As the new year gets underway, the first Children in Court CRINmail of 2017 will look at the latest children’s rights cases in courts around the world - from fighting for the right to privacy of children with HIV in Kenya, to large scale class action lawsuits to establish accountability for physical and sexual abuse in Canada. This edition will also cover the beginning of first trial of a former child soldier at the International Criminal Court and the recognition of the rights of children of same-sex couples in the courts of Latin America.
Latest news and cases
Two teenage girls accused of homosexuality under the penal code of Morocco have been acquitted by a judge. The 16-year-old and 17-year-old were arrested in October and detained for a week on charges of taking part in “licentious or unnatural acts with an individual of the same sex” after being photographed and reported to the police. The girls were reportedly seen kissing and hugging on the roof of a house in Marrakech. If found guilty, the girls could have faced up to three years in prison.
The Supreme Court of Venezuela has ruled that the children of same-sex married couples are entitled to the full rights and protections guaranteed by the state’s constitution. The landmark judgment concerned two Venezuelan women who married in 2011 in Argentina where they had a child through assisted reproduction. Upon their return to Venezuela, where same-sex marriage was not legal, the child was not recognised as a Venezuelan national born to both women. The court reinterpreted article 75 of the constitution, finding that same-sex couples can be the heads of families entitled to state protection without distinction, and ordered for the child to be registered with the names of both mothers and with Venezuelan nationality and for the state tax authority to recognise the child as the legal heir of both mothers.
The Supreme Court of Arkansas in the United States has overturned a lower court’s ruling which allowed married same-sex couples to put both their names on their child’s birth certificate. Finding that acknowledging “basic biological truths” does not violate equal protection, the court ruled that the state of Arkansas has legitimate interests in listing biological parents on birth certificates, such as tracking public health trends and providing genetic information to the child for medical purposes. The court argued that the protocol for naming parents on the birth certificate was established by the legislature and the state health board and so could not be changed without action by either. Those who oppose the decision point out that married fathers are automatically listed on the birth certificate without any need to prove a biological connection, and criticise the law for treating one class of married persons differently from another in violation of the principle of equal protection.
Privacy
The Kenyan High Court in Nairobi ruled last month that a government directive to collect data on HIV positive schoolchildren and pregnant women violated the right to privacy. The president had sent a request to all schools requiring them to provide data on the number of children, guardians and expectant mothers who were HIV positive. The court heldthat this request violated the right to privacy of the people affected, in that the data collected would be stored in a manner that attached the names of individuals with their HIV status and questioned how schools could obtain this information without compulsory testing for HIV. The court also ruled recording a child’s name and HIV status in official data did not protect the best interests of the child. UNAIDs estimates that 15 million people are living with HIV in Kenya, 1.4 million of whom are under the age of 15.
Anonymity of children convicted of criminal offences has been on the agenda in the United Kingdom as news broke that the government is considering measures to ensure children in conflict with the law remain anonymous for life. The announcement follows the publication of an independent review of the youth justice system in England and Wales, which recommended that children in conflict with the law should be given lifelong anonymity. Currently, anonymity orders expire when a child reaches 18, a provision that caused controversy when it wasunsuccessfully challenged in the English courts last year. According to the report, naming children who have committed an offence when they grow up risks undermining their rehabilitation, as their identity could be established on the internet even though a conviction may have become spent for criminal records purposes. Children’s rights groups and youth justice experts have welcomed the proposal. Speaking for the Standing Committee for Youth Justice, Penelope Gibbs said, “[t]here’s good evidence that the kind of vilification that is associated with a child that has committed a very serious crime being identified, destroys those chances of rehabilitation.” The Courts have rarely used their discretion to pass full life anonymity orders for children, though last month, the High Court of England and Wales made such an exceptional order, only the fourth on record, to protect the identities of three young men who had committed serious offences when they were children.
Health
The Grand Instance Court of Grasse in France has authorised the parents of an unborn baby to preserve stem cells from its umbilical cord and placenta when it is born in order to treat illnesses it may develop in later life. The parents had argued that because their family had suffered several cases of serious hereditary illnesses, including pancreatic cancer, they should be allowed to keep the stem cells “just in case”. France has some of the world’s strictest laws on the use of stem cells to treat medical conditions aimed at preventing use for profit and other ethical abuses. Prior to the court’s decision, persons seeking to harvest stem cells needed to demonstrate that they can be used to treat a specific condition, and many medical professionals are concerned that indeterminate storage of stem cells could become a legal norm, paving the way for commercial storage and usage. There are currently no institutions in France that are allowed to keep blood samples for undetermined anticipatory illnesses, and the stem cells gathered from the baby will be sent to a private blood bank in the United Kingdom.
The Supreme Court of India has directed the central government to curb the rising rates of drug use among children by formulating a national action plan aimed at combating its harmful impact on children. In its petition to the court, leading child rights movement Bachpan Bachao Andolan alleged that inaction and non-compliance with the government’s national policies on the reduction of drug supply and demand has resulted in the violation of the fundamental rights of children across the country. The court directed the government to formulate a national policy on drug and substance abuse within six months, and called for rehabilitation centres to be set up in every district and for a national survey and database on drug and substance use among children.
A court in Australia has ruled that the parents of an intersex child do not need court permission to arrange surgery to remove the child’s male gonads. The five-year-old was heard to have been born with female-appearing genitalia and to identify as a female, with medical experts testifying that she had no certainty of future fertility. In their testimony, the experts asserted that the surgery would remove the risk of Carla developing tumors and insisted that the surgery should take place before puberty. Organisation Intersex International Australia strongly criticised the decision for gender stereotyping and for misusing research on cancer risks which actually called for gonads to be monitored and not removed. The organisation described the court’s view that sterilisation and genital ‘enhancing’ surgeries fall within the power of parental authority and outside the oversight of the court as “disturbing”. The ruling was made last January but published in December.
Sexual and physical abuse
Two former students have launched a class action lawsuit over physical, sexual and emotional abuse alleged to have taken place throughout the 1960s at a school in Manitoba, Canada. The complainants, acting on behalf of all Indigenous and Métis children who attended the school between 1960 and 1983, are suing the order of nuns who ran the school, as well as the Archdiocese of Winnipeg and the Province of Manitoba who are alleged to have known about and failed to stop the abuse. In their statement, the complainants describe incidents of repeated physical assault by the nuns during their six years at the school as well as sexual assault by a priest at the local church the children were encouraged by staff to attend. Both complainants say they have battled panic attacks, alcohol addiction and nightmares ever since.
The High Court of Delhi in India has ruled for the first time that a child born out of rape is entitled to compensation independent of their mother, including maintenance and support. In an important direction issued while upholding the life sentence of a man convicted of raping his 14-year-old stepdaughter, the court interpreted legislation granting compensation to victims of sexual assault to recognise a child born out of rape as both a victim and a dependent of the victim. The court further directed that the judgment should be sent to the Principal Secretary Law of the Delhi government to consider the issue of compensation to child victims, with hope that the legislature will make statutory provisions in line with the judgment.
Detention
The government of the Australian state of Victoria has redesignated part of a maximum security adult prison as a youth detention unit 24 hours after the Court of Appeal of Victoria found that transferring children to the adult jail was unlawful. Children were moved to a unit at Barwon prison in November 2016, following a riot at a Melbourne Youth Justice Centre, which left part of the facility unusable. During the case, the court heard evidence that the adult prison was poorly designed for children, resulting in extended solitary confinement in small cells, limited time outside, inappropriate use of handcuffing, limited family contact and no access to proper schooling. Executive director of the Human Rights Law Centre, Hugh de Kretser, who represented the children during the case, said “[T]he government can try to change the name but it cannot change the facts. Barwon adult prison remains unfit for children.” Currently, 12 children remain in Barwon prison and human rights groups have indicated that they will discuss possible legal responses to challenge the government’s decision.
Courts in the United States continued to grapple with the sentencing of children in December, with the Supreme Court of Ohio issuing two judgments expanding protections for children in the criminal justice system. The first decision found that the ban on mandatory sentences of life imprisonment without parole applies to sentences that are so long that they amount to life without parole. The case revolved around a man who was sentenced to 112 years imprisonment for a series of violent, non-homicide offences he committed when he was 15. The court found that this exceptionally long sentence was unconstitutional in that it denied a child offender “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The second case held that a law requiring the mandatory transfer of children to the adult court for certain offences or in certain situations is unconstitutional as it does not take account of the individual circumstances of children before the court.Justice Lanzinger ruled that “[t]his one-size-fits-all approach runs counter to the aims and goals of the juvenile system, and even those who would be amenable to the juvenile system are sent to adult court.”
Crimes against humanity
In December, the trial of Dominic Ongwen began at the International Criminal Court (ICC) where he pleaded not guilty to 70 charges of war crimes and crimes against humanity allegedly committed in northern Uganda, including the recruitment and use of children as soldiers. The trial breaks new ground for the court, as Ongwen is the first former child soldier to face trial at the ICC. While he will not be tried for any offences he may have committed while he was a child, the ICC does not have jurisdiction to try people who were under the age of 18 at the time they committed an alleged offence, the case raises questions as to culpability of someone who was traumatised by being abducted and forced to fight as a child.According to Child Soldiers International “Mr Ongwen should not avoid justice because of his childhood experiences. However, it would be a potential injustice not to take into account his traumatic experiences when determining an appropriate sentence, should he be found guilty.” The fact that Ongwen was a victim of a war crime “is not a defence in itself. Many perpetrators have been victims at some point in their lives and one cannot simply erase their criminal responsibility on that basis. However, his status as a former child soldier may be relevant at the sentencing stage as a personal mitigating circumstance, should he be found guilty.”
After ten years of litigation, a complaint against Chiquita, an American producer and distributor of bananas, is set to go to trial in the United States. The complaint alleges that the company funded and armed a known terrorist group in Colombia, which was responsible for killing and terrorising thousands of civilians in the banana growing regions of the country. Chiquita admitted financing the armed group Autodefensas Unidas de Colombia in 2007 and paid $25 million to the Colombian ministry of justice, but has never paid compensation to victims. The latest case in the United States rejected a petition to have the case thrown out of court in the United States, a decision which would have meant that the complainants would have had to bring a case in Colombia, where Chiquita no longer holds any assets.
Former Chadian leader, Hissene Habré is set to appeal his conviction for war crimes and crimes against humanity this month. Habré was sentenced to life imprisonment for war crimes, torture and crimes against humanity in May last year and in July, the court ordered financial reparations for victims involved in the case. Accusations against the former president included that he personally committed rapes, with some victims as young as 13. Habré’s case was the first in which a former African leader was prosecuted for crimes under international law in another African country under the principle of universal jurisdiction.
