CRINmail 68:
Children in Court

In this issue:

Introduction

This month’s Children in Court CRINmail, we bring you news and updates on the innovative cases worldwide to protect children’s rights in court. In this edition, we look at the latest judgment from the European Court of Human Rights to grapple with surrogacy bans, the removal of children from classes based on religious beliefs in Canada and attempts to hold medical professionals responsible for female genital mutilation in Egypt.

Latest news and cases

Discrimination

A woman living with HIV in Malawi has successfully appealed a conviction for breastfeeding a child. Unrepresented at trial and accused of negligently and recklessly committing an act “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code, the appellant was sentenced to nine months’ imprisonment. In her appeal, the appellant challenged the constitutionality of the provision for being vague and overbroad, and raised expert evidence highlighting the infinitesimal risk of HIV transmission through breastfeeding by women on antiretroviral treatment. The High Court acquitted the appellant and ordered her immediate release, finding that the proceedings in the trial court had been irregular and biased in violation of her right to a fair trial and that the custodial sentence had been grossly excessive as the incarceration of women with children should always be a last resort. The Court further held that there are limits in the application of the criminal law to cases of HIV transmission, emphasising that the primary role of the law should be to protect people living with HIV from the “unjust consequences of public panic”.

The European Court of Human Rights has ruled that a ban by Russia on US nationals adopting Russian children amounted to unlawful discrimination with regards to the right to respect for family life under the European Convention on Human Rights. The case was brought by 45 United States nationals who in late 2012 had been in the final stages of procedures to adopt the Russian children, many of whom needed specialist medical care, when the passing of a Russian law banning adoption of Russians by US nationals brought proceedings to an abrupt close. The Court found that the ban prevented adoption by the applicants purely on the basis of nationality, and that this was disproportionate to the government’s aims because it applied retroactively, indiscriminately and irrespective of the status of proceedings. The Court ordered Russia to pay each applicant 3000 euros in damages.

The High Court of the United Kingdom has ruled that a transgender woman should be denied contact with her ultra-Orthodox Jewish children on the basis that they would be ostracised from their community. Justice Jackson heard the views of the eldest child, who showed some anxiety about the prospect of contact, and drew on the submissions of rabbis, school teachers, community members and child experts to conclude that the children were “caught between two apparently incompatible ways of living”. Although the judge acknowledged that the practices within the community could amount to unlawful discrimination and victimisation, the “sad reality” remained that the children would face “suspicion and outright opposition from every quarter” such that their well-being and ability to remain in the community would be at risk. The judge limited contact with the children to four letters per year, suggesting that they could mark birthdays and Jewish holidays, and ordered for child experts to support the process of creating a narrative in age-appropriate stages to help the children to understand their father’s departure and transgender identity.

The European Court of Human Rights has ruled that Poland failed to do enough to facilitate a deaf-mute father’s contact with his child in violation of his right to respect for family life. After the child’s father and mother separated, the local family court ruled that the father could see his son three times a week at the mother’s house, but this was later reduced when the father failed to stick to the agreed schedule and the family was assessed by local experts. The father’s subsequent application for weekend visits away from the mother’s house was refused on the basis of the communication difficulties between the father and the child and the comparatively weaker relationship between them. The father’s appeal was dismissed and, on the application of the mother, his parental authority was reduced. The European Court of Human Rights ruled in favour of the father, finding that the Polish courts had violated the father’s “incontestable right to contact with his son”, having “focused on the existence of barriers instead of reflecting on possible means of overcoming them”.

The province of British Columbia in Canada has introduced a new aboriginal family court programme in an attempt to reduce the over-representation of indigenous children in government care. The Aboriginal Family Healing Court Conference pilot programme will be limited to hearing family case conferences after an initial court hearing has already been held. The initiative is intended as an aboriginal-led solution, with band elders included in proceedings to support families to create a healing plan with treatment options and to mark progress through cultural ceremonies. The percentage children in government care in British Columbia who are of aboriginal descent has been rising, from 50 per cent in 2006 to 61 per cent in 2016. The province already has several First Nations courts which handle sentencing in criminal cases in four communities, and the concept of an aboriginal family court has been in development for the past four years.

Education

A Canadian public school board will not be required to give one father advance notice of potential “false teachings” that may arise at school allowing him to withdraw his children from any relevant classes. The father sent a letter to the Hamilton-Wentworth District School Board in September 2010 requesting that teachers notify him if lessons were to address any topic on an extensive list, including sex education, portrayals of homosexual relationships as natural or healthy and “values neutral education”. The school responded saying that it allowed for parents to request children be withdrawn from sex education classes, but it would be unable to notify the father in advance about all classes that might touch on topics included in the letter. The court agreed with these practical objections, but placed greater weight on the issue of removing the child from classes to which his father might object. Justice Robert B. Reid stated in the ruling that "[The public education system], by definition, must provide education to the broadest possible cross-section of the population," adding that inclusion and equality needed to come before "individual religious accommodations in public education”. The court also refused to rule on the father’s request that as a parent he had final authority over the education of his children, finding that it would oversimplify the legal principles involved in the decision. Members of the school board welcomed the decision, but added that they often made religious accommodations, and that the best way to approach issues of religious freedoms was to discuss them openly with teachers and principals. For more information, read CRIN’s summary of the case.

The European Court of Human Rights has ruled that two Muslim parents in Switzerland are not allowed to remove their daughters from mixed swimming classes mandated by the school curriculum. The court accepted that the State had interfered with the parents’ right to religion, but ruled that it did not amount to a breach of the right as it was carried out lawfully and with the legitimate aim of aiding the girls’ social integration. The Court unanimously ruled that the best interest of the children involved was paramount and noted that the State had offered to make some concessions for the children to accommodate their religious background. The court emphasised that inclusive schooling played a special role in the process of social integration, particularly where children of foreign origin were concerned, and took precedence over the parents’ religious or philosophical convictions.

Violence

Two young men were executed in Iran last month, confirming what UN experts describe as an “unprecedented rate” of juvenile executions in the country since the beginning of the year. Hassan Hassanzadeh, sentenced to death for murder at the age of 15, was 18 years old at the time of his execution, while Arman Bahr Asemani, sentenced to death for murder at the age of 16 as well as to 74 lashes for consumption of alcohol, was 20 years old at the time of his execution. It is not yet known if Iran went ahead with the execution of a third juvenile offender, scheduled to take place on 11 February, following calls from a group of UN human rights experts to stay the execution. The Office of the UN High Commissioner for Human Rights claimed that the offender, Hamid Ahmadi, was 17 years old when he was sentenced to death in 2009 for the fatal stabbing of a young man during a fight between five boys. The court relied on confessions reportedly obtained under torture and ill-treatment at a police station. Iran has announced the cancellation of the death penalty for six child offenders, following international pressure, but it is not clear whether Hamid Ahmadi is among those whose sentence has been stayed.

The Constitutional Council of France, which scrutinises French legislation to ensure that the principles of the constitution are upheld, has annulled the ban on “corporal violence” passed in December as part of the Equality and Citizenship Law. The ban did not include a penalty but expanded the definition of parental authority in the Civil Code to include rejecting “all cruel, degrading and humiliating treatment, including all recourse to corporal violence”. The provision was found unconstitutional on the basis that it was not connected to the content of the original text of the bill, a formal requirement necessary for provisions within French laws. The government defended the ban, arguing that the original bill included several provisions related to children, but the Council rejected this position. The French Minister for Family expressed deep disappointment in response to the Council’s decision, criticising the decision to challenge the article as a misguided attempt to preserve the “right” of parents to hit their children. The Council’s decision is final and cannot be appealed.

A court in Egypt has given four people suspended sentences following the death of 17-year-old Mayar Mohamed Moussa after undergoing female genital mutilation (FGM). The primary doctor, Mayar’s mother and the anaesthetist were each given a one-year suspended sentence, in addition to fines ranging between 1,000 and 5,000 Egyptian pounds, while the nurse, who remains in hiding and did not appear in court, was given a five-year suspended sentence and a 50,000 pound fine. Lawyer Reda Eldanbouki, who represented Mayar and her sister, expressed shock at the lenient sentences and criticised the judge for being sympathetic to the defendants and for not regarding FGM and other forms of violence against women and girls as worthy of attention. The sentencing forms part of the country’s second ever prosecution for FGM, and the first since Egyptian lawmakers upgraded FGM from a misdemeanour to a crime with a potential prison sentence of up to 15 years.

The High Court in Lagos, Nigeria has ruled that the state government must consult with the dozens of waterfront communities that surround the lagoon at the heart of the city before evicting them. Ruling that the planned demolitions of the waterfront slums would be “inhuman and degrading”, the court ordered the government, police and lawyers for the slum communities to return to court after one month of initial dialogue, during which time all evictions will be halted. Last October, the Lagos State Governor announced plans to demolish all waterside slums, and the following month saw a violent clearance which forced more than 30,000 people from their homes in Otodo Gbame and the deaths of 11 people, including two children. The Nigerian Slum and Informal Settlement Federation, an NGO working with slum communities, had identified 40 communities threatened by the eviction plans and said more than 300,000 residents risked being forced out of their homes. Residents of Otodo Gbama have meanwhile begun to rebuild their homes on the burned site of their previous dwellings.

Sexual abuse and exploitation

The Court of Appeal in California, United States, has found that a law requiring therapists to report patients who disclose that they have viewed child abuse images does not violate patients’ right to privacy. Since 1980, professionals in California have been required to report patients who reveal that they have made or exchanged images of children being sexually abused, but the law was amended in 2014 to cover patients who say they have streamed or accessed these materials through electronic or digital media. Ruling on the case, Justice Boren held “[t]he privacy interest of patients who communicate that they watch child pornography is outweighed by the state’s interest in identifying and protecting sexually abused children”. Controversially, the judgment also covers children who tell therapists that they have consensually shared sexually explicit images of themselves with their peers, even where these images do not involve sexual abuse or exploitation. The court held that psychotherapists are not investigators who can decide whether a situation involved undue influence, coercion, the use of force or exploitation, whereas law enforcement agencies would have the discretion to investigate further. For more information, read CRIN’s summary of the case.

Three judges investigating allegations that six French soldiers sexually abused children in the Central African Republic during a peacekeeping mission have decided not to bring any charges. The investigation revolved around allegations that the soldiers sexually abused children at a camp for displaced people between December 2013 and June 2014. The allegations came to light when a UN staffer passed an internal UN report to French authorities, containing interviews with children as young as eight. This is the second criminal inquiry into allegations of sexual abuse by French peacekeepers to be closed without bringing charges. A third inquiry into the abuse of three girls between 2013 and 2015 is ongoing. For more information on sexual violence committed by peacekeepers against children, see CRIN’s advocacy guide.

Assisted reproduction

The Grand Chamber of the European Court of Human Rights (ECHR) has ruled that Italy did not violate the rights of a couple by removing a child they were caring for as a result of a surrogacy agreement made in Russia. The facts of the case differed from other surrogacy cases that have come before the ECHR, in that the child was not biologically related to either of the intended parents bringing the case. After attempting unsuccessfully to have a child, the couple had approached a Russian surrogacy agency. The couple claimed that they provided the husband’s semen to the clinic and, after in vitro fertilisation, two embryos were implanted into a surrogate mother’s womb. After returning to Italy with the child born as a result and attempting to register the birth, Italian prosecutors launched criminal proceedings against the couple for allegedly misrepresenting their relationship with the child. During the investigation, it emerged that the child was not biologically related to the couple and the child was removed from their care. The child was initially placed in a children’s home followed by foster care and at the time of the case, was going through the adoption procedure. The case was solely an application on behalf of the intended parents, as the court found that as they had not been caring for the child for two years by the point the case reached the ECHR, they did not have authority to act on behalf of the child. Nonetheless, the court did place emphasis on the best interests of the child in reaching its decision, but accepted that "the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in this case." The case overturns a judgment from 2015 and could have serious consequences for children born of surrogacy when it is prohibited by the home country of the intended parents.

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