CRINmail 65:
Children in Court

In this issue:

Introduction

This month’s children in court CRINmail looks at the latest news on challenges in the United States to secure legal assistance for children in immigration proceedings; to combat segregation of Roma children in schools in Hungary and attempts across Africa to withdraw from the jurisdiction of the International Criminal Court.

Latest news and cases

Migration and refugees

In the United States, the Court of Appeal has rejected a class action lawsuit on behalf of children facing deportation proceedings, claiming that they are entitled to free legal assistance during their hearings. The complaint was brought by a group of children aged between three and 17 who are at various stages in the deportation process. The judgment did not deal with the issue of whether children in immigration proceedings are entitled to government appointed legal assistance, only ruling that the district court did not have the jurisdiction to consider the case. In practice, this means that children involved in immigration proceedings will be required to pursue their cases through the administrative process before they are able to raise the issue of whether they are entitled to legal assistance before the courts. The case is likely to substantially delay a court hearing a case on whether children in deportation proceedings are entitled to state funded legal assistance. See here for CRIN’s summary of the case.

As the French government moved to close a refugee camp in Calais this month, organisations in the United Kingdom and France launched a number of legal challenges seeking to protect the rights of children. A leading refugee charity in the United Kingdom launched legal action against the Home Office over its failure to admit hundreds of unaccompanied refugee children stranded in the camps. The organisation, Help Refugees, claims the government has failed to comply with obligations to bring the children into the country. Lawyers for the charity sent a formal letter to the home secretary, Amber Rudd, demanding urgent implementation of section 67 of the Immigration Act, known as the ‘Dubs Amendment’, with judicial review proceedings to be commenced if the government fails to do so. The legal action comes amid increasing concern for the safety of unaccompanied refugee children living in the camp. As many as 387 children have been identified by charities as eligible to come to the UK under the Dubs Amendment and the Dublin Regulations but the Home Office has reportedly refused to respond to official requests from French authorities to accept unaccompanied children. Rudd  announced to MPs that the French authorities had agreed to verify the list of eligible child refugees by the end of the week, after which the UK will ‘move quickly’ to remove them, prioritising children under the age of 12. Rudd did not clarify the exact number of children who qualify for relocation, but said that 300 would be ‘a really good result’.

Juvenile justice

The lawyer of a young woman in Iran who is facing execution for allegedly killing her husband, to whom she was married off at the age of 15, has challenged her sentence, presenting new evidence to the Appeals Court which suggests that Zeinab Lankarani may not have been the murderer. The evidence suggests that the fatal wound was carried out with a left hand, but that Zeinab is right-handed. Zeinab’s lawyer, who claims she has been unable to contact her client since the judicial authorities announced on 3 October that the execution would take place within weeks, had asked the victim’s family to pardon her, to no avail. The court is also being asked to consider Article 91 of the Islamic Penal Code, which permits the substitution of a hadd punishment (fixed penalties specified by the Qur’an) with a lesser penalty if a mature juvenile does not realise the nature of the crime committed. According to the International Covenant on Civil Political Rights and the Convention on the Rights of the Child, it is illegal to execute someone for crimes committed under the age of 18. Iran is party to both treaties but still sentences juveniles to death, giving judges discretion as to whether to impose the death penalty for offences committed by children as young as eight. For more information on the death penalty for child offenders, see CRIN’s inhuman sentencing campaign report for the country.

A court in Egypt has sentenced five children to five years in prison for illegally protesting against President Abdel Fattah al-Sisi’s decision to transfer sovereignty over Tiran and Sanafir islands in the Red Sea from Egypt to Saudi Arabia. The teenagers were arrested at a demonstration in Dokki on 25 April, and charged with unlicensed protesting and disrupting traffic. More than 150 people were arrested and sentenced in connection with the illegal protests, although many were later acquitted. The ruling, which was made in absentia, has caused uproar among activists, who view the sentence as part of the state’s hostility against youth.

France has banned life imprisonment for children in a new amendment to the 1945 ordinance on child offenders. Under the previous law, courts could sentence children aged between 16 and 18 as adults where the circumstances of the case warranted or where the child repeatedly committed offences involving violence or wilful injury. Such sentences were incredibly rare, however: only two children have ever been sentenced to life imprisonment, the first in 1989 and the second in 2013. At present, only one person is serving a life sentence for a crime committed while under the age of 18. The French law now provides a maximum sentence of 30 years imprisonment, leaving the UK as the only country in the European Union to still sentence children to life imprisonment.

Discrimination

The mother of a transgender boy in the United States has filed a lawsuit against a hospital, claiming that its medical staff discriminated against her son. The boy killed himself five weeks after staying at the hospital to be treated for self-inflicted wounds and having suicidal thoughts. The mother alleges that during treatment at the hospital staff repeatedly referred to her son as a girl and using female pronouns. The case is being brought under the Affordable Care Act, which is the first federal healthcare law to explicitly ban discrimination against transgender people in the United States. The mother is seeking compensation as well as an injunction to force the hospital to institute policies at the hospital preventing the discrimination against transgender youth on the basis of sex.

The European Court of Human Rights has issued an urgent notification to the government of Macedonia to respond to a case on the forced eviction of 53 Roma people, including 29 children, in the country’s capital. The European Roma Rights Centre (ERRC), which is bringing the case, alleges that the eviction left these people living on the streets during flooding, without access to running water or electricity. ERRC are also claiming that the authorities have acted in such a way as to make national legal remedies unusable, a claim that would enable them to bring the case to the ECHR without exhausting domestic remedies. It commonly takes the ECHR around a year to notify States in this way, but by making this decision, the Court has expedited the process.

South Africa’s Legal Resource Centre has been granted leave to intervene in an upcoming case before the European Court of Human Rights alleging discrimination against Roma children in Hungary. The case relates to the opening of a segregated school by the Greek Catholic Church in 2011, near the largely Roma town of Huszar telep. Before the school opened, Roma children had attended an integrated school 2km away and the town had organised buses to take children to the school. When the segregated school opened, the town stopped providing transport to the school that the Roma children had previously been attending. Hungary’s highest court found that there had been no violation of the rights of the children, on the basis that the free choice of religion superseded the prohibition on segregation. The willingness of the ECHR to allow the LRC to intervene shows a willingness to consider the case law of South Africa on access to education, which in some ways is more developed than the European equivalent. In 2015, LRC won a case in which South African courts found that where children’s access to schools is hindered by distance and an inability to afford the costs of transport the State is required to provide transport to meet its obligations to fulfil the right to education.

Deprivation of liberty

The Delhi High Court in India has ordered the release of a boy who was incarcerated for nine years, in violation of the Juvenile Justice (Care and Protection) Act which sets the maximum term of imprisonment for children at three years. The boy was arrested in 2007, convicted of murder and sentenced to life imprisonment in 2014. The Court expressed pain over the way the sessions court had dealt with the murder case, as well as over the callousness of the police in neglecting to ascertain and then relate to the trial court the boy’s age. Stressing that children’s rights are non-negotiable, the Court suggested that there was a serious need to train trial court judges on the law relating to juveniles and directed the court registry to send a copy of its order to Director (Academics) of Delhi Judicial Academy to design a refresher course on the subject.

Hundreds of children and adults under the care or supervision of the National Service of Minors (SENAME) in Chile have died in the last 11 years, according to the service’s latest report. 1313 people died in custody between 2005 and 2016, of whom 865 were children who had been placed in group homes and detention centres or had remained with their families under State supervision, revealing that previous statistics on deaths in custody had significantly underestimated the true number of deaths. A judicial inquiry into the deaths is now underway. Facing vocal calls for reform, President Bachelet has announced an increased allocation of funds to the network of children’s centres, but critics have highlighted that a mere three per cent increase in funding for child protection and juvenile justice will not adequately address the crisis, which parliamentarians have labelled the most serious violation of human rights the country has seen since the reestablishment of democracy.

Four teenage boys are suing the Northern Territory Government in Australia over poor conditions and mistreatment amounting to battery and assault in the Don Dale Youth Detention Centre. The allegations centre around an incident in which six boys were tear-gassed after one boy escaped from solitary confinement. The boys had been held in “dirty and unhygienic” cells for up to 17 days. Two of the boys gassed in their isolation cells suffered from asthma, another was exposed to the gas for eight minutes, and all were made to stay in the same contaminated clothes for some time. The court also heard evidence regarding the subsequent treatment and transfer of three boys to Berrimah adult prison, with footage of the transfer showing the boys to be shackled, spit-hooded and handcuffed. The Don Dale incidents, footage of which was aired on national television earlier this year, sparked national outrage and prompted a royal commission to look into juvenile detention in the Northern Territory, where the youth detention rate is three times higher than anywhere else in the country.  

Armed conflict and war crimes

This month, the International Criminal Court held hearings to calculate reparations to be paid to children recruited to be child soldiers by Thomas Lubanga during the conflict in the Democratic Republic of the Congo. Lubanga was convicted in 2012 for abducting children as young as 11 and forcing them to fight within the armed group, the Union of Congolese Patriots. When children returned home, they often found themselves stigmatised and socially excluded, particularly girls who were forced to join the militia and returned home with babies. The Trust Fund for Victims has proposed a three-year plan of projects to rehabilitate victims, including  ‎€1 million to fund projects aimed at “reconciling the victims with their families and affected communities”. Experts have argued that the award would be “manifestly insufficient” and suggested that between 1.5 and 1.8 million euros annually for a five year period would be more appropriate. The Court is yet to set a schedule to announce its ruling on reparations.

Burundi’s parliament has overwhelmingly voted to withdraw from the jurisdiction of the International Criminal Court (ICC). The ICC launched a preliminary investigation into Burundi in April this year following the reported deaths of 430 people and the exodus of 230,000 Burundians to neighbouring countries. Reports of serious violence against children have emerged in recent months, including reports from Human Rights Watch that the ruling party’s youth league, the Imbonerakure, have commited gangrape against women and that women and girls have been subjected to sexual violence in refugee camps formed as a result of the violence. Since violence erupted, Burundi has denied access to UN investigators and condemned the decision of the UN Human Rights Council to set up a commission of inquiry into violence in the country. The Bill will now proceed to the upper house of the parliament and would have to be signed by the President before the withdrawal notice may be made.

South Africa is also reported to have initiated the process to withdraw from the jurisdiction of the ICC. The UN is yet to confirm receipt of the notice required to withdraw, but Reuters has reported seeing the relevant documents. To withdraw from the Rome Statute, which governs the ICC, States must notify the UN Secretary-General of their intention to withdraw from the jurisdiction of the court and withdrawal does not enter into force until a year after making this notification. Withdrawing from the treaty does not discharge any of the obligations under the treaty while it was in force.

Sexual exploitation

The chief executive of a website known for sexually oriented advertisements has been arrested and charged with conspiracy and pimping a minor after raids on the company’s headquarters in Dallas, United States. The website, Backpage.com, which describes itself as the second-largest online classified advertising service in the country, has faced accusations in various jurisdictions of sex trafficking, but this is the first time criminal charges have been brought against its staff based on these claims. Carl Ferrer, 55, the chief executive, will face an extradition hearing in Texas that could return him to California to face charges. Interviews with children filed for the case revealed they took out advertisements on Backpage.com after they were forced into prostitution. A 15-year-old girl said she was a forced into prostitution when she was 13, and that Backpage “profits off of women and men,” whether they earn money or are forced into it. A congressional investigation this year found that the website masked the fact that it advertised sex acts with minors as adult classifieds by editing the details.

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