Children in Court: CRINmail 49

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18 June 2015 subscribe | subscribe | submit information
  • CRINmail 49:
    Children in Court

    In this issue:

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    June’s edition of the Children in Court CRINmail includes the latest legal news and stories about group litigation on behalf of children before international bodies, access to justice for child victims of sexual abuse and other violence, the latest developments in the area of juvenile justice, including news about inhuman sentencing practices, stories about discrimination, education, health, and others. At the end of the CRINmail, you will find a case study on setting up a legal clinic for child refugees in conflict with the law in the Bethlehem Governorate of the West Bank.

    Latest news and cases

    Group litigation on behalf of children

    The African Committee on the Rights and Welfare of the Child has found Senegal in breach of the rights of around 100,000 children, aged 4 to 12 years, who were forced by their Qur’anic school instructors to beg for their own survival. According to the complaint, submitted in 2012 by the Centre for Human Rights, University of Pretoria and the NGO La Rencontre Africaine pour la Defense des Droits de l’Homme, the children (known as talibés) were removed from their families and placed in Qur’anic schools in the urban centres of Senegal. They were then forced to work on the streets as beggars, beaten, chronically underfed, and housed in unsafe and unhygienic living conditions without access to medical care. In a decision published in May, the Committee found that Senegal had failed to effectively implement its laws protecting children, thereby violating several rights of the talibés under the African Children’s Charter, even though the schools were non-state entities. This is the Committee’s second decision in a communication submitted to it. Read CRIN’s case summary.

    The Socio-Economic Rights & Accountability Project has taken Nigeria to the ECOWAS Community Court over violations of the rights of internally displaced persons (IDPs) across the country, including children. The case was brought in the context of the ongoing conflict between Boko Haram and government forces, which has led to the displacement of around 3.3 million people across northern and north-eastern Nigeria since 2010. The government has closed several displacement camps in central and northern Nigeria, and in other camps the living conditions are reportedly inadequate. The complaint alleges that the government has failed to protect the rights of IDPs by failing to provide protection and assistance and systematically assess their conditions and situation, in breach of its obligations under the African Charter and other international instruments.

    This month a court in Hengdong, Hunan province in China, began hearing a case against a local chemical plant filed by 13 families on behalf of children with high levels of lead in their blood. This is believed to be the first court case involving lead poisoning of children in the country.

    In May the US Supreme Court declined to hear a case against Chiquita brought by relatives of several thousand victims of paramilitary violence in Colombia over the company’s alleged human rights abuses. Chiquita, a US banana producer and distributor, admitted to funding a right-wing paramilitary group but argued it was not responsible for any crimes, including torture and murder, committed by the paramilitaries. The Supreme Court's refusal to hear the case means that the decision of the appellate court to reject the case on the basis that US courts had no jurisdiction over the events in Colombia remains in place.

    Access to justice for victims of child sexual abuse

    The Kenyan government and the country’s main teachers union - which is responsible for recruiting teachers and issuing disciplinary actions - has failed to protect schoolchildren from sexual abuse, the High Court has ruled. The ruling comes in relation to a case in which two female students were sexually abused by their teacher, who had been allowed to transfer from another school despite accusations of sexual assault. The petition noted that the girls were not given psychological assistance or health care, their case was dismissed by the District Education Officer, and the teacher in question was allowed to continue working for four months after the case was first reported. The judge ruled that the abuse amounted to a violation of the children’s rights to dignity, health and education guaranteed by the Kenyan Constitution and the Children Act and agreed that the Teachers Service Commission and government officials had inadequately handled the case and ordered them to provide financial reparation to the two girls. Read CRIN’s case summary.

    There have been a number of recent developments highlighting the responsibility of the Catholic Church for abuses committed by its priests. In the Vatican, Pope Francis has established a tribunal to investigate bishops accused of covering up abuse. The unprecedented Vatican legal mechanism is designed to make bishops accountable for the priests under them. In Belgium, an archbishop has been ordered to pay victims damages for failing to act on allegations of sexual abuse in the 1990s. In the United States, the Archdiocese of St Paul and Minneapolis has been criminally charged for its “role in failing to protect children and contribution to the unspeakable harm” of three victims of abuse by a priest. This is the second time an American archdiocese has been indicted as an institution over clergy abuse allegations. In April, the Pennsylvania Supreme Court reinstated the conviction of Msgr. Lynn, a former aide to the Cardinal of Philadelphia, finding him guilty of child endangerment even though he did not directly supervise the welfare of the child victims in the Philadelphia Archdiocese’s abuse scandal (see our previous Court CRINmail for background). For more information, see CRIN’s campaign to end sexual violence in religious institutions.

    There have also been several other notable cases concerning access to justice - or lack thereof - for victims of child sexual abuse in private settings. The Canadian Supreme Court has ruled that adults who record sex acts with children for private use cannot claim to have obtained a child’s consent as a way of avoiding prosecution. In India, a petition before the Delhi High Court alleges that the Delhi Compensation Scheme discriminated against a 13-year-old boy who was sexually assaulted by classifying the crime as “child abuse” and providing him a lesser amount of compensation than that provided to female victims of rape. In Argentina, two judges are facing possible dismissal for reducing the sentence of a child rapist because the 6-year-old victim “displayed a homosexual orientation and was accustomed to being sexually abused”. In a similar case in South Africa, child rights activists have criticised the decision of two judges to reduce the prison sentence of a man convicted of rape because it could not be “considered as falling at the most heinous end of the scale” as there were no physical injuries. Finally, in Malaysia, a man has been acquitted of raping his daughter, who gave birth to a baby whose DNA matched the offender’s, because the girl’s testimony was deemed unreliable. For more information on access to justice for children, see CRIN’s country reports.

    Violence against children in schools and other institutions

    Mexico’s top court has ordered a private school and a teacher to compensate a 7-year-old student for their role in the bullying of the child. In a first of its kind judgment, the Supreme Court ruled that the teacher had not only encouraged the abuse by the other children but also participated in it, and that the school failed to prevent the abuse even though it was aware of it. "More than a warning, this is an invitation to schools that they understand that this phenomenon cannot be tolerated, and in a case where no measures are taken against it, there has to be a responsibility and a consequence," said Justice Arturo Zaldívar Lelo de Larrea. "The private educational institutions are not just a business," he added.

    Meanwhile in the United States, lawmakers in Connecticut have passed a bill limiting the use of seclusion rooms and restraints on children in the state’s schools. Connecticut’s current law allows children to be locked alone in rooms for indefinite periods of time and restraints to be used with little oversight. Children, some as young as preschool aged, were being placed in seclusion, including those on the autism spectrum, according to the Office of the Child Advocate of Connecticut (OCA). The OCA also found that the children being restrained or secluded were largely African American or Hispanic, and that over the last three years, more than 1,300 incidents included injury to children during restraint or seclusion.

    Also in Connecticut, an appeals court has found that the state violated the rights of a transgender child by detaining her in a prison without any criminal charges. The transfer was authorised by a judge after the Department of Children and Families (DCF) presented evidence that the girl was violent. The appeals court held that the girl’s “due process rights were violated on the ground that DCF failed to prove, by clear and convincing evidence, its entitlement to have [her] transferred from its care to the supervision of the Department of Correction.” The ruling therefore raises the evidentiary standard required to transfer a child in the state’s custody to an adult prison, however, the possibility still remains.

    The NGO Legal Agenda will be initiating legal proceedings against the Lebanese Ministry of Social Affairs and ‘Islamic Orphanages’ in relation to their negligence in failing to protect children in orphanages from abuse. The case is being brought on behalf of a young man who suffered sexual abuse in an orphanage from the age of nine to 14 at the hands of other children before deciding to run away. The victim tried unsuccessfully to contact the Higher Council for Childhood, which is part of the Ministry of Social Affairs. The NGO hopes that this suit will reignite the debate around a care system in Lebanon which is said to operate in contravention to the rights of the child.

    Court strikes down proposed discriminatory law in Kazakhstan

    Kazakhstan's Constitutional Council has declared unconstitutional a Bill that sought to ban information which depicts “non-traditional sexual relations” in a “positive way”. Advocates say final drafts of the Bill “On Protecting Children from Information Harmful to their Health and Development” include a broad ban on the publication or sharing of information relating to same-sex relations in settings where children might be present. The Council rejected the proposed law on the ground that it contained vague language.

    Read about CRIN’s campaign ‘Protect children, end censorship’ which calls for stronger standards on children’s right to information as well as for this right only to be restricted in transparent and child-rights compliant ways.

    Inhuman sentencing of children

    As part of our campaign to ‘End inhuman sentencing of children’, CRIN monitors news concerning the imposition of the death penalty, life imprisonment and other forms of inhuman sentencing of child offenders.

    Death penalty around the world

    Authorities in Pakistan have executed a man who was 15 when he was sentenced to death, after the Lahore High Court dismissed a request for a stay of execution, denying his lawyers time to produce new evidence of his innocence. Aftab Bahadur was hanged on 10 June 2015 after having spent 22 years on death row, despite last-minute efforts by international human rights groups and church leaders to halt his execution. He had been convicted of murder in 1992, but insisted he was innocent of the crime until the end.

    Shortly after Aftab’s execution, Pakistan’s Supreme Court rejected an appeal over the case of Shafqat Hussain, a juvenile offender who had received a last-minute stay to his scheduled execution the day before. Together with other rights groups, CRIN has called on the President of Pakistan to grant clemency to Shafqat after successive judgements refused to accept his lawyers’ arguments that he was only 14 years old at the time of the offence. The Islamabad High Court had earlier rejected a request for a judicial inquiry into Hussain’s age while an official inquiry by the Federal Investigation Agency ignored crucial evidence which showed him to be under the age of 18.

    The Governor of Delta State in Nigeria has pardoned Moses Akatugba, a juvenile on death row whose conviction was based on a 'confession' believed to have been obtained through torture. Governor Uduaghan granted a total pardon just days before stepping down from office at the end of 29 May following an Amnesty International petition. NGOs report that Nigerian police routinely torture suspects to extract information, while confessions obtained through torture are regularly used as evidence in court. Moses says his claims of torture have never been investigated.

    Also in Nigeria, the murder charges against a 15-year-old girl facing the death penalty have been dropped. Wasila Tasi’u, who was 14 when she was forced to marry a 35-year-old man, was accused of lacing food prepared for post-wedding celebrations with rat poison, which resulted in the death of her husband and three other guests. Although the Court had refused to dismiss the charges against her, saying there was enough evidence for trial to continue, the Attorney General and Commissioner for Justice decided to terminate the case because the accused was a child and the victim's family had forgiven her. The Kano High Court ruled that it had no option than to comply with the Attorney General’s application and Wasila has now been released from prison, but is facing an uncertain future.

    Meanwhile, another child bride in Nigeria, Maimuna Abdulmumini remains on death row despite a ruling by the Economic Community of West African States (ECOWAS) Court of Justice that the death sentence handed down for a crime committed while she was 13 years old was a violation of her fundamental rights. For more detail on her case, read CRIN’s strategic litigation case study.

    Amnesty International has warned that Hamid Ahmadi, an alleged juvenile offender in Iran, is at imminent risk of execution, even though his case is currently under judicial review in the country’s highest court. The application for judicial review is based on Hamid’s young age - he was 16 years old at the time of the alleged crime. However, complaints alleging that the police threatened him to extract a confession have not been investigated.

    The Supreme Court of Indonesia is currently reviewing the case of Yusman Telaumbanua, the youngest known death row inmate in the country. He was reportedly 16 years old when he was sentenced to death by the Gunugsitoli District Court, Nias, in 2013. A local human rights group exposed how Yusman had been tortured into a confession by the police, who also allegedly fabricated his age.

    Read CRIN’s recent submission to the report of the UN Secretary General on the question of the death penalty for more information on the illegality of the death sentence for juveniles and sentences and executions in the period between 1 April 2014 and 31 March 2015.

    Life imprisonment of children in the United States

    The Supreme Court of the state of Kansas has ruled that lifetime parole imposed on a juvenile “categorically constitutes cruel and unusual punishment” in violation of the Eighth Amendment of the US Constitution. In a written opinion reversing an appeals court ruling, the Court said that the lower court was wrong to uphold lifetime post-release supervision for a man who pleaded guilty to sexual assault on a 13-year-old committed when he himself was 17. He had originally been charged by a county court with rape and was prosecuted as an adult. The case has been remanded back to the county court for resentencing on the length of his post-release supervision. Read CRIN’s summary of the case.

    In Illinois, a judge has upheld a life sentence without parole for a man sent to prison when he was 14. It was the first re-sentencing hearing in Illinois after the Supreme Court’s decision in 2012 to outlaw mandatory life sentences for juveniles without parole which the Court found to be cruel and unusual punishment, and allowed states to decide whether to apply this retroactively to cases.

    A new law in Nevada has eliminated life without parole for youth in the state. The law retroactively abolishes life-without-parole sentences for all youth, establishes parole review at 15 or 20 years depending on the crime, and requires judges to consider the differences between youth and adult offenders – including the diminished culpability of youth compared to adults and the typical characteristics of youth – whenever sentencing a child in an adult court.

    Corporal punishment in Zimbabwe

    The Constitutional Court of Zimbabwe has set aside a court order banning sentences of corporal punishment for juvenile offenders until it makes a pronouncement on the issue of corporal punishment. As reported in a previous edition of the Children in Court CRINmail, the court’s decision that the caning of juvenile offenders violated the constitutional protection from torture or cruel, inhuman or degrading treatment or punishment was conditional on the approval of the Constitutional Court. This week the Court said it could not rule on the matter because all of the parties present were arguing in favour of the practice, but in such cases there is a need to hear at least some opposing arguments. Zimbabwe’s former finance minister, Tendai Biti, who was present in court on another matter, volunteered to file such opposing arguments. In the meantime, the enforcement of  legal provisions allowing the caning of child convicts will continue.

    Juvenile Justice

    A military court in Egypt has tried at least 12 children under a new regulation that assigns all cases of violations of “vital state property” to military courts, according to the National Community for Human Rights and Law. The case, in which 147 defendants, including 12 or more children, were tried, was regarding “offences against public property and intimidating civilians through force and violence”, including illegal protesting, torching and attacking public utilities in 2013. While three of the children were proven innocent and three others were declared as falling outside the jurisdiction of the court, six others have received a 15-year prison sentence. The ruling is an application of a 2014 presidential decree that has expanded the jurisdiction of military courts. The Secretary-General of the Egyptian Coalition on Children’s Rights, Hani Helal, said that these children “are victims of political exploitation not criminals as the state treats them. They should be protected, not imprisoned.”

    In the United States, a new draft bill in North Carolina proposes to try 16 and 17-year-olds accused of misdemeanor offences as juveniles. Other states have long changed their laws and treat teens under 18 as juveniles, leaving North Carolina and New York as the only two remaining US states which automatically prosecute a 16-year-old charged with any crime in the adult court system. The bill, now under review by a House judiciary committee, if passed into law, would go into effect in January 2020. Teens charged with felonies would still go through the adult court system.

    A 16-year-old blogger from Singapore has been convicted under the country’s strict hate speech laws as an adult in the State Court over an online video negatively depicting the country's recently deceased founding PM Lee Kuan Yew. The video castigated Mr Lee's strict control of Singapore, said Singaporeans were scared to criticise him and compared him disparagingly to Jesus Christ. It has made the boy one of few Singaporean voices who openly denounce Lee's legacy.

    Discrimination against children

    The US Supreme Court has ruled in favour of a 17-year-old girl who was refused employment for wearing a headscarf. She was previously awarded compensation by a jury, however an appeals court overturned the award, holding that the judge should have dismissed the case as the employer was not notified that she was wearing the headscarf for religious reasons. The Supreme Court’s decision clarifies that there is no requirement to demonstrate knowledge by the employer of the need for a reasonable accommodation in a discrimination claim. The case was sent back to the appeals court for further consideration.

    Also in the United States, a civil rights suit against Texas alleges that the state is discriminating against parents and children based on parents’ immigration status as parents are required to present proof of legal immigration status before they can obtain a birth certificate for their child. The authorities claim the measure is necessary to ensure the identity of the parents, however, the claimants maintain that other forms of identification must also be accepted, such as a passport without a US visa.

    The last ban on driving privileges for persons who entered the United States illegally as children has now been lifted after Nebraska’s legislature voted 34-9 to remove the measure, thereby overriding a veto by the state’s Governor.

    Several stories of alleged discrimination against children in education have been reported.

    The parents of an autistic boy from Malta have brought legal action against a charitable foundation for refusing to enrol the child in a summer school programme. The family’s two sons - one of whom is autistic - have been attending the programme for several years. While the child who does not have a disability was accepted into the programme again, the autistic boy was not. The foundation explained that the spaces for children with disabilities had been reduced as there were too many children requiring assistance by learning support staff, and later clarified that “when a higher percentage of children who require [learning support] are accepted in any particular class, the noise and distraction levels make it very difficult and sometimes even upsetting, for children with certain disabilities such as Autism and ADHD”.

    In Kenya, five girls who were expelled for allegedly being gay are taking their school to court. The students were suspended and a disciplinary committee decided to expel them for ‘gross misconduct’. The girls, who maintain that they dozed off while revising on the bed, are asking the court to affirm their right to education and order their re-admission. Meanwhile, child rights groups have urged the Ministry of Education of Sierra Leone to reconsider their decision to ban “visibly pregnant” schoolgirls from attending class and from sitting school equivalency exams. According to the government, this is a long-standing unspoken policy justified by the need to ensure that other girls are not encouraged to get pregnant as well.

    Finally, Canada’s Supreme Court has unanimously ruled that issues of costs and practicalities are not relevant when considering whether a language minority’s education rights have been fulfilled. The ruling concerns a complaint by parents over the inadequate facilities of a public French school in Vancouver which were found to be sub-par compared to the facilities of English-language schools. The Court of Appeal overturned a first instance decision in the parents’ favour holding that the judge erred in failing to consider the cost of providing a better service. The Supreme Court’s decision, which overturns the Court of Appeal, clarifies that it is not the cost, but rather the quality of education which is crucial. The Court did note, however, that costs and practicalities will be relevant in attempts to justify a breach of the Canadian Charter of Rights and Freedoms, and in attempts to fashion an appropriate and just remedy for a breach. The case has been sent back to the provincial court to determine the appropriate remedy.

    Best interests of the child

    A court in the United Kingdom has ruled that the Secretary of State did not violate the human rights of a child by refusing their application for British nationality in circumstances in which the child could satisfy all other requirements but, as a result of destitution, could not pay the required fee of £673. The judicial review claim relied on the right to respect for family and private life and the right to non-discrimination under the European Convention on Human Rights, as well as the principle of the best interests of the child of the CRC. It argued that the law should allow an exemption from fees for children who are destitute. The Court rejected the claim and ruled that the fee requirement does not permanently bar an otherwise eligible child from British citizenship, but merely postpones the ability to register. Read CRIN’s summary of the case.

    The highest court in Switzerland has refused to recognise two gay men as the legitimate fathers of a child born through surrogacy in the United States in 2011. The Federal Supreme Court ruled that the sperm donor and the surrogate mother must be officially registered as the child’s parents, holding that the US birth certificate naming the two men as the child’s legal parents cannot be recognised in Switzerland, thereby striking down a decision by a regional administrative court which recognised the foreign birth certificate on the grounds that the child’s well-being should be accorded paramount importance.

    Finally, the European Court of Human Rights found against Croatia in a case concerning the best interests of children in property transactions. The applicants, who are siblings, complained in relation to an unfavourable property deal conducted on their behalf by their parents while they were children. The ruling holds that by failing to evaluate whether the circumstances of the transaction complied with the principle of the best interests of the child, the State breached the children’s rights to peaceful enjoyment of their property under Article 1 of Protocol 1 of the ECHR. Read CRIN’s case summary.

    Right to health in Canada and the United States

    In Canada, an Ontario court has issued a clarification of its November 2014 decision that an 11-year-old Native girl with leukemia cannot be compelled by a hospital to undergo chemotherapy as it is her family’s constitutional right to choose traditional treatment. Now, while reaffirming that traditional medicine must indeed be respected, the court has clarified that the best interests of the child are also “paramount”. Nick Bala, a law professor at Queen's University, said this means that the child’s well-being has to be balanced against what the court previously recognised as a constitutional right to pursue indigenous medicine. "The aboriginal rights are one factor to be considered, but not the only factor," he said.

    Meanwhile in the United States, the Supreme Court of Rhode Island has decided that the limitation period for filing malpractice suits against doctors on behalf of disabled children is three years from the date of the incident. Previously such actions could be brought at any time before the child reached the age of 18. The ruling attracted criticism by a local lawyer specialising in these types of claims. Although children themselves are still entitled to bring proceedings once they turn 18 until the age of 21, waiting until then to receive compensation might jeopardise the child’s treatment options, he said.

    Harmful traditional practices

    Nigeria has passed a federal law banning female genital mutilation. The bill builds on prohibitions already in place in some of Nigeria's 36 states, making the practice illegal throughout the country. Commentators have stressed the significance of the law passed in Africa’s most populous nation for other countries in the region. Mary Wandia, FGM programme manager at Equality Now, said: “We hope, too, that the other African countries which have yet to ban FGM – including Liberia, Sudan and Mali, among others – do so immediately to give all girls a basic level of protection.”

    An Indian court in Rajasthan has annulled the marriages of two children - a brother and sister. The boy was ‘married’ at the age of three years old to a two-year-old, and the girl was married to another person when she was ten months of age. The Prohibition of Child Marriages Act which has been in force since 2007 sets the minimum age of marriage at 18 for girls and 21 for boys, however, child marriage remains a common practice. The case was supported by the Saarthi Trust, who also acted in the case of the first ever child marriage annulment in India in 2012.

    Irish Supreme Court confirms legality of referendum

    The Supreme Court of Ireland has refused to order a re-run of the Children’s Referendum in which voters in 2012 approved an amendment to enshrine children's rights in the Irish Constitution. The Court unanimously decided there was insufficient evidence that the government’s information campaign, which was previously found to be in breach of the Constitution, had materially affected the result.

    South Sudan becomes a party to the CRC

    South Sudan has acceded to the Convention on the Rights of the Child, which entered into force in the country on 22 February 2015. Following the Convention’s ratification by Somalia, reported earlier this year, the only remaining country in the world which is yet to become a party to the treaty is the United States.

    Legal resources

    New Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa issued by the African Commission on Human and Peoples’ Rights contain measures on how to deal with children in conflict with the law.

    UNICEF’s new report ‘Equitable Access to Justice: Central and Eastern Europe and Central Asia’ presents research on children’s ability to obtain redress for rights violations in Albania, Georgia, Kyrgyzstan and Montenegro.

    A recently published book documenting indigenous peoples’ experience with access to remedy for corporate abuses prepared by three organisations working with indigenous peoples is now available to read online.

    Case study: Providing legal and social support to refugee children in Bethlehem

    In September 2014, Shoruq Organisation, with the support of CRIN, opened a legal clinic in Dheisheh Refugee Camp in the Bethlehem Governorate of the West Bank. The clinic aims to provide comprehensive support to refugee children involved in the criminal justice system of the Palestinian Authority, from legal advice and representation in police stations and courtrooms, to counselling and follow-up in schools and the community.

    At the outset of the project, CRIN and Shoruq decided to document the pilot phase of the project and publish the results. By frankly recording the process of establishing the clinic, the problems faced and the way they were overcome, we hope to help other organisations seeking to launch legal clinic projects to protect and promote children’s rights.

    Download the full case study.

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    Last Word

    “With respect to the State [...], it must up its game with respect to protection of minors. It cannot shuffle paedophiles from one school to another, and finally, content itself with dismissals. It has to put in place an effective mechanism [...] to ensure that no-one with the propensity to abuse children is ever given the opportunity to do so. Dismissal, and even prosecution, while important, can never restore the children’s lost innocence.”

    - Judge Mumbi Ngugi in a case holding the State vicariously liable for sexual abuse perpetrated by the teacher of two children in a school in Kenya

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