CRINmail 63:
Children in Court

In this issue:

Introduction

This month, the Children in Court CRINmail looks at the latest news and cases on children in detention, access to justice for sexual violence and protecting children's privacy rights.

Latest news and reports

Detention

The Constitutional Court of South Africa broke new ground this month when it found that the arrest and detention of a 15-year-old girl had violated the principle that the best interests of the child must be paramount in the decision whether to arrest a child and detention of children must be a last resort. Police had visited the girl’s home to investigate a complaint about her mother but arrested both when the daughter intervened. The police admitted during the case that they had disregarded alternatives to the arrest and detention of the girl. The case was the first time the Constitutional Court had considered the the arrest and detention of a child in light of the constitutional protections on the best interests of the child and on the use of detention as a last resort.

In the United Kingdom, a 14-year-old boy is launching a legal challenge against London’s Metropolitan police and his local council over a failure to provide a safer alternative to detention in police cells. The boy was held on multiple occasions in March this year as no other accommodation was found for him, despite a duty under national legislation for local authorities to provide accommodation for children when requested to do so by police. A freedom of information request revealed that last year the council received 94 requests from the Metropolitan Police to provide a bed for a child being held at a police station, but did not accommodate a single one. The case, brought by Just For Kids Law is part of its initiative to prevent the detention of children as young as eight in unsuitable locations and could have a much wider impact for the 22,000 children held overnight in police cells every year. Since the case was filed, Islington Council has already launched an urgent review of children held in police stations in the borough.

Ill-treatment of children in Australian detention facilities has dominated the news this month and triggered a number of legal actions. Leaked documents from the Nauru offshore detention facility revealed a catalogue of abuses carried out against asylum seekers, and most frequently against children seeking asylum. More than 2,000 incident reports were released, detailing assaults, sexual abuse and self-harm. Australian law makes it a criminal offence punishable by two years’ imprisonment for disclosing information about the conditions in offshore detention facilities and a group of doctors launched a High Court challenge to the laws, which they claimed prevented them from speaking out about child abuse and other threats to asylum seekers in detention centres, earlier this year. This scandal also comes as the International Human Rights and Conflict Resolution Clinic at Stanford Law School published a warning that the staff at the Spanish company, Ferrovial, could be at risk of prosecution for crimes against humanity for their role in running Australian immigration detention centres on Nauru and Manus Island.

A public inquiry has also been launched in Australia’s Northern territory after footage of children being beaten, stripped and sprayed with tear gas in a detention centre was broadcast on Australian television. Six former child detainees now intend to bring cases against the government over their treatment at the facility. Advocates for the rights of indigenous people, pointing to the fact that 96 percent of children who are detained in the territory are of indigenous descent, have called for the inquiry to directly investigate allegations of structural racism in Australia’s detention centres.

Sexual abuse

In Ireland, lawyers representing the Department of Education and the State have written to victims of sexual abuse in schools during their childhood warning them of the potentially significant legal costs they may incur should they not withdraw pending legal actions against the State. The letters state that the Irish government is prepared to pay the legal costs it has incurred in proceedings so far, on the condition that complainants withdraw their cases against the government within 21 days. Ireland established a redress scheme in response to the European Court of Human Rights (ECHR) ruling in 2014 holding the Irish State responsible for sexual abuse that took place in a Catholic Church owned school, but victims have claimed that the scheme is too narrowly drawn and have filed a number of cases in response. Ms O’Keefe, who brought the successful case to the ECHR, condemned these intimidation tactics and called for settlements to be reached with people who have cases pending and those who have been deterred by the written threats.

In India, the Delhi High court has awarded compensation to a boy who was sexually assaulted in school by three older students, ruling that the Criminal Procedure Code and the Protection of Children from Sexual Offences Act (POCSO) empowers the courts to do so. The case was filed by children’s rights NGO, HAQ, on behalf of the child’s mother and with legal aid organisation iProBono. The claim stated that, as a consequence of the incident, the child had suffered severe mental and physical trauma and the family endured financial hardships as a result, having to move house and transfer him to a new school. The petition also called for a revision of the Delhi Victims Compensation Scheme, demanding the inclusion of boys in the definition of “victims” of sexual offences. Information presented during proceedings revealed that over 50 percent of child victims reporting sexual abuse, including rape or sodomy, were boys. Bharti Ali of HAQ, welcomed the decision and its clarification of the status of male child victims of sexual abuse. However, he was critical of the fact that POCSO courts are currently awarding compensation only after witness testimony from victims, as opposed to awarding interim compensation to assist their treatment.

A survivor of abuse at a mother and baby home in Ireland has submitted a case to the European Court of Human Rights. Derek Leinster, now 75-years-old, suffered serious neglect in the four years after his birth at Bethany Home, a privately-run residential institution for ‘fallen women’ of the Protestant faith. More than 220 infants died at the home between 1922 and 1949 and were buried in unmarked graves in a nearby cemetery. Leinster has campaigned on behalf of survivors for more than 20 years, insisting that Protestant victims of institutional abuse have been repeatedly ignored by the State. In 2013, the Irish government announced that “Bethany survivors” would be excluded from its redress scheme, necessitating Leinster’s challenge before the ECHR.

Two separate incidents in which Indian primary school students were hospitalised by their teachers have prompted a contempt petition against the school education department for failing to enforce a ban on corporal punishment in schools. w In 2004, the High Court of Calcutta ruled that corporal punishment used in state schools was unlawful, but further public interest litigation taken by human rights lawyer, Tapas Kumar Bhanja in 2009 highlighted major deficiencies in implementation. The state government responded by issuing circulars calling for publicity drives, monitoring procedures and complaints mechanisms, but cases involving the use of violence by teachers against students continue to emerge. The country lacks comprehensive legislation dealing with the issue - the Right to Education Act 2009 only covers children aged six to 14 and does not apply to minority or religious educational institutions - and enforcement is weak and uneven nationwide. In bringing the issue back to the Calcutta High Court, Bhanja is seeking effective implementation in schools through concrete measures such as counselling sessions and sensitisation programmes.

Juvenile justice

This month, Iran is reported to have carried out its first execution of a young man for an offence he was accused of committing as a child. Hassan Afshar was hanged in Arak’s Prison after being convicted of “lavat-e be onf” (forced male to male anal intercourse). Iran also rescheduled and postponed the execution of Alireza Tajiki, who was sentenced to death in 2013 following a conviction for murder and rape, despite having repeatedly retracted his forced confessions during proceedings. The sentence handed down by a provincial court was initially quashed by the country’s Supreme Court because of a lack of forensic evidence linking him to the alleged sexual assault, but the criminal court resentenced him to death in November 2014, ignoring concerns surrounding the conviction. To read more about the death penalty for children in Iran, see CRIN’s inhuman sentencing report on the country.

In the United States, prosecutors in a number of states have begun to make submissions on the resentencing of people serving life without parole for offences committed while they were children. Since the decision of the US supreme court in 2012 that mandatory life without parole sentences for child offenders are unconstitutional and a second decision earlier this year that the ban applies retroactively, any person serving such a sentence is entitled to a resentencing hearing that takes into account their individual circumstances. Prosecutors have discretion on whether to seek the reimposition of life without parole sentences and prosecutors across the country have taken widely different approaches. While Philadelphia’s District Attorney has announced he will no longer be seeking LWOP sentences for people who committed offences while they were children, Harvard Law Schools’ Fair Punishment Project has highlighted the approach of Wayne Country as an “extreme outlier” taking a much harsher approach. According to the organisation, the decision of Wayne County Prosecutor Kym Worthy to seek LWOP sentences at one in three resentencing hearings “is completely out of line with the Supreme Court’s ruling”.

The National Security Minister of St Lucia, Hermangild Francis, has called for a harmonisation of the age of criminal responsibility across the Caricom (Caribbean Community) group. His comments come in the wake of reports that the government of Antigua & Barbuda has initiated discussions with UNICEF regarding plans to raise the age of criminal responsibility from eight to twelve, inline with St Lucia. The ages across the group currently vary from eight in Saint Vincent and the Grenadines, 10 in Guyana and 12 in St Lucia. Mr Francis said he would like to see a more “holistic” approach taken across the region in the interests of prosecutors and legal persons, adding that the age of 12 is “good enough for now”. UNICEF has expressed its desire to see the age of criminal responsibility in the region raised to 16.

Read CRIN’s paper, Stop making children criminals, calling for a rights-based debate on minimum ages of criminal responsibility.

Private and family life

The United Kingdom’s Supreme Court has found that Scotland’s “named person” scheme had insufficient privacy protections for children and so violated the European Convention on Human Rights. The scheme required every child to have a named person - a health worker or teacher - to act as a single point of contact to identify children in need of protection. The information sharing provisions under the scheme would have allowed confidential information on the child’s health (including information about contraception, pregnancy or sexually transmitted disease) to be disclosed to a wide range of public authorities without the child or parents being aware that this information was being shared. While recognising that the aims of the law were “unquestionable legitimate and benign”, the court found that these provisions were a “disproportionate interference” with children’s right to privacy. The Scottish government has pledged to amend the legislation to deal with the privacy concerns.

Zimbabwe’s High Court has refused to register a child born out of wedlock in the name of the child’s deceased father without the consent of the father’s family. The mother was in an unregistered customary law union with the child’s father, but the father died before the couple could obtain a birth certificate for the child. The court rejected the mother’s complaint that the refusal to register the child’s parentage violated the child’s constitutional rights, but critics of the judgment have argued that the judgment failed to protect the constitutional requirement that the best interests of the child must be paramount when proceedings concern them.

Right to health

The Constitutional Court of Spain has upheld a health reform law that excludes undocumented migrants from access to free healthcare ruling that it preserves and maintains the public health system in the face of economic crisis. The Court found that the human dignity of undocumented migrants would still be guaranteed by their access to emergency services, despite the comments and recommendations of numerous European and UN human rights bodies that criticised the reform for contradicting the principles of universality and non-discrimination in the provision of health services. However, the Constitutional Court reaffirmed the rights of children to full and equal access to public healthcare regardless of migration status. but failed to address the adverse impact of the healthcare law on the children of whose parents are excluded.

The Supreme Court of Colombia has ordered the government to ensure that Wayuu children have access to clean water and other basic amenities necessary for survival. The ruling follows last year’s decision of the Inter-American Commission of Human Rights, which noted the deaths of more than 4,700 Wayuu children over the past five years and ordered Colombia to take immediate measures to safeguard the lives and security of Wayuu children. The Wayuu are Colombia’s largest indigenous population and live in La Guajira, a region experiencing a severe lack of clean water as a result of drought, mining and corruption. The Cercado Dam was built in 2011 to provide water to 9 municipalities, but pipelines to the aqueducts were never built. The Wayuu have since lost almost all access to the Rancheria River, while the the operation of the Cerrejon coal mine has displaced indigenous and Afro-Caribbean communities for decades and consumes 2,700 cubic meters of water per day. A ruling by the Court in May however has paved the way for provincial and local governments to restrict mining in areas belonging to the Wayuu.

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