CRINmail 61:
Children in Court
In this issue:
Introduction
In this month’s CRINmail, we take a detailed look at questions related to child marriage that courts around the world are facing and legislative initiatives to set minimum ages for marriage and in other areas. You can also read about the sentencing of Hissène Habré for crimes against humanity, the latest developments in access to justice for child sexual abuse in religious institutions, cases concerning discrimination and juvenile justice.
Latest news and cases
Child marriage and minimum ages
Over the last month, two important cases on the topic of child marriage have come to the attention of Turkey’s judiciary. The Constitutional Court will consider a challenge to a provision of the Civil Code that allows courts to approve marriages of children under the age of 16 in ‘exceptional circumstances’. The question was referred by an Ankara court after the family of a 13-year-old girl petitioned for permission for her to marry her rapist. The Constitutional Court is asked to repeal Article 124 of the Civil Code on the basis that children under 16 are unable to consent to marriage at such a young age.
Meanwhile, a local court in the southeastern province of Diyarbakır has acquitted a man of entering an informal marriage with a child after the accused submitted that he had made a ‘mistake’ about his bride’s age. The case came to light when the victim asked the court to order the man to return jewellery received as a gift at the wedding. It later transpired that the couple were wed in a religious ceremony when the girl was aged 14. After being married for two years, during which time the girl was subjected to violence and mental trauma and had a miscarriage, the man, 16 years her senior, abandoned her taking gold gifted to them by relatives. Although the woman, now aged 21, did not want to press charges and only sought the return of the gifts, a criminal investigation was launched by the State against the groom, his parents and the parents of the victim. However, the court believed the man who said the girl appeared to be 20 or older, saying he has made an “unavoidable mistake” and ruled to acquit all accused.
At the end of last month, Kyrgystan’s Parliament voted to reject legislative amendments that would have criminalised religious marriages involving children under the age of 18. The proposal, which seeks to secure children’s rights to life, health, education and development and protect against early and forced marriages, included criminal sanctions for anyone participating in such a ceremony, including religious officials and the parents of the victim. Similar law initiatives have been rejected in the past, but the Ombudsman of Kyrgyzstan has now called on members of Parliament to vote on the amendments again.
The German Federal Supreme Court in Karlsruhe is due to consider the case of a 15-year-old refugee girl who arrived in the country with her 21-year-old spouse. The couple, who are also first cousins, were married under Sharia law in their native Syria when the girl was aged 14. Child services representatives argued that the girl is too young to decide whether she wants to be married and recommended that she and her husband live apart and only see each other under supervision and for a restricted amount of time. A Bavarian family court agreed and ruled that the German laws on minimum age of consent to marriage must be applied, making the marriage unlawful. This decision was, however, reversed by the Higher Regional Court last month, which allowed the girl to move in with her husband. The Court did not find any evidence that the marriage was forced and also highlighted that the couple had travelled from Syria together and wished to remain together. It is reported that there are at least 550 recorded cases of marriages of children under the age of 18 (161 of which involve under-16s) among newly arrived asylum seekers in the state of Bavaria alone.
The government of Trinidad and Tobago has called for a review of child marriage laws in the country with an emphasis on the “critical need” for the age of marriage to correspond to the age of consent to sex, which is set at 18 under the Children Act 2012. The issue has come to the fore following remarks from the most senior figures of the Inter-Religious Organization (IRO) and Sanathan Dharma Maha Sabha stating that the minimum ages of marriage (different under Hindu, Muslim and Orisa laws respectively) should be retained, despite some permitting girls as young as 12 to be married. A number of bodies among the 25 religious organisations that make up the IRO have expressly distanced themselves from these statements, which were claimed to be unanimous when first made.
The first regional model law on child marriage and children already in marriage has been adopted by the Southern African Development Community Parliamentary Forum and will be the basis on which 13 participating States will harmonise their national legislation (Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe).
Meanwhile, while in the midst of debating the minimum age of smoking and consuming alcohol, lawmakers in Guam have decided to also investigate the possibility of raising the minimum age at which children can seek abortion. Currently, girls over the age of 16 have access to abortion, while the legal age for consuming cigarettes, electronic cigarettes and alcohol in the country will be raised from 18 to 21.
For more information about these topics, read CRIN’s discussion paper ‘Age is Arbitrary: setting minimum ages’.
Habré sentenced for war crimes and crimes against humanity
Chad’s ex-ruler between 1982 and 1990, Hissène Habré, has been sentenced to life for war crimes, torture and crimes against humanity, including rape and sexual slavery, in a landmark trial before the Extraordinary African Chambers (EAC) in Senegal. Habré was accused of personally committing rapes with some of the victims as young as 13. This is the first case in which a former African leader is prosecuted for international law crimes in another African country under the principle of universal jurisdiction. An appeal against the conviction has been launched. Habré was previously tried in absentia by Chad, where he was sentenced to death for crimes against humanity. Meanwhile, the EAC is due to hold reparations hearings and is mandated to establish a Trust Fund for all victims, whether or not they participated in the proceedings.
Child abuse in religious institutions
The Pope has signed a new universal law for the Catholic church stipulating that bishops can be removed from office for negligence in responding to clerical sexual abuse. The law also empowers several parts of the Vatican to investigate bishops and initiate processes of removal, subject to final papal approval. US-based Survivors Network of those Abused by Priests said in a statement they were "highly skeptical" of the new law, saying that based on previous initiatives “[w]e suspect it will be used once or twice soon and will then be ignored. And it will be ‘business as usual.’ [...] for almost 30 years, we’ve seen church policies and protocols and procedures drafted often and ignored just as often. It’s dreadfully disillusioning.” Read about how survivors of child sexual abuse in religious institutions have sought redress from the courts in CRIN’s bank of case law on the issue. Details of further court cases can be found in our report mapping the global scale of child sexual abuse in the Catholic Church.
Meanwhile, journalists in the United States have revealed significant expenditure by the church in a bid to oppose legal changes designed to enhance access to justice for victims of sexual abuse. Over USD$2 million were paid by the New York Roman Catholic Church to the city’s most influential lobbying firms, including for their efforts to halt the progress of the Child Victims Act, which proposes to eliminate limitation periods for bringing civil and criminal cases. The bill has been gaining bipartisan support but did not attain the required votes in the New York Legislature before the end of the legislative session on 16 June. Current law in New York only allows victims to bring their case before their 23rd birthday and is said to be one of the most restrictive regimes in the country. In Pennsylvania, the Catholic Church has attracted criticism for attempting to ‘name and shame’ catholic lawmakers who supported state legislation extending limitation periods for civil claims against abusive priests until the victim reached 50 years of age.
A California court of appeals decided that the lavishing of gifts by a molesting priest upon his victims does not ‘toll’ the period of limitations on a civil lawsuit. The three plaintiffs, who were sexually abused as children in the 1970s and 1980s, had filed their lawsuit over 30 years after the last act of abuse took place. They argued that the period of limitations within which their claim is legally admissible was ‘tolled’ or extended because the receipt of gifts by the priest should be interpreted as an advance or partial payment of damages under Insurance Code section 11583. The court disagreed finding that the gifts must be seen as part of the crime, serving the purposes of “seduction” and “grooming”, rather than a form of compensation. However, it did grant the opportunity to the plaintiffs to present other arguments as to why their claim is not barred by the time lapsed.
Also in the United States, a member of the Navajo Nation has filed a lawsuit against the Mormon church for inadequately protecting him from sexual and physical abuse he allegedly experienced while in a foster programme for Native American children. He is the fourth Navajo in recent months to sue the Mormon church for its neglectful lack of oversight — and more victims may still come forward. The Indian Student Placement Services began in the 1940s and allowed Native American families to send their baptised children to live with white Mormon families during the academic year, where they had access to better education. By the time the programme ended in 2000, approximately 40,000 Native Americans from 60 different tribes, predominantly Navajos, had participated in the programme.
Discrimination
A landmark decision by a Romanian court has ordered the State to rehouse 100 Roma, including 55 children, who were unlawfully evicted in 2013. The families, who watched the demolition of their homes after being removed by police officers, were not provided with an alternative accommodation, leaving many of them homeless. Furthermore, in the years since, some of the victims have once again been evicted from an abandoned school building where they were squatting. "We hope this monumental first victory will turn the tide against forced evictions of Roma. The authorities must act to end forced evictions once and for all," said a representative of the European Roma Rights Centre, which assisted in the case.
Kenya’s High Court ruled that the name of the father of a child born out of wedlock may be included on their birth certificate. A provision of the Registration of Births and Deaths Act, which required the man’s consent before their name was included, was struck down as unconstitutional because it leads to discrimination against children based on their parents’ marital status. The judge rejected arguments that consent is necessary to protect men from being fraudulently registered, saying that there are other measures that sufficiently deter such actions, including a penal code provision that makes giving a false name as the child’s father a criminal offence.
Meanwhile, a Nigerian court in Osun state has allowed girls to wear a hijab in public schools, as long as it corresponds to the colours of the school uniform. The case was filed by the Muslim community against a change in government policy disallowing head coverings worn by Muslim girls. The judge concluded that the prohibition infringes the right to freedom of religion of the students. A decision by a high court in Lagos state confirming the legality of a similar ban is pending on appeal.
Israel has once again extended a controversial emergency law that prevents some 9,900 people, including 247 minors, from formalising their legal status in the country. The Citizenship and Entry Law, which was first passed in 2003 and has been extended annually since, requires the Palestinian families of Israeli citizens to apply for ‘family reunification’ while their children are under the age of 14. Anyone over that age is considered an adult and thus unable to get citizenship under the law.
Transgender children’s rights
In Argentina a 14-year-old transgender girl has won the right to legally change her name. The child has identified as a girl for the last ten years and, although she was supported by her mother, her father opposed the name change. In the first case allowing a name change for a transgender person in the country, the family court granted the request on the basis of the best interests principle and the child’s progressive capacity which must be interpreted alongside the sexual identity, gender identity and dignity of the person.
In Canada Quebec’s National Assembly has unanimously adopted a bill that will allow transgender children to change their legal name and gender. Children aged 14 and over will be able to do so independently, while younger children will need to obtain parental consent. In cases where one of the parents opposes the change, a decision on the best interests of the child will be made by a tribunal. The bill also introduces a prohibition of discrimination based on gender identity.
Meanwhile in the United States, the heated debate over facilities for transgender children in schools continues to escalate. A suit against the Obama administration over its directive to US public schools to let transgender students use bathrooms and changing rooms matching their gender identity has been launched by Texas and 10 other states which claim that only Congress is competent to make such changes. Schools that refuse to comply could face civil rights lawsuits from the government and risk losing federal funding for education. The Attorney General of Texas remained coy as to the source and numbers of concerned parents on whose behalf he is acting, admitting that he had not spoken to any parents of transgender students. Earlier this month, a legislative proposal was introduced in the state of Michigan to ‘protect parental rights’ by ensuring parents know which bathroom their child uses at school and who else has access to the same bathroom. The bill suggests that transgender students should be prohibited from using facilities designated for students of the opposite sex and instead be provided with access to private facilities.
Freedom of expression and access to information
Moldova’s Parliament is in the process of preparing a ‘gay propaganda’ law. A number of other countries have already enacted criminal penalties anyone providing information about homosexuality to minors. To find out more about laws threatening children’s right to access appropriate information, see CRIN’s ‘Protect children, end censorship’ campaign.
In the United States, a North Carolina law against cyberbullying was ruled unconstitutional. The state Supreme Court determined that the 2009 law, which made online posting of private, personal or sexual information pertaining to a minor online a misdemeanor offence, violated the right to freedom of speech. It also noted that the law did not require victims to have suffered injury and is too broad to be an appropriate way to pursue the state’s legitimate interest to protect minors’ psychological well-being. The case originated from the conviction of a high school student for cyberbullying after he posted private messages with a sexual content between him and a classmate.
Juvenile justice
A new European Union directive on procedural safeguards for children who are suspects of a crime or accused in criminal proceedings was officially adopted in April. The Directive lays down a number of minimum standards for the treatment of all children under the age of 18 from the moment they become a suspect until the final determination as to guilt. Children have the right to access legal representation and legal aid and States must also consider whether any measures alternative to detention are appropriate. Whilst Denmark, the United Kingdom and Ireland have opted out, the remaining 25 EU Member States have three years adopt domestic measures giving effect to the Directive.
The National Assembly of Cambodia has passed a new Law on Juvenile Justice which was being prepared for more than a decade. The Law is based on the principle of restorative justice and aims to divert children from the adult criminal justice system. It was passed without any debate by the lawmakers due to an opposition boycott related to attempts to arrest the leader of their party. A representative of the human rights NGO Licadho expressed concerns over the prospect of correct implementation of the law, as well as the conditions under which it was adopted: “I wanted the National Assembly to discuss and debate it in detail to find the weak and good points, including all lawmakers from all the parties, to avoid criticism from the people,” he said.
In the United States, around 300 inmates in Louisiana who were mandatorily sentenced to life imprisonment for crimes committed as children will be petitioning for parole individually after lawmakers failed to enact legislation to address their situation. A US Supreme Court decision earlier this year confirmed that all persons serving such sentences have the right to be considered for parole in light of the finding that mandatory life imprisonment without the possibility of parole (LWOP) of juvenile offenders violates the constitutional prohibition of cruel and unusual punishments. Previously requests for parole were put on hold by the courts while a bill that would have provided for parole was being considered by the state. However, now that bill failed to pass before the legislative session ended, each case will have to be argued individually in the state’s district courts. Experts have said that the flood of resentencing petitions is expected to drag on for years at a considerable cost to an already strained legal system.
Meanwhile, Iowa’s Supreme Court overturned a sentence of LWOP for a juvenile offender by 4-3 votes. LWOP sentences remain lawful only where there is evidence of “irretrievable depravity” that justifies imposing the harshest sentence. While the sentencing judge determined that the crime “showed utter lack of humanity”, a psychologist testified on appeal that the juvenile’s prospects of rehabilitation are ‘mixed’ and not likely to be entirely clear until he reaches the age of 30. The state Supreme Court agreed that juvenile character is “a work in progress”. Chief Justice Mark Cady wrote: "We conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders' prospects for rehabilitation because they lack adequate predictive information supporting such a decision."
Legal resources
The International Juvenile Justice Observatory has released a manual of good practices on alternatives to detention for juvenile offenders in Europe.
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