Juvenile justice
Last month the European Court of Human Rights condemned
Russia for a number of violations in relation to the
unlawful detention of a child with disabilities in its criminal justice system. When aged 12, the boy, who suffers from enuresis (inability to control urination) and attention-deficit hyperactivity disorder, was arrested following a complaint that he had extorted money from a neighbour. No criminal charges were brought because of his young age, however, he was sent to a “behaviour correction” centre for juvenile offenders for 30 days. Following his release, he had to be hospitalised for three weeks as his health had significantly worsened. The Court
found that the inadequate medical care in the detention centre rose to the level of ill-treatment prohibited by Article 3 of the European Convention on Human Rights (ECHR). The Court also ruled that the detention itself was unlawful in breach of the right to liberty (Article 5 ECHR) and that several aspects of the right to a fair trial had been violated (Article 6 ECHR), including the right to legal assistance and the right to cross-examine witnesses.
Palestine’s newly enacted juvenile protection law places an emphasis on protective and rehabilitative measures and social reintegration as opposed to incarceration of children in conflict with the law. Previously, children in the West Bank had been subject to an old Jordanian law, whilst children in Gaza were subject to a historic British law. The new law sets the minimum age of criminal responsibility at 12 years old and guarantees the right to legal aid and the right to privacy of all children accused of crimes. It also upholds the principle of the best interests of the child and mandates that detention only be used as a measure of last resort. Special juvenile courts and juvenile divisions of the police and prosecution have been created under the new law.
Vietnam’s
first children’s court has opened in the capital, Ho Chi Minh. It will have jurisdiction over criminal cases in which the accused or the victim is under the age of 18, as well as over family disputes involving children. Meanwhile, the National Assembly passed a
new child law keeping that age of majority at 16. It was proposed that the age is increased to 18 to match global trends and the standard of the Convention on the Rights of the Child. However lawmakers concluded that ‘children are maturing faster’ and the proposed increase might lead to more juvenile crime with 16- and 17-year-olds undeterred by adult penalties. Read CRIN’s report on
access to justice for children in Vietnam.
Lawmakers in El Salvador have revived talks about trying children as adults in court for involvement with gangs. The country’s Attorney General is the latest to add his support for the proposal, calling it a ‘necessity’, despite criticism that changes would violate international law. The proposal is a heavy-handed response to an issue in which children represent only a small minority. In the last 15 months, 156,250 people were prosecuted for criminal offences, with only 6.38 percent of these being under-18s. Of the 12,231 who were convicted, 8.79 percent were children.
In the
United States, Utah has become the 16th state to
ban sentences of life without the possibility of parole for crimes committed by a child. Meanwhile, in Maryland a
federal challenge to the state’s parole system for juvenile offenders sentenced to life was launched by the American Civil Liberties Union. The lawsuit argues that the system is unconstitutional as offenders don’t have a ‘meaningful chance for release’ meaning that their sentences are in practice equivalent to life without parole.
Access to justice for child abuse
The trial of three Congolese soldiers who
allegedly sexually abused women and children in the Central African Republic while in a UN peacekeeping role has begun in the
Democratic Republic of Congo. This trial is the first related to
a string of abuse complaints against UN peacekeepers and is expected to take several months to complete, with around 100 other complaints of sexual abuse by 'blue helmets' in CAR still outstanding. Also in the Democratic Republic of Congo, a further 11 Tanzanian soldiers are
facing paternity suits related to similar abuses carried out while deployed as UN peacekeepers.
For more information, visit the website of the Code Blue Campaign to end impunity for sexual exploitation and abuse by UN peacekeeping personnel.
In
France, a police investigation has been initiated against the cardinal of the diocese of Lyon for
failing to report five cases of sexual abuse against children, committed by priests between the 1980s and 2000s. The scandal prompted the Catholic Church to
publicly pledge to expose all cases of paedophilia. French schools have also been affected by a spate of child abuse allegations with
27 incidents of sexual abuse or the making of indecent images being recorded in 2015.
In Australia multiple claims for damages are being brought before the Supreme Court of New South Wales against some of Sydney’s most prestigious private schools on behalf of men alleging that they were sexually abused by teachers and staff during their time there as students. This recent surge in litigation against private and Catholic schools in Sydney follows a Royal Commission into Institutional Responses to Child Sexual Abuse. Mr Koffel, the lawyer representing the victims, states that “It is a systemic problem in the institutions”. The claims seek to secure proper compensation for the victims as well as to bring about change in the operation and procedures of these schools.
A judge in the High Court of Singapore has cleared a woman of six charges of ‘sexual penetration of a minor’, declaring that only a man can be guilty of this offence. Despite the accused pleading guilty to the charges last December, Justice Kan stated that: “[a] doubt whether a woman could be charged [...] arose in my mind”. He would go on to confirm this ‘doubt’ despite both the defence and prosecution submitting to the contrary.
Business and children’s rights
Two class action lawsuits against companies Nestle and Hershey in the United States were dismissed after a federal court ruled there is no duty to disclose the use of child labour in the cocoa supply chain. The suits were brought by consumers who stated they would not have bought the chocolate produced by the defendants had they been made aware of the forced child labour used in cocoa harvesting. The suit cites a study which found that in Ivory Coast alone as many as 4,000 children are victims of slave labour, many of whom are kidnapped and fall victim to traffickers. Nonetheless, the judge decided that it was not for the courts to say which of the “countless issues that may be legitimately important to many customers” should take precedence in occupying the “limited surface area of a chocolate wrapper”.
Meanwhile, a Connecticut judge has allowed a wrongful death action against a gun manufacturer and vendor over a school shooting to proceed. Twenty-six people, including 20 children, were killed in the Sandy Hook shooting in 2012. The suit argues that the semi-automatic rifle used to commit the murders should not have been sold to the public as it was designed as a military weapon. The defendants sought the dismissal of the lawsuit on the basis of federal legislation which gives gun manufacturers immunity from liability in relation to crimes in which their products were used. The judge refused to dismiss the case holding that the court has jurisdiction to consider the claim.
Child marriage
A court in
Saudi Arabia has
annulled a marriage between an 84-year-old man and a 15-year-old girl, ruling that it was illegal. The case came to light after the groom said he wanted to divorce the girl because she refused to consummate the marriage. The presiding judge also referred the officer who performed the marriage to the prosecution. While the minimum age for marriage in the country is 16 years for girls, the judge also said that no marriages where there is a considerable age difference between the bride and groom should be performed.
Authorities in
India have
opened a criminal case against a man who purported to marry a 14 year old. The girl escaped his house and informed the police that some of her family members had forced her to marry him and locked her in a room where she was sexually abused. An investigation against the relatives is ongoing.
In the United States the Utah Supreme Court has cleared the way for a woman’s civil suit against a polygamous sect over her forced marriage to her cousin when she was 14 years old. Warren Jeffs, former president of the Fundamentalist Church of Jesus Christ of Latter Day Saints, who presided over the forced marriage was convicted of assaulting young girls who he considered to be his wives. The Supreme Court allowed the lawsuit to proceed against the sect’s communal property trust, which has an estimated worth of $110m, holding that the Warren had acted within his capacity of a head of the trust and his conduct was of the general kind that was expected from a trustee. The court’s decision comes as the federal government goes after the sect on multiple fronts, including on child labour.
Minimum ages and capacity
Another decision by the Supreme Court of Utah in the
United States clarifies young children’s liability in tort law. According to the judges,
children under the age of five cannot be liable for negligence, given their limited capacity to assess actions that can harm others and an "inadequate internal ability" to control impulses that might lead to injuries. The ruling comes in relation to a compensation claim by a babysitter who lost vision in one eye after a child aged 4 years and 9 months threw a toy at her face. The majority
opinion recognised that a categorical age cut-off is imperfect as it fails to take into account the different rates at which children develop but concluded that “the advantages of uniformity, consistency, and efficiency justify a bright-line rule, despite its imperfections”. The sole dissenting judge proposed a graduated approach where children under three are immune from liability for negligence, children between the ages of three and seven are subject to a rebuttable presumption of a lack of liability and children over the age of eight are held to a standard of a reasonable child of the same age.A
Malaysian court has ordered the state authorities to recognise as Christian a man who was
converted to Islam as a child. The judge said that, being an adult, the man is free to exercise his constitutional right to choose his religion and directed the authorities to change the name and religion recorded in the plaintiff’s identification documents.
Another case decided at the end of last year also suggested that children are able to choose their religion independently only after reaching the age of 18.
Read CRIN’s new discussion paper Age is Arbitrary: setting minimum ages which examines a number of contentious children’s rights issues using general principles and rights-based criteria, exposing how minimum ages can be inconsistent, discriminatory and arbitrary.
Right to education
The Constitutional Court of Colombia has ordered the government to provide transportation to school for children in the Santander region. The case was brought by the parents of four children who were unable to attend school due to not having the financial means to travel to the nearest school. The authorities were given two weeks in order to remedy the situation and the court instructed them to provide a catch-up course.
In the
United States, a California appeals court ruled against a group of nine public-school students and advocacy group
Students Matter in a
case concerning the employment conditions of teachers. This overturns a
lower court’s ruling that tenure laws are unconstitutional because they deprived students of their right to quality education by retaining “grossly ineffective teachers” with poor and minority children being disproportionately affected. According to the appeal
judgment, the problems of ineffective teachers was the consequence of poor decision taken by school administration, but it was not caused by the tenure statutes. The plaintiffs will appeal the decision to the state Supreme Court. Similar tenure challenges are pending in
New York and Minnesota.
Climate change lawsuit in Pakistan
A seven-year-old girl is behind
a climate change lawsuit before the Supreme Court of Pakistan. Rabab Ali, by way of her father and environmental lawyer Qazi Ali Athar, asserts in the petition that the federal government and the Province of Sindh have violated the public trust doctrine, a legal principle requiring a State to ensure the preservation of natural areas and resources for future generations. The petition claims that the exploitation and continued promotion of fossil fuels, particularly coal, violate the doctrine, as well as children’s right to life, liberty, property, human dignity, information, and equal protection of the law. This case is the latest in a line of similar constitutional challenges globally, including the precedent-setting case in the US state of Washington which
recently asked judges to step in once again after the Department of Ecology failed to honour its proposal to reduce carbon emissions in a timely manner.Read CRIN’s
case study on the Washington case and special edition
Children in Court CRINmail on climate change.
Transgender equality and access to information
A federal appeals court in the United States ruled this week in favour of a transgender boy who sued his school for discrimination. The school introduced a policy that requires children to use the bathroom of their “corresponding biological sex”. The appeals court sent the case back to the district court, which previously rejected his claim that he should be entitled to use the bathroom for his preferred gender, this time having clarified that the school’s policy contradicts Title IX, a federal law prohibiting discrimination in schools. This ruling is expected to have significant impact and it also applies to North Carolina where a pending suit brought by the American Civil Liberties Union challenges a state law that prohibits transgender people from using the bathroom corresponding to their preferred gender in state schools and all public agencies.
In
Canada parents of transgender children and a transwoman have brought a lawsuit against the province of Saskatchewan and the Saskatchewan Human Rights Commission
challenging the requirements for change of gender. Under a new draft of the Vital Statistics Act, prepared by the Commission, only persons over the age of 18 may change their gender when they obtain the approval of a physician or psychologist. The complaint argues that the requirement for third-party verification, the lack of any option other than male or female and the inability of children to change gender are a violation of the right to freedom of expression under the Canadian Charter of Rights and Freedoms. The Act is currently under review by the Ministry of Justice after a court
ruled that the requirement to undergo gender reassignment surgery prior to a gender change is a human rights violation.
A Lithuanian court has upheld a ban of a children’s fairytale book featuring a same-sex marriage. The author took the publishers to court after they removed the fairytale from bookshelves on the basis that it was "harmful, primitive and biased propaganda of homosexuality" and in violation of the Law on the Protections of Minors against Detrimental Effect of Public Information, a law that has been used to censor LGBT related publications. The court dismissed the author's appeal to a decision finding that the publishers have a right to suspend publication of the book, agreeing that the actions of the publishers were not discriminatory as the fairy tale could have a negative effect on minors.
To find out more about the rights of transgender children, read our special edition
Children in Court CRINmail on LGBTQI rights. To find out more about children’s right to freedom of information, see CRIN’s ‘
Protect children, end censorship’ campaign.
Right to health and best interests
A court in England has rejected a circumcision order requested by a father ruling the decision should be left to the boys. The father, who is a devout Muslim, argued that circumcision would be in accordance with his “Muslim practice and religious beliefs” and in the “children’s best interests”. While the children have been raised in the Muslim faith, the judge said there is no guarantee that they will continue observing the religion as they grow up, pointing out however that circumcision is irreversible. Consequently she ruled: "I am deferring the decision to the point where each of the boys themselves will make their individual choices once they have the maturity and insight to appreciate the consequences and longer-term effects of the decisions which they reach.”
In the
United States, the New York Court of Appeal has ruled that landlords have
no duty to remove lead paint from apartments where children live part-time. A New York City law requires landlords to remove or cover lead paint from apartments where children under the age of six reside. The case before the court concerned a girl who spent 50 hours per week in the apartment of her grandmother who looked after the child while her parents were at work. She is now aged 19 and suffers brain damage as a result of lead poisoning. In dismissing her claim for damages, the court held that since she did not ‘reside’ there, there was no legal duty to remove the source of lead. The
dissenting opinion considered that the purpose of the law is to protect children from lead poisoning and expressed concern that such a restrictive interpretation of ‘residence’ will prevent children living between two homes from using the law to obtain compensation.
The Constitutional Court of South Africa has refused to hear a challenge to a decision allowing an adoption to be rescinded after six years. Although the Children’s Act prescribes a two-year period within which adoptions can be revoked, in this case the Johannesburg High Court allowed a man to rescind an adoption order made six years ago in relation to the biological children of his former partner. Child rights advocates and the Department of Social Development have raised concerns that the decision may set a precedent allowing parents to abandon their adoptive agreements where they no longer wish to care for their children.
