In the final Children in Court CRINmail of the year, we bring you the latest news on children’s rights in courts around the world, including challenges to limitation periods for sexual offences committed against children in South Africa and the landmark judgment holding Ratko Mladic responsible for war crimes committed during the Bosnian war. This edition also highlights litigation to ensure unaccompanied children in the United States are able to access reproductive health services and to hold responsible people who sexually abuse children online.

Latest news and cases

The Constitutional Court of South Africa held hearings this month on whether a 20-year limitation period for sexual offences is unconstitutional. South Africa’s Criminal Procedure Act prevents a person being prosecuted for sexual offences more than 20 years after the offence is alleged to have been committed, with the exception of rape or “compelled rape”. The case was originally brought by a group of survivors who alleged that the stockbroker Sydney Frankel, who died during legal proceedings, sexually abused them as children during the 1970s and 80s. The High Court ruled in June that the limitation period for certain sexual offences was arbitrary and violated the constitutional right to human dignity and equal protection of the law. The lower court ordered that the law should be read so as to allow the prosecution of all sexual offences regardless of limitation periods until Parliament reviewed and replaced the limitation periods under the Criminal Procedure Act. The Constitutional Court is now set to confirm or overrule the lower court’s judgment. The progress of the case can be tracked through the website of the Constitutional Court.

A man in Sweden has been convicted of rape for forcing 27 children from the United States, Canada and the United Kingdom to perform sexual acts on themselves or with other children that he viewed over the internet. The case is reported to be the first in the country where a person has been convicted of rape without having met the victim in person. The 41-year-old man is reported to have approached the girls online through social media and threatened to rape or kill them if they did not engage in sexual activity and either stream or record it for him. The case may make it easier to prosecute cases of sexual violence committed online in Sweden and for survivors of this sexual abuse to access justice. Prosecutor Anika Wennerstrom, commented on the judgment: “We will be given the opportunity to use other types of methods with this legal classification, penalties will be longer and the chances for compensation for victims will increase.”

Police have arrested a pastor in the southern state of Tamil Nadu, India, accused of trafficking girls through a Christian-run orphanage. Police launched an investigation into the unregistered Moses Ministries Home, which is run by the Germany-based Christian Initiative for India and houses 89 children, two years ago. Pastor Gideon Jacob was arrested under anti-trafficking laws when he entered India. The home is reported to have maintained no proper records of the children who were under its care, all of whom are now over the age of 18. DNA testing has found at least 32 matches so far, but the girls are yet to be reunited with their families. Tamil Nadu’s authorities closed 500 homes between 2011 and 2016, citing mismanagement, a lack of registration and misconduct... The arrest gives us hope that there will be justice,” said A. Narayanan, the director of advocacy group Change India. “The real worry is when and how these girls will be rehabilitated. Right now, it seems like a life sentence, where they are resigned to live in an institutional home.”

Abduction and custody

The Indiana Court of Appeals in the United States has ruled against a Malian mother seeking to modify a child custody order issued in Mali in favour of the father after she claimed that Malian law discriminates against women. The mother drew attention to the fact that Malian fault-based divorce law favours men, resulting in a preference men in child custody decisions. The United States Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) generally requires a foreign custody ruling to be enforced if it was issued by the child’s home jurisdiction, if the objecting spouse was given notice and opportunity to be heard, and if the child custody law of the foreign state does not violate fundamental principles of human rights. The court held that while some forms of discrimination by foreign courts might violate fundamental human rights, Malian custody law, according to which custody goes to the spouse who obtained the divorce unless the court orders otherwise in the child’s best interests, does not meet this threshold. The court also rejected the mother’s argument that Mali has not outlawed female genital mutilation, finding that scrutiny of a foreign State’s laws under the UCCJEA is limited to child custody law because going further than this would put a US court in the “untenable position” of passing judgement on the entire legal system of a foreign state.

Ukraine has submitted new documents to the European Court of Human Rights as part of a lawsuit against Russia alleging the abduction of orphans in Donbas in 2014. The case concerns the alleged abduction of Ukrainian orphans and the adults accompanying them from Donbas into Russian territory. Ukrainian Justice Minister Pavlo Petrenko stated that the case file includes testimony from more than 100 witnesses. Ukraine has previously filed five lawsuits against Russia at the ECtHR concerning events in Crimea and eastern Ukraine. The ongoing war in Donbas between Ukrainian government forces and pro-Russian separatists began in April 2014 and has seen a number of human rights violations, including targeted killings, abductions and the direct exposure of children to threatening situations.

Unaccompanied children

A court in the United Kingdom has rejected a legal challenge by the charity Help Refugees, which attacked the process that calculated that only 480 unaccompanied children should be accepted by the country as being “fundamentally flawed”. The case concerned implementation of the so-called Dubs amendment which came into force in 2016 to accommodate unaccompanied child migrants in Europe. In February this year, however, the Home Office capped the number of children to be allowed into the country under the scheme at 350. Help Refugees took legal action, arguing that the government failed to adequately consult local authorities across the UK as to their ability to house unaccompanied children, a consultation process envisaged by the Dubs amendment. The High Court dismissed the charity’s arguments, finding that the Home Office was required to set a fixed number because swift action was needed, and that the requirements of a fair consultation had been met. Campaigners have said that they will appeal.

The American Civil Liberties Union (ACLU) in the United States has filed a challenge to the Trump administration’s request that the Supreme Court overturn a lower court decision which cleared the way for the undocumented and unaccompanied child to have an abortion. The case centres around an unnamed girl who, after fleeing physical abuse in her home country, arrived in the United States in September and was placed in a federally-funded shelter in Texas, where she learned that she was pregnant. The girl’s request for an abortion was denied and she was forced to visit a religious anti-abortion centre. She filed the complaint with the help of ACLU, arguing that government interference with unaccompanied minors’ access to abortion violates their constitutional rights. The US Court of Appeals for the District of Columbia Circuit ruled that the girl must be allowed an abortion and, as the federal government did not seek an immediate stay from the Supreme Court, she obtained an abortion the following day. The government, under pressure from anti-abortion activists, subsequently asked the Supreme Court to overturn the D.C. Circuit court’s ruling, to dismiss all claims relating to unaccompanied migrant minors’ access to abortion, and to consider discipline against ACLU’s lawyers. The ACLU argues that the government’s request is baseless, and their lawsuit against the Trump administration’s policy to block abortion access to migrant children in detention continues.

Deprivation of liberty

A group of NGOs has filed a collective complaint to the European Committee of Social Rights (ECSR), calling for the closure of residential care institutions for children under the age of three in the Czech Republic. Despite institutionalisation having long-term negative effects on the physical and emotional development of young children, the Czech Republic remains one of the last European States to allow the long-term placement of young children in state institutions. Roma children and children with disabilities are significantly overrepresented. The complaint, filed by the Mental Disability Advocacy Center, European Roma Rights Centre, and Forum for Human Rights, asks the European Committee to step in and pressure the Czech Republic to shut these institutions down. The complaint focuses on Article 17 of the charter, ensuring the right to social and economic protection of children and provision of appropriate supportive services, arguing that all children have the right to adequate support and care in their own family, or in family-like alternative forms of care.

Systemic failures occurred over many years and were ignored at the highest levels in detention facilities for children, according to a scathing report from the Royal Commission into protection and detention systems in Australia’s Northern Territory. The Commission found that children were subjected to verbal abuse, physical control and humiliation, including being denied access to basic human needs, such as water, food and access to toilets. The report also highlights the use of force by youth justice offices and documents cases in which children were dared or bribed to carry out degrading and humiliating acts and to commit acts of violence. The inquiry was launched after footage from the Don Dale Youth Detention Centre was aired on national television in 2016, showing children being beaten, stripped and sprayed with tear gas. The report called for a fundamental change to the youth justice system, including raising the minimum age of criminal responsibility and developing a shift towards diversion and therapeutic approaches to youth offending. Ruth Barson of the Human Rights Law Centre called the government to action: “[t]he Royal Commission has unequivocally told Australia that primary school aged children should be supported in the community, not siphoned into prisons. Our government must seize this historic opportunity to modernise our youth justice systems or risk another Don Dale.”

LGBTI children

The Federal Constitutional Court in Germany has ruled that official records must allow for a person to record their sex as neither male nor female. The case involved a person whose application to have their entry in the birth register changed from “female” to “inter/diverse” or “diverse” was rejected on the grounds that the law only allows for gender to be registered as male or female, or left blank. The court held that the constitution protects the identity of people who do not identify as male or female, and gave the government until the end of 2018 to draw up new rules, either by creating a third identity or scrapping sex and gender records altogether. The court did not specify which of these options should be pursued, but a joint statement from intersex organisations and independent advocates based in Australia and New Zealand has emphasised that attempts to classify intersex people as a third sex or gender do not respect their diversity and right to self-determination. The statement calls for an end to legal sex and gender classification systems, which are considered to be a form of structural violence.

The Grand Chamber of the European Court of Human Rights (ECtHR) has rejected an appeal against its ruling that Russia’s “gay propaganda” laws violate the rights to freedom of expression and non-discrimination. The case had been brought by three activists who were fined after staging demonstrations protesting against the laws, which specifically ban the promotion of “non-traditional sexual relationships among minors”. In its judgment, the Chamber rejected the Russian government’s argument that regulating public debate on LGBT issues was justified by the need to protect public morals, finding that the government had failed to show how freedom of expression on LGBT issues would adversely affect existing “traditional families” and noting that the legislation was an example of predisposed bias by a heterosexual majority against a homosexual minority in contrast with the clear European consensus on the right of individuals to identify as LGBT. Dismissing the Russian government’s claims that the measures were necessary to protect public health and prevent minors from being enticed into a “homosexual lifestyle”, the Chamber went on to note that the vagueness of the terminology used in the laws gave them a potentially unlimited scope. Above all, the laws were found to reinforce stigma and prejudice and encourage homophobia, and were as such incompatible with the values of a democratic society. Although Russia’s appeal has been dismissed by the Grand Chamber meaning that the judgment is now final, it is unclear what impact the ruling will have, as Russia considers its constitution to supersede ECtHR rulings.

War crimes

Former Bosnian Serb commander Ratko Mladic has been found guilty of genocide for his involvement in some of the worst atrocities committed during the Bosnian war in the 1990s, and sentenced to life imprisonment. Mladic faced 11 charges at the International Criminal Tribunal for the former Yugoslavia (ICTY), including crimes against humanity, with judges ruling that the 74-year-old general “significantly contributed" to genocide committed at Srebrenica, where more than 7,000 Bosnian Muslim men and boys were massacred. He was also convicted of atrocities during the siege of Sarajevo in which more than 10,000 people died. At the end of the war in 1995 he went into hiding and lived in obscurity in Serbia, until he was finally arrested in 2011. The case was the last to be heard by the ICTY and the court will cease to exist at the end of the year.

Syrian refugees living in Germany and the European Center for Constitutional and Human Rights have filed a complaint accusing senior members of the Bashar al-Assad regime of war crimes and crimes against humanity. The complaint has been filed under the principle of universal jurisdiction, which allows national prosecutors to pursue individuals accused of committing grave international crimes, even where neither the victim nor the accused is a national of the prosecuting State. The complaint alleges that senior figures in the Syrian National Security Bureau, Air Force Intelligence Directorate, Ministry of Defence and military police committed war crimes and crimes against humanity. Among the complainants is Yazan Awad, alleges that he was tortured over four months at the al-Messeh Air Force Intelligence Investigation Branch and Shappal Ibrahim, who was detained for a year and a half at the Saydnaya military prison. The case has been filed as evidence has emerged that men and boys are being routinely sexually abused during detention in Syria.