Children in Court: CRINmail 47

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17 April 2015 subscribe | subscribe | submit information
  • CRINmail 47:
    Children in Court CRINmail

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    In April’s issue of the Children in Court CRINmail we are covering the latest news and cases from around the world relating to juvenile justice, liability of businesses regarding human rights abuses, children's right to health and sexual and reproductive rights, the rights of minority children and more. At the end of the newsletter you can find CRIN’s latest case study on the strategic litigation case that successfully held the Irish State liable for historical child sexual abuse.

    Latest news and cases

    Children in the justice system

    In Pakistan, the Islamabad High Court has allowed lawyers for Shafqat Hussain, who was sentenced to death as a juvenile following his ‘confession’ to murder after nine days of torture, to challenge the government’s inquiry into his case. Shafqat’s death sentence was put on hold last month, with his stay of execution due to expire on 17 April, while the government investigated evidence suggesting he was under the age of 18 at the time of his arrest. The inquiry was recently discredited after it emerged that government investigators had confiscated and tampered with evidence. The Court has ordered the Pakistani government to appear in court in two weeks to respond to concerns about the planned execution. Recent research by the Justice Project Pakistan and Reprieve suggests that over 800 prisoners on Pakistan’s death row may have been arrested and sentenced to death while under the age of 18.

    A legal provision allowing children aged 16 years or over to be tried as adults was declared invalid in a case decided by the High Court of Malawi in February. The case concerned a 16-year-old boy who was tried as an adult and sentenced to four years in prison for the offence of burglary. Section 2 of the Child Care Justice and Protection Act, which had the effect of limiting the jurisdiction of the Child Justice Courts to only those cases in which the defendant is under the age of 16, was found to contradict the Constitution, which sets the age of majority at 18 years old. The Court ordered that the case be remitted to the lower court and decided again in accordance with the procedure specified in the Act. Following the ruling, the High Court ordered the review of over 400 cases of 16 and 17 year olds sentenced as adults since 2010. Read CRIN’s case summary.

    Proposed amendments to South Africa’s sexual consent legislation could see children who engage in consensual sex being charged for the offence of rape and facing life sentences, advocates have warned. In 2013, the Constitutional Court held that sections 15 and 16 of the Sexual Offences Act, which criminalises consensual sexual acts between children aged 12 to 16 years, are unconstitutional and directed the government to change the law by April of this year. The Justice Department has now proposed to completely remove the two sections from the statute, meaning that children under 16 would not be able to legally consent to any type of sexual activity. If the proposed amendments go ahead, 16- and 17-year-old children could face charges of rape and sexual assault for consensual activity with younger children. Christina Nomdo, director of Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN), which was one of the applicants in the constitutional challenge, decried the proposal, noting that the minimum sentence for rape of someone under 16 in South Africa is life imprisonment and that the court can reduce this sentence only in substantial and compelling circumstances. Another Constitutional Court decision from May last year directed the government to amend provisions on the mandatory registration of children as sex offenders. The government has filed an application with the Constitutional Court to have the deadline for correcting the law on both points extended until August.

    The Supreme Court of the United States has again agreed to hear an appeal against a sentence of mandatory juvenile life without parole and decide whether its previous ruling in Miller v. Alabama that such sentences are unconstitutional can be applied retroactively. A previous case on the same issue was settled following a plea agreement earlier this year. Although 10 states have accepted the retroactive application of Miller, the same argument has been rejected by courts in Louisiana, Michigan, Minnesota and Pennsylvania. A ruling by the highest court in the country will settle the ongoing debate on the retroactivity of Miller and will have an impact on the sentences of an estimated 2,100 persons currently serving life without parole for offences committed as children. The case, known as Montgomery v. Louisiana, is due to be heard later this year.

    See CRIN’s ‘Inhuman sentencing’ campaign pages, where you can find reports on life imprisonment, the death penalty and corporal punishment, as well as a collection of over 30 summaries of related cases from various jurisdictions.

    The US Department of Justice has opened a new investigation into access to justice for children charged with the crime of failing to attend school in Dallas County. Texas and Wyoming are the only two US states where truancy is prosecuted as a crime in adult courts. Under Texas law, children charged with this crime are not provided access to a lawyer, and face fines, court costs, and even arrest once they turn 17 if they fail to pay. According to a report by Texas Appleseed, which submitted a complaint to the Justice Department on this issue in 2013, African-American and Hispanic students as well as economically disadvantaged children are overrepresented in truancy proceedings. Meanwhile, a bill proposing to decriminalise truancy is being debated in the Texas Senate.

    Business and children’s rights

    Last month in Indonesia, the Central Jakarta District Court annulled the water privatisation contracts of two private operators following a citizens’ lawsuit, effectively ending the privatisation of water in Jakarta. The Court stated that the companies “have been negligent in fulfilling the human right to water for Jakarta’s residents” under the Indonesian Constitution, and ordered the return of water distribution in Jakarta to a city-owned operator. This decision follows a Constitutional Court ruling in February annulling Law No. 7/2004 on Water Resources, which permitted the sale of packaged tap water, on the grounds that water resources must be controlled and allocated for the public benefit and not monopolised by private companies. The two companies plan to appeal the District Court’s decision.

    A Canadian-based company has agreed to compensate a group of tribal girls and women in Papua New Guinea who were allegedly assaulted and raped by police and security guards at the Porgera gold mine. Barrick Gold Corporation, the world’s largest gold mining company, agreed to a settlement of claims by 11 women and girls who had refused an earlier offer of compensation as it was not deemed adequate to remedy the multiple and continuing traumas they had suffered. The company had previously compensated 137 women and girls under a “remedy framework” set up by the company as an alternative to the local judicial system. Investigations by human rights organisations and US legal clinics have documented years of abuse at the Porgera mine, including systematic and brutal rapes by security guards of girls as young as 14. EarthRights International – which is representing the 11 women – had threatened to take legal action against Barrick in the US.

    In Canada, automobile manufacturer Nissan is facing a lawsuit over seatbelt safety for children. In a British Columbia Supreme Court claim, a teenager alleges he suffered brain injuries because Nissan failed to warn customers about the dangers posed to children by rear seatbelts. Children who have outgrown booster seats, but are too small for adult seat belts, sometimes called "the forgotten children", have been the subject of academic studies and a US government blue ribbon panel. According to the lawsuit, studies as early as 1994 identified defects in restraint systems and seat belts for children.

    In the United States, pharmaceutical company McNeil Consumer Healthcare has entered a guilty plea in a Federal District Court in Philadelphia for selling liquid medicines contaminated with metal, including Infants’ Tylenol and Children’s Motrin. The Johnson & Johnson subsidiary pleaded guilty to the federal crime of manufacturing and processing adulterated over-the-counter medicines and agreed to pay a $25 million fine and forfeit $5 million to the US Department of Justice. In 2010, the company initiated wide-ranging recalls of Tylenol and other products as they were contaminated with metal particles. McNeil remains subject to a permanent injunction entered by the US District Court in 2011, requiring the company to make remedial measures before reopening its manufacturing facility, as it has failed to comply with current good manufacturing practices.

    Also in the United States, a federal judge sentenced four former employees of the security services company previously known as Blackwater to long prison sentences. The men were convicted in relation to the killings of 14 unarmed people, including a 9-year-old child, which took place in Nisour Square in Iraq in September 2007. A fifth man who pleaded guilty and testified against the others has not yet been sentenced.

    Right to health

    Nearly 800 people in Guatemala have launched a billion-dollar lawsuit against John Hopkins University in the United States over its alleged role in a federally-funded medical experiment in which hundreds of vulnerable people, including children, were deliberately infected with sexually transmitted diseases (STDs). The lawsuit, which also names the philanthropic Rockefeller Foundation and pharmaceutical giant Bristol-Myers Squibb, claims that the defendants helped “design, support, encourage and finance” the secretive and non-consensual experiments carried out on orphans, prisoners and mental health patients in the 1940s and 1950s, which aimed to determine if penicillin could prevent the diseases. Those who were infected with STDs were not informed of the consequences of their participation, nor were they provided with follow up medical care or advised of ways to avoid the infections spreading, the lawsuit states. Many of the victims died as a result of deliberate infection and others passed on diseases to family members and partners. The programme did not publish any findings and the experiments were kept secret until they were discovered in 2010 by a college professor. The US government subsequently apologised for the programme after a presidential bioethics commission inquiry found the experiments “involved unconscionable basic violations of ethics”. A federal lawsuit for damages failed in 2012 after a judge determined the US government cannot be held liable for actions outside the US. The new lawsuit is believed to stand a greater chance of success because it was lodged in the state court of Maryland and against private entities.

    Kenya’s High Court has declared unconstitutional legislative provisions that potentially criminalise pregnant women for passing HIV on to their babies. The HIV and AIDS Prevention and Control Act was introduced in 2006 to curb the spread of HIV and AIDS, but according to rights organisations it discouraged people from finding out their HIV status, and discriminated against women who are often the first members of a family to know their HIV status due to being tested during pregnancy. In March the Court held that the wording of some of the Act’s provisions was so broad that it "could be interpreted to apply to women who expose or transmit HIV to a child during pregnancy, delivery or breastfeeding". Activists welcomed the decision but noted that more needs to be done to ensure that people living with HIV have access to necessary services without fear of criminalisation or discrimination.

    In the United Kingdom, a Scottish bill proposing to ban smoking in cars in the presence of children has received the Scottish government’s support. In England, equivalent provisions are due to enter into force in October. Similar provisions exist in other countries, including Australia, Bahrain, Cyprus, South Africa, United Arab Emirates and some states of the United States, although the ages under which children are protected vary.

    Sexual and reproductive rights

    In the United States, the American Civil Liberties Union (ACLU) has initiated a lawsuit against the federal government seeking the release of documents relating to groups which are awarded government funding contracts. The suit alleges that such groups are restricting unaccompanied child migrants and refugees’ access to reproductive health services, such as abortion and contraception, in some cases on the ground of religion. The ACLU took legal action to obtain documents that can reveal the scope of this problem after a freedom of information request filed over six months ago was ignored by the Administration for Children and Families.

    The ACLU has also brought a federal court challenge to an Alabama law that effectively puts children on trial for seeking an abortion. According to the complaint, as part of the ‘judicial bypass procedure’, which applies to girls aged under 18 years who cannot obtain parental consent for an abortion, the court may appoint a guardian for the minor’s foetus, allow the girl to be cross-examined by a district-attorney or the girl’s parents, and, in breach of confidentiality, allow the girl’s teachers, employers, friends and other persons to be informed of the proceedings and called to testify. Thirty-eight US states have a ‘judicial bypass procedure’ in their laws, but according to the ACLU, Alabama’s is the strictest in the country.

    In Russia, a bill seeking to introduce a requirement for parental notification in cases of abortion performed on girls aged 15 and above has received the Children’s Ombudsman’s support. Currently, children over that age can seek abortion independently, and there is no legal requirement that their parents be in any way involved in the medical procedure. Under the proposed rules, however, medical staff will be obliged to inform the parent or legal guardian of children aged 15 to 18, unless they are emancipated or married and therefore considered to have full legal capacity. The Ombudsman has used arguments couched in child protection language to justify the bill, saying that 15 to 18 year olds should be viewed as children still in need of parental guidance. The proposal does not specify whether the notification must be made prior to or following the abortion procedure, and therefore could potentially lead to serious interference with girls’ right to make medical decisions independently from their parents.

    In Chile, a draft law seeking to ease the country’s complete ban on abortion is likely to be enacted soon, according to a reproductive rights organisation. The bill would allow for abortion when the pregnancy poses a risk to the mother’s life, the foetus will not survive the pregnancy, or in cases of rape. If approved, girls aged 14 to 18 will be able to seek abortion provided they have told their parents, while under-14s would need parental consent. Abortions would be permitted within the first 12 weeks of pregnancy, except in the cases of children under 14 when the limit is extended to 18 weeks in recognition of the fact that young girls may take longer to realise they are pregnant.

    Other countries in the region which currently have an absolute ban on abortion are El Salvador, the Dominican Republic, Nicaragua, Honduras, Haiti and Suriname. Mexico is said to be one of the countries with the strictest abortion laws in the world, however, an online petition supported by 120,000 people is asking the Supreme Court to declare that abortion is not a right, asserting that the right to life of an unborn foetus is protected by the Convention on the Rights of the Child. The Court is considering a case brought by a human rights organisation challenging the constitutionality of the provisions on abortion in Tlaxcala’s Penal Code, which criminalises abortion procedures even where the life of the pregnant woman is at risk.

    South African court rejects ukuthwala defence

    Last month the High Court of South Africa rejected an appeal relying on the traditional custom of ‘ukuthwala’ as a defence to criminal charges. Ukuthwala is the traditional practice of abducting girls for the purpose of marriage. The case came to the Court as an appeal against a man’s sentence of 22 years’ imprisonment for rape, assault and human trafficking after he had abducted a 14-year-old girl with her family’s consent. The Court decided that ukuthwala was abused to justify patently offensive behaviour such as rape, violence and similar criminal conduct under the guise of tradition, and that such an aberrant form of ukuthwala could not secure any protection under the law. The Centre for Child Law at the University of Pretoria, which intervened in the case, welcomed the Court’s decision but highlighted the need for further scrutiny of national law in the areas of child marriage and harmful traditional practices. Read CRIN’s case summary.

    Indigenous children

    In Canada, the Ontario Superior Court has dismissed an appeal by the Canadian government to strike down a landmark case on the deprivation of cultural identity of First Nations children - also known as the “Sixties Scoop”. The case can now proceed as a class action lawsuit in the first ever case to challenge deprivation of cultural identity and the First Nations’ connection to their culture as a whole, and not as specific Aboriginal land, fishing or hunting interests. Between 1965 and 1985, an estimated 16,000 Aboriginal children in Ontario were removed from their homes and placed in mostly non-Native communities. The lawsuit was first launched in February 2009 against the Attorney-General of Canada under the Class Proceedings Act.

    A federal court in the United States has ordered South Dakota officials to stop violating the rights of Indian parents and tribes in state child custody proceedings. The summary ruling by the US District Court for the District of South Dakota found that the state routinely violated the Indian Child Welfare Act, a federal law meant to ensure the security and integrity of Indian tribes and families and to curb the high rates of removal of Indian children from Indian parents. The class action lawsuit, brought by the American Civil Liberties Union on behalf of two South Dakota Indian tribes and Indian parents, claimed that Indian children are being removed from their homes in hearings that lasted as little as 60 seconds, and that parents have no chance to present evidence.

    Religious education and discrimination on the ground of religion

    A Jesuit boys’ school in Canada has won a legal bid to allow teaching to be imparted from a Catholic point of view. Since 2008 schools in Quebec have been required to teach the Program on Ethics and Religious Culture from a secular, cultural and morally neutral perspective. The Minister of Education refused to grant Loyola High School an exemption from the above requirement because, in his opinion, teaching from a Catholic perspective would significantly alter the programme. The school initiated judicial review of the Minister’s decision, and last month the Supreme Court of Canada ruled in favour of the school. By a 4-3 majority, the Court held that the refusal of the Minister infringed on the religious freedom of the school. The school can now re-apply for the exemption from the Minister, who will have to take into account guidelines made by the Court for granting such exemptions.

    In the United States, families of children attending a school in California have brought a lawsuit claiming that yoga classes provide a gateway to Hinduism and stifle Christianity. But representatives of the district affirmed that yoga is taught in a way that sets it apart from religion. This month, the California Fourth District Court of Appeal agreed, upholding a lower court ruling that yoga classes taught in a public school do not violate students' or their parents’ right to freedom of religion. It explained that, "[w]hile the practice of yoga may be religious in some contexts, yoga classes as taught in the district are… devoid of any religious, mystical, or spiritual trappings." Yoga is taught in schools across the US, but this district is believed to be the first to offer yoga in all schools and employ full-time yoga teachers.

    In Australia, Tasmania’s Anti-Discrimination Commissioner has spoken out against a proposed law pending before the state’s legislature that may allow some schools to refuse to admit students on the basis of their religion. Under the Anti-Discrimination Amendment Bill, faith-based schools would be entitled to give preference to applicants who have religious beliefs, affiliations or activities consistent with those of the school. However, LGBTI rights activists fear that if the Bill becomes law, it could be used as a licence to discriminate against gay and transgender children or children of same-sex couples.

    Family life and the right to an identity

    The South African Human Rights Commission has initiated a legal challenge over the laws on paternity of children born out of wedlock. Under the Birth and Death Registrations Act unmarried fathers can decide whether to be registered on the child’s birth certificate as the father and whether to pass their surname to the child. An affidavit filed at the Western Cape High Court alleges the provisions are in conflict with the Constitution and discriminate against children and single mothers. The challenge was heard on 14 and 15 April.

    A recent judgment by the Supreme Court of Pakistan has clarified the rules on paternity in Muslim personal law. The Court ruled that men cannot deny the paternity of children born to their spouses. All children born during the marriage will be presumed legitimate, unless the man expressly denies paternity within 40 days of the child’s birth.

    In a case against Romania concerning the annulment of an adoption, the European Court of Human Rights unanimously ruled that the State had violated the rights of the applicant by allowing her adoption to be annulled on the instigation of her sister 31 years after it took place and 18 years after their mother had died. The Court concluded that there had been a breach of the right to family life under Article 8 of the European Convention on Human Rights because the annulment was vague and not in accordance with the law, and a breach of the right to property under Article 1 of Protocol 1 as the applicant was unable to inherit following the annulment. The Court stressed that “as a general rule the legal provisions governing adoption are designed primarily for the benefit and protection of children”. It explained that even in cases where “subsequent evidence reveals that a final adoption order was based on fraudulent or misleading evidence, the interests of the child should remain paramount in establishing a process to deal with any damage caused to the adoptive parent as a result of the wrongful order.”

    US court reduces compensation for victim of abuse by Jehovah’s Witnesses member

    A US court has upheld a $2.8 million compensatory damage award for a woman who was molested as a child by a member of the North Fremont Jehovah’s Witnesses Congregation. However, the court overturned an additional $8.6 million punitive award levied against the congregation and the Jehovah’s Witnesses headquarters organisation Watchtower Bible and Tract Society of New York Inc. The federal appeals court in San Francisco upheld the compensatory award on the ground that the congregation and Watchtower failed in their duty to supervise the adult member and protect the claimant. The Superior Court jury had originally awarded punitive damages on the basis that church leaders adhered to a “secrecy policy” about child molestation. But the appeals court set aside that award, saying the congregation elders “had no duty to depart from Watchtower’s policy of confidentiality and warn the members of the congregation that [the member] had molested a child.” The perpetrator had admitted to church elders that he molested his 14-year-old stepdaughter in 1993. In 2004, he was also convicted of molesting his 8-year-old step granddaughter and sentenced to seven months in prison.

    New legislation and suspended legislation

    In the United Kingdom, the Modern Slavery Act became law at the end of last month. It is hailed as the first in Europe and one of few laws globally to specifically address slavery and human trafficking in their 21st century form. The Act contains specific protections for child victims, including a defence against prosecution for crimes committed directly as a consequence of their trafficking, provisions for the support of child victims of trafficking by child advocates, and a clause to ensure that children without proof of age are treated as children.

    An unprecedented ruling by the Constitutional Court of Croatia suspending an entire piece of legislation has provoked debate on the country’s family law. In January the Court issued a decision accepting review of the constitutionality of the Family Act passed in September 2014, and suspending it until that review is complete. In the interim, the previous Family Act from 2003 will be applied. The Ombudsman for Children has spoken out against the move to suspend the application of the Act, warning it will prejudice child protection by causing legal chaos with unforeseeable ramifications. She noted that the 2003 Act is not fully compliant with the State’s obligations under international human rights treaties, and also questioned the legality of the Court’s ruling.

    Argentina ratifies OP3

    Argentina’s ratification of the third Optional Protocol to the CRC on a communications procedure (OP3) became official on 14 April. The National Congress passed Law 27005 adopting the Protocol on 12 November last year. The UN Committee on the Rights of the Child will be able to accept complaints under the Protocol in relation to violations occurring after 14 July 2015 when the instrument enters into force in relation to the State. Read more about ways to challenge children’s rights violations in Argentina in our access to justice for children country report.   

    There are now 17 States Parties to the OP3. Read a joint statement by the Ratify OP3 Coalition and UN experts marking the first anniversary of the entry into force of the OP3 urging all States to commit to children’s rights by ratifying the Protocol.

    Legal resources

    As part of our ‘Inhuman sentencing’ campaign, CRIN’s recent report ‘Inhuman sentencing: Life imprisonment of children around the world’ highlights the prevalence of laws permitting life imprisonment of children and laws that potentially condemn children to die in prison. Read the full report or a summary.

    The Campaign for the Fair Sentencing of Youth’s recent publication ‘Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence’ is the first ever toolkit for lawyers representing children facing a life sentence in the United States.

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    Case study

    O'Keeffe v. Ireland: ‘Nothing is going to change the past, but we can protect the children of the future’

    Louise O’Keefe was eight years old when she was sexually abused by her school principal. It would take her 40 years and a lengthy legal battle with the Irish state for her to get justice. This is her story.

    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:

    “We believe deeply in religious freedom. But religious freedom does not include the right to take a government contract that requires providing access to health care, and then refuse to provide a teen who has been raped the health care she needs."

    - Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project in relation to its lawsuit alleging that religious organisations are denying access to reproductive services to unaccompanied migrant children in the United States.

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