Latest news and cases

A district court in Oregon, United States, has ruled that children suing the federal government for their right to a stable climate can now proceed to trial. The children, who range in age from 8 to 19, allege that climate change violates their constitutional right to life, liberty and property, as well as the public trust doctrine, which requires the state to protect and maintain natural resources such as coastlines for the public’s benefit. The children, represented by environmental NGO, Our Children's Trust, argue that climate change is exacerbated by certain federal government actions such as permitting fossil fuel development and subsidising the fossil fuel industry. They argue that the government is prioritising short-term profit, convenience, and the concerns of current generations over those of future generations, despite the knowledge they possess of the long-term dangers. Judge Ann Aiken ruled that there is “no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society”, supporting the idea that climate change is unconstitutional. The case will go to trial in 2017.

The father of a child who died during the 2015 fire and haze crisis in Indonesia has testified as part of a legal challenge against local and national police, who in July closed investigations against 15 plantation companies listed by the environment ministry to have been complicit in the crisis which caused half a million people to become sick. The citizens’ lawsuit is being brought by the people of Riau, a province on Indonesia’s main western island of Sumatra and an epicentre of the fires, who have called for the police to reopen investigations. Last year’s agricultural fires - part of practices by farmers and companies aimed at clearing forest and peatland cheaply - released more carbon into the air than the entire US economy during the same period. Twenty-four people died as a result of the toxic smoke according to government figures, but US-based researchers estimate that more than 100,000 people died prematurely. President Joko Widodo has called for tougher law enforcement on haze outbreaks, which are an annual scourge, and the Indonesian parliament set up a commission in August to look into the cancelled investigations.

The High Court in the United Kingdom has begun hearing lawsuits filed by the Ogale and Bille people in Nigeria, who are demanding that the oil company, Shell, clean up oil spills in the Niger River Delta. Lawyers for more than 40,000 Nigerians brought the case to the English courts because the Nigerian legal system is seen to be too corrupt, with similar cases being delayed in Nigerian courts for years. Shell’s Nigerian subsidiary company will challenge the jurisdiction of the English courts because the case involves Nigerian plaintiffs and Nigerian issues. The Shell Petroleum and Development Company of Nigeria has not produced oil or gas in the region since 1993, but lawyers for the communities argue that Shell must take responsibility for the ageing and leaking pipelines which still run through the region.

Discrimination

The Court of Cassation in France has ruled that police identity checks which disproportionately target young people of African and Arab origin are illegal, in an important judgment which places the burden of proof on the police to demonstrate that they carry out stop-and-search activities in a non-discriminatory manner. The Court held that those singled out for stops need only to raise a presumption of discrimination which the State will be required to rebut by proving that the stop was based on objective and individualised grounds. As the French police do not at present record any information about the ethnicity of those subjected to stops, compliance with the ruling will require fundamental changes to French police practices.

In Italy, the Constitutional Court has ruled that an archaic law which automatically gives children of married couples the paternal surname is incompatible with the principle of gender equality enshrined in the Italian constitution. The case was initially brought by an Italian-Brazilian couple whose request to give their son both of their surnames was rejected by Italian authorities. The couple took their case to the European Court of Human Rights in 2014, which ruled in their favour, but a bill aimed at changing the law has been blocked by the Senate for years, raising questions about how quickly the Constitutional Court’s decision will be implemented.

The Supreme Court in India has issued directions to courts to fast-track complaints against pre-natal diagnostics in an effort to strengthen implementation of a 22-year-old law banning foetal sex determination. The verdict followed public interest litigation on the issue of female infanticide, which continues to take a toll on the country’s uneven sex ratio despite legislation which prescribes punishment of up to three years in jail. Citing the constitutional identity of the female child, the Court called for states to maintain centralised birth registration databases, educational media campaigns, periodical judicial training, and the formation of a committee of three judges to oversee pre-natal diagnostic cases.

The Supreme Court in the United Kingdom has ruled in favour of two families who argued that the bedroom tax, a controversial austerity measure which reduces housing benefits for people in social housing if they are deemed to have a spare bedroom, discriminated against people with disabilities. The Court dismissed the claim of a domestic violence victim who had been allocated a three-bedroom house which was then specially adapted by the police for her protection, but ruled that Jacqueline Carmichael, who cannot share a bedroom with her husband because of her disabilities, and the Rutherford family, who need a regular overnight carer for their grandson, should not be penalised under the measures. The ruling came as the UN Committee on the Rights of Persons with Disabilities issued a report which highlighted “serious and systematic” violations of the rights of persons with disabilities in the UK, particularly after the welfare reforms of 2012.

Harmful traditional practices

The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) has heard the case of two brothers who were forced to work as child slaves in Mauritania, in an important development for the anti-slavery movement in the country. In 2011 the two brothers, Said and Yarg Ould Salem, managed to escape their abuser, El Hassine, who was subsequently found guilty in the first and only successful case under Mauritania’s 2007 anti-slavery law. Activists have been critical of the sentence and damages awarded, however, arguing that they were much too lenient. El Hassine was released on bail in 2012, prompting human rights groups SOS Esclaves and Minority Rights Group International to apply to the ACERWC on behalf of the brothers, asserting that Mauritania has breached the African Charter on the Rights and Welfare of the Child by failing to ensure the effective prosecution of those responsible for holding the Salem brothers in slavery. Mauritania was the last country in the world to legally abolish slavery, which predominantly affects the black Haratine ethnic group and passes from mother to child, but the practice remains widespread. Activists believe that a ruling from the regional court will have a significant impact on the country’s current approach to slavery.

Eric Aniva, the notorious Malawian man accused of having sex with more than 100 girls and women as part of traditional “sexual cleansing” rituals, has been convicted and sentenced to 24 months in jail with hard labour. President Peter Mutharika ordered his arrest in July after a BBC documentary in which Aniva spoke openly about his role in the rituals prompted international outcry. Customary practice in some parts of Malawi involves paying a man, known as a “hyena”, to have sexual intercourse with girls as part of an initiation ceremony to mark the transition into adulthood, and with widows as part of a cleansing practice to exorcise evil spirits. No young girls came forward to testify against Aniva, so he was tried for committing a “harmful cultural practice” under Malawi’s Gender Equality Act for the offences against widows. Aniva’s lawyer has indicated that he will appeal against the conviction and sentence.

Health

The Constitutional Court in Turkey has ruled that vaccinating a newborn baby without family consent constitutes a violation of the right to privacy. The Court held that an individual’s physical and spiritual integrity, protected by the right to a private life, is violated by the administration of vaccinations other than the smallpox vaccine required by law. By contrast, the obligatory withdrawal of blood from the heel for disease-testing was found to be lawful and necessary for the protection of children and public health. The decision is consistent with the Constitutional Court’s ruling on the issue in 2015, which contradicted the Supreme Court of Appeals’judgment that parental permission is not required for the administration of vaccines which are deemed to be in the best interests of the child. Turkey’s former health minister, Mehmet Müezzinoğlu, has been critical of the judgment, arguing that the judgment ignores the public health risks of failing to systematically vaccinating children.

In Mexico, the Supreme Court has upheld a law establishing children’s rights to access contraception and education addressing sexual orientation. The decision comes after a mother from the state of Aguascalientes challenged the General Law of the Rights of Children and Adolescents for violating parental authority and the right of parents to educate their children. She argued that the law discriminated against children and adolescents on the basis of gender by referring to “sexual preference” and by “unduly” guaranteeing children access to contraception. The Supreme Court vindicated the arguments of examining judge Alberto Gelacio Pérez Dayán, who pointed out that children choosing their own sexual orientation did not infringe the rights of the plaintiff and that parental authority does not substitute the will and consent of the child. On the issue of contraceptives, the Court found that the law simply compels states to guarantee access to children, who are not obliged to receive or use them against their will. Pérez Dayán added that the law does not seek to impose any sexuality on children but simply ensures they have access to quality sex education and establishes affirmative action for children at risk because of their gender or sexual orientation.

A 14-year-old girl in the United Kingdom who died of cancer in October has won a High Court case respecting her wish to be cryogenically frozen in a bid to be revived should a cure for her disease be found in the future. Because of her age, the girl was unable to make a legally recognised will and needed the consent of both her parents to sign up to be cryogenically preserved. The girl's divorced parents disagreed over her wish to be frozen, so the girl asked the High Court to step in and allow her mother, who supported her daughter’s wishes, to be the only person to decide on the disposal of her body. While the father had initially voiced moral and ethical objections, as well as financial concerns over the cost of the process, he eventually told the court that he respected his daughter’s choice. Justice Peter Jackson said he was not making a decision on the rights and wrongs of cryogenic science, which is not illegal under UK law, but on selecting the best person to make decisions on disposal of the body given the disagreement between the parents. For more information on children’s rights and consent, read CRIN’s recent submission on children’s health-care rights.

Freedom of religion

The Malaysian government has proposed an amendment to the Law Reform (Marriage and Divorce) Act to put in place legal safeguards against the unilateral religious conversion of children. The proposed amendment specifically addresses civil marriages where one spouse has subsequently converted to Islam, and holds that the child shall remain in the religion of the parents at the time of the marriage, unless both parents agree to the conversion. The law does not allow children to choose their own religion until they turn 18. The issue of unilateral conversions is both controversial and complex in Malaysia’s dual legal system, and the proposed amendment comes as Indira Gandhi’s lengthy high profile legal battle continues before the Federal Court. Gandhi’s children were converted to Islam without her knowledge and consent by her ex-husband, who was awarded sole custody by the syariah court in a decision with which civil courts are precluded from interfering. The Federal Court will resume hearing her appeal next month.

Six schools in South Africa have launched a case in Johannesburg High Court claiming that they have a right to follow a single religion in a case which will have implications for any school that promotes one religion through dress code, prayers or readings. The complaint was filed by the non-governmental organisation Organisasie Vir Godsdienste Onderrig en Demokrasie (OGOD), who argue that the constitution and the National Policy on Religion and Education do not allow for a single religion to dominate a public institution. The schools argue that the constitution does not preclude educational institutions from having a religious character or ideological identity, and cite section 15 of the constitution which allows for expression of religion in the public sphere as long as it is voluntary. Cause For Justice, an NGO admitted as a friend of the court, warned that if the lawsuit succeeds “our religious rights could be swept away”.

The High Court in the United Kingdom has ruled that an Islamic faith school’s policy to separate boys and girls for religious reasons does not constitute discrimination under equality legislation. The Court rejected the argument derived from the landmark United States civil rights case Brown v. Board of Education that the very fact of segregation involves discriminatory treatment of girls because of “deep-seated cultural and historical perspectives as to the inferiority of the female sex”. Although denial of the opportunity to interact with the opposite sex could amount to the denial of a “benefit” under the Equality Act, the Court held that it could not be said that one sex was being treated less favourably than the other.

Rights of transgender children

While a group of African states attempted, unsuccessfully, to suspend the work of the first UN independent expert on sexual orientation and gender identity appointed last September, the past month has seen numerous cases related to the rights of transgender children in courts around the world. The number of legal battles over transgender children’s rights has been rising in the United Kingdom, with parents and religious groups clashing against schools or local authorities over decisions to let children transition. A recent High Court ruling, in which a seven-year-old child, born male, was removed from the care of their mother because of the “significant emotional harm” caused by being made to live as a girl, has reportedly emboldened ex-partners to try to get custody of children who have transitioned under the primary carer.

In Canada, calls for judicial training on gender identity have been made after a lengthy court case saw two judges prohibit a child, born male, from wearing female clothes in public, before the clothing restriction was eventually overturned by a third judge to allow the child to choose between male and female clothing options. The Supreme Court of the United States has agreed to hear an appeal from a Virginia school board concerning a transgender student seeking to use the boys’ bathroom at his high school. The case, which will be heard next year, marks the first time the country’s top court has taken up the controversial issue of transgender rights, with similar lawsuits pending across the country. In Israel, a couple have appealed to the High Court of Justice after the Interior Ministry refused to register them both as fathers of their biological son. In a meeting to determine the baby’s official status, the Population and Immigration Bureau had registered Yonatan, a transgender man, as the mother and sole parent of the child, resetting his gender as female without his consent and leaving the child officially fatherless.