court CRINmail.

The Supreme Court of Pakistan will review a case which alleges that a child living with her mother in prison has contracted the polio virus due to not being vaccinated. Pakistan is one of a few countries in the world in which polio remains endemic. The child, who was born in prison, has become physically impaired as a result of contracting the disease. The Court has sought reports from all states on the administration of polio drops to children living in prisons.

The English Court of Appeal has unanimously ruled that a child born with foetal alcohol syndrome, as a result of excessive drinking during pregnancy, could not be awarded compensation from the Criminal Injuries Compensation Authority. The girl, aged 7, is currently in the care of the local authority, who brought the case on her behalf. The Court refused to find that the criminal offence of poisoning so as to endanger life or inflict grievous bodily harm was committed, stating that at the time the damage was caused, the foetus was in the womb and did not have a separate existence in law. A markedly different approach has been taken in the United States where the authorities jailed a pregnant woman for using illegal drugs during her pregnancy. The court in this case found that the woman’s actions constitute child abuse against the 14-week-old foetus. Her lawyers are appealing the finding of child abuse and filing a federal civil rights lawsuit against the state of Wisconsin.

Right to education and freedom of religion

In the United States, a 21-year-long lawsuit concluded last month when the South Carolina Supreme Court ruled against the state, finding that the education provided by under-funded rural schools was constitutionally deficient as it had failed to deliver “minimally adequate education”. The Court found that “[t]housands of South Carolina's school children… have been denied [the requisite educational] opportunity due to no more than historical accident”, namely the use of a funding formula dating back to 1977. The decision requires reform of the school funding system in the state, but does not prescribe specific measures to be taken.

A family from New Jersey have filed a lawsuit against the school district alleging that the daily recitals of the Pledge of Allegiance, which includes the phrase “under God”, discriminates against children with atheist beliefs. The school district, however, claims that all students are treated equally, as reciting the pledge is not compulsory. Earlier this year, the Massachusetts Supreme Court ruled in a similar case that the words “under God” reflect a patriotic practice, not a religious one, and therefore the expression was not discriminatory. The plaintiff in that case argued that her three children felt "stigmatised", "marginalised" and "excluded" when others recited the pledge and they did not, alleging that there is poor public perception of atheists. Nevertheless the court found no such evidence of this.

In a case concerning religious education in Turkey, the European Court of Human Rights has held that the State was in breach of Article 2 of Protocol 1 to the European Convention on Human Rights, which grants parents the right to ensure that their children’s education conforms to their own religious and philosophical convictions. The applicants, who are the parents of a child of school age and adhere to Alevism (a branch of Islam), complained that the classes in religion and ethics, which are compulsory in secondary schools in the country, are based on Sunni Islam, which is notably different to their beliefs. The Court agreed that the current system does not ensure respect for the religious beliefs of parents as there are no options for the children of parents with a religious or philosophical conviction other than Sunni Islam.

Families of US shooting victims sue gunmaker, distributor and store

In the United States, relatives of the victims of the Sandy Hook Elementary School shooting have filed a wrongful death lawsuit against the manufacturer, distributor and retailer of the gun used in the shooting. Twenty-six people, including 20 children, were killed in the shooting in Connecticut in 2012. The complainants, who seek compensation for loss as well as punitive damages, allege that the semi-automatic rifle used to commit the murders should not have been sold to the public as it was designed as a military weapon, and that the defendants knew that the weapon would be accessible to individuals who are unfit to use it.

Corporal punishment

Estonia and Nicaragua have become the latest States to ban all corporal punishment of children, including in the home. In Estonia, the newly enacted Child Welfare Act 2014 explicitly prohibits the “use of physical force for the purpose of punishment” in all settings. Article 280 of Nicaragua’s new Family Code 2014 identifies parents and guardians as having the responsibility “to provide, consistent with the child’s evolving capacities, appropriate direction and guidance to the child, without putting at risk his or her health, physical integrity, psychological and personal dignity and under no circumstances using physical punishment or any type of humiliating treatment as a form of correction or discipline.”

Meanwhile the European Parliament recently adopted a resolution on the rights of the child which, amongst other things, called on Member States to uphold their obligations and combat any forms of violence against children, including by formally prohibiting and sanctioning corporal punishment against children. The resolution also noted that tradition, culture and religion should never be used to justify violence against children.

The total number of States worldwide that have banned corporal punishment now stands at 44. Seven States have enacted bans this year - the highest number to do so in a single year since 2007. For more information, read the Global Initiative to End All Corporal Punishment of Children’s report ‘Ending legalised violence against children: Global progress to December 2014’.

Anti-homosexuality laws in Africa

Last month a new anti-gay bill was proposed in Uganda to replace the previously annulled Anti-Homosexuality Act. Under the Prohibition of the Promotion of Unnatural Sexual Practices Bill, anyone who promotes, aids or abets, or funds the promotion of homosexual acts, can face a prison term of up to seven years. The bill also seeks to criminalise NGO workers, journalists, filmmakers and others working on LGBT rights, as it targets those who advertise, publish, broadcast or distribute materials that promote homosexuality. The Equal Rights Trust has written an official letter addressed to the Prime Minister of Uganda expressing serious concern over the proposed law and requesting the abolition of all legal provisions in contravention of international human rights norms.

Meanwhile the President of Gambia has approved a bill criminalising “aggravated homosexuality” and imposing life imprisonment as the punishment, despite calls from human rights advocates to reject the proposed amendments. The new amendment to the Criminal Code Act states that “aggravated homosexuality” occurs, amongst other things, when the “person against whom the offence is committed is below the age of eighteen years” or when the “offender is a parent or guardian of the person against whom the offence is committed”. The bill, however, does not address the issue of consent or what should be done if the people involved are both under 18. According to Amnesty International, a 17-year-old boy was one of several people to be arrested and tortured by Gambian security forces in recent weeks for allegedly engaging in homosexual acts.

Access to justice for children in Africa

A new child-friendly courtroom will shortly be opened in the High Court of Swaziland. There are already three such courtrooms in the country, including another one in the High Court itself, following advocacy efforts by a local NGO Swaziland Action Group Against Abuse. In Swaziland, the High Court has jurisdiction to enforce the human rights guaranteed by the Constitution, as well as to determine any other constitutional matter. The new room is a welcome addition to the Court, and is expected to greatly enhance access to justice for children.

In the Nigerian state Akwa Ibom, a specialised family court has been set up to hear cases concerning allegations of witchcraft relating to children in the hope of reducing the incidence of such accusations. Although the problem has long been recognised and a Commission of Enquiry was established in 2010 in response to the rampant stigmatisation of children who have been accused of witchcraft, human rights abuses stemming from witchcraft allegations persist.

New legal resources

This month the Equal Rights Trust launched their new publication ‘Economic and Social Rights in the Courtroom: A Litigator's Guide to Using Equality and Non-Discrimination Strategies to Advance Economic and Social Rights’, accompanied by a compendium of case law.

For information about strategic litigation using the UN Convention on the Rights of Persons with Disabilities, read Mental Disability Advocacy Centre’s publication ‘Litigating the right to community living for people with mental disabilities: A handbook for lawyers’.

Case study

AUSTRALIA: Baby Ferouz and the children kept behind bars

Born in Brisbane to asylum seeker parents in November 2013, Baby Ferouz has spent his life moving from detention centre to detention centre. In October 2014, a federal court judge ruled that both he and his family had no right to stay in Australia. Lawyers for Ferouz and other Australian-born babies of people seeking asylum challenged the government's plan to send them to a notorious detention centre, thousands of miles from the mainland.

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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