CRINmail 45:
Children in Court

In this issue:

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Introduction

This month, our Children in Court CRINmail contains the latest news concerning child abuse, including stories on accountability for abuse by religious officials and challenges against government bodies alleging cover-up of abuse. You can also find stories on inhuman sentencing of children, immigration detention, the right to health and others. At the bottom of the CRINmail is a case study on the treatment of teenagers in police custody in the United Kingdom.

Latest news and cases

Germany’s top court rules no minimum age to know parents

The German Supreme Court has ruled that children of all ages have the right to know both of their parents - including if their biological father was an anonymous sperm donor. Until now German law stated that the child or children of a donor could not request the identity of their biological father until they reached 16 years of age. But the Supreme Court held that "a minimum age is not necessary" for disclosing a sperm donor's identity to a child, and that sperm donors’ right to remain anonymous will generally be trumped by the right of the child to know both his or her parents. The decision was handed down in the case of two sisters, aged 12 and 17, who had appealed to the Supreme Court after a reproductive clinic refused to provide the biological father’s identity, as the girls’ legal parents had initially waived the sisters’ right to know.

Juvenile justice in England and the United States

In England, the Court of Appeal ruled this week that safeguards set out in PACE Code C on the detention and treatment of persons by police officers must be followed by police whenever a child is strip searched. The case was brought against the Merseyside Police on behalf of a 14-year-old girl with a history of mental illness who was arrested for being drunk and disorderly and strip searched in police custody without an appropriate adult present. The lawsuit alleged a violation of the girl’s right to respect for private life under Article 8 of the European Convention on Human Rights as well as her rights under the CRC. The Court held that, “[e]xcept in cases of urgency, where there is a risk of harm to the detainee or to others, an appropriate adult must be present (unless the detainee wishes the appropriate adult not to be present)”. However, it rejected the claim that the girl’s rights had been breached, finding that the police acted “reasonably and proportionately in the urgency of the situation”. A Freedom of Information request has revealed that more than 4,500 children as young as 10 have been strip searched by the Metropolitan Police over the past five years.

Last month in the United States, a plea agreement was concluded in the case of Toca v. Louisiana, in which the US Supreme Court was expected to decide whether the ban on mandatory sentences of life imprisonment without parole for juveniles should be applied retroactively, as we reported in a previous Children in Court CRINmail. According to a statement by his lawyers, Toca entered a best interests plea regarding the death of his friend, and a guilty plea to attempted armed robbery. He has now been released, having served 31 years in prison. The case was automatically dismissed by the Supreme Court following an agreement by the parties.

Read why life imprisonment of children is a form of inhuman sentencing.

Redress for victims of sexual abuse

In Northern Ireland, a victim of sexual abuse has won the first stage in a legal bid to have a full independent inquiry examine claims that British security services covered up abuse at the Kincora children’s home in Belfast to protect an intelligence-gathering operation. According to the allegations, the abuse continued unhindered for years because police and the MI5 were using the home to blackmail people. Three men were imprisoned in 1981 for child sexual abuse at Kincora, but attempts to establish the truth about British state involvement have been blocked. The Kincora scandal is the subject of the ongoing Historical Institutional Abuse Inquiry (HIA) in Northern Ireland, but the HIA lacks the power to compel MI5 to hand over documents or testify. This week’s ruling means that victims can now challenge the government’s decision to exclude the Kincora home from the wider inquiry into child abuse in British establishments, with a judicial review hearing scheduled for June.

In one of the most serious sexual abuse scandals to emerge under Pope Francis, charges have been dropped by a Spanish court in Granada against nine out of 10 Catholic priests accused of sexually abusing an altar boy between 2004 and 2007 because the crimes fell within the statute of limitations. The lawyer for the victim, now aged 24, said his client had been unable to report the abuse until he had moved out of Granada. The time-barring of complaints through statutes of limitations is a common obstacle to children accessing justice, especially in relation to sexual abuse. For more information on statutes of limitations, see the section on access to justice in this previous CRINmail.

The US Supreme Court has declined to hear a petition by the Roman Catholic Diocese of Baton Rouge regarding a civil lawsuit that challenges the confidentiality of confessions. The petition sought to block the victim from testifying against the church that as a child she had told a priest during confession that a fellow parishioner had sexually abused her. The Louisiana Supreme Court ruled in April that she could testify about the confession, and that priests should be subject to mandatory reporting laws regarding child abuse if the person who makes the confession waives their right to confidentiality. The lawsuit, which claims that the priest and diocese were negligent in allowing the alleged abuse to continue, will now move forward in the district court.

The Royal Commission investigating institutional responses to child sexual abuse in Australia has for the first time heard evidence of abuse in Australia’s Orthodox Jewish Yeshivah centres in the 1980s, resulting in several rabbis’ resignations. The most senior rabbi in Australia stepped down this week after he admitted to calling the father of three abuse victims a “lunatic” who was “guilty of neglect of his own children”. The director of the Sydney Yeshivah Centre had resigned the previous week after telling the Commission he was not aware of laws around mandatory reporting of child abuse, and he did not feel he needed training because “sex abuse is not common”. Last month an investigation found that members of the Orthodox Jewish community had been pressured to stay silent and not assist police investigations into alleged child sexual abuse. The Commission, which will continue to hear evidence of abuse in government and non-government institutions, has called for a A$4.38bn national compensation scheme, which abuse survivors have welcomed. Furthermore, in an effort to address the barriers to litigation that abuse victims have faced, the NSW government is considering lifting the time limit in which victims can sue for damages.

Read more about CRIN’s campaign to end sexual violence in religious institutions, including a selection of case law summaries.

This month the Supreme Court of South Korea said it would allow children who have been sexually or physically abused at home to file for a court injunction to suspend or strip their parents of their parental rights. Previously, children could only apply for court protection from abusive parents through a legal representative. The new measure will be included in a bill revising the Family Litigation Law, which will be submitted to the National Assembly later this year. Under the bill, abused children can seek immediate legal protection and will be appointed a legal guardian who can best represent them. The Court also made it mandatory to listen to the testimonies of children in legal proceedings relating to their welfare and parental custody in divorce cases. Until now, South Korean courts were only obliged to hear testimony from children aged 13 and over.

Read more about access to justice for children in South Korea and CRIN's global access to justice for children project.

Mistreatment of migrant children in the United States and Australia

The Australian High Court has ruled with four votes to three that the detention of 157 Tamil asylum seekers, including 50 children, at sea for a month was lawful. Having fled Sri Lanka out of fear of persecution, the asylum seekers were intercepted at sea and held on an Australian customs vessel in windowless rooms for 22 hours a day with no access to translators and only limited access to legal representation. The Human Rights Law Centre, which was part of the legal team representing the plaintiffs in court, said: “Incommunicado detention on the high seas is a clear breach of Australia’s international human rights obligations. Unfortunately, today’s decision confirms that [Australia’s] domestic law allows the government to breach those obligations.” For background on the case, see this previous Children in Court CRINmail.

This month in the United States, the American Civil Liberties Union filed a lawsuit against the US Department of Homeland Security for its failure to produce records related to the abuse of children in the custody of US Customs and Border Protection and US Border Patrol. The lawsuit alleges that DHS ignored complaints documenting abuse and mistreatment of 116 unaccompanied children in Border Patrol custody - including physical, sexual and verbal abuse, harsh temperatures, severe overcrowding, and denial of adequate hygiene supplies, bedding, food, water, and medical care - and failed to respond to requests made under the Freedom of Information Act for records pertaining to such children.

Children in care in the United States and England

Over the past month, two class actions have been launched in the United States on behalf of children in foster care. In Arizona and South Carolina, class actions have been filed against the states on behalf of around 16,000 and 3,400 children in state care respectively over systemic problems in the child welfare systems. Both complaints refer to the lack of foster homes and basic healthcare, failure to investigate reports of maltreatment, and placement of children in institutions or juvenile detention centres.

In England, a child has been awarded £12,000 after the High Court found that a high turnover of social workers breached his rights to a fair trial and private and family life under the European Convention on Human Rights. The Court fined the council £17,000 for mishandling the boy’s case, citing “a lack of cohesive, comprehensive management and care for a significant period of time” by the eight social workers during his care proceedings. This landmark ruling is thought to be the first recorded case of a child being awarded domestic damages following care proceedings.

Caning of children in Zimbabwe and Malaysia

In January the High Court of Zimbabwe abolished corporal punishment as a sentence against juvenile offenders, saying the practice is unconstitutional and globally regarded as a form of violence. The ruling was made while reviewing the case of a 15-year-old boy who was sentenced to be caned for raping a 14-year-old girl under the Criminal Procedure and Evidence Act, which legalises corporal punishment of male juvenile offenders. Justice Esther Muremba concluded that corporal punishment is unconstitutional as, under Zimbabwe’s new Constitution approved in 2013, every citizen has the right to be free from torture or cruel, inhuman or degrading treatment or punishment, and no law may limit such right. Furthermore, the judge noted that constitutional protections of the rights to personal security, equality and non-discrimination strengthen that conclusion. Instead of corporal punishment, the judge said juvenile offenders should be rehabilitated, with the aim of reintegrating them into their family and society. This decision has no legal force until it is confirmed by the Constitutional Court.

Earlier this month, criminal charges were brought against a headmistress for the death of a child who died hours after being “disciplined” by her through caning. The boy had a heart condition, which the school knew about. Media has reported that the new Constitution’s prohibition of inhuman or degrading treatment or punishment precludes the use of corporal punishment in schools, however previous legislation allowing it still stands. Public opinion remains divided on the issue of corporal punishment of children in schools and the Progressive Teachers Union of Zimbabwe have written to the President asking for the ban to be reversed.

In Malaysia, the Ministry for Women, Family and Community Development has announced that the new Child Act will abolish caning of child offenders, but clarified that it will not outlaw caning of children entirely. Currently the Child Act 2001 allows male juvenile offenders to be sentenced to caning of no more than 10 strokes. The Ministry’s decision to ban caning in court was taken “in light of psychological development and in accordance with CRC”. However, it distinguished this from caning at school or at home, which is only a criminal offence if it causes physical and mental injuries. The Ministry said it is also considering alternative punishment such as community service, counselling or parenting courses.

For more information on inhuman sentencing of children, including a selection of case law, please see CRIN's inhuman sentencing campaign.

Arrests of children in Israel and Hong Kong and Equatorial Guinea

A Palestinian girl has now been released after being sentenced by an Israeli military court to two months in prison and fined 6,000 shekels (USD 1,528) earlier this year for allegedly throwing rocks at the occupation forces. This case captured the attention of media outlets worldwide, however such arrests are far from unusual. For more information, read CRIN’s statement on children in the Israeli military justice system.

In Equatorial Guinea, around 600 people, including many children as young as 12-years-old, were detained en masse at the beginning of the month following disturbances during the semi-final football match of the 2015 African Cup of Nations. According to local advocates, the response by security forces was “disproportionate” and did not respect the rule of law. Reports claim that those arrested were held in “inhuman conditions”, during which time they were denied access to legal counsel. After being detained for a week, they were released on 13 February following an order by President Teodoro Obiang.

A court in Hong Kong has rejected an application to have a girl removed from the care of her family, after she was arrested for drawing flowers in chalk on a wall at a pro-democracy protest. The 14-year-old girl was detained for 17 hours before a care application was made.

Harmful traditional practices

A court in Turkey has awarded compensation to the family of a boy whose circumcision was botched, in a case that highlights the need to better regulate the practice. The upper portion of the boy’s penis was cut and burnt off when he was a year old in a mass circumcision ceremony for boys from disadvantaged families, which the family says was carried out by an unqualified member of hospital staff. Now six-years-old, the boy is still receiving treatment as a result of the botched operation. The Batman court ordered a record 600,000 Turkish liras ($255,000) in damages.

A court in Egypt has sentenced a doctor to imprisonment for the female genital mutilation (FGM) of a 13-year-old girl who died as a result, in what is the country’s first-ever FGM conviction. In November a court had initially handed down not guilty verdicts for the doctor and the girl’s father for ordering the procedure. But in a retrial following an alleged complaint by Egypt’s Justice Ministry, the doctor was sentenced to the maximum sentence of two years’ imprisonment, and the father to three months’ house arrest. A ban on FGM has been in place since 2007, yet “this girl had to die for the law to be implemented” for the first time, said Abu Dayyeh from international women’s rights organisation Equality Now.

The first FGM trial in the United Kingdom concluded with the acquittal of a doctor charged with performing FGM on a woman, who had previously undergone FGM as a child in Somalia, after she gave birth. Commentators have criticised the decision to prosecute this case, saying it is a diversion from the real issues at hand. However, the Director of Public Prosecutions defended the prosecution, saying there was enough evidence to bring the case, despite the fact that it only took the jury 30 minutes to reach a verdict.

Malawi’s National Assembly has unanimously passed the Marriage, Divorce and Family Relations Bill, which effectively bans child marriage by raising the minimum age for consenting to marriage from 16 (or 15 with parental consent) to 18 years of age. Malawi has one of the highest rates of child marriage in the world. Parliamentarian Jessie Kabwila who supported the Bill said "[t]he country will for the first time clearly articulate that we are saying 'No' to child marriage".

Right to life and health

The Constitutional Court of Colombia has ordered a company to restore the water supply of a household occupied by a family of four children that repeatedly failed to pay the water bill, recognising the right to water as a fundamental right. Overturning a lower court’s dismissal of the suit, the Constitutional Court considered that cutting the water supply to the household is able to be challenged in court when the use of the water is intended for human consumption and when it is demonstrated that its absence will affect the enjoyment of other fundamental rights, including to life, health, and equality. While recognising that the homeowner’s failure to pay the water bill was the result of negligence and indifference on his part to remedy the situation, the Court stated that the main objective in the case was to ensure the protection of the four children in the household, as a lack of potable water supply could seriously hinder their development, as well as their right to health, life and to live in conditions of dignity, amongst others. To this end, the Court ordered the water company to supply the household with at least 50 litres of water per child per day within 48 hours of issuing the ruling. It also ordered the water company to agree on a payment plan with the homeowner so that he fulfils his duty to pay the bill. 

Last month the European Court of Human Rights held Turkey in breach of the right to life under Article 2 of the European Convention on Human Rights with respect to a baby who was born premature in serious respiratory distress. Since the only incubator in the hospital where the child was born was broken, the mother and child were sent to another hospital 110 kms away, which refused admission due to lack of space, and the infant died en route to another hospital. In its judgment, the Court identified a number of factors which led directly to the death of the infant, including inadequate neonatal services, a lack of effective cooperation between hospitals accompanied by a marked laxity, bureaucratic concerns and a lack of urgent medical examination. It further noted the inadequate response of the Turkish judicial system in failing to investigate the death.

In the United States, a decision by the Tennessee Supreme Court has affirmed a child neglect conviction of a woman who relied on faith healing to treat her teenage daughter’s cancer in a case covered in this previous Children in Court CRINmail.

Adoption

The High Court of Botswana has ruled that provisions of the Adoption of Children Act, which allowed children born out of wedlock to be adopted by a third party without the consent of their biological father, are unconstitutional. The applicant in the case, who was the father of a child born out of wedlock, argued that the Act violated his constitutional rights to equality in a manner which is contrary to the best interests of the child. Judge Dingake held that it is irrational to discriminate against unwed fathers in such a way. According to commentators, this decision brings Botswana’s adoption laws in line with the Children’s Act of 2009, which places the child’s best interests at the heart of issues concerning the child.

A court in Spain has ruled that a deaf couple can adopt a baby who can hear, after they appealed against a decision by social services to only consider them for adoption of a deaf child. In its ruling, the court established that the couple are indeed able to raise a child from a young age regardless of whether or not he or she is deaf. The court took into account research that shows that hearing children who also know sign language have greater-than-average visuospatial skills, and that “under no circumstances does learning sign language inhibit cognitive development”. Two Spanish organisations, CNSE and Fescan, which uphold the rights of deaf people, welcomed “[the] landmark ruling, as it recognises the right of people with disabilities to form a family on an equal footing with other citizens,” and that “being a deaf mother or father does not hinder the education or happiness of a child, be they biological or adopted.”

The Saudi Arabian Ministry of Social Affairs has banned all adoptions of foreign children. Adoption of children from Syria and Iraq has been on the rise in Saudi Arabia, with the state providing material assistance to the adoptive families. However, a representative of the Ministry justified the decision on the grounds that it is not their responsibility to “sponsor Arab children who lost their parents in conflicts, such as in Syria and Iraq. There are global humanitarian organisations that deal with these cases”.

Citizenship and birth registration

In Bosnia and Herzegovina, a child has become the first person in the country to be registered as Bosnian, overcoming a system that has until now insisted on strict ethnic divisions. The country’s Constitution only recognises three ethnic groups under which a baby can be registered: Bosniaks, Croats, Serbs or ‘Other’ – the category often used by ethnic minorities or those who reject being labelled by ethnicity. Following a legal challenge, Sarajevo’s municipal authorities decided that there were no legal restrictions preventing anyone from being registered as Bosnian. The case has set a precedent, with five more requests for children to be registered as Bosnian having since been submitted in Sarajevo.

In the United States, the state of Arizona has enacted legislation that requires every high school student to pass a citizenship test before they are allowed to graduate. The Act aims to increase civics knowledge, however, using a test which requires memorisation has been criticised as unsuitable.

Proposed legislation in Nepal could make around a million children stateless. Under its provisions, children can be registered as Nepali only if both their parents have Nepali nationality. The law would have a particular impact on single mothers, who already face great difficulty when trying to obtain documents for their children, despite a 2006 law allowing children of single parents to acquire their citizenship.

Last month an Indian judge called for both the names of step-parents and biological parents to be included in children’s passports. Although there is no legislative provision which permits this, the court allowed the step-father’s name to be included in a passport of a child instead of that of the biological father, citing the CRC, given the interests of the child and the fact that the biological father did not have any presence in the child’s life. Nonetheless, the judge noted that the child’s long-term interests, such as the right to inherit the estate of the biological father, should not be disregarded. The judge recommended that regulations be amended to include additional columns for more names in children’s passports.

Legal challenge to Scottish ‘named person’ provision fails

A petition for judicial review of the ‘named person’ provision in the the Children and Young People (Scotland) Act 2014 has been rejected by the Court of Session. Under the legislation, there will be a ‘named person’ - a medical professional or teacher - for every child from birth until they reach the age of 18. That person will be the single point of contact for any matter relating to the child so that support can be offered to children and their families earlier and more effectively. The provisions were challenged as falling outside the legislative scope of the Scottish Parliament, however the Court disagreed, ruling that the subject matter is within the devolved competence and that the law does not contravene the European Convention on Human Rights, European Union law or fundamental common law rights. The campaigners who brought the case have since announced their plans to appeal.

Freedom of expression in Russia and Kyrgyzstan

In Russia, the founder of ‘Deti-404’, an online support group for LGBT teenagers, has been fined 50,000 rubles ($780) for violating the country’s law banning the “promotion of homosexuality to children”. This is despite a previous court ruling which found Yelena Klimova not guilty of "gay propaganda", with the judge recognising that Deti-404 helps teenagers come to terms with their sexuality. Ms Klimova said she will appeal the latest decision.

Meanwhile legal experts at the Council of Europe (CoE) are reviewing Kyrgyzstan’s draft law banning gay propaganda, which criminalises positive attitudes towards "non-traditional sexual relations". The legislation - which closely resembles anti-gay laws in Russia - overwhelmingly passed a first reading in October, and prescribes prison sentences of up to one year for those found guilty of breaking the law. However, the bill’s authors decided to postpone the second hearing until the CoE reviews the text. In a resolution adopted earlier this month, the European Parliament called on Kyrgyzstan to reject new legislation banning “gay propaganda”.

For more information on children’s right to freedom of expression and access to information, including a selection of case law, please see CRIN’s campaign to protect children, end censorship.

El Salvador ratifies OP3

El Salvador has become the 15th state worldwide to ratify the Third Optional Protocol to the CRC on a communications procedure (OP3) after the Legislative Assembly passed Decree 861 on 20 November 2014. The ratification became effective on 9 February 2015, meaning that the Committee on the Rights of the Child will be able to decide complaints regarding violations which have occurred after 8 May 2015 when the OP3 will enter into force in relation to El Salvador.

Read CRIN’s report on access to justice for children in El Salvador.

New legal resources

The UN Human Rights Office has launched an online database of all cases decided by the UN treaty bodies which receive and consider individual complaints.

The Centre for Children’s Rights Amsterdam has released a research publication examining the added value of the CRC in Dutch case law.

The Business & Human Rights Resource Centre has launched its third Annual Briefing on Corporate Legal Accountability. 

Case study

The Queen on the Application of HC (a child, by his litigation friend CC) v. The Secretary of State for the Home Department and Another: Changing the way the police treat teens in custody

17-year-olds occupy a strange place in English law. They can't drink or get married without their parent's consent, but the moment they enter police custody, they are treated like an adult. This is the story of one London teenager who looked to challenge this legal anomaly in the High Court, and the campaign he helped set in motion.

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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