In this month’s Children in Court CRINmail, we bring you the latest news on children’s rights being litigated in courts around the world, from the protection of the rights of LGBT children to the citizenship rights of children. We also feature the latest attempts to hold abusers responsible for historic sexual offences and an upcoming decision from India’s Supreme Court on the marital rape exemption applied to sexual offences committed against children.
Latest news and cases
A 17-year-old student from Victoria, Australia has filed a discrimination complaint against the federal government’s exclusion of 16 and 17-year-olds from voting in a postal survey about same-sex marriage. The complaint seeks to contradict the position by the Australian Electoral Commission that children aged 16 or older are “provisionally enrolled” on the electoral register but are not treated as being enrolled for the purposes of elections. Since the postal survey is not an election but a collection of statistical information carried out by the Australian Bureau of Statistics, the student is arguing that the 50,000 16 and 17-year-olds on the electoral roll should be counted. The complaint argues that discounting 16 and 17-year-olds is a breach of the Age Discrimination Act, from which the Electoral Act - but not the Census and Statistics Act which governs the postal survey - is exempted. The complaint has been lodged with the Australian Human Rights Commission, but will move to the federal court if the Commission finds that there is no prospect of reaching a resolution through conciliation. Elsewhere in the country, a five-year-old child has become the first foster child in the Australian Capital Territory (ACT) to be legally adopted by same-sex parents, a milestone for Canberra’s foster care and LGBT community. Although same-sex adoption has been legal in the ACT for more than a decade, many children are in need of adoptive families, with only 278 adoptions taking place in the country in 2015-16.
The Supreme Court of India has confirmed the right of LGBT people to express their sexuality without discrimination, in a historic ruling that paves the way for discrimination against LGBT people to be challenged in court. The court held that provisions in the Constitution relating to liberty covered sexual orientation, rejecting arguments made by the government that there was no legal right to privacy to find that sexual orientation constitutes “an essential attribute” of privacy. The ruling formed part of a wider case assessing whether privacy was a fundamental right for the 1.3 billion people living in India, with the court concluding that privacy should be considered as part of the right to life and liberty enshrined in the Constitution. The Indian government has indicated that it will respect the ruling, and rights activists have drawn attention to the need to abolish Section 377 of the country’s Penal Code, which prohibits sexual activity that is “against the order of nature”. In a 2009 legal challenge, the High Court of Delhi dismissed the controversial provision, but the Supreme Court overturned the verdict finding that it was Parliament’s responsibility to reform the law. Another legal challenge to Section 377 is currently underway.
The High Court of Justice in Israel has rejected a petition filed by the Israeli Gay, Lesbian, Bisexual and Transgender Association to recognise same-sex marriage. The court held that it is up to Israeli lawmakers to determine the issue, finding that the appeal was wrong in its basis because rabbinical courts are the only authority regarding Jewish marriage in the country. The court found that by approaching a civil court the applicants were asking the High Court to recognise same-sex marriage via legislation. The court found that the state’s current position does not contradict the Basic Law on Human Dignity and Liberty, and while it noted a trend in legalising same-sex marriage in the West, it claimed that in most countries this was realised through legislation.
An administrative court in France has annulled the decision by the right-wing local authority of Châlon-sur-Saône to not provide an alternative to pork in its school canteens. The case was brought by the Muslim Legal Defence League (LDJM), who argued that the decision was illegal, discriminatory and a violation of the right to freedom of conscience and religion. The court did not accept the arguments on religious freedoms, but held that the town’s failure to provide an alternative meal, meaning that many local Muslim or Jewish children went without lunch, had not been in the best interests of children and had contravened the Convention on the Rights of Children. The court limited its decision to the circumstances of the case, indicating that the annulment was not to be regarded as being of general scope. The mayor of the town claimed he was upholding the French Republic’s principle of “laïcité”, or secularism, in stopping provision of non-pork alternatives, and the authority has indicated that it will appeal the decision.
The Western Cape High Court in South Africa is considering a petition to have Muslim marriages recognised under common law. The case has been brought by the Women’s Legal Centre, which has long argued that the lack of legal recognition of Muslim marriages has resulted in Muslim women being treated unfairly upon the dissolution of marriage, with no access to the courts to assert their rights. The lack of court access means that those married according to Islamic law can only obtain divorces under Islamic law, and not through the common law court system. Religious decision-making bodies that aim to assist women often lack the enforcement powers to ensure that rulings are implemented. The applicants argue in particular that because such marriages are not currently recognised, when Muslim couples divorce there is no automatic court oversight for the wellbeing of affected children. In 1996, the government began a process to recognise Muslim marriages, but that process came to a halt in 2012 when the Muslim Marriages Bill was published for comment.
Armed conflict
Last month, the African Commission on Human and Peoples’ Rights found the government of the Democratic Republic of the Congo responsible for the massacre of over 70 people in Kilwa, in the south-east of the country. The Commission found that the State had been responsible for extrajudicial executions, torture, arbitrary arrests, disappearances and forced displacement, but also rebuked the Anvil Mining Company for its role in providing logistical support to soldiers who carried out the attacks. The case was brought jointly by three NGOs on behalf of eight victims in 2010, after six years in which the State failed to hold perpetrators to account. The Committee was particularly critical of a military trial in 2006, in which Anvil Mining personnel and Colonel Ademar Ilunga, the commanding officer of the soldiers at Kilwa were exonerated. The Commission ordered the State to pay $2.5 million in compensation to the victims and launch fresh criminal investigations to prosecute and punish those responsible for the massacre.
Sexual abuse
More than 100 complaints are now pending against the Catholic church in Guam alleging that clergy and others affiliated to the church sexually abused children. The latest complaints allege that the Rev. Louis William Rink, who is now deceased, sexually abused a 10-year-old altar boy in the 1980s. Two other lawsuits have also been filed against the Church alleging that Rev. Louis Brouillard, now 96, sexually abused altar boys during the 1960s and 70s. Guam passed legislation last year abolishing limitation periods for child sexual abuse claims, a reform which has enabled adults who were abused as children to bring complaints to court in relation to historic sexual abuse. The complaints pending against the Archdiocese of Agana claim more than $660 million in damages for abuse that is alleged to have taken place for decades. Also in the United States, two new lawsuits have been filed alleging that the Mormon Church failed to protect children from sexual abuse in a church-run foster programme that was run from the late 1940s to around 2000. The lawsuits claim that the children reported abuse at the hands of foster families to the church, but that church agents did not report the allegations to the authorities. The lawsuits are the latest allegations that the Mormon church failed to protect children from abuse, five other suits have been filed since 2016 on behalf of Navajo tribal members, seeking damages, written apologies and guarantees that the church will report suspected abuse.
A former priest has been indicted in France, accused of abusing 40 children while he was the director of a school in Conakry, Guinea. Father Albert was arrested at the nursing home in southern France, where he now lives, following the broadcast of a TV programme in which he was filmed confiding to a hidden camera that he abused a teenager over a six year period. Allegations against the priest were first raised in Guinea in 2003, after which he was recalled to France and relocated to a monastery. Further complaints were made to church authorities in 2011 and 2016, but he was never charged. The current charges include allegations that Father Albert took advantage of his position as a football coach to sexually abuse children aged 12 to 14 and subsequently made payments to former students. Police will now travel to Guinea to gather testimonies before court hearings can proceed.
This month, the Supreme Court of India has heard a challenge to a marital rape exemption for children aged 15 to 18. The case, brought by the non-governmental organisation Independent Thought, argues that given the age of sexual consent is 18, there cannot be an exception to sexual offences for children who are married below this age. During the hearings of the case, justices showed an unwillingness to challenge the marital rape exemption as a whole, but specifically focused on whether marriage created an exception to legislation on sexual offences against children. The court has reserved its judgment.
Health
The Supreme Court of Chile has approved a bill to legalise abortion in some instances. The bill was passed by lawmakers earlier this month, but faced a challenge before the courts, with some claiming that it violates the right to life. The bill will now enter into force, allowing women to gain access to abortions in cases of rape, where their life is at risk and where the foetus is not expected to survive the pregnancy. An absolute ban on abortions has been in the place since 1989, when it was introduced by the Pinochet regime, with women and doctors being liable to up to five years’ imprisonment if they were found to have breached the law. Despite the penalties, an estimated 70,000 women undergo illegal abortions in the country every year. Chile is the last country in South America to end its complete ban on abortion, though worldwide six majority Catholic countries retain absolute bans: Honduras, El Salvador, Nicaragua, Malta, the Dominican Republic and the Vatican.
The Supreme Court of Connecticut, United States, has ruled that the state cannot vaccinate children who are temporarily in its care. The decision emerged from the case of two children who were taken into care when their parents were arrested for disorderly conduct. The children were found covered in bruises and showing signs of neglect and during a medical assessment, it became clear that they had not been given standard vaccinations. The commissioner for children and families sought to have the children vaccinated, but the parents objected and challenged the decision before the courts. The Supreme Court ultimately ruled that the state only had the authority to authorise emergency medical treatment, preventing the vaccinations being carried out.
Migration and citizenship
The Constitutional Court of Indonesia has rejected a request for judicial review of Article 41 of the Citizenship Law, which stipulates that children of “mixed marriages” are required to register in order to obtain Indonesian citizenship. The case was brought by an Indonesian mother whose daughter, born to a French father, had lost the chance to obtain Indonesian citizenship when the law was enacted in 2006. Finding that negligence cannot be used as a basis to file a petition, the court held that there was no legal basis to grant the judicial review and pointed out that children of mixed marriages who missed the period to register were still able to obtain Indonesian citizenship by fulfilling certain requirements set out in the Citizenship Law. The 2006 law gives only four years for the children of mixed marriages to register, and holds that through registration such children are allowed dual citizenship until they reach the age of 18, after which they are required to choose their citizenship.
The Western Cape High Court in South Africa has ruled that the refusal of the Department of Home Affairs to grant citizenship to six people was unconstitutional, paving the way for more children born in South Africa to non-South Africans to obtain South African citizenship. The South African Citizenship Act 1995 initially provided for two routes to citizenship by naturalisation, but neither applied to children born in South Africa to non-citizen parents. Amendments which came into force in 2013 provided such children with the possibility of obtaining citizenship when they turned 18 if they have lived in South Africa since birth, and if their birth had been registered. The six applicants in the case had fulfilled these conditions, but were refused citizenship by Department of Home Affairs on the basis that the amendments did not apply to people born before their entry into force in 2013. The court found that the actions of the Department infringed the dignity of the applicants, effectively prejudicing and relegating them to the status of second-class citizens. The court held that the amendments could operate retrospectively in this instance because this would not interfere with existing rights and obligations, and because failure to interpret the law as such would involve applying an artificial and discriminatory distinction between children born before and after 1 January 2013. The court ordered the Department to accept the applications and decide on them within ten days of filing.
