In this month’s Children in Court CRINmail we bring you the latest news on children’s rights in courts around the world, from the European Court of Human Rights ruling on Russia’s response to the Beslan school siege to Bangladesh’s implementation of its new child marriage law. We also look at how courts across Europe and Asia are dealing with assisted reproduction and the latest litigation on the right to education.

Latest news and cases

The European Court of Human Rights has ruled that Russia failed to protect the hostages of the Beslan school siege in 2004, which left 330 people dead. The case concerned an attack on a school in Beslan, North Ossetia where for 50 hours more than 1,000 people were held captive by Chechen rebels demanding Russian troops pull out of Chechnya. The court held that Russian authorities failed to take preventive measures to stop the attack in violation of the right to life under Article 2 of the European Convention of Human Rights. The state was found to have had sufficient information of a planned attack linked to a school, but did little to disrupt the terrorists’ meetings, preparations and travels, increase security at the school or warn the school and the public. The court found further violations of Article 2, arising from the use of lethal force by security forces, and serious flaws in the planning and control of the security operation. Powerful weapons such as tank cannon, grenade launchers and flame-throwers were used, contributing to hostage casualties and violating the requirement that lethal force should not be used more than is “absolutely necessary”. The court ordered Russia to pay the 409 applicants 2.9 million Euros in compensation.

The European Court of Human Rights has ruled that both Cyprus and Turkey violated the right to life under Article 2 of the European Convention on Human Rights by failing to cooperate in the investigation of the murder of a 15 year old girl and her parents. The case was brought by relatives of the family who were killed in a Cypriot-Government-controlled area, from which the killers fled back to the “Turkish Republic of Northern Cyprus” (TRNC). Parallel investigations were conducted by both the Cypriot and Turkish (including TRNC) authorities, but the Cypriot authorities refused to hand over the case file to the TRNC authorities, who on their part did not respond to extradition requests by the Cypriot authorities. Both State investigations reached an impasse in 2008. The court held that in the investigation of unlawful killings with a cross-border element the States concerned are required to cooperate effectively and take the necessary steps to ensure that an effective investigation is made. The court found that as a result of the longstanding political dispute between Cyprus and Turkey, the States had been unwilling to compromise their positions and find a middle ground solution. The court ordered each government to pay each applicant 8,500 euros in damages.

An Eritrean woman living in Israel is being prosecuted for grievous bodily harm and child abuse after circumcising her four-year-old son at home according to her own customs and without the use of instruments used in Jewish circumcision rituals. The incident was reported to the welfare authorities after the woman, known only as “A”, brought her son to preschool three days after the circumcision and explained to the teacher what had happened. The mother’s children were then removed and the fact that she had not taken her son to the hospital for medical treatment led to an additional charge of child abuse. Her two daughters were later returned to her partner, but she is not allowed to spend time with them and her son remains with a foster family. According to the indictment, a medical examination found minor swelling on the boy’s penis and a possible need for future surgery to correct the mother’s mistakes, although a urologist testified in court that there is no need for urgent intervention. The mother’s lawyer, Moshe Serogovich, asserted in court that there are no laws regulating circumcision in Israel which, as a religious ceremony, is not required to be performed or supervised by a doctor. Serogovich stressed this cultural defence in court, pointing out that A had carried out the circumcision in a manner acceptable to the Eritrean Orthodox Church, but the state prosecutor contends that there is a need to “draw red lines” for circumcision. A ruling is expected soon.

A doctor in Michigan, United States is facing trial for performing female genital mutilation (FGM) on girls between the ages of 6 and 8. The doctor, Jumana Nagarwala, faces charges of FGM, transportation with intent to engage in criminal sexual activity and lying to a federal agent, and could be sentenced to life in prison if convicted of all the charges against her. Federal authorities became aware of the doctor’s actions after receiving a tip from an unidentified source, and investigators conducted interviews with two seven-year-old victims who allegedly underwent FGM by Nagarwala in February. Records show that both girls had travelled to Michigan with their mothers and, according to the complaint, both girls identified Nagarwala as the doctor they had seen and said that they had been warned not to discuss the procedure. The charges are believed to be the first brought under a US law against FGM that was passed in 1996 and amended in 2013.

Assisted reproduction

The Supreme Court of Singapore has recognised that parents have an interest in “genetic affinity” in a landmark case concerning a sperm donor mix-up. The complainants, a couple who gave birth to a child in 2010 after undergoing in-vitro fertilisation (IVF), sued a medical centre after a genetic test showed that an anonymous donor’s sperm, rather than the husband’s, had been accidentally used to inseminate the mother’s egg. The court denied the couple’s claim for damages amounting to the costs of the child’s upkeep through to the age of 21 because this would involve viewing the child’s birth as a mistake or loss to the parents, sending a harmful message to the child as a result. Instead, the court developed a new category of loss for such cases, based on the idea that parents have a strong interest in being genetically related to their children, an interest which the medical centre was found to have violated. The court set the award for loss of genetic affinity at 30 percent of upkeep costs.

The Court of Appeals in Trento, Italy has ruled that the names of both same-sex partners should be listed on the birth certificates of their two surrogate children, in a landmark ruling for same-sex couples. The children were born to a surrogate mother in the United States, and the court found that the foreign birth certificates were valid because parental relationships in Italy are not determined solely by biological connection, stressing instead the importance of parental responsibility “manifested in the conscious decision to have and care for the child”. The decision marks the first time an Italian court has ruled that a child has two fathers. Surrogacy is illegal in Italy, and those caught entering into surrogacy arrangements can in theory face up to two years in prison and a fine of up to a million euros.

The Supreme Court of Iceland has agreed to review a surrogacy case involving an Icelandic couple who hired a surrogate in the United States to carry their child, using donor sperm and a donor egg. A surrogacy birth plan was drawn up in which it was agreed that the Icelandic couple were the legal parents and that the surrogate mother and the unnamed donors would have no rights to the child. This was confirmed by a court in California after the child was born in 2013, with US citizenship. However, since surrogacy is illegal in Iceland, upon their return the National Registry rejected the couple’s request to register their child as an Icelandic citizen and themselves as the child’s legal parents, prompting them to sue the state. The child has since obtained Icelandic citizenship, and the couple divorced two years ago, after which a fostering agreement was set up with one of them and joint custody granted. The case is believed to be the first surrogacy case to be reviewed by Iceland’s Supreme Court.  

Education

Last month, the United States Supreme Court held that children with disabilities are entitled to individual education programmes to enable them to make progress in light of their individual circumstances. The case revolved around a boy with autism who was attending a public school. His parents removed him from the school and enrolled him in a specialised private school when they saw that he was not making progress from year to year. The parents then sued under the Individuals with Disabilities Education Act to reclaim the private school fees that they had paid. A federal appeal court had dismissed their claim, finding that schools met their educational obligations to children with disabilities if they provided “education benefit [that is] merely … more than de minimis”. The Supreme Court overturned the lower court, Chief Justice Roberts holding that “it cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.” The case will now return to the lower courts to apply this standard.

NGOs in Uganda have filed a lawsuit over the government’s failure to regulate sex education. In October last year, the gender ministry banned comprehensive sexuality education in schools until a policy could be formed to regulate the issue, but the government has yet to implement a policy leaving the ban in place. The Center for Health Human Rights and Development, which is leading on the legal action, argue that the ban is unlawful and poses “a threat to the social development of the country”. The HIV rate in Uganda is more than seven percent among people aged 15 to 49, with transmission rates particularly high among adolescent girls. The Family Life Network, an organisation that supports the ban and was also vocal in campaigning for Uganda’s 2014 law expanding the criminalisation of homosexuality in the country, has also registered as an interested party in the lawsuit.

In March, the Federal High Court of Abuja in Nigeria ruled that free compulsory basic education up to the level of junior secondary school is an enforceable right for all Nigerian children. Nigerian courts have generally held that the rights provisions under Chapter II of the national constitution, including education rights, are not directly enforceable, but the court held that the constitutional provision in conjunction with the Free Universal Education Act created an enforceable obligation against the government at the state and federal level.  It is now clear that a failure of the government to fund universal education will violate the national constitution.

Sexual abuse

The Supreme Court of the United Kingdom has ruled that Scottish law on sexual offences committed against children is not compatible with the right to private life. The case involved a 19-year-old man charged with engaging in sexual intercourse with a girl who was 14 at the time. He claimed that he believed the girl was over the age of 16, which is a defence for this offence, but under Scottish law, this “honest belief” defence is not available where a person has already been charged with a sexual offence involving a child. The man had previously been charged, but not prosecuted, for sexual offences allegedly committed when he was 14. The allegations were that he had exposed himself to children and showed pornography to a young boy, but these were dealt with out of court. The latest decision fell within the ambit of the right to private life because the prosecution disclosed the man’s previous criminal record to the court. The Scottish government argued that any restriction on the right to private life was justified, because the rule acted as a warning about sexual offences against children, so that the defence could not be continuously raised by someone who had been accused of a string of offences in which they claimed to believe that the victim was older than 16. The court dismissed this argument, however, as the offences the man had been accused of previously were not related to his belief in the age of the victims and so could not be viewed as a warning about these kinds of offences.

A French soldier has gone on trial in Paris for allegedly sexually abusing two girls while he was stationed in Burkina Faso. The man, identified as “Sebastien L”, was part of French forces deployed against Islamist militant groups across five countries in the Sahel region of North Africa. He is alleged to have filmed himself sexually abusing the girls in a hotel swimming pool in Ouagadougou in 2015 and, if convicted, faces a sentence of up to 10 years’ imprisonment. In recent months, French courts have struggled to prosecute soldiers for sexual offences committed while deployed. In January, a judicial panel decided not to bring charges against six soldiers accused of abusing children in the Central African Republic during a peacekeeping mission. For more information on sexual violence committed by peacekeepers against children and attempts to bring perpetrators to justice, see CRIN’s advocacy guide.

India's Bombay High Court has ruled that people who fail to report the sexual abuse of children when they have knowledge of it may be prosecuted. The court was hearing a complaint about the rape of a girl by a cook at a school in which the principal of a school is alleged to have “resolved the issue over a cup of coffee” rather than reporting it to police. The decision diverges from an earlier ruling of the Chhattisgarh High Court, in which the court found that it was necessary to establish responsibility for the original offence before it would be possible to prosecute a person for failure to report.

Child marriage

The first child marriage under the special provision of a new law prohibiting child marriage has been administered by a court in Chittagong, Bangladesh. According to the case dossier, the girl, now aged 16, had developed a relationship years ago with the groom, now aged 25, and fell pregnant. After the girl gave birth, it was agreed between the families that the pair should marry, but when the man refused the marriage proposal, the girl filed a rape case with the police and the man was imprisoned. In the presence of both families, the court administered the marriage between the two, and then acquitted the man of the rape charges and ordered his release. Bangladesh’s Child Marriage Restraint Act, passed this year as part of government pledges to end child marriage, contains a controversial provision which allows child marriage to take place in “special circumstances” with the permission of the parents or guardians and the court. The reasoning behind the provision was to reduce the severe stigma and ostracism faced by girls who are raped or sexually assaulted, and Prime Minister Sheikh Hasina has defended the law for taking account of the “realities” of rural society. Critics of the provision, however, raise concerns about its ambiguity and argue that the new law will encourage child marriage and lead to a situation where girls are forced to marry their rapists.