CRINmail 46:
Children in Court

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Introduction

In this month’s Children in Court CRINmail, we are happy to present the recently published joint study by CRIN and Shoruq on the situation of refugee children in conflict with the law in Bethlehem. This is followed, as always, by the latest news and cases from around the globe covering litigation and legislative developments in the areas of inhuman sentencing, juvenile justice, corporal punishment and other children’s rights abuses. At the end of the newsletter is our latest strategic litigation case study on business and children’s rights in Liberia.

Joint study on refugee children in conflict with the law in Bethlehem

CRIN and Shoruq have launched a joint report on refugee children in conflict with the law in the Bethlehem Governorate of the Occupied Palestinian Territories (OPT). The study found a void in the provision of legal, social and psychological services for these children. Furthermore, the existing legal framework is inadequate to protect the rights of children in conflict with the law, a problem intensified by insufficient services and a shortage of skilled professionals.

In order to avoid rehashing old research, the report omits the well reported topics of the way in which Israeli military law is applied to children and the ensuing rights violations. Rather, we hope to bring attention to the experience of refugee children in conflict with the law under Palestinian law and promote work that will support their needs. All Palestinian children face the problems of living under occupation, but what distinguishes refugee children from non-refugee children is the environment in which they reside, the permanent and unexpected threats to the stability of their lives and the lack of services they often face. In particular, the serious problems facing refugee children and the violations of their rights in the criminal justice system have so far been neglected.

Since the research for the report was conducted, Shoruq, with the support of CRIN, has established a legal clinic to provide legal and social support to refugee children in the Governorate. The study is intended as a starting point to trigger follow-up research and development of laws, policies and programmes that meet the needs of refugee children in conflict with the law across the whole of the OPT.

Read the study in English and Arabic.

Find out more about Shoruq’s legal clinic.

Latest news and cases

Inhuman sentencing

A new report released last week by Reprieve and Justice Project Pakistan (JPP) estimates that there may be as many as 800 people convicted of crimes committed when they were children currently on death row in Pakistan. Two cases have provoked an outcry by international human rights activists against the lifting of the moratorium on the death penalty announced by state officials this month.

A last-minute stay of execution has been issued by the government of Pakistan for a young man who was sentenced to death at the age of 14 after enduring nine days of police torture. Shafqat Hussain was due to be executed on 22 March after his sentence was suddenly rescheduled, even though Pakistan’s Interior Minister had suspended the sentence in January. Appeals for a stay of execution had previously been dismissed by the Sindh High Court and Supreme Court, leaving the government as the only authority able to stop the sentence from being carried out following a wave of international support. The government confirmed on 22 March that a stay had been issued, and that an investigation would be conducted into Shafqat's age at the time of conviction and the torture he suffered before ‘confessing’ to the crime of manslaughter. CRIN, alongside other children’s rights organisations, had appealed to Pakistan’s Interior Minister urging him to stop Shafqat’s execution and to stand by his promise to launch a full and independent inquiry into his case.

On 17 March, 12 men were hanged in prisons across Pakistan, including a young man who was 16 years old when he was sentenced to death. Muhammad Afzal had been granted a temporary stay of execution earlier this month by the Sindh High Court. He was sentenced to death in 1999 for allegedly killing a man during a robbery by an anti-terrorism court, despite not being a terrorist or having any affiliation with a terrorist organisation. The court did not consider the issue of juvenility at any stage of the proceedings. A 2014 report by Reprieve and JPP documents the “overuse” of anti-terrorism laws in Pakistan, partly due to the vague definitions of “terrorism” in the legislation.

Pakistan is now one of six jurisdictions in the world (along with Iran, Yemen, Saudi Arabia, Sudan, and Hamas authorities in Gaza) that still carries out executions of juvenile offenders.

Last month Iran reportedly executed a young man who was sentenced to death for offences allegedly committed when he was under the age of 18. Saman Naseem had been convicted in 2013 for belonging to the Kurdish armed opposition group Party For Free Life of Kurdistan (PJAK), and for carrying out armed activities against Iran’s Revolutionary Guards. According to the organisation Iran Human Rights, he was hanged at the prison of Urmia in the northwest of Iran, either on 19 or 20 February 2015. Naseem was among 24 detainees on death row who began a hunger strike last November, protesting against the conditions in which they were held. In response to their protest, authorities threatened to speed up their execution. Prior to his hanging, international human rights groups, the UN, and the European Union called on Iranian authorities to halt Naseem’s illegal execution.

Meanwhile, the issue of life sentences for juvenile offenders continues to occupy courts across the United States. Last week the Florida Supreme Court ruled unanimously that all juveniles who were given mandatory life sentences must be resentenced. The decision is based on the 2012 US Supreme Court judgment prohibiting such sentences in Miller v. Alabama, which the Florida court held applies retroactively. The US Supreme Court has yet to decide the issue on a federal level, which means that for now some state courts are deciding in favour of retroactivity while others are rejecting it.

Read about CRIN’s campaign to end the inhuman sentencing of children.

Children tried in adult courts

Last month in India, a parliamentary standing committee rejected the government's proposal to transfer children in conflict with the law to adult courts. The Juvenile Justice (Care and Protection of Children) Bill 2014, which was introduced into parliament by the Ministry of Women and Child Development in August last year, sought to allow children aged 16 and over who allegedly commit heinous offences to be tried and sentenced as adults. However, in reviewing the Bill the parliamentary committee concluded that transferring children to the adult judicial system would violate the Convention on the Rights of the Child (CRC) and the Constitution. It stated that "all children below 18 years should be treated as children", and "the existing juvenile justice system is not only reformative and rehabilitative in nature but also recognises the fact that 16 [to] 18 years is an extremely sensitive and critical age requiring greater protection". The committee has recommended that all clauses of the Bill providing for differential treatment of children aged 16 to 18 be reviewed in light of the Committee's observations. The proposed Bill is the latest in a series of challenges to India's juvenile justice laws over the past two years in an attempt to treat alleged child offenders as adults. For more information, see our previous Children in Court CRINmail.

In the United States, a Bill before the Florida legislature proposes to reform the procedure under which children can be charged as adults. Currently, prosecutors in the state have the discretionary power to charge children aged 14 and over as adults without any possibility for judicial oversight. Senate Bill (SB) 1082 provides that children under the age of 16 will not be eligible for trial as an adult. Children over that age will be eligible only in a limited set of circumstances (regarding the most serious crimes or repeated offences). Judges will decide on requests for waiver of juvenile court jurisdiction following a hearing and they will be obliged to consider, amongst other things, the maturity of the child, including their age, intellectual capacity, mental and emotional health, their background and community environment, and any history of abuse or neglect suffered by the child. The Bill also contains provisions prohibiting pre-trial detention of children in adult jails.

Read CRIN’s recent paper ‘Stop making children criminals’, which aims to encourage debate on juvenile justice systems and restorative justice.

Military courts

A nine-year-old child is facing trial before a military court in Egypt alongside his father for allegedly attacking security forces and burning electricity transformers in protests following the ousting of president Morsi in 2013. This follows shortly after a 16-year-old boy was set to face a military trial in January. Forty-three children are believed to have been investigated and tried in the military justice system between 2011 and 2012. A decree passed by Egyptian President Abdel Fattah Al-Sisi in late 2014 expanded the scope of military courts to include civilians charged with attacking “public and vital” property, including electricity facilities. Trials of children in the military courts take place behind closed doors and often without representation by a lawyer.

Several petitions have been filed in the Supreme Court of Pakistan challenging the government’s recent establishment of military courts. The military courts were formed after parliament passed the 21st Constitutional Amendment and the Pakistan Army (Amendment) Act, which authorise military courts to try civilians for terrorism-related crimes committed before or after the establishment of the courts. The challenges, filed by the Lahore High Court Bar Association, Pakistan Bar Council and Supreme Court Bar Association, amongst others, claim that the military courts are unconstitutional and inconsistent with fundamental rights.

Corporal punishment

The European Committee of Social Rights has found that France violated the rights of children by failing to explicitly ban corporal punishment in a decision published earlier this month. The Association for the Protection of All Children (APPROACH), which brought the case, relied on Article 17 of the European Social Charter providing for the right of children to social, legal and economic protection. The Committee’s decision notes that while French law forbids violence against children, it also recognises parents' "right to discipline" children, meaning that the ban on corporal punishment in national law was “not sufficiently clear, binding and specific” to fulfill the requirements of the Charter. Pending before the Committee are similar complaints filed by APPROACH against six more States - Belgium, Cyprus, Czech Republic, Slovenia, Italy and Ireland. Amongst these six, Cyprus is so far the only one to have explicitly banned corporal punishment of children since the complaint was admitted.

Read CRIN’s summary of the case and an update on the progress towards prohibiting all corporal punishment in Member States published by the Council of Europe.

Meanwhile two more States - Andorra and Benin - have completely prohibited corporal punishment, bringing the global total to 46 states.

Right to health and an adequate standard of living

Last week the UK Supreme Court ruled that the benefits cap introduced in 2013 is lawful but incompatible with the CRC. The appellants in the case argued that the cap on benefits claimed by non-working households indirectly discriminates against women - in particular, single parents and victims of domestic violence. A 3-2 majority ruled there was no breach of the right to non-discrimination (Article 14) in conjunction with the right to enjoyment of property (Article 1 of Protocol 1) under the European Convention on Human Rights, as incorporated by the Human Rights Act. However, three of the judges - Lady Hale, Lord Kerr and Lord Carnwath - found that, as some benefits claimants may be left unable to house, clothe and feed their families, the UK policy is inconsistent with the CRC Article 3 principle that the best interests of the child be a primary consideration in all decisions affecting children. Most notably, in a dissenting judgment Lord Kerr stated that he considers the Convention to be directly enforceable in the domestic law. Alison Garnham, Chief Executive of the Child Poverty Action Group, which intervened in the case, said: “It cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing [...] We hope the Government will listen to the Court and comply with international law on the protection of children.”

Read CRIN’s case summary.

Colombia’s People’s Defender (Ombudsman) has petitioned the Inter-American Commission on Human Rights to grant an interim injunction as a matter of urgency in a case concerning the right to water of the Wayuu tribe. Since a dam was built, the only river to which the tribe has access - the Rancheria River - has completely dried out. At least 5,000 children have died from starvation and many more continue to suffer from malnutrition. The petition is seeking an order from the Commission to open the floodgates that would allow water to reach the Wayuu, instead of redirecting it to large estates and industrial sites in the region.

Last month the Czech Constitutional Court rejected a complaint against mandatory hexa vaccinations filed by parents who were fined for failing to vaccinate their children. The hexa vaccine is administered to infants to prevent six diseases, including diphtheria, tetanus, hepatitis B and polio. The Court decided that the mandatory requirement is based on public health considerations, which were said to prevail over the individual's fundamental rights. The Court also confirmed the legality of provisions imposing fines of up to 10,000 Czech corunas (approximately £265). Mandatory hexa vaccinations were previously upheld by the constitutional courts of Croatia in March 2014 and Slovakia in December 2014.  

Migration detention and legal representation in the United States

Last month a federal court temporarily halted a policy of detaining migrant mothers and children while their asylum claims are assessed in a lawsuit brought by the American Civil Liberties Union (ACLU) on behalf of 10 women who are in detention with their children. The government’s claim that the detention was necessary to prevent mass immigration posing a potential threat to national security was rejected by the judge: “Incantation of the magic word ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty.” The ruling further emphasises evidence of the numerous ways detention can harm children. Judy Rabinovitz from ACLU states the decision “made clear that the government cannot deprive individuals of their liberty merely to send a message to others.” The policy had been introduced as a reaction to last summer’s immigration surge including the arrival of 57,000 unaccompanied minors at the US-Mexico border, most of whom were fleeing from situations of violence in their Central American home countries.

Meanwhile another federal court in Seattle is considering a class action lawsuit seeking to ensure that all migrant children have legal representation in court. The government has petitioned the court to dismiss the suit, which will affect 28,000 children currently in the federal immigration system. The action, which was brought on behalf of eight immigrant children aged 10 to 17, relies on the right to a fair hearing, which has been read into the Immigration and Nationality Act, as well as the constitutional principle of due process.

Child abuse

The US Supreme Court is hearing a case concerning the admissibility of statements about abuse made by children to teachers as evidence in criminal trials. In the case of Ohio v. Clark, Clark was convicted of child abuse after a three-year-old boy (“LP”) made a statement to two of his day care teachers identifying Clark as the perpetrator. The trial judge found LP incompetent to testify due to his age, but allowed the teachers to testify as to what he told them. The conviction was overturned on the grounds that allowing the out-of-court statements as evidence violated Clark’s constitutional right to confront his accuser (LP) in court. The Ohio Supreme Court ruled that LP’s statements to the teachers qualify as a form of testimony, and thus they should not have been admitted at the trial. The US Supreme Court is now considering whether a child’s out-of-court statements amount to "testimonial" statements that prosecutors cannot use unless the defendant can cross-examine the child. A decision in the case is expected by late June.

Also this month the New Mexico Supreme Court ruled that all residents are required by law to report suspected child abuse and neglect, reversing a 2013 decision that limited who was required to report such allegations. According to the state Supreme Court, the reporting requirement applies to both privately and publicly employed social workers, and statements made during counselling sessions are not protected from disclosure in court.

In the United Kingdom, mandatory reporting of suspected child abuse is among 14 recommendations for improving the way victims of crime are dealt with by the criminal justice system. According to the proposal, failure to report would be a crime, unless “the individual in question had complied with the safeguarding policy relevant to him/her”. Judges will be required to hold a preliminary hearing that sets limits on certain lines of questioning in order to prevent child victims and witnesses, amongst others, being mistreated in court.

A court in Qionglai, Sichuan Province, has convicted two men of rape after they paid to have sex with a 13-year-old girl in the first case on the Chinese mainland to treat such an offence as rape rather than child prostitution. China’s criminal law provides that soliciting prostitutes under the age of 14 carries a sentence of five to 15 years in prison, whereas having sex with minors under the age of 14, whether forcibly or not, is considered rape and carries sentences ranging from three years in prison to death. According to a child protection lawyer, the existence of the crime of soliciting underage prostitutes has helped some offenders escape harsher punishment and avoid rape charges by arguing that the minors had consented.

In Australia, the parliament of the state of Victoria has introduced legislation to lift the time limits for child abuse victims to bring civil claims. Under current laws, civil claims must be brought within six years from the date on which the victim realises she or he has been abused, or 12 years from the date of the alleged abuse, whichever is earlier. But if the alleged abuser is a parent, guardian or close associate of a parent, there is a longer time frame, including up until the victim turns 37 years of age. Under the new laws, child abuse victims will be able to seek civil damages from those responsible, including organisations, regardless of when the abuse occurred. The removal of time limits is one of several recommendations of the state’s inquiry into the handling of child abuse by religious and other organisations, all of which the Victorian Government has decided to implement. Victoria is the first state in Australia to act on this matter, and there are similar plans in New South Wales in response to findings by the royal commission into institutional responses to child sexual abuse.

Right to protest

A court in the United States has allowed victims of child sexual abuse by clergy to protest outside churches expressing support for other victims and calling for reform within the Catholic Church. The suit, brought by the American Civil Liberties Union on behalf of members of the Survivors Network of those Abused by Priests (SNAP), challenged Missouri’s House of Worship Protection Act, which makes it a crime to disturb or disquiet a house of worship by using profane language or rude or indecent behaviour. The US Court of Appeals for the Eighth Circuit ruled that the law is too vague, broad and subjective, and therefore infringes on freedom of speech and peaceful assembly guaranteed by the First Amendment of the Constitution. The judges said there is no question that the protests relate “to matters of pressing public concern since they raise issues of sexual abuse, accountability for these offences, and healing for abuse victims.” It now lies with Missouri’s Attorney General, whose office is currently reviewing the ruling, to decide on the future of the law.

In Spain, proposed legislation recently approved by the Spanish Senate has attracted a great deal of controversy over its provisions concerning the right to protest and immigration. The law, which has been dubbed the ‘gag law’, will severely limit the circumstances in which lawful protests can take place and penalise offenders with steep fines. According to UN Special Rapporteur on the rights to freedom of peaceful assembly and association Maina Kiai, the ‘gag law’ “violates the very essence of the right to assembly since it penalises a wide range of actions and behaviours that are essential for the exercise of this fundamental right”. The proposal also contains provisions for the summary return of migrants arriving in Spain, including those who may be asylum seekers. Since the Popular Party holds majority in both houses of Spanish parliament, the Bill is expected to be passed by the end of March.

Special courts

Kosovo is in the process of creating a special court to prosecute killings and organ trafficking during the conflict in the late 1990s. The special court is expected to deal with cases alleging abductions, beatings, summary executions, and, in some cases, the forced removal of human organs by the Kosovo Liberation Army, which were discussed in a 2010 Council of Europe report and later confirmed by an EU Special Investigative Task Force. It is expected that the necessary new legislation and amendments will be adopted by parliament throughout March and April this year.

More Family Drug and Alcohol Courts (FDACs) are due to begin operating throughout England. The FDACs deal with care proceedings where substance misuse by a parent is found to be causing harm to the child and aim to keep the child in, or return them to, the care of their parent(s). The operation of these special courts has been praised for successfully reuniting 39 per cent of children with a parent, compared to just 21 per cent in ordinary care proceedings.

In the United States, Los Angeles County is considering establishing a special court to hear cases related to child prostitution in order to ensure that children involved in the sex industry are treated as victims rather than brought into the criminal justice system. In particular, children from the foster care system are at a high risk of sexual exploitation. It is foreseen that judges, prosecutors, lawyers and social workers will receive specialised training to work with these children. Michael Levanas, who became presiding judge of the Juvenile Court last month, has said that the creation of such a court will be one of his early priorities.

Meanwhile, two human rights organisations have lodged a complaint against the United States with the Inter-American Commission on Human Rights alleging that routine arrests of children who have been trafficked for sex and forced into prostitution amount to a human rights violation.

In brief: access to information for children

Kazakhstan has amended a number of laws to protect children from information "harmful to their health and development", which include a ban on promoting non-traditional sexual orientation. In Uzbekistan, the mayor of Tashkent has issued a decree requiring internet cafes to close by 9pm to protect children from the spread of "violent and immoral" content. In Canada, the Education Act allows parents in Ontario to opt their children out of parts of the new health curriculum covering sex education that they don't want them to receive. And in Kansas, United States, a senator is seeking to criminalise the distribution of “harmful materials” to children in schools, which would include any description or depictions of nudity or sexual conduct.

To read the full news story, please see this issue of our weekly CRINmail. For more information on access to information and freedom of expression, see CRIN’s campaign ‘Protect children, end censorship’.

New child law in Namibia

The Child Care and Protection Bill was passed by the National Assembly in Namibia this month. The Bill provides for the establishment of children’s courts, and for a child advocate within the office of the Ombudsman to investigate and act on complaints about violations of children's rights. It gives children aged over 14 years a chance to give consent to medical treatment, and covers the age of consent to medical testing, access to contraceptives, and adoption.

Indonesia proposes to raise the age of marriage for girls

The Indonesian government is preparing a bill to raise the legal age of marriage for girls from 16 to 18 years of age. While the country’s 1974 Marriage Law sets the minimum age for girls at 16 (and 19 for boys), it permits younger people to get married if their parents obtain approval from a religious court. This is despite the definition of a minor as a person under 18 years of age in the 2002 Child Protection Law. Campaigners say the different clauses in the two laws have created legal uncertainty over the minimum age of marriage for girls, an issue that was raised in a petition filed last year with the Indonesian Constitutional Court. Government officials say the new measure aims to tackle high levels of malnutrition in the country, which have reached a “catastrophic” level.

Draft laws threaten reproductive rights in Iran

Two draft laws are threatening to undermine women and girls’ access to contraception and send the country back decades according to a new report by Amnesty International. The Bill to Increase Fertility Rates and Prevent Population Decline (Bill 446) outlaws voluntary sterilisation - said to be the second most common method of contraception in the country - and blocks access to information about contraception. The Bill was passed in parliament in August 2014 and is undergoing amendments recommended by the Guardian Council, which needs to approve it before it can become law. The Comprehensive Population and Exaltation of Family Bill (Bill 315), which is due to be discussed in parliament next month, will make it harder for women without children to get a job. “The authorities are promoting a dangerous culture in which women are stripped of key rights and viewed as baby-making machines rather than human beings with fundamental rights to make choices about their own bodies and lives,” says Hassiba Hadj Sahraoui Amnesty International’s Deputy Director for the Middle East and North Africa.

For more information on children’s rights in Iran, see the joint alternative report submitted by CRIN along with 20 other human rights organisations for the UN Committee on the Rights of the Child’s review of Iran’s implementation of the CRC.

Surrogacy and assisted reproduction

Since our special edition Children in Court CRINmail covering children’s rights and surrogacy was published, a number of developments in this area have taken place.

Thailand has enacted a law which bans commercial surrogacy as well as the use of surrogacy by foreign and same-sex couples. Under the new provisions, surrogacy arrangements will only be permitted in the case of heterosexual couples who have been married for a minimum of three years, and where at least one spouse is Thai. The new rules also stipulate that women acting as surrogates must be over the age of 25 and related to one of the spouses.

A proposed law in Luxembourg would outlaw surrogacy, which is currently unregulated. Lawmakers have promised that the rights of the child will be considered in the process of legal reform and Viviane Loschetter, who chairs the parliamentary commission reviewing the Bill, has stated that laws will be put in place to govern the status of children born through surrogacy arrangements abroad to ensure that no child will be disadvantaged due to the circumstances of their conception. The proposed amendments will also cover matters such as anonymous birth, paternity tests and artificial insemination.

In a recent case the Kenyan High Court urged lawmakers to develop laws regulating the assignment of parenthood following surrogacy. The Court ruled that, in the absence of explicit provisions on surrogacy, the woman who gives birth to the child will be considered the legal mother until legal parenthood is transferred. In Kenya, however, it is not possible to adopt one’s own biological child, which means that until legislation is passed many children could be left in a state of legal uncertainty.

Poland is preparing legislation to regulate the use of IVF and other assisted reproduction techniques, under which married and cohabiting heterosexual couples will be granted access to the procedure after 12 months of trying to conceive. An age limit of 35 years for women is likely to be imposed. If the law is passed, the country will be one of the last in the European Union to legislate in the area.

Uruguay has ratified OP3

There are now 16 State Parties to the Third Optional Protocol to the CRC on a communications procedure (OP3) after Uruguay’s ratification, which took effect on 23 February 2015. The Committee on the Rights of the Child will be able to review complaints alleging violations of the Convention or the first two Optional Protocols which occur after 23 May 2015, when the OP3 enters into force in Uruguay.

Legal resources

Last month the African Committee of Experts on the Rights and Welfare of the Child launched its General Comment on Article 6 of the African Children’s Charter on the rights to a name, to acquire nationality and to birth registration, which was adopted in April 2013.

Penal Reform International and UNICEF India have released a new report on ‘reconciling serious crimes and childhood’. The report focuses on India’s Juvenile Justice (Care and Protection of Children) Bill, which we report on above, and presents evidence that this Bill does not conform to international standards on criminal justice for children or India’s obligations under the CRC.

Case study

Flomo v. Firestone Natural Rubber Co LLC: Firing back at Firestone

By the early 2000s, Harbel, Liberia, a town founded by giant American tyre manufacture Firestone, had become synonymous with child labour. A legal case brought against Firestone by 23 workers garnered massive media attention and led to significant changes at the 220 square mile rubber plantation which thousands of labourers called home.

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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