CRINmail 71:
Children in Court
In this issue:
Introduction
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 residency rights of parents of EU citizens to attempts to hold companies and the state responsible for the health consequences of polluting water sources in China. We also feature the latest challenges to life imprisonment of children and highlight some of the new resources published on child-friendly justice.
Latest news and cases
The European Court of Justice has ruled that parents of children with European Union citizenship have a derived right to live within an EU country where to deny them that right would deprive their children of their rights as EU citizens. The judgment arose out of the case of a Venezuelan woman living in the Netherlands. She had initially entered the Netherlands on a tourist visa and had a child with an EU citizen. The child had EU citizenship and so had a right to live in the Netherlands or any other EU country. The mother and father separated and the child lived solely with the mother. Without residency rights, the mother was unable to apply for social assistance for the child and the father was providing no child support. The court ruled that in deciding whether to deny a parent of an EU citizen residency rights, national courts would have to consider who was the primary carer of the child, whether the child is dependent on the parent, whether there is a second parent who would be willing and able to take on the sole care of the child and the best interests of the child. National courts in the Netherlands must now apply this test to this case and to other families in similar situations.
The Australian government has settled the case of a nine-year-old girl whose physical and mental health deteriorated while she was detained by the immigration department on Christmas Island. The girl experienced recurrent dental abscesses and allergic reactions while she was detained as well as post-traumatic stress disorder, depression, separation anxiety, stuttering and bed wetting. The complaint had alleged that the minister of immigration, the Australian government and private company, Serco, had failed in their duty of care by failing to take reasonable care to ensure they did not cause or exacerbate any injuries to the girl. The case had initially been filed as part of a class action on behalf of a group of asylum-seekers detained at the Christmas Island detention centre, but the supreme court of Victoria disbanded the case in April, requiring detainees to file individual cases against the government. A separate class action is due to be heard by the supreme court of Victoria at the end of May.
The Court of Appeal of the United Kingdom has ruled that the former Home Secretary, Theresa May, acted unlawfully in 2014 when she refused to consider allowing entry to the UK to a group of refugee families stranded on the British Sovereign Base Areas (SBA) in Cyprus. The families that brought the case were among a group of 75 who washed ashore on the SBA in 1998, and for 18 years endured deteriorating living conditions in ex-military accommodation. Many of the children have lived their whole lives on the SBA. The UK government, however, consistently denied legal responsibility for the complainants, arguing that the Refugee Convention was never extended to the SBA, such that the families have no grounds to seek resettlement in the UK. In its judgment, the court held that the Refugee Convention does apply to the SBA because it was extended to the colony of Cyprus in 1957. The court ordered the current Home Secretary Amber Rudd to urgently reconsider resettlement of the families, noting that it would be “unreasonable and a failure of the obligations to the refugees if resettlement was not achieved rapidly”.
Juvenile justice
Kenya’s High Court has held that sentencing children to detention at the president’s pleasure (DPP) violates the Kenyan constitution and international human rights law. DPP is an indefinite form of detention requiring that children continue to be detained until their release is ordered by the president. The case revolved around child offenders who were between the ages of 12 and 17 at the time they were sentenced and had been detained for between nine and 23 years at the time the court handed down its judgment. Ruling on the case, justice Mativo found that the sentence amounted to cruel, inhuman or degrading punishment in that the period for which children would be incarcerated “remains at all times unknown to the prisoner and the period of … incarceration is dependent on the executive”. The court also found that allowing the president to make decisions about the release of prisoners violated the principle of separation of powers as enshrined in the Kenyan constitution, as decisions on release from prison are matters for the judiciary. The court ordered the immediate release of the children involved in the case and parliament will now have to amend the relevant legislation in response to the judgment. Challenges to similar indeterminate sentences have been common across commonwealth jurisdictions over the last two decades and you can explore more cases challenging these sentences through our inhuman sentencing campaign case law pages.
Iran has carried out the third execution so far this year of a person who was a child at the time they committed the alleged offence. The man was executed in the Karaj Central Prison near Tehran for a murder he allegedly committed 30 years ago, when he was 16. Human rights organisations have responded to the latest execution, calling for the country to abolish the death penalty for any offence committed by a child to bring the law in line with international law. Iran amended its penal code in 2013 introducing a new sentencing regime for children who commit criminal offences, but retained the death penalty for offences under Sharia law. The country has carried out more recorded executions of child offenders since 1990 than all other States combined. For more information, see CRIN’s campaign report, Inhuman sentencing of children in Iran.
The Supreme Court of Victoria in Australia has ruled that it is unlawful to detain children within an adult maximum security prison and banned the government from continuing to detain children at the facility. The case was brought by the Human Rights Law Centre on behalf of 15 children who were moved to a facility within Barwon adult maximum security prison in November 2016 following a riot at 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 inadequate schooling. The case is the fourth the government has lost on detaining children at the facility. Ms. Leikin, a lawyer who represented the children called on the government to take action in response to the judgment: “The Government must now do the right thing and immediately get all kids out of Barwon and into lawful, humane, age-appropriate youth facilities. The focus must be on showing these kids that better options exist and giving them pathways to become productive members of our community.”
Privacy and healthcare
In the United Kingdom, a woman diagnosed with Huntington’s disease, a hereditary condition causing damage to brain cells giving rise to impaired movement, altered behaviour and premature death, will be allowed to argue that the clinic that diagnosed her father with the condition had a duty of care to inform her about the diagnosis. The father was detained in a mental health facility at the time he was diagnosed and asked the clinic not to inform his daughter about the diagnosis. At the time, the daughter was pregnant and argued that had she known she had the condition, she would have had an abortion rather than take the risk that the child would grow up as an orphan or under the care of a seriously ill single mother. The case did not decide whether the clinic had such a duty to the daughter, but ruled that the case should proceed to trial so that the issue can be argued fully before the court.
The Supreme Court of California in the United States is set to hear an appeal against a law requiring therapists to report patients who disclose that they have viewed child abuse images. 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. The Court of Appeal upheld the law in January this year finding that the privacy interests of patients was outweighed by the interest in identifying and protecting sexually abused children. Aspects of the judgment were particularly controversial, though, in that they required therapists to report children who tell therapists that they have consensually shared sexually explicit images of themselves with their peers. Read CRIN’s case summary of the earlier case.
War crimes
Dutch courts have convicted international timber trader, Guus Kouwenhoven of being an accessory to war crimes and arms trafficking for selling weapons to Liberia’s former president, Charles Taylor. The weapons Kouwenhoven sold to president Taylor were used during Liberia’s civil war to commit mass atrocities and to arm child soldiers. Shipments of timber transported by the Oriental Timber Company carried caches of hidden weapons between 2000 and 2003. The case, which has been ongoing for more than a decade, is believed to be the first war crimes conviction of a businessman profiting from conflict resources. Patrick Alley of Global Witness, which gathered evidence to support the original charges, said “This verdict sends a clear message to those who profit from war. They can and will be held to account. If you buy natural resources like timber in full knowledge that you’re helping fund a conflict or trafficking in arms, there’s only a cheque book between your company and the murder of thousands of people, in this case 250,000.”
The Extraordinary African Chambers, a war crimes court in Senegal, has turned down the appeal of former Chadian president, Hissene Habre. Habre was convicted of crimes against humanity in May last year for wrongful arrest, torture and killings carried out during his tenure as president, and sentenced to life imprisonment. The court overturned one conviction of rape on the basis of a legal formality. While the judge had found the testimony of the victim credible, the charge had not appeared on the original indictment and so the conviction could not stand. The appeal brings to an end almost thirty years of campaigning on behalf of victims. Habre sought refuge in Senegal in 1990 after he was deposed in a coup and it was 10 years before he was arrested and a further 13 before the war crimes court was established to hold the trial. A trust fund is in the process of being established to deal with the reparations ordered to victims.
Child marriage
A 17-year-old girl has approached the family court in Jodhpur, India to challenge her marriage, contracted by her family when she was 15. Following the death of her grandmother in 2015, the girl was married off to a neighbour in accordance with rural tradition. The girl filed a petition with the court after facing pressure from family members and community leaders to go to her in-laws, who threatened to abduct her when she refused. The prevalence of child marriage in the state of Rajasthan is above the national average, though official surveys show a fall in the percentage of women in the state aged 20-24 who had married before the age of 18, from 65.2 percent in 2005 to 35.4 percent in 2015. Meanwhile, in a public interest litigation before the Delhi High Court, NGOs are challenging an exception under section 375 of the Indian Penal Code which does not consider sex with a wife above 15 years of age as rape. Although child marriage is illegal in India, the marital rape exception has been defended for recognising the “social reality” of child marriage and for protecting a couple against criminalisation of their sexual activity. The petitioners argue that the exception violates the equal right of women under the constitution, and point out that marital rape has been criminalised in almost all major common law jurisdictions around the world. The case will be heard in July.
Three women have filed a judicial review with the Constitutional Court of Indonesia to challenge the minimum age of marriage for girls in the country. The Marriage Law 1974 sets the minimum age of marriage at 16 for girls and 19 for boys, but the three women bringing the case were all married between the age of 13 and 14. An estimated 14 percent of girls are married before the age of 18 in Indonesia, with rates as high as 35 percent in some regions. The girls are being supported by lawyers from the Indonesian Coalition to End Child Marriage. Dian Kartika, of the organisation, said, “This judicial review request is based on the survivors’ real-life experience. Being married at such [a] young age has not only brought pain to their lives, but also the lives of their children”.
Environment
A court in Central Kalimantan, Indonesia has ordered the government of the province to review the permits of palm oil companies implicated in devastating forest and peatland fires in 2015. The complainants drew on evidence that the 2015 fire and haze crisis, which at one point released more carbon dioxide than the entire US economy, caused an estimated 100,000 premature deaths in the region, with children in particular suffering significant harm. The court ordered the central government to actively enforce civil and criminal laws to penalise companies whose concessions were implicated in the 2015 fires, meaning that some of the biggest multinationals could potentially be brought to justice. The court also ordered the central government to form a joint ministerial team on forest fire management, and to build a respiratory medicine hospital and evacuation room for people affected by forest fires. Environmental activists in the country have praised the verdict and hope that it will send a strong message to financiers of the palm oil sector about the risks of their investments.
A Chinese court has accepted a case brought by a fish farmer against the local environmental authorities and two polluting steel companies, in what is being described as a watershed moment in the country’s environmental litigation. Significantly, the case will determine whether citizens can sue a government environmental authority after the five-year limitation period for administrative lawsuits has expired. The farmer, Feng Jun, filed his first court case in 2008 against two steel companies that allegedly dumped thousands of tonnes of toxic waste into the Baoqiu river flowing through Xiadian village, after his 16-year-old daughter died of leukemia and his 12-year-old daughter was diagnosed with a less-malignant form of the disease. The court in that case ruled against him, finding that he had failed to provide sufficient evidence that the girls’ cancer had been caused by drinking the polluted water. Xiadian is one of at least 200 so-called “cancer villages” in China, but complainants in pollution lawsuits often struggle to prove the correlation between pollution and illness, with many doctors unwilling to testify against big corporations and some state-run pollution-testing laboratories suppressing data on contamination. In 2015, Feng sued the local government agencies for failing to conduct proper environmental impact assessments but, until last month’s decision, was consistently refused for falling outside the five-year legal window. Feng is arguing that the limitation period is too rigid because it often takes many years before the health and social impact of pollution can be seen.
Children in institutions
The Delhi Commission for Protection of Child Rights in India has not conducted an investigation of a children's home since 2015 despite a mandate to do so. The failure to conduct investigations, uncovered through a right to information request, is reportedly because no new members of the Commission were appointed to replace those whose terms expired. News also recently broke of abuses of children in orphanages and children’s homes across India. In one case in Hyderabad, girls living in an orphanage were reported to have been forced to clean a manhole. The incident was filmed by a passerby who handed the footage to police, triggering an investigation into allegations of child labour and cruelty to children. In Guwahati, police arrested three people accused of beating a boy with disabilities in a privately run children’s home. The boy was reportedly beaten severely within hours of arriving at the home, and the extent of his injuries became apparent when he was admitted to hospital. Utsah, an NGO working on the protection of children’s rights, has called for a probe into the incident and the organisation that is running the home.
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Last Word
This month has seen an array of resources being released on child friendly justice. The International Association of Youth and Family Judges and Magistrates has published its guidelines on children in contact with the justice system, which gives guidance on how to address the needs of children who come into contact with the justice system, whether accused of a crime, as a witness, victim or because an issue affects their interests. The Canadian Bar Association has released a toolkit on children’s rights targeting judges and lawyers to fill a gap left by inconsistent implementation of children’s rights across the country.
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