CRINmail 56:
Children in Court
In this issue:
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Introduction
In this month’s Children in Court CRINmail we bring you the latest global developments regarding the minimum age of marriage, right to education, child slavery and exploitation, freedom of religion, access to justice and much more. We also have news of recent OP3 ratifications and a new report calling for the use of strategic litigation in combating modern slavery.
Latest news and cases
Zimbabwean court rules on minimum age of marriage
The Constitutional Court of Zimbabwe ruled that the minimum age of marriage is 18 in a decision published yesterday. Based on provisions in the 2013 Constitution guaranteeing the right to marry and special protections for the rights of the child, the Court concluded that children under the age of 18 have a right not to be subjected to any form of marriage whether civil, customary or religious, in line with international treaties. The judgment refers to a number of international treaties, including the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. The Court found that child marriage was outlawed at the time when the Constitution came into force. Nonetheless, it decided to limit the retrospective effect of the judgment and declared any contradicting laws invalid as of the date of the judgment. Zimbabwean NGO Veritas who supported the action welcomed the ruling, saying “[t]his is a great day for gender equality, women’s rights and children’s rights and the fight against poverty.” Read CRIN’s case summary.
South African court again faults government over textbooks
South Africa’s Supreme Court of Appeal has ruled against the government over its systemic failure to ensure the supply of textbooks to school pupils in the province of Limpopo. Holding that the constitutional right to education entitles every child to receive all necessary textbooks, the Court found that the government has failed to fulfil a court order from 2012 directing them to provide the books. It also ruled there has been discrimination because Limpopo, where the affected children are predominantly black, poor and living in rural areas, was the only province in the country which hadn’t received enough books. This is the fifth judgment on the matter since 2012. Read CRIN’s summary of the case.
Businesses’ liability for child slavery and exploitation
The US Supreme Court has declined to hear an appeal by food giant Nestlé against a previous ruling allowing a lawsuit over the use of slave labour by children in the company’s cocoa supply chain. The food companies Archer Daniels Midland and Cargill are also defendants in the case, which was brought by three people who were forced to work on Ivorian cocoa plantations as children. The plaintiffs claim they worked up to 14 hours per day, were given only scraps of food to eat, and were whipped and beaten. The complaint, filed under the Alien Torts Statute, alleges that the defendants were complicit in child slavery as they provided financial and technical assistance to local farmers in a bid to guarantee the cheapest source of cocoa. In their failed appeal, the defendant companies had invoked a 2013 Supreme Court decision stipulating that the Alien Torts Statute is presumed to only cover violations of international law occurring on US territory, unless the conduct abroad affects the US “with sufficient force”. Lawyers for the plaintiffs will now have the chance to amend the complaint and argue that the law can extend to conduct overseas.
Meanwhile in France, a lawsuit has been brought against electronics giant Samsung for its use of child labour by Sherpa - a French association for the defence of the rights of people victims of economic crimes. Their complaint relies on the findings of an undercover operation conducted in Samsung factories in China by local NGO China Labour Watch which revealed that children under the age of 16 (the minimum age of employment in the country) were working over 11 hours per day, along with other human rights violations. Sherpa had previously reported the matter to the public prosecutor of Bobigny but this investigation was closed a year ago without any legal action. Sherpa’s suit is for deceptive marketing practices and alleges that consumers are enticed to buy the company’s products by the ethical commitments to observe workers’ human rights published by Samsung, which the company fails to meet.
Freedom of religion, gender identity and right to be heard
Malaysia’s Court of Appeal has ruled that it has no jurisdiction over a dispute regarding the unilateral conversion to Islam of three children by one of their parents. The conversion certificates were obtained by the children’s father in their absence. A lower court had decided to invalidate the certificates because Syariah law requires a child to be present to utter the affirmation of faith (‘syahadah’). The Court of Appeal reversed that decision and determined that the case is an Islamic matter that can be disposed of only by a Syariah court. The children’s mother, who opposes the conversion, however has no standing to initiate proceedings in the Syariah court as she is a non-Muslim. The Court of Appeal also noted that the eldest child, who is now 18 years old, is able to choose her religion as an adult. A person’s official religious identity is of great significance in Malaysia’s dual legal system where Muslims and non-Muslims are subject to different sets of laws. The judgment prompted the Malaysian Bar Association to recommend the urgent introduction of new legislation that requires both parents’ consent for religious conversion of children. Notably, however, neither the courts nor the Bar have reviewed the implications of this decision for the children’s right to chose their religion under Article 14 of the CRC. Read CRIN’s call for adequate recognition of children’s right to freedom of religion or belief.
A law requiring children in need of gender dysphoria treatment to seek court approval was heavily criticised in a recent decision by a family court judge in Australia. The case concerned a 16-year-old transgender boy whose application for cross-sex hormone treatment was supported by his parents and doctors. In the judge’s opinion legal precedent shows that treatment for gender dysphoria should not require court authorisation, rather the only question is whether the child is competent to give consent or not - a judgement to be made by the doctors. She further noted that the financial and emotional burden placed on the child and their family by requiring them to make an application to the court does not serve the child’s interests. Australia is the only country in the world where children have to go to court for hormone treatment.
Under proposed changes to the Child Custody Law in Hong Kong, children are to benefit from a guarantee of their right to be heard during divorce proceedings. The Children’s Bill, which is now up for public consultation, also accords children the right to request independent legal representation, as well as to retain contact with both their parents during their divorce. It represents a shift from a focus on parental rights to the rights of their children and their best interests, inspired by the spirit and objectives of the CRC. The public consultation is expected to last for four months, the bill will be tabled at the Legislative Council.
Access to justice for child sexual abuse
In the United States, the Supreme Court of Ohio is considering the legality of a cap on damages recoverable by victims of child sexual abuse. The question arose in the case of a girl who was raped by a church pastor at the age of 15. Although a jury found the church negligent and awarded the girl $3.5 million in damages for her pain and suffering, a state law passed in 2005 limits the amount of non-economic damages to a maximum of $350,000. The Ohio Supreme Court has previously found the law constitutional as a legitimate protection of the interests of insurers and businesses to restrict losses resulting from civil lawsuits. In this case, however, the victim’s lawyers are asking the court to denounce the cap in cases of child abuse on the grounds that it is irrational and arbitrary to protect an abuser or those who facilitate the abuse.
Four people in Malawi have brought a constitutional challenge to the corroboration requirement in prosecutions of rape claiming it results in impunity. Young girls in Malawi are particularly susceptible to sexual violence due to traditional beliefs that sexual intercourse with a virgin can cure HIV/AIDS. Two of the plaintiffs were assaulted at the ages of 13 and 14 and in all four cases the accused was acquitted due to lack of additional evidence to corroborate the victim’s testimony. The principle that convictions require evidence beyond reasonable doubt already protects rape suspects, said former magistrate Bernadette Mulunga in her expert submission in support of the claim. Furthermore, because rape usually occurs in private, without any witnesses, and medical evidence is rarely collected, meeting the corroboration requirement is extremely problematic.
The African Committee of Experts on the Rights and Welfare of the Child has received a complaint against Cameroon, claiming that the authorities failed to properly investigate the alleged rape of a 10-year-old girl and bring the wealthy abuser to justice. The man accused of the crime was never detained and the magistrate refused to share a copy of the judgment with the girl’s lawyer. The magistrate went so far as to sue the girl and her counsel for defamation. The complaint alleges that the government of Cameroon has violated the girl’s rights under numerous international conventions through its negligence and believes that a positive outcome in her case could benefit children across Africa.
Children of same-sex parents
Five children of same-sex parents have initiated legal proceedings challenging Austria’s ban on same-sex marriage, which precludes their parents from getting married. Austria is the only country in the world where same-sex couples can legally adopt but cannot marry. The marriage ban was upheld in 2012 when the Constitutional Court distinguished opposite- and same-sex relationships based on the former’s ability to ‘parent’ children. In early 2015 the same court allowed same-sex adoption. The newly brought cases argue that since same-sex parents now have equal rights in law, it follows that the 2012 decision ought to be revised. The first of five cases was heard in November by the Administrative Court of Vienna.
A four year-old boy is taking Switzerland to the European Court of Human Rights for failing to register his two fathers on his birth certificate. In May last year the Swiss Federal Supreme Court ruled that the surrogate mother who carried the child and the men whose sperm was used must be registered as the child’s parents. Therefore, Swiss law only recognises one of the two men as a legal parent of the child. The application to the Strasbourg court alleges a violation of the rights to family life and non-discrimination in the European Convention on Human Rights.
Migration
The English High Court ordered four refugees, three of whom were children, to be allowed entry into the United Kingdom in order to escape deplorable living conditions in a refugee camp in Calais, France dubbed “the Jungle”. The three children arrived unaccompanied in France from Syria; the fourth person is a dependent sibling. The Court ruled they should be able to join family members in England while their asylum applications are being reviewed. The ruling has been described as groundbreaking and “a welcome light on the plight of refugees seeking protection in Europe who are desperately trying to reach their relatives”.
Canada’s Supreme Court ruled that a Tamil child refugee should have his application re-considered in a decision which is expected to significantly widen the scope of “humanitarian and compassionate” grounds for giving asylum, particularly in relation to children. A 5-2 majority held that the immigration officials had applied the law in an unduly narrow manner by requiring that the boy shows “direct evidence that he would face such a risk of discrimination if deported”. His application was rejected despite evidence that he had been detained illegally, threatened and physically assaulted by Sri Lankan army and police and is suffering from post-traumatic stress disorder. The Court ruled that the immigration officers failed to sufficiently consider the full context of the case and especially the applicant’s young age and mental health.
A few weeks prior, the Supreme Court ruled that people who help undocumented migrants enter the country - through acts ranging from steering a ship, acting as lookout, or cooking meals, for example - cannot be automatically branded as people smugglers. In a pair of unanimous judgments, the Court said the provision of the Immigration and Refugee Protection Act — which made it an offence to “organise, induce, aid or abet” the arrival of people in contravention of the act — was unconstitutional and overly broad.
The European Court of Human Rights has held that the Switzerland was not obliged to recognise a foreign child marriage for immigration purposes. The case concerned two Afghan nationals who entered into a religious marriage in Iran when aged 14 and 18. The Swiss authorities did not recognise the marriage which would be invalid under both Afghan and Swiss law and expelled the older applicant. The younger applicant, who was still a minor, remained a Switzerland. Both have subsequently been granted asylum, however, the couple complained to the Court that the expulsion order by the Swiss authorities had breached their right to family life. The European Court of Human Rights held that the removal of the man to Italy by the Swiss authorities had been justified, given the fact that he had not taken any steps to seek recognition of their religious marriage in Switzerland. Read CRIN’s summary of the case.
Juvenile justice and inhuman sentencing
New legislation in India could see juveniles aged 16 and 17 tried as adults for serious criminal offences, if a Juvenile Justice Board deems that the heinous nature of the crime warrants it. The Juvenile Justice Bill entered into force last Friday, despite continuous opposition by child rights advocates since it was first introduced in 2014. An analysis of the Bill by the Centre for Child and the Law draws attention to the fact that treating juvenile offenders as adults contradicts the CRC and ignores fundamental differences between adolescents and adults, which establish children’s diminished culpability.
Meanwhile the Parliament of Malaysia is considering a proposal to abolish the judicial use of corporal punishment in order to strengthen its compliance with the CRC. Corporal punishment is currently a legal sentence for male juvenile offenders under the Child Act of 2001 and both male and female Muslim children may be subject to corporal punishment under Islamic law. Read CRIN’s report on inhuman sentence of children in Malaysia.
Violence against children
In the United States, the highest state court in Massachusetts ruled that the Department of Children and Families (DCF) was justified to deny a couple’s application to become foster parents due to their use of corporal punishment as a form of discipline in their home. The couple argued that not only was there insufficient proof that they would administer corporal punishment to their potential foster child but the DCF decision was an infringement on their constitutional right to freedom of religion as “physical discipline is an integral aspect of their Christian faith”. The Supreme Judicial Court stated that: "Although the department's decision imposes a substantial burden on the Magazus' sincerely held religious beliefs, this burden is outweighed by the department's compelling interest in protecting the physical and emotional well-being of foster children". For more information about court decisions and legislation concerning corporal punishment of children, read our special edition Children in Court CRINmail from September 2015.
Several countries have passed new legislation aiming to protect children from various forms of violence. In December the Congress of Peru approved by a near unanimous vote a law prohibiting the use of physical and other humiliating punishment against children in all settings, including the home. The new law explicitly repeals provisions from the Code on Children and Adolescents and the Civil Code which had previously authorised parents and others to “moderately correct” children. This makes Peru the ninth Latin American state to achieve this fundamental reform for children and the 48th in the world. Last month also saw the passing of the UAE’s first Child Rights Law by the Federal National Council. It allows for child care specialists to remove children from abusive environments, should their best interests require it, and applies to all children under 18 years of age, regardless of nationality or religion. Finally, earlier this month Gambia’s parliament approved a bill banning female genital mutilation (FGM) and setting severe penalties in the form of fines and imprisonment for offenders. UK-based charity 28 Too Many has reports that an estimated 79.9 percent of girls aged 15 to 19 in the country have been subject to mutilation.
OP3 ratifications
The start of 2016 has seen ratifications of the Optional Protocol to the CRC on a communications procedure from Peru and France. The complaints mechanism will enter into force in early April for both States.
Legal resources
A new report by the Human Trafficking Pro Bono Centre and The Freedom Fund is calling for the use of strategic litigation to combat modern slavery, providing a roadmap for the creation of an international strategic litigation network to punish and deter traffickers.
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