Children in Court: CRINmail 51

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17 August 2015 subscribe | subscribe | submit information
  • CRINmail 51:
    Children in Court

    In this issue:

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    In this month’s issue of the Children in Court CRINmail you can find the latest news and cases on a variety of topics, including the right to privacy of children in Colombia, juvenile justice and inhuman sentencing news from Asia, children with mental disabilities, children’s access to abortion and right to health, and others. A strategic litigation case study on the decision of the African Children’s Committee against Senegal concerning the talibé children is featured at the end of the CRINmail.

    Latest news and cases:

    Colombian top court rules on children’s right to privacy

    The Colombian Supreme Court has ruled that parents who monitor their children’s online activity if they suspect abuse do not violate the children’s right to privacy. The decision was made in a case in which parents had accessed their 12-year-old daughter’s email account, which documented sexual abuse of the girl by an 18-year-old man with whom she was in a relationship. During his trial the man alleged that the emails had been obtained without the girl’s permission and that her privacy had been violated. In its decision, the Supreme Court confirmed the conviction of the man, stating that “parents exercising parental authority are “constitutionally and legally authorised to assist, guide and control the communications of their underage children only for the purpose of protecting and guaranteeing the fundamental rights of children and adolescents.” However, the Court stated that any parental intervention that is not intended to protect the child would breach the child’s privacy and be “illegal and reprehensible”.

    Juvenile justice and inhuman sentencing

    The Supreme Court of Bangladesh has commuted the death sentence of a child offender to “life imprisonment until natural death”, a sentence colloquially known as “the other death penalty". Shukur Ali was 14 years old when his trial began for the rape and murder of a 7-year-old three years earlier. Sentences of life imprisonment and the death penalty for child offenders were explicitly prohibited in the country under the Children’s Act 2013, however Ali was sentenced in 2001 under a law prescribing the mandatory death penalty for rape and murder. In May the Supreme Court declared all mandatory death sentences to be unconstitutional, which allowed Ali to challenge his mandatory death sentence. According to Ali’s lawyer, this is the first time a death sentence has been commuted in Bangladesh after judicial review. His lawyers said they will seek presidential clemency in the hope of getting his life sentence annulled.

    Meanwhile Pakistan’s Supreme Court upheld the authority of military courts to try civilians and hand out death sentences, including to children. Jurisdiction over civilians was conferred to these courts in January, shortly after the lifting of the death penalty moratorium in response to the terrorist attack on a school in Peshawar. A number of constitutional challenges were filed, however the Court dismissed all petitions by an 11-6 majority. The decision confirms the courts’ ability to try and hand out death sentences to civilians, however, military court decisions must be subject to judicial review. Also this month, Pakistan executed Shafqat Hussein, who was sentenced to death at 14 on the basis of a confession extracted under torture. Since December Pakistan has carried out over 200 executions, including four child offenders.

    It took 10 years in prison for one juvenile offender sentenced to life in prison in India to produce evidence that he was aged only 15 at the time of the offence in 1976, but he will finally be released. The man invoked juvenility before the courts a number of times but failed to produce a school certificate to attest to his age. At the beginning of this month, based on newly produced documents as well as a 2013 decision of the Juvenile Justice Board declaring him a juvenile, the Supreme Court set aside his sentence and ordered his release.

    To find out more about why the death penalty and life imprisonment violate children’s rights, see CRIN’s ‘Inhuman sentencing’ campaign.

    A draft law reforming juvenile detention in Cambodia must be accorded priority by the government, children's rights advocates have said. The draft, which allows juvenile offenders to be released under parental supervision as an alternative to sending them to the country’s already overcrowded prisons, could affect around 500 children. Other provisions concern community-based punishments for under-14s and mandatory legal representation for any child in contact with the police.

    In Myanmar the authorities have released two 17-year-old Chinese nationals who had been sentenced to 10 years in prison for illegal logging. They were among 153 other Chinese loggers who were sentenced to life imprisonment after being arrested in January during a military operation to crack down on illegal logging. Burmese officials announced that the 155 prisoners had been freed in an amnesty after their arrest prompted a diplomatic protest by an "extremely concerned" China.

    Immigration and citizenship

    In the United States, a federal judge has ordered the release of tens of thousands of immigrant mothers and children who were caught crossing the border illegally, saying that the government's policy of detaining them violates a longstanding court settlement. The ruling came in relation to a lawsuit filed in February by the Center for Human Rights and Constitutional Law in Los Angeles, which sued the government over two detention centres in Texas that are secure facilities run by private prison contractors. The lawsuit sought to enforce the 18-year-old settlement in the class action of Flores, which requires unaccompanied migrant children detained at the border to be released to a parent or close relative, or alternatively be placed in nonsecure facilities run by agencies licensed for child care. Judge Dolly M Gee of Federal District Court for the Central District of California ruled that the settlement also applies to children detained with their parents, and so officials should release a mother with the child. In response to the ruling, the US Justice Department has asked the federal judge to reconsider her decision, arguing that the detention facilities are necessary to deter illegal migration to the United States.

    In Australia, a recent bill has been introduced into parliament broadening the circumstances in which dual nationals, including children, can lose their Australian citizenship. Under proposed changes to the Citizenship Act, dual nationals can automatically lose their Australian citizenship if they “engage in various kinds of conduct inconsistent with [their] allegiance to Australia”. For example, a person renounces their citizenship “by conduct” if they engage in terrorist activity, even if they are not convicted by a court, and citizenship can be automatically revoked if a person is convicted by an Australian court of terrorism offences or “certain other offences” such as destroying Commonwealth property. Children whose parents have renounced their citizenship by conduct can also have their Australian citizenship removed, unless there is another parent who is an Australian national and can take responsibility for the minor. According to the Law Council of Australia, the bill has no safeguards for children and could apply to children under 10 (the minimum age of criminal responsibility) "regardless of whether the children knows that his or her conduct is wrong and without an intention to sever allegiance with Australian values".

    Children with mental disabilities

    Last month a Parisian administrative court ordered the French government to pay over 240,000 euros in damages to seven families with autistic children. Due to a shortage of spaces for children with autism in educational institutions in France, some of the parents had no choice but to give up employment to care for the children, and others relocated to Belgium where it was possible to enrol the children in specialised institutions. The court held that the State had failed to provide sufficient support to the families, ordering it to reimburse some of the private care costs incurred and pay moral damages to the two families who were “forced into exile” in Belgium. According to the NGO Overcoming Autism, which helped bring the cases to court, the decision has the potential to affect not just families with autistic children, but also persons with disabilities or the elderly who have been exiled abroad.

    In the United States, a federal lawsuit has been filed by the American Civil Liberties Union against a police officer who handcuffed two children with mental disabilities, aged 8 and 9, for misbehaving at school. The suit alleges that the officer’s actions violated the children’s rights under the Constitution and the Americans With Disabilities Act. According to government statistics, 75 percent of students who are physically restrained are children with disabilities, despite accounting for just 12 percent of students in public schools. Last year, a US court confirmed the convictions of two police officers for handcuffing an 11-year-old student who had failed to take his medication for attention deficit hyperactivity disorder, ruling that the actions of the policemen were “unnecessary and excessively intrusive”.

    Business and human rights

    Zambian villages are suing UK-based company Vedanta Resources and its subsidiary Konkola Copper Mines over allegations of water source poisoning from mining operations. Law firm Leigh Day initiated proceedings last month in the High Court in London on behalf of 1800 people from four communities who live next to the copper mines operated by the companies in the Copperbelt region of Zambia. The villagers claim that their water sources and farming land were poisoned by toxic leaks from the mining operations and that the polluted water is causing illnesses and permanent injuries. They are seeking compensation for loss and damage to their land and health due to the pollution.

    In July a US federal court allowed a human rights lawsuit brought by Indonesian villagers against American oil company Exxon Mobil to proceed. The case alleges that Exxon’s security forces, who were Indonesian soldiers hired by the company as guards for its natural gas facility, murdered, tortured and abused the plaintiffs’ family members in villages in Aceh, Indonesia. The claims were brought under the US Alien Tort Statute, which allows non-US citizens who are victims of egregious human rights abuses committed abroad to sue the perpetrators in the United States. The District Court for the District of Columbia ruled that the plaintiffs’ claims sufficiently "touch and concern" the United States and may proceed in the US courts. Notably, the Court found that the plaintiffs made “numerous and detailed allegations” that Exxon executives in the United States had made decisions regarding the deployment of military security personnel in Indonesia and had been aware of past human rights abuses committed by security personnel.

    This month UNICEF released two publications related to the UN Committee on the Rights of the Child’s General Comment no. 16 on State obligations regarding the impact of the business sector on children’s rights. ‘Children’s Rights and Business Explained’, produced with Save the Children, is a plain-language version of General Comment no. 16. ‘Obligations and Actions on Children’s Rights and Business’, produced with the International Commission of Jurists, is a practical guide for States on how to implement General Comment no. 16.  

    Children’s reproductive rights

    In July India’s Supreme Court ruled that a 14-year-old girl may be allowed to have an abortion outside the legal limit of 20 weeks of gestation, provided that the termination is deemed necessary to preserve her life. Immediately after, a medical panel of four gynecologists recommended that the abortion be carried out because the pregnancy did pose an immediate threat to her life. The young girl, who was allegedly raped by a doctor treating her for typhoid, was initially denied an abortion by the High Court of Gujarat as she was 23 weeks pregnant when she discovered the pregnancy. Another case of a 14-year-old girl who was raped by her father and is over 20 weeks pregnant has since surfaced. Advocates have urged the adoption of proposed amendments to permit abortion for those who are at least up to 24 weeks pregnant. Melissa Upreti, regional director for Asia at the Center for Reproductive Rights, said: “No young girl should ever be forced to continue with an unwanted pregnancy resulting from rape”.

    In the United Kingdom, a woman from Northern Ireland and her daughter who had an abortion at 15 have lost their case concerning the funding of abortions in the Court of Appeal. Northern Ireland’s harsh abortion laws force some 2,000 women to travel to other parts of the United Kingdom for the procedure each year. However, they may only do so in private clinics bearing the financial cost themselves as Northern Irish residents are not eligible for free abortions as part of the National Health Service coverage. The claimants argued that this policy is unlawful and violates the right to non-discrimination under Article 14 of the European Convention on Human Rights. The High Court rejected the case in 2014 and last month the Court of Appeal refused leave to appeal, leaving the European Court of Human Rights as the last possibility for a challenge.

    Right to health

    Germany’s highest court has ruled against a mother and her partner who failed to provide urgent cystic fibrosis treatment to her 13-year-old son and opted to rely on meditation instead. The Federal Court of Justice upheld the ruling by a lower court, confirming the couple’s three-year prison sentence for abusing the son by not taking him to see a doctor or giving him medication. The lawsuit was filed by the son, now aged 28, before the case was barred by the statute of limitations.

    In the United States, the Maine Supreme Judicial Court has ruled that the state can vaccinate a child in its custody over the objections of a parent who does "not believe in viruses". The one-year-old had been taken into temporary state custody due to concerns that the mother's continued relationship with the father put the child's safety at risk. The Court ruled that the state's Department of Health and Human Services has the right to make medical decisions, including those related to vaccinations, when it is in custody of the child.

    A court in northern Italy has ruled that a school was wrong to expel a 10-month-old boy with a vegan diet. The nursery had denied requests by the boy’s mother to put him on a vegan diet and expelled him when she refused to provide a medical certificate proving the health of her son. The court in Alto Adige ruled in favour of the mother and ordered that the child be reinstated in the nursery, finding that the nursery's request was not in line with current norms and that the child's expulsion was excessive and discriminatory. In April, another court in Italy ordered a vegan mother to cook meat once a week for her child.

    New legislation

    Argentina’s newly adopted Civil and Commercial Code brings substantial reform in a number of areas of law concerning children, replacing its 144-year-old predecessor. The Code was adopted last October and entered into force at the beginning of the month. Among other matters, the changes in the area of adoption including provisions for the best interests of the child and the right of the child to know their origins have been received positively.

    Last month Spain passed the Voluntary Jurisdictions Act, raising the minimum ages for marriage and sexual activity to 16. Previously children could marry at the age of 14 with the permission of a judge and the age of sexual consent was 13 - both the lowest in the European Union. Under the amendments introduced by the Act, children aged 16 and 17 can marry only with the permission of a parent or a judge. The rate of marriages of children under 16 has been on the decline, with 365 marriages recorded between 2000 and 2014 as opposed to 2,678 such marriages taking place in the 1990s and 12,867 in the 1980s. According to the Spanish organisation Childhood Platform, the new law will increase protection for children from abuse and forced marriages while making Spain’s laws more consistent with the CRC.

    Courts in the United Kingdom have begun employing their new legal power to issue female genital mutilation protection orders (FGMPO). Modelled after the forced marriage protection orders introduced in 2007, FGMPOs powers were enacted earlier this year. The order may be applied for by the child themselves or by a third party, and its breach could constitute a criminal offence subject to a sentence of imprisonment. The first order was obtained last month by police in Bedfordshire, allowing them to seize the passports of two young girls who it was thought could be taken abroad to be mutilated. Also in July a court in London granted the order in a case concerning three girls, aged six, nine and 12, after the children’s mother submitted evidence to the court that the girls may be in danger of undergoing the procedure if allowed to visit their father in Nigeria, despite FGM being outlawed there. The father will now be allowed to challenge the order in September.

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    Case study

    Centre for Human Rights, University of Pretoria and La Rencontre Africaine pour la Defense des Droits de L'Homme v. Senegal: First steps taken to eradicate forced child begging in Quranic schools

    A committee of African human rights experts agreed that Senegal must work to stop children in Quranic schools being forced to beg for food and money after two postgraduate students compiled a complaint on behalf of the exploited children.

    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 think at a minimum there are tens of thousands of kids being subjected to restraints every year. Many thousands are put in cuffs like this, and the overwhelming majority are kids with disabilities — our experts estimate about 75 percent… And the sad answer to what’s being done about it is, not much of anything.” Matthew Coles, deputy legal director of ACLU, which filed a lawsuit this month against a police officer who handcuffed two children with mental disabilities.

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