CRINmail 54:
Children in Court

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Introduction

On Universal Children's Day, we bring you the latest news on legal developments from around the globe on discrimination in the school system, children’s right to health and a healthy environment, LGBT rights and others. Our latest strategic litigation case study, featured at the end of this newsletter, concerns a collective complaint brought to the European Committee of Social Rights on the right to education of children with mental disabilities in Bulgaria.

Latest news and cases

Discrimination

Last month the Supreme Court of Slovakia ruled that denying individualised support to children with disabilities so that they can be educated at mainstream schools could amount to unlawful discrimination, citing the UN Convention on the Rights of the Child (CRC) and the UN Convention on the Rights of Persons with Disabilities. The case concerned a 10-year-old girl with an intellectual disability and a hearing impairment who was refused enrolment at the local primary school because the school said it could not cope with her disabilities. The ruling is of significance to more than 20,000 children with disabilities in Slovakia who end up placed in segregated schools. Earlier in October in a separate case, a regional court required local authorities to provide in-home care to a four-year-old child with disabilities, whose mother was told that help with washing and eating is available to adults only and the girl should instead be sent to a residential home. Find out more about the situation of children with mental disabilities in Slovakia.

In Ireland, the High Court has approved a €60,000 settlement between the police and a Roma family over the illegal removal of their two-year-old son in 2013. The child was taken by the police after a signal by members of the public that the boy may not be the family’s biological son based on his appearance. This occurred shortly after the highly-publicised case of a blonde girl who was removed by authorities from a Roma settlement in Greece and later found to be the biological child of a Roma couple in Bulgaria. At least one more child was removed from her Roma parents in Ireland, however in both cases in the country the parentage of the children was quickly established. A report by the Irish Children’s Ombudsman concluded that signals by the public should have been evaluated more critically by the police before they proceeded with the removal of the children.

Right to health

The Constitutional Court of Belgium rejected a challenge to the right to die for terminally ill children at the end of last month. Lawmakers amended the country’s euthanasia law last year to lift age restrictions on the right to die for people who are incurably sick and suffering extreme pain. The three pro-life organisations who brought the challenge claimed that legalising euthanasia for children violated their rights, including their right to life. But the Constitutional Court rejected their arguments, confirming that there are enough safeguards to ensure respect for a child’s rights when the procedure is requested. The Court stated that lifting age restrictions on euthanasia was based on “the right of everyone to choose to end their life to avoid…[an] undignified and distressing life, which derives from the right to respect for private life”. Read CRIN’s summary of the case.

Turkey’s Constitutional Court has found mandatory vaccinations of children to be unconstitutional, ruling that parental consent is necessary. The ruling is based on Article 17 of the Constitution, which states that the bodily integrity of the individual shall not be violated or subjected to scientific or medical experiments without their consent. A previous decision by the Supreme Court of Appeals had allowed mandatory vaccinations in the best interests of the child and for the protection of public health. The Turkish Health Minister has since criticised the Constitutional Court’s ruling.

In the United States, lawyers acting on behalf of a child who suffered brain damage at birth at an army hospital have appealed to the US Supreme Court, challenging a rule that bars active-duty troops from suing the government. The child’s mother, an air force captain, was administered incorrect medication during childbirth, causing the baby to be born with brain damage, cerebral palsy and other injuries. Legal action would be allowed if the mother were not serving in the military.

In New Jersey, a bill that allows edible medical marijuana to be administered on school grounds to sick or disabled students has been signed into law. The proposal was introduced after a 16-year-old girl suffering from epilepsy and autism took the school district to court to overturn the ban on marijuana in schools. The bill obliges schools to develop a policy authorising parents, guardians and primary caregivers to administer non-smokeable medical marijuana to students on school grounds, on a school bus or attending a school-sponsored event, provided the student qualifies under the Compassionate Use Medical Marijuana Act.

Access to information

In the United States, booksellers and publishers are challenging new legislation in Louisiana that aims to restrict the sale of inappropriate material to children, claiming that it violates their First Amendment rights. The law in question requires websites publishing material deemed harmful to minors to verify that their users are aged 18 or over. The federal lawsuit, brought by Media Coalition and the American Civil Liberties Union on behalf of the plaintiffs, claims that booksellers would be forced to verify the age of all their customers, which would prevent children from buying child-appropriate books online. The complaint also highlights the new law’s failure to distinguish between older and younger children, saying that “there is a broad range of material that has serious literary, artistic, political or scientific value for some 17-year-olds that might be considered harmful to a 10 or 12-year-old”.

In the United Kingdom, a group consisting of parents and their children, backed by the British Humanist Association, are challenging a decision by the government to exclude non-religious worldviews, such as humanism, from religious studies classes for 14 to 16 year olds. After a recent revision, the GCSE curriculum now includes seven faiths and requires pupils to study two of them in-depth, but it does not allow for the in-depth study of a non-religious world view. The group’s lawyers will argue that, in accordance with the European Convention on Human Rights and corresponding case law, the State is obliged to treat different belief systems equally. A ruling is expected in a few months.

Read more about children’s access to information via CRIN’s campaign to ‘protect children, end censorship’.

Group violations

A group of 113 children who filed a lawsuit in Cancun, Mexico for the protection of their constitutional right to a healthy environment have been granted their request to permanently suspend a development project that would have seen the razing of dozens of hectares of mangrove forest. In order for the ruling to take effect, however, the fourth district judge in Cancun has ordered the children to pay the developers compensation to offset their losses in the amount of 21 million pesos (US$1.2 million). The group’s lawyers have appealed the judge’s decision regarding the damages, on the basis that it violates the children’s best interests under article 3 of the CRC as well as several provisions of the American Convention on Human Rights. The lawsuit is the first filed in Mexico advocating for the collective rights of children over corporate interests in order to protect the environment.

In Canada, the Supreme Court of British Columbia has ruled that municipal bylaws used to move homeless people from public spaces in Vancouver violate the right to life, liberty and security. The city has a nationally recognised homelessness crisis, with research pointing to there being more young people on the streets than in previous decades. The Court found in favour of a group of homeless people who challenged the laws and ruled out the city’s request for a permanent ban on homeless camping. Campaigners have said that the victory represents a first step towards a recognised right to housing and is a huge win for the city’s homeless population. Generally, the issue also affects children who live or work on the street and whose survival behaviours include vagrancy, as they are disproportionately affected by freedom of movement restrictions in public spaces.

This month a French court ordered the government to implement emergency measures to improve sanitation at the migrant camp at Calais, where about 6,000 people are living in squalid conditions. The lawsuit was brought by the charities Medecins du Monde and Secours Catholique at the Lille administrative court with a small group of migrants from Iraq, Sudan, Afghanistan and Syria to demand improvements and end “serious human rights violations” at the camp. Among the emergency measures, the department of Pas-de-Calais and the town of Calais must install water stations and toilets and introduce a garbage collection system within eight days of the verdict, and identify all unaccompanied minors so that they can be transferred to child welfare within two days. The verdict follows a recent announcement by authorities to provide heated tents to women and children at the camp.

A new “people’s tribunal” has opened in the Hague, Netherlands to investigate the mass murder of alleged communists by Indonesian authorities in the 1960s. Human rights lawyers acting as prosecutors have charged the State of Indonesia with crimes including murder, torture and sexual violence from 1965 to 1966, which left an estimated half a million people dead. The tribunal, which has been dismissed by Indonesian officials, has no formal legal powers, but aims to shed light on the atrocities and promote reconciliation by exposing the truth about the killings. Non-legally binding verdicts are expected next year.

LGBT rights

Colombia's Constitutional Court has ruled that same-sex couples can adopt children, affirming that parents’ sexual orientation in no way affects a child’s upbringing. Previously such adoptions were allowed only if one of the partners in the couple was the child’s biological parent. The Court considered scientific studies demonstrating that adoption by same-sex couples does not alter the child’s development, and concluded that excluding same-sex couples from adopting children limits children’s right to a family, which is contrary to the best interests of the child. It stated that a person's sexual orientation or gender are not indicators of a lack of moral, physical or mental suitability to adopt. Therefore denying same-sex couples the right to adopt affects their interests in an unjustified, unreasonable and disproportionate way.

Slovenia’s Constitutional Court has given the go-ahead for a referendum which could overturn a law giving same-sex couples the right to marry and adopt children. The conservative group “Za otroke gre” (For the Children) appealed to the Constitutional Court over changes to the Family Code, which confer marriage and adoption rights to same-sex couples on equal terms with opposite-sex couples. In a similar referendum in 2012, almost 55 percent of voters were against giving more rights to same-sex couples. Although Slovenia no longer allows referenda on human rights issues, the new referendum will take place on 20 December.

In Australia, the upper house of the parliament of Victoria has passed a bill giving same-sex couples the right to jointly adopt children. However, this right is subject to a religious exemption allowing faith-based adoption agencies to refuse same-sex adoptions. The Australian Christian Lobby, which pushed for the exemption, called it a ‘‘great win for diversity’’. A speaker for the Gay and Lesbian Lobby said “[i]t's a great shame certain faith-based organisations will be able to turn away lesbian, gay, trans and intersex couples based purely [on] who they are." Currently only heterosexual couples who have been together for at least two years can adopt, and same-sex couples are only allowed to foster children. The bill needs the lower house’s approval before it becomes law.

A draft law in Russia seeks to criminalise public displays of homosexual behaviour on the ground that it is ‘‘socially infectious, especially for children’’. The bill foresees penalties of a fine or arrest for up to 15 days if the offence takes place “on territories and in institutions, providing educational, cultural or youth services”. The authors of the bill have been criticised for using false homophobic rhetoric, comparing homosexuality to paedophilia and calling LGBT people ‘‘cattle’’ and ‘‘mentally abnormal’’. Human Rights Watch responded by pointing out that public officials “should at a bare minimum respect the rights enshrined in the constitution and international law, and not engage in rhetoric that borders on hate speech.” Meanwhile, a court in the Primorsky region of the Russian Far East has reportedly rejected an adoption application by an opposite-sex couple from Germany on the ground that, should they both die, the child could be adopted by a same-sex couple as German law does not discriminate on the basis of the prospective adoptive parent’s sexual orientation.

In the United States, a teenage girl from California has brought legal action challenging censorship at her school after she was sent home for wearing a t-shirt that said ‘Nobody knows I am a lesbian’. According to the lawsuit, the school said that the slogan was “promoting sex”, “an open invitation to sex”, “disruptive” or potentially “gang-related”. The American Civil Liberties Union, which is representing the student, argued that ‘‘public schools can’t censor political beliefs of students, and free speech is not subject to whims and biases of school administrations.’’ There has been one more instance of a student being suspended for wearing the same t-shirt in South Carolina, though no legal action was initiated in that case.

Juvenile justice

In the United States, a New Jersey appellate court has ruled that a man serving a sentence of 55 years before parole for two gang rapes he participated in as a child cannot benefit from a US Supreme Court ruling that prohibits life sentences for juveniles for any crime but murder. In the court’s reasoning, Appellate Division Judge George Leone said that the ruling in Graham v. Florida should apply retroactively, but would not apply to this case since the prisoner’s sentence “is not the functional equivalent of life without parole, because it gives him a meaningful and realistic opportunity for parole well within the predicted life span for a person of [his] age." The prisoner, now aged 51, will be eligible for parole in 2036, when he will be 72, which the judge said is within the prisoner’s life expectancy of at least 80.

In Australia, a 17-year-old boy charged with planning acts of terrorism has lost his appeal against a decision that he be tried as an adult instead of in a Children’s Court. The boy, who was arrested after the police had found improvised explosive devices, is the first teenager to be charged with terrorism-related offences in Victoria. In June a Children’s Court judge decided that his case would be more appropriately dealt with by the Supreme Court, which can impose a sentence of life imprisonment for this type of offence, in contrast with the maximum penalty available to a Children's Court of three years’ imprisonment.

For more information, see CRIN’s campaign to end inhuman sentencing of children.

In Canada, a class action has been brought over the use of solitary confinement of children in youth justice facilities across Ontario. The lawsuit, which was filed with the Ontario Superior Court, alleges that the Crown breached its fiduciary duty to ensure the welfare of children by allowing the practice to occur in 20 facilities for young offenders. According to the Ontario Child and Family Services Act, children under the age of 16 cannot be held in solitary confinement for more than eight hours a day or 24 hours a week. Children aged 16 and over cannot be held for more than 72 hours without prior approval by a provincial director.

Immigration in the United Kingdom

The Court of Appeal has ruled against the Home Office in a recent decision, finding that a child refugee from Iran had been detained unlawfully. The boy in the case was 16 years old, but an assessment by local authorities stated that he was 18. The Home Office accepted the local authority’s age determination without requesting any reasons to support that conclusion, contrary to its own policies. As a result, the boy was treated as an adult and detained with a view to be deported to Italy under the Dublin II Regulations. These Regulations require that children’s asylum applications be accepted in any European Union (EU) country, whereas adult asylum seekers can be deported to the first EU country they reach. The Court of Appeal ruled that child asylum seekers may not be detained for the sole purpose of questioning them about their asylum claim, and that the Home Office must obtain the reasons for a local authority’s age determination and make reasonable enquiries in order to reach an informed decision on a child’s age.

Under newly adopted legislation in Scotland, unaccompanied migrant children now have a right to an independent 'guardian' to advise and assist them. The provision, which is part of the Human Trafficking and Exploitation (Scotland) Act, covers children who have been or are vulnerable to becoming victims of child trafficking as well as any child in relation to whom no person in the UK holds parental rights. The legal framework regarding the operation of the guardians will have to be put into place by the Scottish Ministers before this part of the Act becomes operational.

Marriageable age and sexual consent

A new law raising the minimum age for marriage has been passed by the Guatemalan Congress. Previously the minimum age was set at 14 for girls and 16 for boys. Under the newly enacted provisions, the minimum age is 18 for both sexes but an exception allows girls aged 16 or over to marry provided they obtain judicial consent.

A new law in Indonesia’s Aceh region that imposes caning for consensual sex may have consequences for children’s rights in the country, according to Amnesty International. The legislation introduces punishments of 30 to 100 lashes for consensual sex outside of marriage, adultery and homosexual acts, but also introduces a new offence of “adultery with a child”. Advocates warn that if this law is applied in cases where children are sexually abused by adults, it could potentially see sex offences treated as sex outside of marriage or "adultery". The new measures, which only apply to the country’s most religiously conservative region, have been opposed by civil rights groups.

Corporal punishment

Ireland has become the forty-seventh State worldwide to ban corporal punishment of children in all settings. This was achieved after the Irish parliament abolished the “reasonable chastisement” defence for corporal punishment, which allowed parents, guardians or childminders charged with assault or cruelty against a child to claim in their defence that they used “reasonable chastisement” to discipline the child. The new law will enter into force once it is signed by the President. Several UN bodies had criticised Ireland for its position on corporal punishment, and in 2015 the State was found to be in violation of the European Social Charter for not explicitly banning corporal punishment of children in all settings. For more information on this and the legality of corporal punishment of children in other countries, read our special edition Children in Court CRINmail.

The High Court in Northern Ireland has dismissed a case concerning historical abuse at a children’s home run by nuns. The plaintiff alleged that as an 8-year-old in 1958 he was subjected to severe forms of physical chastisement. The Court dismissed the case on the ground of excessive delay in bringing the proceedings, saying that the plaintiff had the knowledge to bring the suit when he turned 21 years of age. However, the judge indicated that, had the claim not been time-barred, compensation would likely have been awarded since there was sufficient evidence to suggest that the corporal punishment used in the home went beyond what was reasonable - even by the standards of 1958.

International legal norms

Finland ratified the Optional Protocol to the CRC on a communications procedure (OP3) on 12 November, accepting the competence of the UN Committee on the Rights of the Child to hear inter-State communications under Article 12 of the Protocol. This means that complaints against Finland can be made by individuals or by another State Party to the Protocol concerning violations occurring after 12 February 2016, when the Protocol enters into force in respect of Finland. Meanwhile news has been circulating that Peru has also ratified OP3, though it has yet to deposit its ratification instrument with the UN.

A new bill proposing that Russia’s Constitutional Court judgments be accorded precedence over judgments of international courts has been introduced into the Russian parliament. Backers say the proposal will enhance the legal sovereignty of Russia and counteract unfair decisions that may require substantial contribution from the state budget. The move appears to be motivated by cases such as that of the shareholders of the defunct oil company Yukos seeking compensation from the State at the European Court of Human Rights (ECtHR). If enacted the bill could mean that judgments of the ECtHR concerning children’s rights would not be implemented in Russia.

Legal resources

A new handbook on European law relating to the rights of the child was published today by the EU Fundamental Rights Agency in cooperation with the Council of Europe and the ECtHR. The handbook is the first comprehensive guide to case law concerning children’s rights of the ECtHR and the Court of Justice of the European Union (CJEU), and is designed for lawyers, judges, prosecutors, social workers, non-governmental organisations (NGOs) and other bodies confronted with legal issues relating to the rights of the child.

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Case study

Mental Disability Advocacy Centre v. Bulgaria: No more excuses on education for children with disabilities

After discovering that children with mental disabilities were being systematically denied education in Bulgaria, an international NGO submitted a complaint to the European Committee of Social Rights. The organisation alleged that the Bulgarian government was failing to provide education for up to 3,000 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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