In this month’s Children in Court CRINmail, we bring you the latest news on children’s rights in courts around the world, from abolishing corporal punishment in South Africa to challenging States’ inaction over climate change in Europe. This edition also covers landmark cases in India and Egypt to combat child marriage and protect girls from the sexual abuse they experience when they are forced to marry.
Latest news and cases
Violence against children
The High Court of South Africa has ruled that the defence of “reasonable chastisement”, which permits parents to avoid liability for assaulting their children where they do so “moderately” as a form of discipline, violates the South African Constitution. The decision has effectively banned the last form of corporal punishment of children that remains legal in the country. The court found that corporal punishment violated several rights, including to bodily integrity, equal protection of the law and the child’s right to dignity. Delivering the judgment of the court, Justice Keightley ruled: “It is time for our country to march in step with its international obligations under the CRC by recognising that the reasonable chastisement defence is no longer legally acceptable under our constitutional dispensation.” The decision was made as part of an appeal filed by a man who had been convicted of assaulting his son and wife and will apply to any violence against children that takes place after the judgment. It is not yet clear whether the case will be appealed. Read CRIN’s summary of the case.
The European Court of Human Rights (ECHR) has found that Romanian authorities failed to protect the rights of a boy who was physically and emotionally abused by his father. The boy's mother reported the abuse for the first time in 2004, but it was not until almost four years later that a criminal investigation was launched. In 2012 that court proceedings came to an end and the man was convicted and sentenced for the abuse. While the man’s sentence was reduced because of the length of the proceedings against him, the Romanian court did not consider compensation for the victim. The ECHR found that the length of the investigation and court proceedings and the failure to award compensation for the violence violated the boys right to protection from torture, inhuman and degrading treatment. The national courts’ failure to consider and award compensation to the boy also amounted to a violation of fair trial standards. Read CRIN’s summary of the case.
Sexual violence
The Supreme Court of India has found the marital exemption to rape unconstitutional where the victim is under the age of 18, making it possible to prosecute husbands who have sexual intercourse with their child brides. Before the decision, it was not possible for a husband to be prosecuted for raping his wife if she was older than 15, even though girls under the age of 18 are unable to give consent under Indian law. India banned child marriage in 2006 and passed a law criminalising a broad range of sexual offences against children in 2012, allowing for the prosecution of husbands who commit sexual offences against their wives, but the marital rape exemption was retained. An estimated 23 million child brides live in India and between 2008 and 2014, 47 percent of girls in the country were married before their 18th birthday and 18 percent before their 15th. The case does not affect the law for men who rape their adult wives, but activists have expressed hope that the case will ease the path to repealing the marital rape exemption entirely.
The Supreme Court of Washington in the United States has ruled that children who take sexually explicit pictures of themselves can be found guilty of sexual exploitation offences. The court upheld the sentence of a young man who sent an explicit picture of himself to a woman when he was 17. The boy was charged and convicted of “second-degree dealing in depictions of a minor engaged in sexually explicit conduct”. Rights groups, including the American Civil Liberties Union, intervened in the case to argue that the law violated free speech protections under the US Constitution by criminalising consensual sexual activity between teenagers, but the majority of the court did not examine this issue in detail, as the case itself was not about consensual sexual activity. Three members of the court dissented, arguing that as the legislation was intended to protect children from sexual exploitation, it should not be interpreted in a way that permitted the prosecution of the children depicted in sexually explicit images. Read CRIN’s summary of the case.
A request to launch a class-action lawsuit against the Jehovah’s Witnesses in Canada and the United States has been filed in Quebec alleging that the church failed to protect children from sexual abuse. Filed against the Watchtower Bible and Tract Society, the parent company of the Jehovah’s Witnesses in Canada and the organisation’s American headquarters, the complaint accuses it of setting up an organisation that permitted authority figures to commit sexual abuse with impunity. In particular, the complaint argues that the religious organisation “created an environment that protects sexual assailants of minors” by “hindering denunciation to secular authorities” including the police and Quebec’s Directorate of Youth Protection. The complaint includes two groups of complainants, those alleging that they were abused by church elders and those reporting abuse committed by members of the congregation. The Superior Court of Quebec will now decide whether the complaint is sufficiently substantiated to authorise the class action.
An imam in Egypt faces prosecution on charges of involvement in the marrying off of 27 underage girls. Local authorities became aware of the purported marriages after a woman complained to the police that her daughter was the victim of an early marriage arranged by the cleric and handed over footage showing the man conducting the the informal or ‘urfi marriage. The imam is charged with fraud and facilitating immoral acts, and could face up to four years in prison if convicted. Egyptian law sets the minimum age of marriage for women at 18 years, but 118,000 girls are believed to be married according to official figures. Child marriage is still rife in rural areas in Egypt, where some families attempt to circumvent the age limit by informally marrying off their children with the help of local clerics, later registering the marriage when the girl turns 18. State agencies in Egypt have recently stepped up their efforts to curb child marriage, which is blamed for the rise in population growth, health hazards for child mothers and court disputes over paternity of children resulting from non-registered marriage ceremonies.
Best interests of the child
The Court of Appeal in Caen, France, has legally recognised that a half brother and sister are both parents of their child to protect the best interests of the child. The couple shared a biological mother but had been separated as children and raised by different foster families. They discovered that they were related after their daughter was born and they applied to register her birth. French law provides that where a child is born from an incestuous relationship, only one parent can be officially recognised. A court in Cherbourg had ruled that only the father would be recognised on the birth certificate, despite the fact that the girl had been living with her mother since birth, the father did not contest the mother’s parenthood and he did not maintain a close relationship with his daughter. The court ruled that the cancellation of the mother’s parental status would have a damaging effect on the development of the child’s identity and, therefore, it was in the child’s best interests to maintain the link.
Refugee children
Two petitions have been submitted to India’s Supreme Court challenging the government’s decision to deport Rohingya refugees to Myanmar. The West Bengal Commission for the Protection of Child Rights submitted a petition arguing that the proposed deportation violated India’s constitution and the principle of non-refoulement, which prohibits the returning of refugees to a country where they would face prosecution. The Commission also highlighted the cases of 24 children living in shelters and 20 living in correctional homes with their mothers. A further complaint has been brought on behalf of two Rohingya people living in India, arguing that a central government notification asking for the identification and deportation of Rohingya people living in India violates constitutional rights. The Supreme Court held its initial hearing on the case in October, deferring the deportations until the court is able to hear the case in full.
Discrimination
The Federal Court of Justice of Germany has denied a request by a transgender man to be registered as the father of the child he conceived almost four years ago. The court claimed that “the roles of father and mother are not interchangeable” and held that whoever gives birth to the child will be considered their mother. The complainant gave birth to his child after he legally transitioned, but the birth registry listed him as the child’s mother using his female birth name. The court emphasised that a person’s gender assigned at birth remains relevant in regards to any children they have before or after transition, saving the child from “embarrassing situations” and permitting the complainant to later register his sperm donor to as the biological father if he chooses to do so. The German Society for Trans Identity and Intersexuality has condemned the ruling and hopes it will be overturned by the Constitutional Court.
The Court of Appeal of England and Wales has ruled that an Islamic school’s policy of segregating boys from girls constitutes unlawful discrimination. The school enforces complete separation of the sexes between ages nine and 16 for all lessons, breaks, school clubs and trips for religious reasons. The court held that the segregation policy caused detriment and less favourable treatment to male and female students by reason of their sex, thereby violating the 2010 Equality Act. The decision overturned a ruling by the High Court which found that the segregation policy treated both sexes the same and therefore did not amount to unlawful discrimination. The Court of Appeal interpreted the law as envisaging that both “separate but equal” and “separate but different” treatment can constitute unlawful discrimination. The judges noted that other Islamic schools as well as a number of Orthodox Jewish schools and some Christian faith schools have similar practices and so should be given time to adjust their arrangements in light of the decision.
The High Court of Justice of Israel has heard oral arguments over whether a law penalising Palestinian parents for their children’s throwing rocks is legal. The 2015 law permits the state to withhold certain benefits related to children for Palestinian parents whose minor children are convicted of ideological rock-throwing crimes. Adalah, the Legal Centre for Arab Minority Rights in Israel, along with other NGOs, petitioned the High Court to strike down the law for discriminating against Arabs such that Arab and Jewish rock-throwing children and their families would be treated differently by the law. Lawyers for Adalah also questioned the legality of punishing parents for their children’s crimes, and argued that the law undermines the right to a fair trial by taking away judicial discretion and enabling officials at the National Insurance Institute to determine whether a rock-throwing incident was ideologically motivated or not. The justices themselves asked why the law applied to Palestinian rock-throwing and not more violent crimes. Lawyers for the state defended the law, pointing out that it did not apply automatically and would only apply where parents failed to do all that they could to prevent their children’s crimes. They also described rock-throwing as a “blow to the state” which needs to be deterred on a wider scale by incentivising parents and communities to stop youth from throwing rocks.
Family separation
The Canadian Government has agreed to pay a $750 million settlement to an estimated 20,000 indigenous children taken from their families and placed in non-indigenous homes during the so-called “60s scoop”. The settlement will put an end to at least 18 class-action lawsuits filed across the country on behalf of survivors. Under the settlement, First Nations and Inuit children taken from the homes between 1951 and 1991 will be eligible for individual compensation from around $20,000 to $40,000. A further $40 million will be held in a foundation to for the benefit of survivors, while $60 million has been allocated to pay legal fees. Certain groups fall outside of the scheme, however, including Metis children, whose indigenous status is not recognised by the government. Colleen Cardinal, Cofounder of the National Indigenous Survivors of Child Welfare Network, said she had “very mixed feelings” about the settlement: ”for thousands of people who are excluded it must be very re-traumatising, once again to be left out of something so huge.. They have to work much harder to get the healing and acknowledgement, which they shouldn’t have to.”
Environmental rights
Children from Leiria, the region of Portugal struck by fires this summer in which 60 people died, are crowdfunding a legal challenge against the European States’ failure to tackle climate change. Supported by the Global Legal Action Network, six children are seeking to bring a challenge to the European Court of Human Rights (ECtHR), alleging that this failure amounts to a violation of their rights under the European Convention on Human rights. Marc Willers QC, the lawyer leading the action, claims that it would be the first challenge to bring multiple governments before the court for inaction over climate change. The ECtHR has jurisdiction to hear human rights complaints against the 47 members of the Council of Europe. It is usually necessary to file a case through national courts before approaching the ECtHR, but the complaint aims to directly target the court, arguing that the remedy can only be achieved at the multinational level. Council of Europe Member States account for an estimated 15 percent of all global emissions. The crowdfunding has now reached the minimum level required to collect and compile evidence.
