CRINmail 43:
Children in Court

In this issue:

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Introduction

In the first edition for 2015, this month’s Children in Court CRINmail covers the latest news and cases from around the globe including stories about children in conflict with the law, equality for children of same-sex couples, children’s access to appropriate information, freedom of assembly and expression, right to health and others. At the end of the CRINmail, you will also be able to find a link to our strategic litigation case study on the legal status of Nubian children in Kenya.

We would also like to invite you to send us any information concerning recent case law and legislative developments in the field of children’s rights and surrogacy, which will contribute to a special thematic Children in Court CRINmail planned for early February. Please email your contributions to [email protected].

Latest news and cases

US court strikes down lifetime registration of juvenile sex offenders

Last month Pennsylvania's Supreme Court ruled that the state’s mandatory lifetime registration of juvenile sex offenders is unconstitutional. The case concerned seven juvenile offenders who were required under the Sex Offender Registration and Notification Act to register and report to authorities for at least 25 years. These registration requirements were based on the presumption that all such offenders “pose a high risk of committing additional sexual offences”, which could not be challenged. In a 5-1 decision, the Court found that this “irrebuttable presumption” violates the juveniles’ due process rights because it is not universally true and individualised risk assessment can instead be used to determine which juvenile offenders are likely to reoffend. As recognised by the Court, mandatory lifetime registration “negatively affects juvenile offenders[’] ability to obtain housing, schooling, and employment, which in turn hinders their ability to rehabilitate”.

A similar decision was handed down last year by the South African Constitutional Court, which struck down mandatory registration of juvenile sex offenders in South Africa. For more information, see our previous Children in Court CRINmail.

Children of same-sex couples in Austria and Italy

This month the Constitutional Court of Austria overturned a ban on adoption by same-sex partners, holding that the difference in treatment between same- and opposite-sex couples was unjustified and therefore unlawful. The ruling, which repeals provisions of the General Civil Code and the Act on Registered Partnership that explicitly prohibit joint adoption by registered partners, is based on the right to private and family life and freedom from discrimination in the European Convention on Human Rights. The Court rejected arguments that the ban is justified in light of the best interests of the child or protection of the traditional family. Same sex couples in Austria have been allowed to adopt the biological child of a partner since 2013, following a judgment against the state by the European Court of Human Rights. However, the new decision by the Constitutional Court means that couples will be allowed to adopt a child regardless of the existence of a biological connection, and adoption legislation will be applied without discrimination. The government has until the end of the year to effect the change in legislation.

An Italian court has for the first time recognised the legal status of a child born to a same-sex couple. The boy was conceived by artificial insemination and born in Barcelona to a Spanish and Italian same-sex couple. Overturning a 2013 decision that the birth could not be legally recognised in Italy, the appeals court in Turin ordered that the birth be registered in the town where the Italian woman lives as this was “in the best interest of the child”. The ruling, which was issued in October but only made public this month, effectively gives the child Italian citizenship and the right to live in Italy with his mother, who is now divorced from her Spanish wife. Same sex marriage is legal in Spain and, under Spanish law, the women are both recognised as the boy’s mothers. While Italy does not allow same-sex marriage or civil partnerships and the government has yet to legislate on same-sex parenting, some courts and town councils have started to recognise the validity of same-sex marriages contracted abroad.

Chilean court dismisses challenge to children’s book

The Court of Appeals of Punta Arenas has dismissed a challenge brought by a religious organisation against the distribution of a children’s book deemed controversial. The book “Nicolás Has Two Dads” (“Nicolás tiene dos papás”) was published earlier this year to introduce the theme of different sexual orientations to kindergartners across the country. The petition alleged that the book violates children’s right to freedom of conscience by attempting to “indoctrinate” them into accepting homosexuality. But the Court stated that there is no set definition of a family in the Constitution, and that the Convention on the Rights of the Child conceives the existence of a variety of family types. The Court cited General Comment No. 14 of the UN Committee on the Rights of the Child, which states that family “must be interpreted in a broad sense to include biological, adoptive or foster parents or, where applicable, the members of the extended family or community as provided for by local custom”. The NGO Movement for Integration and Homosexual Freedom, which co-wrote the book, has welcomed the decision, noting that this is the second challenge to the book which has been rejected by the Chilean courts. Three other challenges to the book are pending in three other cities in the country.

For more information on children’s right to access information, please visit CRIN’s campaign page ‘Protect children, end censorship’.

Military courts and children in Egypt and Pakistan

In Egypt, a 16-year-old boy is facing a military trial for allegedly taking part in unauthorised demonstrations. He was arrested in March 2014 and subsequently charged with, amongst other things, “belonging to a terrorist group” - the Muslim Brotherhood. The prosecution is based on a presidential decree issued in October last year, which provides that acts broadly deemed to “threaten the safety and security of the country” may fall under the authority of military courts. The organisation Alkarama has appealed to the UN Working Group on Arbitrary Detention to urge Egyptian authorities not to try the boy in a military court. The organisation also calls on authorities to stop placing civilians before military courts. Alkarama additionally highlights that there are a number of children who have faced military trials, including another 16-year-old boy who was arrested in 2011 and sentenced to 15 years in prison.

Earlier in January, the President of Pakistan signed into law new legislation to establish military courts for the hearing of terrorism-related cases against civilians. This law is one of a number of measures taken by the state following a Taliban attack on a school in Peshawar in which at least 148 people, almost all children, were killed. In December Pakistan lifted its death penalty moratorium and announced its intention to go ahead with the executions of over 500 people on death row, including Shafqat Hussain who was sentenced to death in 2004 when he was 14-years-old. His execution has now been stayed pending an investigation into the case, but human rights advocates are working to annul his conviction. The creation of military court jurisdiction to try civilians has been described by the International Commission of Jurists as a "a serious blow to human rights and rule of law in the country".

Under the UN Draft Principles Governing the Administration of Justice Through Military Tribunals, which are intended to set minimum standards to regulate the use and operation of military courts and tribunals, “military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts”.

Freedom of assembly and expression in Turkey

This month in Turkey, five children, aged between 15 and 18, were sentenced to three months’ imprisonment by a children’s court for “participating in illegal demonstrations and resisting dispersal despite warnings and the use of force by public order officials” during the Gezi protests. The sentences of four of the boys have since been converted to monetary fines and judicial control for three years, however, the fifth boy will have to serve the three months and 10 day sentence. The defence lawyers argued that the protests were peaceful and in line with freedom of assembly guaranteed by Article 10 of the European Convention on Human Rights, but the court ruled that the children’s refusal to leave despite the police orders constituted an offence. Last year a local court acquitted 24 children involved in the protests, upholding their right to peaceful assembly. It is reported that many other courts have also vindicated this right, however, the current case demonstrates that court practice in the country remains inconsistent.

Meanwhile a 16-year-old boy arrested for allegedly insulting Turkish President Erdoğan in a speech during a student protest was released from custody last month following a petition from his lawyers to a local court. However, the charges remain and, if convicted, he could face up to four years in prison, reduced by a third based on his minority.

Consent to medical treatment in the United States

This month the Connecticut Supreme Court ruled that a 17-year-old girl must undergo chemotherapy against her will. The Court held that the plaintiff had not demonstrated sufficient reason to overturn a lower court’s decision to take her into custody to receive cancer treatment. The girl was diagnosed with Hodgkin's lymphoma last September and withstood two rounds of chemotherapy before asking for the treatment to be stopped. Doctors say she has an 85 percent chance of survival with the treatment but without it is almost certain to die within two years. The Court declined to rule on whether she should be treated as a "mature minor" - that is, a child who is competent to make decisions regarding their medical treatment. The “mature minor” doctrine is settled law in some US states, but not in Connecticut. Nonetheless, the girl’s lawyer noted that she will be 18 in nine months’ time and have the legal right to reject chemotherapy, although the treatment is expected to be over before then.

Earlier this month a federal court upheld a ruling that New York State’s requirement for children to be vaccinated before attending public schools does not violate the Constitution. The parents of three children challenged the policy on the basis that the requirement interferes with their freedom of religion. However, the US Court of Appeals for the Second Circuit disagreed, relying on a 1905 Supreme Court decision according to which mandatory vaccinations do not violate an individual’s constitutional rights, given the state's interest in protecting the population as a whole. The parents plan to appeal the case to the US Supreme Court.

Irish court finds child abuse victim unfairly denied legal representation

This month the High Court of Ireland ruled that a woman was unfairly denied legal representation before a historical child sexual abuse inquiry when a judge rejected her request for a publicly funded lawyer. Justice Treacy ruled that the refusal was fundamentally unfair, stating that “the consequences in terms of costs do not remove the public law necessity for legal representation out of public funds if that is what fairness requires.” The Historical Institutional Abuse Inquiry (HIA) was launched in 2013 to investigate child abuse in residential institutions in Northern Ireland over a 73-year period up to 1995. It has so far heard from nearly 100 victims of abuse, most of whom were in the care of the Catholic Church while others were part of a state-approved child migrant scheme to Australia. Following this High Court decision, it is now up to the HIA to determine what level of representation is required for the victims.

US judge overturns conviction of boy executed in the 1940s

A US judge has overturned the conviction of a 14-year-old black boy executed for murder over 70 years ago. Stinney was accused of killing two white girls, aged 11 and seven, in South Carolina in 1944. He was tried, convicted and executed within 83 days, without appeal. In a judgment delivered last month, Judge Mullen found that the boy’s prosecution was tainted by “fundamental, Constitutional violations of due process”. She cited evidence that he had been interrogated without a lawyer or his parents present, that it is highly likely he was coerced into confessing to the crimes given his circumstances as a young black teenager being questioned by white, uniformed law enforcement in the segregated South, and that his appointed attorney “did little to nothing” in defending him. The successful case was brought by the boy’s surviving siblings.

Shell to pay out £55 million over Niger Delta oil spills

Royal Dutch Shell PLC has agreed to pay £55 million in compensation to fishermen in the Bodo region of the Niger Delta in Nigeria for two oil spills in 2008 and 2009. The spills damaged 600,000 hectares of mangrove swamp and almost destroyed the local fishing industry in the largest man made disaster of this kind ever seen. The compensation package will be split between £35 million for 15,600 individuals, including 2,000 children, and £20 million for the community, which is thought to be one of the largest payouts to an entire community following environmental damage. Shell had originally offered £4,000 to the entire Bodo community before the villagers sought legal action in London, where Shell is headquartered. UK law firm Leigh Day, which represented the claimants, welcomed the outcome but said it was “deeply disappointing that Shell took six years to take the case seriously”.

Proposed Australian law on cyber bullying of children

Last month the Australian government introduced a bill into Parliament to tackle online bullying of children. If approved, the Enhancing Online Safety for Children Bill 2014 will create a Children's E-Safety Commissioner with powers to receive and investigate complaints from children about material posted on social media that is seriously threatening, intimidating, harassing or humiliating, and to order social media services and individuals to remove such material. Social media companies and individuals could face fines of A$17,000 per day if such material is not removed and individuals could face legal action under existing criminal laws. Under the Bill, the Commissioner must have regard to the Convention on the Rights of the Child when performing its functions, which include promoting online safety for children.

Although under the proposed bill penalties will not be applied to individual children, children (aged 10 and over) can already be prosecuted under existing laws for activities which may be characterised as cyber bullying like assaulting, stalking, harassing or intimidating another person, or using a mobile or the internet in a way that is menacing, harassing or offensive. According to researchers from the University of New South Wales, about one in five children in Australia are victims of cyber bullying.

Scottish bill on human trafficking and child impact assessment

A new Human Trafficking and Exploitation Bill was introduced in the Scottish Parliament last month. It will clarify and strengthen criminal law by introducing a new single human trafficking offence and increasing the maximum penalty for offenders to life imprisonment. Most notably, a Child Impact Assessment has been undertaken for the first time for a Scottish Parliament Bill in line with recommendations by the UN Committee on the Rights of the Child in its 2008 Concluding Observations on the report for the United Kingdom.

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Strategic litigation case study

Nubian Minors v. Kenya: How to get recognised - Nubian children and the struggle for citizenship

Nubians have lived in Kenya for more than a century, but are not considered Kenyan nationals. As such, they face significant restrictions when it comes to gaining access to basic amenities like health care and education. In the case of Nubian Minors v. Kenya, the second-class status of Nubians in Kenyan society was challenged.

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

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