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Children in Court

In this issue:

Realising rights? The UN Convention on the Rights of the Child in Court

This month CRIN is launching a new report looking at how the Convention on the Rights of the Child has been used in courts around the world. The report draws on more than 350 cases from over 100 countries contained within our CRC in Court case law database. It draws out the ways the CRC has been used around the world to challenge abuses of children’s rights, but also where it has been misunderstood and misapplied by national courts. It addresses the use of the Convention in general, and features more detailed analysis of three of the most cited rights under the Convention and the divergent ways they have been applied and interpreted.

You can download the full report here.

Latest news and cases

Child custody

The Court of Appeal of England and Wales has ordered the review of a custody decision in which a transgender parent was refused direct contact with her children because of the risk that the children would be ostracised from their ultra-orthodox Jewish community. The court held that the lower court should have asked a number of questions before reaching its final decision, including whether a decision dictated by the discriminatory practices of a community upholds the best interests of the child, as well as explicit consideration of the human rights issues involved. The court found that the initial judgment did not sufficiently explain why it was possible to order that the children's father could have indirect contact but not direct contact, adding that the initial decision to prohibit direct contact was premature, as direct contact might have been possible after a transition period for the children. The lower court had failed to exhaust the court’s powers to make direct contact possible, and the judge should have asked whether he should directly challenge the parents and the community with the possibility that, without a change of attitude on their part, the court may have to remove the children from the mother’s care. The case will return to the family court for reconsideration. Read CRIN’s summary of the decision.

The European Court of Human Rights (ECtHR) has ruled that Norway did not violate the right to private and family life in a case allowing an adoption against the wishes of the child’s biological mother. The case involved a mother who, after giving birth to the child, agreed to stay in family centre organised by the child welfare authorities for assistance. The following month, the mother left the facility and child welfare authorities took the child into immediate and compulsory care on the grounds that the mother was not providing the care necessary for the child. The baby was placed into foster care and care proceedings were initiated and later granted because of concerns for his welfare. When the child was three years old the foster parents were given permission to adopt him. The majority of the ECtHR found that the decision by the Norwegian courts had been taken in the child’s best interests and so did not violate the right to respect for family life under Article 8 of the European Convention on Human Rights. The court, while noting that adoption is an irreversible measure requiring stricter scrutiny and permitted only in exceptional circumstances, found that in this case the adoption would provide the child with more security and improve his bonds to his foster parents. Considering that the alternative to adoption would have been long-term foster care, and that when a child has been held in care for some time their best interests may be better served by maintaining the child’s current family situation, the court was satisfied that adoption was justified and that parental rights and the general aim to seek reunification could be overridden. Read CRIN’s summary of the decision.

A Singaporean man is appealing a court decision preventing him from adopting his biological son born through surrogacy in the United States. The district court had denied his petition on the basis that the medical procedures he had taken in the US would not have been permitted in Singapore. The man entered into the surrogacy arrangement after being told by authorities that as a gay couple, he and his partner would be unlikely to be able to adopt. The district court had ruled that the child’s welfare was not at issue in the case because he will continue to be cared for by his father and will not be stateless as he has American citizenship. The father will argue that dismissing the adoption application is not in the best interests of the child, who is now four years old.

Deprivation of liberty

New Zealand’s Court of Appeal has ruled that a teenage boy was illegally detained at a youth justice facility after his behaviour led to him  being excluded from a residential school. The boy had been detained at Te Puna Wai, a youth justice facility, because the government authority responsible for housing vulnerable children had been unable to find a facility for the boy to live in. The detention was the result of a string of incidents including an alleged sexual assault on another young person, violent behaviour at school and in care, and threats to kill himself over several years. The boy had previously been placed in a residential school for young men displaying harmful sexual behaviour, where violent outbursts led to him being charged with assault with intent to injure, though at the time of the hearing he was being assessed under mental capacity legislation to see whether he was fit to plead. The Court ruled that placing the boy in a prison environment meant he was "deprived of his liberty" and that there was no legal authority for that detention.

In the United States, the Wisconsin Department of Corrections has announced that it will be closing two state-run youth correctional facilities. This decision comes following an injunction secured by the American Civil Liberties Union of Wisconsin and Juvenile Law Center, which filed a class action civil rights lawsuit in federal court on behalf of young people confined in the facilities related to the use of solitary confinement, pepper spray, shackling, and strip searching of children. The facilities, which imprison up to 200 children, had previously been under investigation for a range of children’s rights violations after staff were found to have regularly physically abused children. The Department of Corrections has said it plans to move the children to several facilities closer to their homes in Southeast Wisconsin.

Sexual violence

Mediation for more than 150 sexual abuse lawsuits against the Catholic church in Guam has been postponed because of delays and disagreement over the settlement proposal. The majority of the plaintiffs favour mediation in its current form, but a group of survivors accounting for around ten percent of the cases against the Archdiocese of Agana have concerns and are still negotiating. The lawyer representing them, Anthony Perez, explained that the possibility of global mediation, whereby a total settlement is agreed and left for the plaintiffs to divide among themselves, could cause problems by replacing the dispute between the defendant and the complainants with one between the complainants. If Perez’s clients do not agree with the mediation, the cases will proceed to trial.

Sex abuse victims and their survivors are suing a bankrupt Catholic diocese in Montana, United States in an attempt to ensure that more than US$70 million in assets will be available for those abused by church officials. The Diocese of Great Fall-Billings entered bankruptcy protection last March, and officials at the time said that the diocese and its insurers would contribute to a fund to compensate some 400 victims and to set aside money for those who have not yet come forward. So far, mediation has not produced a settlement, and the church in the bankruptcy case says that the disputed assets are held in trust for its parishes and are therefore unavailable to its creditors. Other cases of Catholic church bankruptcies have resulted in a negotiated resolution, which is what representatives of sexual abuse survivors are aiming for in their lawsuit before the US Bankruptcy Court.

A group of former sex workers in the United Kingdom are challenging a law which requires people convicted of crimes to disclose their convictions when applying for jobs or volunteering positions. The women argue that the requirement to disclose criminal convictions for soliciting offences is discriminatory and in violation of their right to a private life. Among the women bringing the case is a girl who was 16 years-old when she was first convicted of prostitution offences after she was groomed and sexually exploited. Lawyers representing the women argue that they are victims of trafficking, “groomed years ago when they were young and vulnerable”, and that the law contradicts government anti-trafficking policy by continuing to punish victims. Women exiting sex work face considerable barriers, including having a criminal record, which is often misunderstood as a sexual offence leading to employers treating women as sex offenders.

War crimes

The Inter-American Commission on Human Rights (IACHR) has expressed concern over the decision of the Peruvian government to grant a humanitarian pardon to its former president, Alberto Fujimori. Sentenced to 25 years in prison for serious human rights violations, Fujimori had filed a petition for humanitarian pardon on the grounds that he suffers serious non-terminal illnesses that endanger his life. His convictions involved cases of forced disappearance and execution, as well as the massacre of 25 people including an eight-year-old child. The Commission showed concern over the fact that the pardon does not comply with fundamental legal requirements, as well as the due process of law and the independence and transparency of the technical evaluation board. The Commission considers that the unjustified and disproportionate grant of benefits to a person serving a penalty for serious crimes against humanity contributes to impunity and ignores the right to justice for victims and their families. International human rights law prohibits the application of amnesties, pardons and measures exempting from liability persons who have been found guilty of crimes against humanity. The IACHR rejected the pardon and called for measures to restore the rights of affected victims. 

Health and toxics

The Supreme Court of Nepal has denied a petition by the Nepal Paint Manufacturers Association seeking to scrap standards for lead-based paint imposed by the government. The court held that the standards were crucial for the regulation of lead levels in paint to protect the public from its adverse effects, which can cause serious health conditions, especially among children. In December 2014, the government fixed the lead limit at 90 parts per minimum in paint products, the internationally accepted standard for lead in paint, prompting the complaint by paint manufacturers who claimed it violated their right to conduct business in a free environment. The government standard also makes it compulsory to label the exact lead content and print a precautionary message for occupational safety on paint cans. A recent study by the Centre for Public Health and Environmental Development and Leaders Nepal, however, found that the compliance rate of Nepali paint industry was at only 60 per cent.

A federal appeals court in the United States has ordered the Environmental Protection Agency to revise its almost 17-year-old standard for dangerous lead levels in paint and dust within a year, calling attention to the persistent threat of lead paint to children in millions of homes across the country. The court held that the EPA must propose a new rule within 90 days of the decision, rather than the six years the Trump administration had requested for reconsidering what levels of lead are acceptable for children after years of stalling and delay under the Obama administration. The court observed that the EPA itself has identified lead poisoning as the number one environmental health threat in the U.S. for children aged six and below, meaning that further delay was unreasonable and would prejudice children exposed to lead poisoning.

Children’s rights and technology

Two human rights organisations in France have filed a complaint accusing Samsung of deceptive trade practices in France over ethical commitments posted on the company’s website claiming that it protects workers’ rights. Sherpa and ActionAid France have jointly filed the complaint against Samsung Global and Samsung Electronics France, arguing that the organisation’s practices involve exploitation of children under the age of 16, excessive working hours and the use of chemicals that can cause incurable diseases in violation of its advertised policies. The complaint will now be reviewed by the Paris prosecutor to decide whether to open an investigation into the complaint. The complaint itself is limited to the harm caused to French consumers, but holding the company accountable in France may instigate reform internationally.

Electronic toy-maker VTech has agreed to pay $650,000 to settle charges that it failed to protect the privacy of children using its toys. The United States Federal Trade Commission filed charges against the company after a data breach in 2015, alleging that the company had “failed to take reasonable steps” to secure children’s data. The complaint relates to VTech’s “Kid Connect” app, which was included with many of the toys that the company makes. The app collected personal information, but without seeking consent from parents or telling children that their data was being collected or the uses to which it would be put. The breach came to light after a security researcher was able to access personal information, including customers names and email addresses, as well as gaining access to an internal database holding encryption keys that could be used to view photos and audio files uploaded by children and parents. As part of the settlement, VTech has committed to improve its practices to abide by US child data protection laws and will be subject to regular independent data and privacy audits for the next 20 years.

Right to life

The Supreme Court of Ireland has agreed to hear a case on the meaning of the word “unborn” within the Irish constitution and the extent of pre-birth rights. The case is an appeal from a judgment in 2016 that centred around the attempted deportation of a man to Nigeria. The man challenged the deportation decision with his partner and their unborn child. The Irish constitution unambiguously enshrines a right to life of the unborn, but Judge Richard Humphreys ruled that the term “unborn” refers to “unborn children” and the rights of “unborn children” extend beyond the right to life to the other rights of children within the constitution. The Supreme Court will hear the case in February.

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