CRINmail 60:
Children in Court
In this issue:
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Introduction
As always this Children in Court CRINmail brings you the latest news and cases regarding children’s rights from around the world. Over the last month, a number of important court decisions were delivered on the issues of refugee detention, non-discrimination in schools and in social security entitlement, the ‘digital’ inheritance of children and others. You can also read about new legislative initiatives, including on the right to die, the minimum age of marriage and humanitarian response to natural disasters. New guides on exhausting domestic remedies under the African Charter and on corporate accountability for human rights violations are available at the end of the CRINmail.
Latest news and cases
Immigration detention in PNG ruled unlawful
Last month the Supreme Court of Papua New Guinea (PNG) found that Australia’s detention of asylum seekers on Manus island is unconstitutional and illegal. Australia pays PNG and the island nation of Nauru to operate detention centres for asylum seekers trying to reach its shores. The unanimous ruling found a violation of the right to liberty under section 42 of PNG’s Constitution and ordered ”[b]oth the Australian and Papua New Guinea governments [to] take all steps necessary to cease and prevent the continued unconstitutional and illegal detention [...] and the continued breach of the asylum seekers' or transferees' constitutional and human rights.” The Australian Immigration Minister said in a statement that the court's decision did not change Australia's immigration policy. Last week PNG authorities announced that everyone is free to leave the centre during the day and, therefore, no longer in detention. Shortly after the ruling was issued, a group of 750 Manus Island detainees petitioned the Australian High Court to be transferred to mainland Australia, rather than to another detention centre in Nauru.
Access to justice for historic rights violations
Details were announced of the settlement reached in a legal dispute over the Canadian federal government’s historic policies of cultural assimilation of indigenous children. Between 750 and 900 victims who attended residential schools between 1949–1979 will receive C$50 million in compensation for physical, emotional and sexual abuse, neglect and forced assimilation in what is now the largest settlement in Canada’s legal history. The class action originated from the exclusion of Newfoundland and Labrador from the C$4 billion Indian Residential Schools Settlement Agreement by the federal government, citing that the government was not responsible for any abuses in the province because its residential schools existed prior to its entering the Canadian Federation in 1949. Over 100 of the victims have died since the initiation of proceedings, a fact lamented by their surviving fellow plaintiffs.
An inquest jury looking into the 1989 Hillsborough football stadium disaster in the United Kingdom has determined that failings by police and ambulance services contributed to the unlawful killing of 96 football fans, 37 of whom were aged 19 or under. The verdict comes 27 years after the events and a tireless campaign by the victims’ families against police efforts to blame supporters for the tragic events. This second inquest into the disaster ran for over two years and is the longest jury case in British legal history. The Crown Prosecution Service is considering whether to bring any criminal charges based on the finding of unlawful killing.
Meanwhile a bill in the United States that would allow the families of 9/11 victims to sue the Saudi government has put Congress on a collision course with the Obama administration. The Justice Against Sponsors of Terrorism Act (JASTA) has passed the US Senate and now moves on to the House of Representatives. While President Obama has stated that he will veto the bill - claiming that the legislation would remove sovereign immunity preventing lawsuits against governments, potentially exposing Americans to a legal backlash overseas - its supporters are confident that Congress has the necessary two-thirds vote to override a presidential veto. Fifteen of the 19 people deemed responsible for the 9/11 attacks are Saudi nationals. Saudi Arabia has rejected all accusations of its involvement.
Discrimination and bullying in schools
The Supreme Court of Sri Lanka has ruled that children living with or affected by HIV have a right to education, free from harassment and discrimination. The ruling came in relation to the case of a five-year-old boy who was denied admission to school because he was believed to be HIV positive, with the court holding that the government had an obligation to ensure protection of the human rights of people living with HIV. The UN praised the 28 April ruling, arguing that it would set a precedent for future cases in the country where discrimination is alleged in employment, education, or any other aspect of life based on whether or not a person is HIV positive. The decision is the first of its kind in South Asia, a region in which no country has yet passed a national law addressing discrimination against people with HIV.
The parents of a transgender child in the United States have filed a discrimination complaint against her former kindergarten alleging it failed to protect her from gender-based bullying and denied her a safe gender-transition. Although staff attempted to address the child’s gender transition by preparing materials on gender diversity including the the use of the children’s book My Princess Boy, the school leadership prevented the anti-bullying themed week from taking place after negative responses from other parents.
Investment in education
A court in the Indian state of Rajasthan has reversed a government policy excluding thousands of children from free education under the Right to Education (RTE) Act. Under RTE private schools are obliged to reserve a quarter of spaces for children belonging to disadvantaged groups. The government decided in March that only children whose family income is classified as ‘below the poverty line’ (BPL) should qualify. Activists warned that many poor families in Rajasthan do not have the necessary documents to demonstrate BPL status. The court ruled that the decision violates the RTE Act and the constitutional right to education in a public interest litigation initiated by NGO Abyuthanam.
A school pupil in Nigeria is taking the Ekiti state’s government to enforce legal provisions requiring free, compulsory and universal basic education for every child of primary and junior secondary age. Although both the Free Universal Basic Education Act of 2004 and Child Rights Law of Ekiti State are unambiguous, the state’s Governor abolished free education by imposing a fee of N1,000 and N500 for pupils of private schools and public schools, respectively. The Catholic diocese of Ekiti State has also approached the court to cancel the fees.
Meanwhile in the United States, despite urging the legislature to implement "transformational, top-to-bottom reforms”, the Texas Supreme Court ruled that the state school funding system is constitutional. "Good enough now ... does not mean that the system is good or that it will continue to be enough," Judge Guzman’s opinion cautioned. "Shortfalls in both resources and performance persist in innumerable respects, and a perilously large number of students is in danger of falling further behind." Activists have already voiced concerns that lawmakers are unlikely to take sufficient action in this regard in the absence of an enforceable court order compelling them to do so.
Access to justice & child-friendly justice
In the United States, a federal judge in Seattle has allowed a class-action lawsuit seeking to secure legal representation for children facing deportation brought by a coalition of immigrants-rights groups. The defendant federal government tried to get the case dismissed, arguing that certain due process rights afforded by the Fifth Amendment of the US Constitutional do not apply to people who have not been formally “admitted” into the country. But District Judge Thomas Zilly rejected this claim, asserting that there is no case law to prove that non-US citizens are not entitled to such protections. A bench trial is scheduled for 12 September. The case will impact deportation cases of thousands of immigrant children, many fleeing oppression and persecution in Central America.
In Australia the New South Wales Supreme Court has allowed a teenager to be compelled as a witness in a terrorism-related hearing by the NSW Crime Commission against his older brother. Lawyers for the 16 year old argued that the secretive nature of the proceedings and the long wait before coming before the court had caused him undue “stress and anxiety” and that the best interests of children should be the most important consideration in administrative decision-making. Despite ruling that he could be made to testify, Supreme Court Justice Stephen Rothman stated that the rights of the child as set out in the UN Convention on the Rights of the Child would have to be respected during compulsory examinations. Meanwhile former Supreme Court judge Anthony Whealy said the ruling did not go far enough towards establishing proper judicial oversight in cases relating to children and terrorism.
Solitary confinement challenged in the United States
A US federal judge declined to issue a preliminary injunction barring the use of solitary confinement for detained children in Tennessee while considering a challenge to the legality of the practice. The lawsuit concerns a 15-year-old boy who was in solitary confinement for five days, at times spending 23 hours a day in his cell, being denied any access to books, music or educational materials. Although he has now been released, the lawsuit seeks to permanently end the use of solitary confinement for children. The challenge relies on the US Constitution and a pledge by the Obama administration earlier this year to put an end to this practice for youths in federal prisons.
UK tribunal finds discrimination against disabled migrant children
An administrative tribunal in the United Kingdom has determined that the government was unlawfully discriminating against disabled refugee children by only allowing them to claim disability living allowance after being in the country for two years. The case concerned a 14-year-old from Uganda and a six-year-old Somali refugee who suffer from acute disabilities and require specific support and care. The NGO Child Poverty Action Group, who represented the two children, argued that the requirement, known as the past presence test, breaches EU law and the prohibition against discrimination under Article 14 of the European Convention on Human Rights. Judge Kate Markus QC agreed, meaning that disabled refugee children will now be eligible for the allowance once they are granted leave to remain. NGOs have welcomed the decision saying this will improve the welfare benefits rights of disabled children and access to financial support for all disabled refugees.
Right to health
A case in which it took several weeks for a 12-year-old in Australia to obtain court approval for a termination of her pregnancy has again highlighted Queensland’s strict abortion laws. Abortion can be carried out only when a doctor decides it is necessary to avoid risk to a woman’s mental and physical health. However, in cases involving children, doctors are reluctant to proceed without a court order clarifying the patient’s competency to consent to the termination. The judge determined that abortion was in the best interests of the girl, who has history of self-harm and suicide attempts, and that she was mature enough to consent to the procedure. Politicians responded to this case calling for decriminalisation of abortion.
Meanwhile, England’s High Court has decided that doctors do not owe a duty of care to the family members of a patient who may be affected by the same genetic condition as that patient. The ruling comes in the case of two brothers born with pre-symptomatic adrenoleukodystrophy (ALD). One of the boys died at the age of 12 and the other suffers from significant intellectual and neuropsychological problems. Their second cousin was tested for adrenomyeloneuropathy (AMN), a version of ALD, only after the brothers were diagnosed and three years after testing was first recommended. The claim of negligence, brought by the children’s mother, argued the hospital breached its duty of care because if the cousin was tested sooner, the boys may have been diagnosed earlier and had better outcomes. The hospital argued the duty of care was owed to their patient and not third parties. Striking out the claim, Judge McKenna explained that there was insufficient proximity between the the doctors and the brothers, and that it would not be ‘fair, just and reasonable’ to impose a duty of care to third parties.
A proposed law in India will allow terminally ill children aged 16 and over to request ‘passive’ euthanasia, meaning the withdrawal of medical treatment with the intent of causing death. The bill lays down a procedure for seeking euthanasia which involves a panel of medical experts. The first country in the world to extend a so-called ‘right to die’ to everyone, including children, was Belgium in 2014. Read more about minimum ages, consent to medical treatment and euthanasia in CRIN’s discussion paper ‘Age is arbitrary’.
Privacy and best interests
A court in Berlin, Germany has granted parents the ability to access their deceased 15-year-old daughter’s online social media profile. In the first digital inheritance case in the country, the mother of the deceased sued Facebook after they refused to grant her access to the teenager’s profile. The court ordered Facebook to grant them access dismissing the argument that this would breach the right to privacy of those the deceased communicated with. The court found that as there was no breach of privacy rights of third parties when confidential letters of the deceased were inherited the same should apply to digital inheritance.
The Constitutional Court in the Czech republic has determined that it is unlawful for hospitals to charge a father or other close person to attend a child’s birth. A man sued a hospital in Chomutov which charged him 500 crowns to attend the birth of his child. The Public Defender of Rights has welcomed the judgment, noting that there should also be no fees for the presence of a doula, a specially trained woman who provides emotional and practical support for the expectant mother and her family.
Harmful traditional practices
The Constitutional Court of Turkey is due to consider the legality of child marriage after a constitutional issue was referred from a family court. A coalition of children's rights organisations sought a determination about whether the marriage of a teenage girl to a man more than 10 years her senior is consistent with the child’s constitutional rights. The complainants argue that the marriage of children goes against Articles 5 (duties of the State), 10 (equality before the law), 17 (right to life) and 41 (protection of family and children’s rights) of the Constitution, particularly noting the State's obligation to prevent abuse and neglect of children, while helping to improve realisation of their fundamental rights.
The most recent amendment of Malaysia’s Child Act 2001 has retained the possibility of marriage of girls under the age of 18. The minimum age of marriage is generally set at 18, but there are a number of exceptions. Girls over the age of 16 may marry with the permission of the state’s chief minister, while Islamic law allows for Muslim girl children under the age of 16 to be married with the permission of a syariah court. The Human Rights Commission of Malaysia has urged the government to amend all domestic legislation to raise the legal age of marriage for all to 18 years. The position of the UN Committee on the Rights of the Child is that in exceptional circumstances mature and capable children over the age of 16 may be permitted to enter into a marriage. Read more in CRIN’s discussion paper ‘Age is Arbitrary’.
Meanwhile, Jordan is taking steps to delete a controversial Penal Code provision that pardons rapists if they marry their victims. Under Article 308, sexual intercourse with girls aged 15 to 18 is considered rape and a senior judicial source has stated that, should it be proven that such sexual activity was consensual, “the punishment is dropped if they tie the knot” and remain wed for a period of at least five years. Activists claim that a staggering 95 percent of rapes go unpunished as a result of this law. The bill will have to negotiate “many legal channels before it is approved”, according to an official from the Ministry of Justice.
Novel law on humanitarian response
A new law aimed at mainstreaming children’s rights in responding to natural disasters has been adopted in the Philippines. The law requires a heightened surveillance of child trafficking and other violence against children in the aftermath of disasters and calamities, a system of restoring civil documents for children and their families, and protection against exploitation. Children will also be able to participate in disaster-risk reduction planning and post-disaster needs assessments. The Philippines is one of the most disaster-prone countries in the world, hit by an average of 20 typhoons a year. This is the first legislation of its kind in the world.
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Legal resources
The Minority Rights Group International has released a new resource for legal professionals and activists looking at submitting a communication before the African Commission on Human and Peoples’ Rights (ACHPR). The guide focuses on the condition of ‘exhausting domestic remedies’, a prerequisite for submitting complaints to any international or regional bodies. The guide explains the admissibility criteria for exhausting domestic remedies in the African Charter for Human and Peoples’ Rights; how to submit a communication before the ACHPR; it provides general guidance; and describes the exceptions to this requirement.
FIDH has launched an updated version of its "Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms". The 600-plus page Guide explores the different avenues available to victims, including judicial and non-judicial recourse mechanisms. It focuses primarily on violations committed in third countries by or with the support of a transnational corporation, its subsidiaries or its commercial partners.
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