CRINmail 64:
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, privacy rights, sexual abuse and much more.

Latest news and cases

Detention of children

The Court of Appeal of the Bahamas broke new ground this month, ruling that a judge must treat the welfare of children accused of criminal offences as a paramount consideration when deciding whether to detain them before trial. The Bahamas Child Protection Act requires courts to treat a child’s welfare as a paramount consideration in any matter relating to the child, provisions that the Court found applied to decisions on whether to release a child on bail. The boy involved in the case was accused of robbery and firearms offences and detained in an adult detention centre. During the boy’s arrest, police shot him three times and at the time of the court hearing about whether to grant bail, two bullets remained in his body. Children’s rights advocates hope the ruling will end the practice of routinely detaining children awaiting trial, requiring judges and magistrates to grant bail ahead of trials. Following the case, Attorney General Allyson Maynard-Gibson announced that the new judicial procedures to govern the way children are processed and treated within the justice system would be implemented soon and indicated that the Director of Public Prosecutions would announce the changes.

In the United Kingdom, the Howard League for Penal Reform is challenging the legality of a series of decisions of magistrates’ courts which led to vulnerable children being held in police custody overnight for the non-payment of fines. The complaint arose out of the case of a 15-year-old boy living in a care home. Police were called to the care home following a report that the boy was acting aggressively and checked the Police National Computer which showed an outstanding arrest warrant for the non-payment of fines. The police arrested the boy and he was detained at a London police station for two nights before being taken to court where no further action was taken. The boy’s experience of detention was particularly distressing because of the range of mental health problems he experiences. The charity is seeking to challenge the process that led to the boy’s detention even though there is no legal power to jail a child for not paying a fine.

Madagascar has enacted legislation to abolish life imprisonment for children as part of a new law on measures applicable to children in conflict with the law. Under the new legislation, children under 13 are not considered criminally responsible and the courts have discretion as to whether children between the ages of 13 and 18 can be held criminally responsible. In no case can a child be sentenced to more than half of the sentence that would be applicable for an adult. Previously, children over the age of 16 could be sentenced as adults, including to life imprisonment. The new law incorporates some of the provisions of the Convention on the Rights of the Child, requiring that "the deprivation of liberty is imposed on a child in conflict with the law as a measure of last resort, for the shortest possible time and subject to regular review".

Privacy

A High Court judge in Northern Ireland has rejected Facebook’s attempt to strike out a claim brought by a 14-year-old girl who is suing the company for failing to block the re-publication of a naked picture posted several times on a “shame page” between November 2014 and January 2016. In seeking damages for misuse of private information, negligence and breach of the Data Protection Act, the teenager’s lawyers compared publication to child abuse and argued that Facebook could have blocked re-publication by tracking and identifying the image with PhotoDNA technology. Facebook’s legal team replied that the company always responds to breaches when notified, and argued that they are not required to conduct far-reaching monitoring of online material solely for the purpose of dealing with material posted on one page. The case is the first of its kind in the UK and comes as Facebook faces increasing scrutiny over the control of content on its pages, following a recent controversial decision to remove, and then reinstate, the famous image of a young naked girl fleeing a napalm attack during the Vietnam war. The case will now proceed to full trial in Belfast at a later date.

Three toymakers and a children’s TV broadcaster have reached a settlement with the New York state Attorney General, agreeing to pay a combined US$835,000 in penalties for violating the Children’s Online Privacy Protection Act (COPPA), which makes it illegal to collect any form of data from under-13s without express parental consent. The companies - Hasbro, Mattel, Viacom and JumpStart - whose websites are among the most popular for children, were found to have been using cookies and tracking technology to enable third-parties such as marketers and advertising companies to illegally track children’s online activity. In addition to paying the fines, the companies have agreed to make significant reforms, including electronic scans to monitor websites for third-party data-collecting. COPPA provides for enforcement of the law by both the Federal Trade Commission and state attorneys general, and in a two-year investigation known as “Operation Child Tracker”, the New York Attorney General’s office discovered that website operators are not sufficiently vetting the third-parties they allow on their websites. The case reflects the strong enforcement of child privacy laws in the United States, as children are seen to be one of the fastest growing internet audiences in recent years and are particularly vulnerable as a result.

Sexual abuse

Guam enacted legislation this month to end limitation periods for child sexual abuse claims, reforms that will enable children to bring complaints to court for historic sexual abuse. The changes come amid allegations from at least four former altar boys that Archbishop Apuron, the highest ranking Catholic cleric in Guam, sexually abused them when he was their parish priest in the 1970s. The Catholic Church has been conducting an investigation into the actions of Apuron for the past three months and has recommended that he be removed from office, though he is yet to be formally charged with a criminal offence. The head of the Vatican’s investigation, Archbishop Savio Hon Tai-Fai, has urged the Governor of Guam not to sign the bill, claiming that to do so would likely leave the church facing bankruptcy in the face of court claims for redress for historic sexual abuse.

The Constitutional Court of South Korea is set to review the constitutionality of the law obliging mobile service operators to block child abuse images shared using their networks. The case relates to the prosecution of Lee Sirgoo, the former head of the company that owns the Kakao Group, a mobile group messaging service that has allegedly been used to share sexaully explicit images of children. The case is the first in which a head of a mobile services company has been criminally prosecuted for the offence of spreading child pornography. The current law states that mobile service operators can face up to three years in prison or face a fine of 20 million won (US$18,000) for failing to take appropriate measures to detect child pornography. Critics of the law have expressed concern that the obligation of communications companies to take these measures would require control and monitoring of users of messaging services that could violate constitutional protections on freedom of expression.

Harmful traditional practices

The Supreme Court of Nigeria has recently delivered a landmark judgment striking down a ban on daughters inheriting from their fathers. The Court nullified an Igbo law and custom forbidding daughters from inheriting their fathers’ estates. The court found that the provisions violated the protection against discrimination within the Nigerian constitution. Reading the final judgment, Justice Bode Rhodes-Vivour said that “no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from the late father's estate”. The Court’s decision has been commended by the Anambra State Women Association in Lagos (ASWAL), a socio-cultural organisation, comprising women representatives of 177 communities in Anambra State residing in Lagos State. ASWAL noted that this practice remains prevalent in other parts of the country and has called on State Houses of Assembly to domesticate this judgment, to make it applicable throughout the country.

The African Commission on Human and Peoples’ Rights has held that the Ethiopian Government’s failure to take preventive measures against the abduction and rape of a minor girl, as well as their failure to investigate and punish the perpetrators, amounted to violations of their obligations under the African Charter on Human and Peoples’ Rights. Having endured a series of setbacks before the national courts, Equality Now and the Ethiopian Women Lawyers Association (EWLA) filed a complaint before the Commission on the victim’s behalf. The Commission stated that the rape represented “a serious violation of her dignity, integrity, and personal security as guaranteed under Articles 5, 4, and 6 of the [African] Charter”. The Commission also found that the government had failed in its ‘duty to protect’, as well as to take preventive measures against a prevalent practice of marriage by abduction.

Schools and Education

A federal civil rights lawsuit has been filed in the United States city of Detroit, asserting a constitutional right to literacy and accusing the state of having disinvested in education in the city to the point that children lack fundamental tools to learn. It is believed to be the first legal challenge of its kind in the country. The complaint states that the proficiency rates in core subject areas for the seven students named are near-zero at their schools, highlighting the systemic nature of the problem in Detroit. State lawmakers recently passed plans for a $617 million plan to restructure the district, which has seen teachers wage large-scale protests over potentially working without pay and subpar working conditions. The Detroit public school system is said to have experienced a rapid decline under longstanding state oversight. Co-counsel Kathryn Eidmann says that this is the first federal case to argue that there is a right to access literacy under the 14th amendment of the US Constitution, noting, however, that this right is “very well grounded” in US supreme court precedent. The suit is asking for the federal court to provide relief including evidence-based literacy instruction, while addressing physical school conditions.

In Scotland, the Humanist Society (HSS) have launched a legal bid to allow Scottish pupils the right to opt out of religious observance in schools. The HSS is seeking judicial review of the Scottish Government’s rejection of calls for changes to current rules which only permit parents to opt out on their child’s behalf. The action follows a review from the UN Committee on the Rights of the Child which urged the state to repeal legal provisions requiring compulsory attendance at collective worship in publicly funded schools and to ensure that children are able to independently exercise their right to withdraw from religious worship.  The law currently governing matters of religious observance dates back to 1872 and has not been updated since 1980. Speaking about the challenge, Gordon MacRae, chief executive of the Humanist Society of Scotland said, “In Scotland young people are trusted to get married, join the army and vote in elections and for the constitutional future of Scotland. However, Scottish ministers still do not trust them to make their own decisions about attending religious observance or to give young people the same rights as those living in England and Wales.”

Birth registration and parenthood

The father of a seven-year-old boy has asked the Pretoria High Court in South Africa to declare sections of the Birth and Death Registrations Act unconstitutional for discriminating against single and unmarried fathers. Under the current law, unmarried men cannot register their children’s birth without the mother’s consent. The applicant, who has been the sole carer of the child since the mother’s disappearance five years ago, approached the Department of Home Affairs directly in numerous unsuccessful attempts to register his son’s birth before filing the present lawsuit. The lack of a birth certificate has serious implications on access to fundamental rights to identity, nationality, social security, healthcare and education, and the applicant indicated in particular that he has been unable to secure a child grant - a form of financial support - for his son without a birth certificate. The Department of Home Affairs has not yet responded to the petition, despite being ordered to file its first set of legal papers by August.

The New York state Court of Appeals has ruled that the caretaker or de facto parent of a child can be granted custody and visitation rights despite being unrelated by blood, adoption or marriage. In bringing New York in line with the mainstream legal position in the United States, the Court set aside the narrow definition of parenthood held in a 1991 case, deemed to be “unsustainable” in light of the increasing diversity of modern families as exemplified by the Supreme Court’s landmark ruling last year granting same-sex couples the right to marry. The decision, centred on child welfare, noting in particular “the trauma children suffer as a result of separation from a primary attachment figure - such as a de facto parent - regardless of that figure’s biological or adoptive ties to the children”.

Meanwhile, Israel has defied an order by the Petah Tikva Family Court to register a same-sex couple on their child’s birth certificate. The Population and Immigration Authority has submitted a request for review of the decision, arguing that the Court exceeded its authority in making the order and that parenthood orders cannot be applied retroactively to the date of the child’s birth. Following the Family Court decision, which ordered that a birth certificate for the child should be issued listing the two applicants as his mother, the couple went to the registry office but were turned away and referred to their lawyer. The non-biological mother is currently registered as parent to the child in the population registry and on her ID card, but believes that the refusal to register her on the birth certificate is reflective of an Interior Ministry policy to discriminate against same-sex partners.

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