CRINmail 53:
Children in Court

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Introduction

In this month’s Children in Court CRINmail we bring you the latest legal news concerning children’s rights, from lawsuits against the Catholic Church and chocolate and pharmaceutical manufacturers, to children’s right to health and discrimination in education. At the end of this issue we feature a strategic litigation case study on Baby ‘A’ and the rights of intersex children in Kenya.

Latest news and cases

South African court bolsters child participation in PIL

In South Africa, the Supreme Court of Appeal has upheld children’s right to participate in public interest litigation to ensure their views are heard in court. The case originated as a complaint by Hoerskool Fochville, an Afrikaans single-medium school, which opposed the placement by the Department of Basic Education of 37 English-speaking children in the school. The Centre for Child Law and Legal Resources Centre intervened to represent the interests of the children, and requested that the children fill in questionnaires about their experiences at the school. The school demanded access to the questionnaires, which CCL refused as the responses were to be kept anonymous. Reversing a lower court’s decision, the Supreme Court of Appeal recognised the children’s right to be heard and decided that the questionnaires should not be disclosed because it was not in the children’s best interests. Read CRIN’s case summary.

Child sexual abuse

For the first time in Colombia, the Catholic Church has been held financially liable for child abuse in a Supreme Court ruling awarding 800 million Pesos (almost 250 000 Euros) in compensation to the families of two children abused by a priest. The church had appealed a lower court’s ruling, arguing that the abuse was a violation of the pastoral mission of the priest, Luis Enrique Duque, who is currently serving a criminal sentence. However, the Supreme Court upheld the decision stating that the church is liable because Duque took advantage of his religious role to commit his crimes.

A Spanish court has ruled that the Archdiocese of Granada can be held civilly liable for the alleged sexual abuse of a 14-year-old altar boy by several priests from 2004 to 2007. Judge Antonio Moreno justified his decision on the grounds that the accused Catholic priests "responded directly" to the Archdiocese and because the abuse allegedly took place at parish headquarters. The case drew intervention from Pope Francis, who had told the bishop to start an investigation after receiving a letter by the alleged victim. Criminal charges had been brought against 10 priests and two laymen but are only being pursued against one of the priests for repeated abuse, as the statute of limitations had expired for the lower-level charges brought against the others.

In France, a man is suing the Vatican, claiming the abuse he suffered as a child by a priest led him to become a paedophile. In July the 82-year-old priest, who confessed to the crime but could not be held criminally liable due to the lapse of time, was ordered by a court to pay symbolic compensation in the amount of one Euro to the victim. The man, who is now aged 64 and has been convicted of two instances of child abuse, claims that when allegations of abuse first surfaced in the 1970s the priest was moved to Switzerland to conceal the crimes. He is seeking 50,000 Euros in damages from the Holy See as compensation for the mental trauma he suffered and for the effects the abuse had on his own behaviour.

In the United States, a case against the Archdiocese of Philadelphia will not be allowed to proceed after the Superior Court confirmed a previous ruling holding that the two victims’ claims of child sexual abuse are time-barred. The first victim claims that, although the abuse took place between 1968 and 1970, his repressed memories only started to surface in 2007. The second victim, who alleges abuse between 1994 and 1997, was later diagnosed with PTSD stemming from the events. The court ruled that the two-year statutory time limit for filing suits could not be relaxed even in cases of repressed memories.

For more information, including a report that maps the global scale of child sexual abuse in the Catholic Church, see CRIN’s campaign to ‘end sexual violence in religious institutions’.

China’s legislature has repealed the Sex Crimes Against Girls Law, which had been criticised by activists for diluting the crime of rape. Previously the maximum sentence which could be imposed under the law was 15 years and defendants could argue ignorance of the child’s age. Following the repeal, however, sex with a child under the age of 14 will be treated as rape, which is a capital offence in China. The National People’s Congress has also passed amendments to the Criminal Code that expand criminal liability for child trafficking to include persons who buy an abducted child but do not maltreat or obstruct the rescue of the child.

Uganda court rules on bride price

Uganda’s Supreme Court has outlawed the requirement for women to refund their ‘bride price’ when divorcing. The case was brought by Mifumi, a women’s rights NGO, on behalf of 12 petitioners, including one woman who was married as a child. The Court held that the custom of demanding a refund of the bride price as a condition for the dissolution of a customary marriage violates Article 31(1)(b) of the Constitution, which guarantees equal rights for men and women in relation to marriage. However, the Court fell short of banning the practice of bride price itself, which is said to fuel child marriage in sub-Saharan Africa as girls are valued at a higher price if they are not yet sexually active. Experts say there may be difficulties in implementing this decision at the local level where elders enforce customary laws. Nevertheless, the decision has been welcomed. “No country has ever ruled in sub-Saharan Africa against culture,” said Felicity Atuki Turner, executive director of Mifumi. “The practice is now far more likely to die out.”

Juvenile justice and inhuman sentencing

Poland’s laws regarding pre-trial detention of juvenile offenders have been found to breach the European Convention on Human Rights (ECHR) by the Strasbourg Court. Due to the imprecise language of the Juveniles Act, the regular practice was to automatically extend the duration of detention without judicial review. The Court found that this constitutes a breach of Article 5 of the ECHR, which guarantees everyone the opportunity to challenge the lawfulness of their detention. The ruling is expected to affect around 300 children. Read CRIN’s case summary.

In the United States, juries rather than judges will decide whether children can be sentenced to life imprisonment without parole (LWOP) in Michigan, according to a recent state appeals court decision. The 2-1 decision is based on the Sixth Amendment of the US Constitution, which requires that any fact which increases the sentence of the defendant beyond that which a judge may impose based solely on the facts established by the jury must be proven beyond reasonable doubt. In Michigan, the default sentence for juveniles convicted of first-degree murder is a term-of-years imprisonment and that may only be increased to a life sentence based on facts which indicate “irreparable corruption”. Since the jury is the finder of fact, the court ruled that the prosecution needs to persuade the jury beyond reasonable doubt to allow a LWOP sentence. The judgment is reported to be likely to be appealed to the state Supreme Court.

New Mexico’s Supreme Court has declined to hear a challenge to the constitutionality of trying and sentencing juvenile offenders as adults in murder cases. Children under 15 who are charged with first-degree murder are entitled to a hearing to determine whether they should be sentenced as children or as adults, but children over that age are considered “serious juvenile offenders” and always sentenced as adults, regardless of their personal characteristics or circumstances. Defence lawyers argued that drawing a bright line at 15 is a violation of due process rights, however the reasons for which the Court did not accept the appeal are unknown.

The California Supreme Court has refused to hear an appeal against a judgment that found that a 10-year-old is competent to waive their legal right to remain silent. US police must advise every person in custody of their rights to remain silent and to request legal assistance, commonly known as ‘Miranda rights’. Justice Goodwin H. Liu, in a dissenting opinion, noted that while courts frequently allow 15-year-olds to waive their Miranda rights and have once allowed a 12-year-old to do so, this is the first time a child as young as 10 has been deemed capable of waiving their rights. According to the judge, the court should have clarified whether there is a minimum age below which children would not be deemed to have such capacity, however this could also be addressed by the legislature.

Finally, Zimbabwe’s Constitutional Court has indefinitely deferred its judgment regarding the legality of the judicial use of corporal punishment on children. The NGO Zimbabwe Lawyers for Human Rights is preparing an intervention in the case, asking the Constitutional Court to confirm a January 2014 decision holding that caning of juvenile offenders is unconstitutional. The sentences will continue to be administered until the Court delivers its judgment.

Business and children’s rights

In the United States, consumers have filed three class action lawsuits against the chocolate manufacturing giants Nestlé, Hershey and Mars over the companies' alleged use of child labour in their production line. According to the complaints, the companies regularly import cocoa beans from plantations in the Ivory Coast, which force children trafficked from neighbouring countries to work in hazardous conditions, under physical violence and without pay. The lawsuits state that the companies do not disclose that their suppliers rely on child labour, in violation of California state law. Legal firm Hagens Berman brought the cases on behalf of private consumers who say they would not have purchased the companies' chocolate products if they had known they were produced through child labour. Nestlé and Hershey also face other lawsuits in the United States over their alleged use of child labour, including one brought by former child slaves that has now reached the US Supreme Court and another by American investors seeking to force disclosure of company records about cocoa supply.

The Supreme Court of Spain issued a ruling last month denying compensation for victims of thalidomide on the grounds that the statute of limitations had expired. The medication for morning sickness was prescribed in Spain even after it was recalled from the market in 1961. The decision overturned a lower court ruling that had ordered manufacturer Grünenthal to pay damages proportional to the severity of the disability of each of the 186 victims, which would have totalled millions of Euros. With an 8-1 majority, the Supreme Court confirmed that the action was prescribed by time periods, however it did not rule out the possibility of a successful action in cases where the harm manifests itself or is aggravated at a later time. The plaintiffs are planning an appeal to the country’s highest court - the Constitutional Court - and to the European Court of Human Rights, if necessary. Only 23 people in Spain have received compensation in relation to the drug while 3,000 are estimated to have suffered deformities at birth.

Right to health

In India, three infants have petitioned the country’s Supreme Court to ban the use of firecrackers during Dussehra, Diwali and other festivals in an unprecedented case that seeks to protect their constitutional right to clean air. The petition, brought by the advocate fathers of two infants aged six and 14 months, claims that Delhi is the most polluted city in the world, and that children are worst affected by the air pollution as their lungs have not yet fully developed. The petition also seeks a ban on burning crop residue and open waste disposal, and the implementation of emission standards for vehicles.

In France, the Senate has extended the “right to be forgotten” for former cancer patients following a successful campaign by oncologists and doctors. The right to be forgotten removes the obligation to disclose one’s past history of cancer, protecting former patients from higher insurance premiums and difficulties in applying for loans and mortgages. Previously such right was granted only to children under the age of 15 and took effect five years after the end of their treatment. Under the newly enacted provisions, the right will be triggered not later than five years for all minors and 10 years for adults after finishing treatment.

Right to education

The Czech Republic’s Constitutional Court has rejected the discrimination claim of a Romani man placed in a school for children with mental disabilities, however the case may open the door for further litigation. Although it was decided that the facts of the case did not indicate discrimination had taken place, the Constitutional Court overruled a decision by the Supreme Court, which had found that segregation only exists, legally, if the proportion of Roma is over 50 per cent. Adam Weiss, Legal Director of the European Roma Rights Centre, said: “Discrimination against Roma in school takes many forms, often insidious, and cannot be summed up in a single percentage or any other number. Courts must look more carefully than they, sadly, usually do.”

Russia’s Supreme Court has upheld a law prohibiting children who do not have a residence permit form enrolling in schools. The challenge was brought by the human rights organisation Civil Assistance, which argued that the law violates the rights of children of foreign citizens who are legally residing in the country but do not have the necessary papers. "It is unacceptable that schools are forced to think about such things as the legal status of a foreign citizen”, said Anastasia Denisova from Civil Assistance. “This should be dealt with by migration services, and teachers should teach children." According to estimates of the Central Migration Service of Russia, currently 25 per cent of migrant children in Russia do not attend school.

A school in Greece has been ordered by the European Court of Human Rights to pay compensation to children who were banned from attending class after being wrongly diagnosed with leprosy. The ruling accepts that the children’s exclusion from school was based on the legitimate aim of preventing any risk of contamination. However, the unwarranted delay in setting up a panel to decide on the children’s return to school - which resulted in their lack of schooling for more than three months - amounted to a violation of their right to education under Article 2 of Protocol 1 to the ECHR.

Parental care and child protection

The Supreme Court of Israel has defined a new concept called ‘strong foster care’, which appears to be a halfway point between adoption and regular foster care. Unlike the latter, strong foster care is intended to be long term, but, unlike the former, it does not extinguish the relationship between the child and their biological parents. The case concerned two twins, now aged five, who were placed with a foster family soon after their birth. Their father, the only surviving parent, opposed the foster parents’ application to adopt the children. The Supreme Court’s final ruling in the matter means that the biological father will retain guardianship and the foster parents will have broad authority to make day-to-day decisions concerning the children’s upbringing but must consult with the father on certain issues, including surgery.

In the United States, the Connecticut Supreme Court ruled last month that children are entitled to loss of consortium damages in cases of death or injury of a parent. Previously only spouses were able to claim compensation for loss of consortium - that is, loss of love or affection by a loved one - however the majority decision found compelling reasons to allow the claim, given the “unique emotional attachment between parents and children, [...] the critically important services that parents provide [...] and the public policies in favour of compensating innocent parties and deterring wrongdoing”. There are as many as 20 states in the US in which children can claim for loss of consortium.

The New Jersey Supreme Court has ruled that immigrant children who fled abuse in their home countries only need to show that one parent had mistreated them in order for authorities to consider granting them legal residency, a decision that will help at least 500 children in New Jersey facing deportation. ‘Special immigrant juvenile’ status is reserved for children who have been subjected to abuse, abandonment and neglect and cannot be reunited with a parent, however unduly restrictive court practice had excluded many children who applied for it. The ruling was made in relation to children in two cases who had their applications rejected - a 15-year-old boy from India who had been forced to work in a construction job for 75 hours per week, and two sisters from El Salvador who were physically abused by their grandmother.

Last month Utah’s Supreme Court issued a ruling that limits the circumstances in which grandparents could obtain a visitation order against the parents’ will. The Court decided that such orders can be issued to grandparents only in the exceptional case where failure to do so would cause substantial harm to the child. “The cross-generational connection of a child to her grandparents is of unquestioned value and significance,” the Court said, but “the mere (but unquestioned) significance of the grandparental relationship cannot be enough to override a parent’s fundamental right to raise a child as she sees fit.”

California has enacted a right of transgender children to be placed in foster homes that respect their gender identity. Local authorities already had a duty to consider certain factors and give reasons for their decision to place children in specific homes. However, an explicit obligation to place children according to their gender identity, rather than the sex recorded in official documents, was described by equality advocates which co-sponsored the bill as “common sense” given the fact that “[t]oo often, transgender kids are placed into home situations that are more hostile than the ones they left.”

Access to information and children online

Under recently enacted legislation in Tonga, a commission will be set up with powers to block websites “deemed not good for the community”. Communications minister Siaosi Sovaleni says the Communications Commission Bill 2015 aims to protect children from misusing the internet. He said the legislation responds to “concerns about the negative impact” of using the internet, citing child sexual exploitation as a problem. While mandatory filtering will be enforced, people will be able to apply for the mechanism to be disconnected, said Mr Sovaleni, stating that people’s freedoms will not be infringed upon in the process. But free speech advocates have warned that the scope of the law, which will create a ‘blacklist’ of websites, could potentially expand to block personal blogs, social media, and sites that contain political content or may be used by whistle-blowers. There are also concerns over the lack of transparency in drawing up criteria for defining content as inappropriate.

In Northern Ireland, a settlement has been agreed in a suit for negligence brought against social media giant Facebook. The father of a girl, who signed up to the website at the age of 11, alleged that the company failed to implement an effective system to prevent children from misrepresenting their age, thereby exposing his daughter to content “of a sexual nature”. The minimum age to set up an account on the website is 13, but if the company becomes aware that a user is underage, their account will be removed.

OP3 ratifications

The third Optional Protocol to the Convention on the Rights of the Child has been ratified by three more States - Chile on 1 September 2015, Mongolia on 28 September 2015, and Denmark on 7 October 2015 (with a territorial exclusion with regard to Greenland and the Faroe Islands). The Protocol will enter into force for each State three months after the ratification date.

Legal resources

The European Commission has published a policy brief on children’s involvement in criminal, civil and administrative judicial proceedings in the 28 Member States of the EU.

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Case study

Baby ‘A’ (suing through the mother, E.A.) and The CRADLE-the Children Foundation v. The Attorney General, Kenyatta National Hospital and the Registrar of Births and Deaths: Baby A and the question mark

A question mark on an intersex baby’s medical documents in Kenya nearly condemned a child to a life without medical care, schooling or a passport. Challenging the incorrect document, the child’s mother took the case to the Kenyan High Court.

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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