Children in Court: CRINmail 57

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22 February 2016 subscribe | subscribe | submit information
  • CRINmail 57:
    Children in Court

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    Happy reading!

    The CRIN team

    Legal resources

    This month, CRIN launched the global findings of our ‘Access to justice for children’ project. The new report, ‘Rights, Remedies and Representation’, provides a snapshot of how countries compare when it comes to ensuring that every child rights violation has a remedy. The global study condenses findings from 197 country reports, researched with the support of hundreds of lawyers and NGOs. All countries are ranked based on their performance against international standards and the results are visualised on an interactive map. For more information, including how to use the research, read our special edition CRINmail.

    Latest news and cases

    Inhuman sentencing and juvenile justice

    Last month the Supreme Court of the United States delivered a landmark judgment to assert the retroactive effect of its 2012 decision banning mandatory life without parole sentences (LWOP) for juvenile offenders. A 6-3 majority decided that the prohibition amounts to a new substantive rule of constitutional law, and therefore should apply to all persons concerned, whether sentenced prior to 2012 or thereafter. The ruling, which was handed down in the case of a man who has been in prison for more than 50 years for murder committed as a 17-year-old, will allow anyone subject to a mandatory LWOP sentence to be considered for parole - an estimated 2,000 people. Meanwhile, an unrelated development brought more good news for the US penal system when President Obama announced that the use of solitary confinement for juveniles will be banned, amid other reforms on its use in federal prisons.

    Read CRIN’s case summary of Montgomery v. Louisiana.

    A military court in Egypt has handed a sentence of life imprisonment to a four-year-old child who was among 116 others to be charged and tried in absentia for murder, destruction of property and inciting riots and demonstrations. Moreover, the crimes are said to have taken place in January 2014 when the child was nearly two years old. It is reported that the court refused to examine the child’s birth certificate which was presented by his lawyer. Officials have since admitted that this was due to mistaken identity and said that the person who should have been sentenced was another child aged 16.

    For more information on the issue of inhuman sentencing of children, please see CRIN's ‘Inhuman sentencing’ campaign.

    Another important decision holding that the law of ‘joint criminal enterprise’ has been wrongly interpreted for over 30 years was delivered by the Supreme Court of the United Kingdom last week. The principle of joint enterprise allowed a person to be held responsible for a crime committed by someone else if he or she had foresight that the other person may commit the crime and the two had prior agreement to commit another crime. Children’s rights organisation, Just for Kids Law, had intervened in the case and presented the judges with evidence showing that the overbroad doctrine was disproportionately used to convict young black men of serious crimes, including a 16 prison study showing that nearly one in five of those convicted on joint enterprise was aged 18 or younger when sentenced and all were 25 or younger. The judgement holds that treating ‘foresight’ as a sufficient test to convict someone of murder is incorrect. Instead, foresight can be considered evidence, but not proof of intent that the crime is committed. The decision does not automatically render invalid previous convictions under the joint enterprise doctrine, but it will allow appeals to be initiated.

    Australian court rules offshore asylum detention legal

    The highest court in Australia has ruled that the government's policy of detaining asylum seekers offshore is legal. The decision which paves the way for more than 250 people, including 37 babies and around 50 other children, to be deported to a detention camp on the tiny Pacific island nation of Nauru. Australia intercepts all boats carrying people seeking asylum and takes those on board to offshore detention centres in Nauru or to Manus Island in Papua New Guinea. But rights groups have reported harsh conditions, violence and abuse at the centres, as well as “epidemic” levels of self-harm among detainees. UNICEF has said it is "unreasonable" for Australia to "shift responsibility" to developing countries. In its decision, the High Court rejected a challenge brought by lawyers for one detainee who argued the policy was unconstitutional. But the judges did stress that people cannot legally be held in camps indefinitely.

    Discrimination in social welfare provision

    The Canadian government is discriminating against First Nation children living on reserves by providing up to 38 percent fewer welfare services than those available elsewhere, the Canadian Human Rights Tribunal has ruled. The decision decried how discriminatory funding policies of the Indigenous Affairs department have led to chronic underfunding and are damaging the lives of thousands of First Nations children. This includes the disproportionate placement of indigenous children in foster care because of a lack of family support which would mean families can better provide for their children. Indigenous Affairs Minister Carolyn Bennett said she agrees with the decision - despite the government trying eight times to have the case thrown out on technicalities and spending an estimated $5.3 million in legal fees. Advocates are now pressing the federal government to make concrete financial commitments in the upcoming budget. The Tribunal is considering a request for the government to pay compensation for every child who was taken from a family living on reserves after 2006.

    Last month the English Court of Appeal ruled that the so-called ‘bedroom tax’ is unlawful due to its discriminatory and disproportionate impact upon vulnerable persons. The bedroom tax reduces the amount of social housing benefits to which persons are entitled if there is a vacant bedroom in their home. The Court was dealing with two appeals simultaneously - regarding a victim of domestic violence and a disabled child respectively - when it came to this conclusion. The child concerned suffers from Potokoi-Shaffer Syndrome, a rare genetic disorder rendering him unable to walk, talk or feed himself and requiring 24-hour care. A spare bedroom in his home is used to accommodate overnight carers and to store special equipment. Whilst the regulations account for disabled adults in a similar situation, they remain silent on children, which the Court held constitutes an unjustifiable violation of the right to non-discrimination in Article 14 of the European Convention on Human Rights contrary to the Human Rights Act. Read CRIN’s case summary.

    Right to clean water and health

    In the United States two federal lawsuits have been filed against city and state officials for their role in the contamination of the Flint River in the city of Flint, Michigan. Luke Waid is suing on behalf of his two-year-old daughter who has been diagnosed with lead-poisoning, seeking compensation for the costs of her future medical monitoring and care due to likely injuries and complications to her health. Similarly, a coalition of local citizens and national groups, headed by the American Civil Liberties Union (ACLU) of Michigan, is seeking to secure access to safe drinking water for the residents of Flint. In both instances, the parties rely on the federal Safe Drinking Water Act - which allows citizens to sue when government fails to protect their drinking water. City and state officials are being blamed for the deterioration of the city’s water supply and the endangerment of its residents for the sake of cutting costs. The ACLU is calling on the U.S. District Court for the Eastern District of Michigan to compel officials to safeguard citizens’ constitutional rights, to uphold their democratic obligations and refrain from violating the Act.

    A court in the Netherlands has refused to order the government to pay for an urgent, time-sensitive operation that could potentially make a 4-year-old child able to hear. The girl's family discovered she is deaf after arriving in the Netherlands as asylum seekers fleeing persecution from the Taliban in their native Afghanistan. Having seen their application for asylum rejected, which would have entitled Kalma to the operation, the matter ended up in court. The child’s lawyers argued that this was a ‘medical necessity’ and that to deny the girl the operation would be a violation of her human rights. The court decided that the operation is not medically necessary and so the State cannot be obliged to pay for it. The lawyers are currently contemplating taking the case to the European Court of Human Rights.

    A precautionary measure filed for children in Venezuela to have access to medication has been rejected by the Tribunal for the Protection of Children and Adolescents. The petition filed by children’s rights organisation CECODAP was dismissed on the grounds that the complainant failed to sufficiently prove that there is such a shortage of medicine. This is despite the 21 cases named in the petition in which children were in desperate need of medication that was unavailable not only through the health service but also privately. Furthermore, the Ministry of Health acknowledged such shortages on medications and a recently issued State of Economic Emergency government decree specifically mentions the need to set out measures to improve the population’s access to medicine and food. Socio-economic rights are particularly impacted by Venezuela’s worsening political situation.

    Finally, the Czech Republic’s Constitutional Court has ruled that parents may reject a vaccination for their children if they think it conflicts with their religious beliefs or their freedom of conscience, in the broadest sense. The decision follows a case in which parents were recently fined for refusing the hexa vaccine for their child. The Court stated that in exceptional cases the State may ‘forgive’ the financial penalty incurred - up to 10,000 crowns under legislation. Such ‘penalty pardons’, it has been stressed, must remain the exception to the rule, and parents cannot refuse vaccines due to mere doubt as to their necessity or effectiveness. This marks a shift in a series of top court decisions finding that public health concerns and children’s best interest take precedence over parental preferences.

    Test case on genetic discrimination

    In the United States, a recently filed lawsuit against a school in California alleges that a 15-year-old child was suspended from attending classes as a result of genetic discrimination. After the family disclosed medical information which shows that the boy has DNA markers associated with cystic fibrosis, the school tried to transfer him elsewhere on medical grounds, because there were two siblings suffering from cystic fibrosis in the school. People suffering from inherited lung disease are especially vulnerable to cross-infection from other sufferers, so health mandates stipulate that such children cannot attend the same class. However, genetic markers are no guarantee of contracting a disease, and the boy has since not developed cystic fibrosis. He was eventually allowed to return after missing several weeks. The lawsuit relies on the Americans With Disabilities Act and the constitutional right to privacy, but the complaint cannot benefit from the prohibition of genetic discrimination in the federal Genetic Information Nondiscrimination Act, because it applies to employment and health insurance situations only and not to education.

    Digital rights and privacy

    In a case of child sex abuse online, Spain’s Supreme Court has said that incriminating evidence obtained through means that violate a child’s right to privacy are valid if they are obtained by a person who is responsible for the child’s well-being and done in the name of their protection. In the case at hand, the mother of a child, who had been chatting to a man who sent her explicit images of himself and requested she reciprocate, had logged into her daughter’s Facebook account without her consent because she suspected wrongdoing. The abuser had appealed against his three-year conviction, arguing the case should be thrown out because some of the evidence used against him had been obtained through means that violated the child’s privacy. But the court dismissed the appeal, saying the evidence is valid because a child’s right to privacy cannot prevent parents from their imperative to protect their children, and because some rights can be restricted if there is a prevailing right. A similar conclusion was reached by the highest court in Colombia last year.

    The Children’s Advocacy Institute (CAI) at the University of San Diego in the United States is urging a federal appellate court to reconsider a recent ruling upholding a $20 million “sponsored stories” settlement by Facebook. The CAI, acting on behalf of a parent of two children, is arguing that this settlement - permitting Facebook to “capture, rearrange and republish” posts by children, without prior consent or notice to either child or parent - will have an effect on the right to privacy of over 10 million teens in the US. The criticised settlement in question is said to allow Facebook to violate a number of states’ laws that prohibit companies from using minors’ names and their photos in advertisements without parental consent. The CAI is calling for the Court of Appeals for the Ninth Circuit to rehear the case ‘en banc’, involving at least 11 of the court’s judges in its determination.

    Meanwhile, two federal court decisions in Washington and in Milwakee have found that mass hacking of child pornography websites by the FBI is not unconstitutional. A judge from the Western District of Washington ruled that the warrant allowing the hacking of everyone who accesses a particular website satisfied the Fourth Amendment of the US Constitution’s requirement that warrants specify the place to be searched because it is highly unlikely that such a website would be stumbled upon accidentally. An appeal is planned in both cases.

    Right to be heard and best interests

    A court in Spain has allowed for a four-year-old transgender girl to change her name accordingly. The judge stated that the decision was based on the need to adjust the child’s “social reality to his reality on the records”, as well as medical evidence that the child suffers from gender identity disorder. She is the youngest person in Spain to be allowed to do so and among 30 other children to successfully request a change in their official records. Meanwhile a woman in the United States is bringing legal action against her employer and insurance provider for refusing medical coverage for her child’s gender reassignment treatment. Her child was diagnosed with gender dysphoria in 2014, satisfying the criteria recognised by the American Psychiatric Association. The federal lawsuit cites a “categorical exclusion” of such procedures in insurance plans, irrespective of medical necessity.

    The European Court of Human Rights (ECtHR) ruled that the French courts did not violate a child’s right to respect for private and family life by granting the request of his biological father to be registered on the birth certificate instead of the step-father even where this was against the apparent wishes of the child. The Court held that the national judges had duly placed the best interest principle at the heart of the decision making process and were entitled to conclude that the best interests of the child required that the child know his origins. A strong dissent by Judge Nußberger suggests that the importance of knowing one’s origins should be a choice and not an obligation. According to her, the measures taken by the French courts were solely in the interests of the biological father and not in the interests of the child. Read CRIN’s case summary.

    Compensation for Holocaust victims

    A legal claim for compensation by 62 Holocaust survivors, belonging to the group commonly known as the Children of Tehran or Children of Zion, has been rejected by the Supreme Court of Israel. The Children of Tehran refers to a thousand refugee children who escaped Poland in 1939 through the Soviet Union and eventually reached Iran where they lived until 1943 when most of them were brought to what was then British Mandate Palestine. However, they were not officially recognised as Holocaust survivors  by Israel for the purposes of compensation until 1997. The Supreme Court had already rejected an earlier claim by several hundred members of the group in January 2014, though they were allowed to keep a partial compensation already paid by the State. The Tel Aviv District Court allowed the suit by a second group of 62 plaintiffs in order to remedy “an unexplained gap between law and justice” which was created after some people concerned were compensated and others were not. The Supreme Court’s final pronouncement in the matter is that such a gap can only be remedied by legislative intervention, calling on the Knesset to act.

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    Last Word

    “In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, [...] prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” - Justice Kennedy in Montgomery v. Louisiana.

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