In this month's Children in Court CRINmail, we bring you news and updates on children’s rights cases around the world, from the struggle to abolish corporal punishment of children in Zimbabwe to Pakistan’s ruling on the legality of in vitro fertilisation. This edition also highlights ongoing litigation on the rights of refugee and migrant children and the fight against solitary confinement of children on both sides of the Atlantic.

Latest news and cases

The High Court of Zimbabwe has ruled the corporal punishment of children at home and in schools is unconstitutional. The case was filed on behalf of the parents of a child who was beaten by a teacher at her primary school in Harare resulting in serious bruising. A court ruling finding that a law is invalid for violating the constitution of Zimbabwe must be confirmed by the Constitutional Court before it can enter into force, a requirement that may substantially delay or prevent the implementation of the decision. In December 2014, the High Court ruled that the caning of children as a criminal punishment violated the prohibition on cruel, inhuman or degrading treatment or punishment under Zimbabwe’s constitution. The Constitutional Court delayed hearings on the case, however, and the 2014 case remains pending and unenforceable.

The Catholic Church is set to argue for the dismissal of 25 allegations of child abuse awaiting hearings before the District Court of Guam by challenging the legality of a law that lifted the statute of limitations on civil action for the sexual abuse of children. Guam passed legislation in September last year abolishing rules requiring children to bring complaints of sexual abuse within two years of the abuse occurring, recognising the many years it can take victims of abuse to come to terms with what they have experienced and feel ready to seek justice. The law reform has permitted a large number of cases to be filed alleging sexual abuse of children by Catholic clergy. Senator Frank Blas Jr, who co-sponsored the original legislation, has said he believes the law would be ruled lawful.

The European Court of Human Rights has ruled that Italy violated the right to life, protection from torture, inhuman and degrading treatment and the prohibition on discrimination by failing to protect a mother, Ms. Talpis, and her children from domestic violence at the hands of an abusive husband and father. On four occasions, police responded to reports of domestic violence and on the fourth occasion, the man attacked Ms. Talpis with a kitchen knife and stabbed their son to death when the boy tried to separate his parents. Ms. Talpis had lodged a complaint with police but they failed to issue a protection order and did not question the husband until seven months after the initial complaint was made. The Court found that Italian authorities had an obligation to assess the risk to Ms. Talpis and her children and to provide adequate support. In particular, the court found no plausible explanation for the delay in investigation or for the three years it had taken to pursue criminal proceedings in the case. 

Juvenile justice

This month, Kuwait’s National Assembly voted to prohibit the death penalty and life imprisonment for offences committed by children and to raise the age of criminal majority to 18, to ensure children cannot be sentenced as adults. The reform comes just three months after legislation came into force in the country allowing children to be sentenced as adults from the age of 16, a reform that effectively reintroduced the death penalty for offences committed by children. The new legislation would cap the maximum sentence for children convicted of a criminal offence at 15 years’ imprisonment. Members of the parliament are reported to have traded harsh words during the debate on the bill, alleging that the original legislation had been politically motivated and intended to crack down on young protesters. Parliamentarians voted nearly unanimously for the legislation - 53 out of 54 voted in favour - and the bill must now be promulgated by the Amir before it can enter into force.

The High Court in the United Kingdom is set to hear a challenge to the use of solitary confinement for children. The Howard League for Penal Reform, a NGO based in the UK, filed the complaint in relation to the detention of a teenage boy in Feltham prison in west London. The boy has been detained in his cell for more than 23 hours a day and during the short periods out of his cell, he has not been permitted contact with other children. The use of solitary confinement for children in detention in the UK is reported to be much more widespread than this individual case. In his 2014-15 report on Feltham, the Chief Inspector of Prisons reported that 26 percent of the population were being managed on units under a restricted regime that excluded them from activities and meant that they were unlocked for less than an hour a day. The judicial review will claim that the practice imposed on the boy is unlawful and constitutes cruel, inhuman and degrading treatment of children. The judge hearing the case has ordered an expedited hearing.

The District Court in the United States has allowed a class action to proceed to challenge the use of solitary confinement for children in detention facilities for children since April 2015. Documents before the court indicate that 128 children were placed in isolation over a six month period in 2016 and it is expected that others will join the class action because of this ruling. The case was originally filed by the family of a 15-year-old boy who had been placed in isolation for 23 hours a day at Rutherford County Juvenile Detention Center, but was expanded to a class action on behalf of the larger group of children affected by the practice when the American Civil Liberties Union (ACLU) joined the suit. ACLU-Tennessee Legal Director, Tom Castelli said: “The government cannot lock children in isolation like this with next to no standards or regulations.... Sometimes children make mistakes, and the best thing we can do for them is focus on rehabilitating them so that they can become productive members of society, not mistreating them and causing long-term damage.”

Refugees and migration

The Court of Justice of the European Union has ruled that Belgium was entitled to refuse a visa to a Syrian couple and their three children as humanitarian visas are not addressed by EU law and so fall within the jurisdiction of individual States. The couple were orthodox Christians from Aleppo and applied for a visa at Belgium’s Embassy in Beirut under the EU Visa Code the day before they returned to Syria. The court found that as the Code only applies to short term visas and that as there is no EU legislation directly addressing long term humanitarian visas, the issue falls outside the scope of EU law and is for individual States to determine. In earlier decisions, advisers to the court have suggested that member States should be compelled to issue short term visas for people at risk of torture or inhuman treatment, but the latest case indicates that the court is backing away from this position. The ruling places the responsibility of granting humanitarian visas with Member States, but does not change their obligations under international and national law, including ensuring that no one seeking asylum is exposed to inhuman or degrading treatment.

It has been a month of high profile immigration cases before British courts. The Supreme Court of the United Kingdom has found that minimum income rules requiring that a person earn more than £18,600 for their spouse or partner to be able to immigrate and join them in the country are legal. The rules are designed so that any partner entering the UK from a non-European country will not be eligible for income based benefits and so the minimum income requirement is higher for couples with children. The court recognised that the rules will have “a particularly harsh effect” on many families beyond those involved in the case, but that this did not mean that the policy was illegal or violated the European Convention of Human Rights. The court did find, however, that the rules and guidance covering decisions on whether to allow a partner to enter the UK do not take account of the duty to safeguard and promote the welfare of children. The decision does not undermine the minimum income requirement as a whole, but the government must now amend its immigration rules and guidance to ensure that the best interests of children are taken into account in these immigration decisions. It remains to be seen how these changes will affect children.

In a separate case, the Court of Appeal ruled that detaining an unaccompanied child may amount to unlawful detention, even where the official responsible for making the decision to detain reasonably believed the child to be over the age of 18. The case revolved around a Sudanese boy who entered the UK in the back of a lorry and claimed asylum when he was discovered. The judge held that the limitations on the use of detention for unaccompanied children apply when a person is factually under the age of 18, regardless of how old immigration officials reasonably believe the child to be. Based on the specific facts of the case, the boy is entitled to compensation for unlawful detention, as his circumstances did not meet the permitted grounds for detention.

The Central Jakarta District Court in Indonesia has begun hearing a class action lawsuit against the Australian Government alleging that Indonesian boys seeking asylum in the country were held in adult prisons. The case, filed with the support of Indonesia’s National Commission of Child Protection, is being brought on behalf of 115 Indonesians who were allegedly jailed or held in immigration detention facilities. Lawyers acting for the boys claim that 31 of them aged 13 to 17 were held in adult prisons in Sydney, Melbourne, Brisbane and Perth between 2008 and 2012 for trafficking offences for crewing boats carrying asylum-seekers. The case gets underway as human rights organisations have submitted allegations to the International Criminal Court over Australia’s treatment of refugees and migrants in the Nauru and Manus Island detention centres. The claim, filed by the Global Legal Action Network and the Stanford International Human Rights Clinic, details the treatment of the Australian state and corporations towards asylum seekers and urges the ICC to open an investigation into possible crimes against humanity.

Detention

The European Court of Human Rights has ruled that jailing prisoners thousands of miles away from their relatives violates their right to respect for private and family life under Article 8 of the European Convention on Human Rights. The case was brought by prisoners and their relatives in Russia, who complained about decisions to detain prisoners in remote facilities, up to 8,000km from their families. One of the applicants was a young girl born after the incarceration of her father and has never been able to see him as a result. The Russian Federal Penal Authority has wide discretion in choosing where to place prisoners, without the need to consider its effect on the detainee’s family life. The Court found that Russian domestic procedures do not adequately safeguard against arbitrariness in the exercise of discretion through effective judicial review or any other realistic opportunity to apply for transfer on family grounds, ruling that the interference with the right to private life was therefore not in accordance with the law. The Court also noted that the margin of appreciation given to States on permissible interference with private and family life regarding family visits in prison has been narrowing.

Cork County Council in Ireland has backed a motion to raise the lack of a children’s detention centre outside of Dublin before the European Court of Human Rights, after the Department of Children and Youth Affairs rejected calls to set up a detention centre in Cork. The department stated that it provides sufficient support to families visiting the only detention centre in the country, by transporting them to and from local bus and train stations, allowing for flexible visiting hours and providing exceptional needs payments to families unable to pay for the long journeys. But social workers repeatedly draw attention to overcrowding and hard-pressed staff at the detention centre, and argue that it is unfair to drag families 300 miles across the country to the facility.

This month CRIN published new resources on children in detention, including a compilation of statistics on the number of children detained in the criminal justice systems of 180 countries and analysis of almost 100 cases from courts in more than 41 countries that have applied - and misapplied - international human rights standards on the detention of children. The resources are published as the UN Global Study on Children Deprived of Liberty gets underway - the study will assess the scale of the phenomenon of children detained in all settings, whether prisons, immigration facilities, for national security, as a result of armed conflict, or in care institutions and make recommendations on how to protect the rights of children who are detained.

Discrimination

Two Romani boys denied enrolment at a non-segregated, mainstream primary school in Ostrava, Czech Republic have won their case before the District Court. The Court ruled that the school had discriminated against Romani children on the basis of ethnic background through its enrolment criteria, which involved a form of readiness testing used as a way of regulating the number of Romani children. The director of the school had publicly stated that he did not want more than four or five Romani children in a classroom because higher numbers may cause “white flight”. The Court held that primary schools cannot prevent the enrolment of higher numbers of Romani children, asserting that prevention of “white flight” cannot justify the denial of any child’s right to education and that the schools should be able to demonstrate that schools with higher numbers of Romani children can offer high quality education. The case comes after the Czech Ombudsperson launched an investigation into discrimination in school enrolment, finding that although testing may be appropriate for secondary schools and universities, such an approach is inappropriate for primary schools, attendance of which is compulsory for everyone.

A trial court in Tangier, Morocco has recognised the filiation of a child born out of wedlock to her biological father in an unprecedented first for the Moroccan judicial system. The child’s mother had applied to the court seeking recognition of the biological father’s paternity and obligation to provide maintenance for the child. The Moroccan family code states that, in contrast with maternal filiation, “illegitimate filiation to the father does not produce any of the effects of legitimate filiation”. The judge focused instead on the Moroccan constitution and the Convention on the Rights of the Child, which require that the best interests of the child be a primary consideration and require equal protection regardless of familial status. However, despite recognition of paternity, the judge did not recognise the child’s right to her father’s lineage, rejecting the request for financial support which may only be awarded to children born within marriage. Instead, the judge used principles of tort liability to find that the defendant’s illegal relationship with the child’s mother created an obligation to provide compensation for his actions. The judge sentenced the father to pay MAD 100,000 (US$10,000) in compensation to the mother.

A court in Canada has ruled that the government is liable for removing thousands of First Nations Ontario residents from their communities as children between the 1960s and 1980s. The children were adopted into non-indigenous families, in what became known as the Sixties Scoop. “They lost their aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive,” Superior Court Justice Edward Belobaba said in his decision. The federal government has indicated that it does not intend to appeal the ruling, despite federal lawyers having previously tried eight times under two different governments to have the case thrown out. The case hinged on an agreement between Ottawa and Ontario in 1965 under which the province was allowed to extend the delivery of its child welfare services to indigenous families with reserve status, but that bands had to be consulted before the services were applied to them. The Court concluded that this had not occurred and that Canada had failed in its duty of care. Damages have yet to be awarded, but the claimants are asking for approximately $85,000 for each of the expected 16,000 class members. Some estimates suggest that as many as 200,000 indigenous children were removed from their homes across Canada during the Sixties Scoop. Separate Sixties Scoop cases have been launched in a number of provinces, some going further to allege physical and sexual abuse, to include all indigenous “scooped” children and not just those taken from reserves, and to hold the provinces responsible alongside the federal government.

Assisted reproduction

The Federal Shariat Court in Pakistan has given legitimacy to in vitro fertilisation (IVF) in a landmark judgment for the country, while also declaring surrogacy to be un-Islamic and unlawful. The Court ruled that an IVF procedure would be lawful if it involves an egg from the intended mother and sperm from the intended father. The practice of surrogacy, by contrast, was found to be against the injunctions of the Qur’an and Sunnah, and the Court called for amendments to the Pakistan Penal Code and the Contract Act to include a definition of surrogacy with penalties for the procuring couple, the surrogate and the doctor. The case was brought by a man who had hired a surrogate who later refused to hand over custody of the child. The Court held that surrogacy would create social problems in the country, namely, complications in inheritance and discrimination. The function of the Federal Shariat Court in Pakistan is to determine whether the laws of the country comply with Islamic law. Artificial reproduction is a divisive issue in the Islamic world. While most Muslim-majority countries permit IVF involving gametes from married couples, only Iran and Lebanon, whose Muslim populations are predominantly Shi’a, allow for third-party reproductive assistance to infertile married couples, following a fatwa from Ayatollah Ali Khamenei in 1999.