CRINmail 50:
Children in Court

In this issue:

Trouble viewing this CRINmail? Click here to view online.

Introduction

In the past month courts around the world have delivered numerous positive decisions concerning children's rights, including by ending discrimination against children born out of wedlock in inheritance matters in Zimbabwe, recognising French children born through surrogacy abroad, and protecting children seeking asylum in South Africa. There is also, however, alarming news concerning discrimination against Roma, restrictions on access to information in Kyrgyzstan, and a new juvenile justice law in Brazil. You can read about all these developments and others in this month’s Children in Court CRINmail. At the very end you will find our latest strategic litigation case study concerning the criminalisation of children for consensual sexual activity in South Africa.

Latest news and cases

Right to privacy in the UK and Kenya

In the United Kingdom, the Supreme Court has ruled that the police are allowed to publish images of children suspected of rioting and causing criminal damage. The case was brought by a 14-year-old who was arrested following rioting in Derry, Northern Ireland in 2010 and whose photograph from CCTV footage was published in a newspaper in an attempt to identify those responsible. Ruling in favour of the police, the Supreme Court found that, even if the publication interfered with the child’s right to private life under Article 8 of the European Convention on Human Rights (ECHR), it was justified as it was necessary for the “detection and prevention of crime” and “diversion of young people from criminal activities”. The decision by the UK's highest court may now be challenged at the European Court of Human Rights. Read CRIN’s case summary.

Last month a group of Kenyan NGOs filed a case in court to stop the collection of data on children living with HIV. A directive issued by the President in February requires the government to collect data and prepare a report on all school children living with HIV, as well as gather information on their guardians. The petition, brought by Kenya Legal and Ethical Issues Network (KELIN) and other parties, argues that the collection of such data violates the Constitution and other laws, and requests that any such data be destroyed. The organisations point to the potential impact of the data collection in terms of privacy and confidentiality, saying that the data directly links a person’s name and their HIV status, which could lead to stigmatisation.

Zimbabwe court ends discrimination in inheritance

The High Court of Zimbabwe ruled last month that treating children born in and out of wedlock differently in inheritance matters is unlawful. The common law position in Zimbabwe allowed children born outside of marriage to be excluded from any inheritance. Justice Hlekani Mwayera held that this breached the rights to protection of the law and freedom from discrimination under section 53 of Zimbabwe’s 2013 Constitution.

Surrogacy and assisted reproduction in France and Poland

Earlier this month the French Court of Cassation allowed foreign birth certificates of children born under a surrogacy arrangement to be transcribed in the civil registry in relation to two separate cases of men who fathered children born to a surrogate abroad. The ruling has been positively received in that it strengthens recognition of children born through surrogacy. Previously they were unable to obtain any legal status in France, where surrogacy remains unlawful. However, commentators have pointed out that the decision applies only to cases where the woman acting as a surrogate is registered as the child’s mother. It remains uncertain what would happen if the two commissioning parents were named on the foreign birth certificate.

For more information about surrogacy and children’s rights, read our previous special edition Children in Court CRINmail.

Poland’s parliament has passed the country's first law to regulate in vitro fertilisation procedures. Assisted reproduction is a divisive issue in the predominantly Catholic country and many previous proposals failed to receive support. Finally last month both houses of parliament approved a proposal which would allow both married and unmarried couples to obtain IVF as a treatment for infertility after 12 months of unsuccessful treatment using other methods. IVF will not be available, however, to single persons or same-sex couples. The bill now needs to be signed into law by the president. Meanwhile, a discrimination complaint against Poland has been lodged in the European Court of Human Rights by a same-sex couple over the State’s refusal to issue a birth certificate which includes two women as parents, raising another sensitive issue for the country.

Right to health and education in Turkey

Parental permission is not needed to vaccinate children against certain diseases, Turkey’s Supreme Court of Appeals has ruled in a case in which the parents of a one-year-old child refused compulsory vaccinations. “The permission is not needed if the decision of the mother and father clearly conflicts with the child’s best interest” to be protected against certain diseases, said the Court in its decision, which drew on the best interests principle as defined in the Convention on the Rights of the Child (CRC) and the Turkish Civil Code. The Court also referred to the need to protect public health. With the ruling, parents who refuse compulsory vaccinations for their child may face charges of “child neglect”. The decision is the latest in a string of similar rulings by top-level courts in Croatia, Czech Republic and Slovakia.

This month Turkey’s Constitutional Court annulled a law that phases out private tutoring centres. There are reportedly around 3,800 such centres, known as “dersanes”, that cater to 1.2 million students preparing for Turkey’s university entrance exam. Opponents of the law argued that the closure of the centres would exclude the most disadvantaged students from the most sought-after universities. Following a petition by the Republican People’s Party, the Court ruled that the law adopted by parliament in March 2014 to close the centres was unconstitutional as it violated freedom of education.

South African ruling offers greater protection for children asylum seeking

A South African court has ruled that any child who enters the country with a relative who is allowed to apply for asylum will be regarded as a dependent of that caregiver, in the same way as a biological child. The case was brought by a 16-year-old orphan together with other children who had also been separated from their biological parents but were in the care of relatives when they fled armed conflict. In each case the relative was unable to apply for a temporary asylum permit for the child as they were not their biological parent nor recognised as their guardian. This meant that the child was not documented, and therefore effectively an illegal immigrant. In its ruling, the North Gauteng High Court recognised that it is in the best interests of separated children that they be documented on arrival, accompanied by their adult caregivers. According to a joint statement by Lawyers for Human Rights and the Centre for Child Law, which assisted in the case, the ruling “gives the child immediate protection and ensures that they are not separated from people with whom they have a relationship”.

Adoption in Russia and the United States

Descendants of adopted persons may be allowed access to adoption records under certain circumstances following a ruling by the Constitutional Court of Russia. Russian legislation allowed such information to be disclosed only with the explicit consent of the adoptive parents. The Court decided that the secrecy of adoption itself is not in conflict with the Constitution, as it is necessary to ensure the stability of the adoption. However, since access to adoption records is crucial for establishing one’s identity, refusing to grant access to such information may in some circumstances violate a person’s rights, the Court decided by reference to the right to freedom of information in the ECHR and the child’s right to personal identity in the CRC. As a result of the ruling, lower courts have the power to allow, on a case-by-case basis, descendants of adoptees to obtain information about the adoption where the adoptee and adoptive parents are deceased and thus unable to provide consent. Read CRIN’s case summary.

In the United States, a challenge to the law concerning adoptions of Native children is due to be heard by a court in Minnesota. The federal Indian Child Welfare Act, which was enacted in 1978 to promote stability in Native American tribes, requires that the tribe be notified of any proposed adoption of indigenous children and that Native Americans be given priority in decisions regarding the placement of Native children. The challenge is brought by a Native couple who had selected non-Native applicants to adopt their child without notifying the tribe under the Act as they feared the tribe would block the adoption. They are now arguing the notification requirement breaches their privacy and due process rights and promotes racism as in no other circumstance would it be legal to decide on the placement of a child according to race criteria.

Violations against Roma children

This month the European Court of Human Rights condemned Belgium for degrading treatment and failure to ensure the right to an effective remedy of a Roma family seeking asylum. The two parents and their five young children were deprived of financial aid when the order to leave the country against them expired, even though there was an ongoing appeal. As a result, the family spent a month living on the street before returning to Serbia where one of the children who was disabled died shortly after. The Court held that the Belgian authorities had breached the prohibition of degrading treatment in Article 3 of the ECHR, as well as the right to an effective remedy in Article 13, but found no violation in relation to the death of the child. Read CRIN’s case summary.

Following an intervention by the European Court of Human Rights, the Bulgarian government has postponed the demolition of illegal dwellings which would have left a number of Roma families on the street. National NGOs brought the case to Strasbourg alleging that the evictions violate the right to non-discrimination in Article 14 of the ECHR and seeking an order for the immediate halt to the demolitions. Before pronouncing on the issue of interim relief, however, the Court sent a request for additional information to the government asking what measures are being taken to provide alternative housing to those affected and whether any such measures would entail the separation of children from their parents. Meanwhile, the Organisation for Security and Cooperation in Europe also called on the State to stop Roma evictions and address the problem of discrimination against minorities. As of now, the government has suspended the planned demolitions pending further consideration.

UK Supreme Court decides disability benefits case

The UK Supreme Court has ruled against the government in a case relating to a disabled child’s entitlement to state benefits. The Court held that the withdrawal of the Disability Living Allowance (DLA) for a 5-year-old boy after he was hospitalised for 84 days amounted to an unjustified difference in treatment in violation of Article 14 of the ECHR. The rationale behind the law providing for a suspension of benefits was to avoid an overlap of provision for disability-related needs. However, the Court was presented with evidence that the financial resources needed to meet the needs of a disabled child in hospital are no less than when the child is cared for at home. Citing the principle of the best interests of the child as stated in the CRC and the Convention on the Rights of Persons with Disabilities, the Court concluded that the decision to cease payment of the DLA was "grossly unfair". According to the solicitor for the plaintiffs, the decision will allow around 500 families to seek reinstatement of the benefit in relation to their children, however, each case would need to be assessed on an individual basis.

Indonesian court rejects child marriage petition

Indonesia's Constitutional Court has rejected a petition to raise the minimum age for marriage for girls from 16 to 18. In the Court’s view, there is no guarantee that raising the minimum age would solve health and social problems, and changing the marriageable age is part of the legislature's authority. “The verdict [allows] women to die and suffer health problem as an impact of giving birth at a child’s age”, the NGO coalition on children’s and women’s rights said in a statement. In February it was reported that the Indonesian government was preparing a regulation to raise the legal age of marriage for girls. Read more in our previous Children in Court CRINmail.

Reporting of child abuse in the United States and Australia

The US Supreme Court has ruled that out-of-court statements made by children to their teachers about abuse can be used as evidence in criminal trials - even if the child does not testify in court - despite a defendant’s constitutional right to confront his or her accusers. The unanimous decision was handed down last month. Read our previous Children in Court CRINmail for background on the case.

In Australia, whistleblowers could be imprisoned under a new law if they disclose abuse of asylum seekers held in detention centres. Under the Border Force Act, government-contracted workers at onshore and offshore detention facilities - including doctors, nurses, teachers, and human rights bodies - risk up to two years in prison if they speak out about the treatment of asylum seekers or conditions in detention without the authorisation of the immigration department. In an open letter, 40 current and former workers at Australia’s detention centres on Nauru and Manus Island have challenged the government to prosecute them under the new secrecy law. “We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable,” the open letter says. “Internal reporting mechanisms such as they are have failed to remove children from detention; a situation that is itself recognised as a form of systematic child abuse.”  

Access to information and freedom of expression

Last month Kyrgyzstan’s parliament approved an anti-gay bill that is said to be tougher than Russia’s “gay propaganda” law. With 90-2 votes in favour, the bill is expected to pass a final vote before it is sent to President Almazbek Atambayev for his signature. The bill has been criticised for its vaguely defined offences, such as forming a “positive attitude toward nontraditional sexual relations”. According to advocacy group Labrys, “the law will effectively make it illegal to advocate for, provide information about, or organise a peaceful assembly” in support of lesbian, gay, bisexual or transgender (LGBT) people’s rights. “Even a public act of ‘coming out’ could be considered ‘propaganda’ and result in a prison term for up to a year”, the organisation warned. Since it was drafted last year, violence against people who are or are perceived to be LGBT has increased, including at the hands of police, even through the country decriminalised homosexuality in 1998. Conversely in May, the Constitutional Court of neighbouring Kazakhstan struck down another anti-gay law that would have banned sharing information with children on homosexuality.

New Zealand recently enacted a law against cyberbullying that criminalises online communications deemed deliberately harmful. The Harmful Digital Communications Act of 2015 creates a number of new offences with penalties ranging from monetary fines for posting harmful digital communication to up to three years’ imprisonment for incitement to suicide. Children under the age of 14 cannot be charged with these offences and cases involving 14 to 16 year olds will be diverted to the youth justice system, however the criminal sanctions will apply with full force to 16 and 17 year olds.

Juvenile justice and inhuman sentencing

Last month in the United States, Arkansas became the latest state to retroactively apply the US Supreme Court decision in Miller v. Alabama, which abolished mandatory life sentences without parole for juvenile offenders, following a unanimous ruling by the state’s Supreme Court. As a result, over 50 child offenders sentenced to mandatory life without parole will have the opportunity to be resentenced. Legislators in Connecticut went further by abolishing all sentences of life without parole for juvenile offenders. Bill 976, which was signed into law last month, provides for parole eligibility after no more than 30 years. Over 200 currently serving such sentences will now be eligible for parole.

To find out more about why all forms of life or indeterminate sentences violate the rights of the child, see CRIN’s ‘Inhuman sentencing’ campaign.

In Brazil, lawmakers have approved a bill to lower the age of criminal majority for certain serious offences. The bill was passed by the Brazilian Chamber of Representatives this month, and will face a second vote in August before reaching the Senate, if approved. Read this guest article for CRIN.

New gender recognition law in Ireland

The passing of the Gender Recognition Act in Ireland presents a significant victory for transgender rights in the country, however the new law falls short of meeting the needs of children, human rights advocates have warned. This is the first law in the European Union to provide for legal gender recognition (i.e. to allow persons to make a statutory declaration for their gender to be changed without requiring that they seek medical treatment). However, trans children under the age of 16 are completely excluded from the provisions of the new law and children over the age of 16 are required to undergo a complicated process involving two doctors, parental consent and a court order. Read a letter by Human Rights Watch regarding the Act.

Legal resources

The UN Special Rapporteur on the independence of judges and lawyers’ 2015 annual report examines the protection of children’s rights in the justice system and analyses the essential role that must be played by judges, prosecutors and lawyers in upholding children’s human rights and applying international human rights norms, standards and principles at the domestic level. Read the full report.

The Mental Disability Advocacy Centre has published the results of a two-year study investigating access to justice for children with mental disabilities in Bulgaria, Czech Republic, Hungary, Ireland, Latvia, Lithuania, Romania, Slovenia, Spain, and the United Kingdom. Access the findings of the research.

A new publication by the EU’s Fundamental Rights Agency reports on whether children’s rights are respected in civil and criminal proceedings based on the perspectives and experiences of professionals on children’s participation in judicial proceedings in Bulgaria, Croatia, Denmark, Estonia, Finland, France, Poland, Romania, Spain, and the United Kingdom. Read the publication.

The Children’s Society’s new report ‘Cut Off From Justice: The impact of excluding separated migrant children from legal aid’ documents the impact of legislative reforms of legal aid since 2012 in England. Read the full report.

Back to top

Case study

Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development: Teenagers no longer prosecuted for kissing or consensual sex

A law that criminalised sexual activity between consenting adolescents in South Africa - even for kissing and cuddling - and required them to be put on a sex offenders register was struck down as unconstitutional after a challenge from the Centre for Child Law.

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.

Back to top

Last Word:

Back to top