Children in Court CRINMAIL 9:

CRC in Court: Cases in brief

In this issue:

To view this CRINMAIL online, click here.

In this edition, we highlight three cases that have been recently added to CRC in Court, CRIN's case law database of international, regional and national decisions that cite the Convention on the Rights of the Child.  The first concerns the establishment of paternity for an extra-marital child born in the Dominican Republic; the second looks at discrimination against an adoptive parent on the grounds of sexual orientation in France; and last but not least, the third addresses the appointment of a guardian for children in need of care in Uganda.  Case summaries with links to full-text decisions appear below.  Building our CRC in Court database is an ongoing project and we are always grateful for contributions; please contact [email protected] if you are aware of any cases that cite the CRC.

Hermida v. Berta

Title:
Felix Perguero Oscar Hermida v. Hwey Ling Tung Berta

Court:
Supreme Court of the Dominican Republic

Date:
May 24, 2006 

CRC Provisions:
Article 2: Non-Discrimination
Article 7: Name and nationality
Article 20: Protection of a child without family

Domestic Provisions:
Civil Code (Articles 312 and 1352)
Law 659 Civil Status Acts (Article 335)

Case Summary:
Background:
A Dominican man appealed against the decision of a court that identified him as the father of a child born out of wedlock. A paternity test indicated that there was a 99.99 per cent chance that he was the biological father of the child, but the man denied that he could legally be the child's father. The relevant legislation provided that a child born to a married woman is presumed to be the child of her husband unless disproved (Art. 312 Civil Code), and children born under an adulterous relationship cannot be recognised (Art. 335 of Law 659).

Issue and resolution:
Filiation; discrimination. The prohibition on the recognition of children born through adulterous relationships was outweighed by the right of the child to be recognised by his biological parents. The Court held that the man was the father of the child.

Court reasoning:
The Court found that it would be “totally unfair and discriminatory” to deny the child the right to legally identify his biological father. The cited legislation discriminated against the child and denied him a father, and so was in violation of Article 5 of the Dominican Constitution, as well as Articles 2, 7 and 20 of the Convention on the Rights of the Child. The Court also ruled the use of DNA evidence was constitutional in determining paternity.

Excerpts citing the CRC and other relevant human rights instruments
as translated by CRIN:
The legal presumption (jure and de jure) enshrined in Article 312 of the Civil Code and the prohibition on recognising children born from adulterous relationships set out in Article 335 of the code are discriminatory. In the case of the boy Oscar Javier, the application did not proceed because it contravened Article 5 of the Constitution, according to which nobody can be obligated to do something which the law does not obligate him or her to do, nor to impede something which the law does not prohibit. The law is the same for everyone; it cannot order more than is fair and useful for the community, nor can it prohibit more than would be harmful. The type of relationship chosen by the parents cannot interfere with the child's right to preserve their identity and to carry the surname of their parents, in accordance with article 7 of the Convention on the Rights of the Child, which states that a child will be registered immediately after his or her birth and will have the right to a name from birth, to acquire a nationality, and as far as possible, to know the parents and be looked after by them. It would be totally unfair and discriminatory not to acknowledge that Oscar Javier is the son of Oscar Felix Perguero Hermida given that article 2 of the Convention on the Rights of the Child protects the rights of all children without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. The appellant, basing his argument on alleged violations of articles 1352 and 312 of the Civil Code and 335 of the Law on Civil Status, denied his paternity of the child Oscar Javier because he had been born within the marriage of the child's mother with Ramón María Marcelo Capéllan. The court rejected the appeal, confirming the decision handed down by the Children's Court with the view that the DNA analysis carried out on October 2, 2002 on the order of the aforementioned court revealed that the appellant could not be excluded as the possible father of the child, with 99.99 per cent probability that he is the parent of the child in question. According to the court, the jure and de jure presumption enshrined in article 312 of the Civil Code constitutes discrimination in this case, for which reason, in addition to the proof and other facts and circumstances of the case, the application will not proceed because it is contrary to Article 5 of the Constitution and Articles 7 and 20 Convention on the Rights of the Child. (pages 513-515).

CRIN Comments:
CRIN believes this decision is consistent with the CRC. While presumption of paternity may make practical sense, children should always have the right, as far as possible, to know their parents. In order to realise this right, children must have access to proceedings to establish who their parents are, and should not be denied the ability to do so based solely on the parents' relationship at the time of the child's birth.

Citation:
Sentencia del 24 May 2006, No. 18

Link to Full Judgment:
http://www.suprema.gov.do/PDF_2/publicaciones/libros/2006/principales_sentencias_2006_1er_tomo.pdf (page 505)

Back to top

E.B. v. France

Title:
E.B. v. France

Court:
European Court of Human Rights

Date:
January 22, 2008

CRC Provisions:
Article 3: Best interests of the child
Article 4: Implementation of rights
Article 5: Parental guidance and the child’s evolving capacities
Article 20: Protection of a child without family
Article 21: Adoption

Other International Provisions:
European Convention on Human Rights (Article 8: Right to respect for private and family life; Article 14: Prohibition of discrimination)
Draft European Convention on the Adoption of Children (Article 7: Conditions for adoption)
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Articles 5, 15: Receiving State's responsibilities re: conditions for international adoption)

Domestic Provisions:
Civil Code (Article 343: Requisites for Adoption by a Married Couple; Article 343-1: Requisites for Adoption by a Single Person)
Family and Social Welfare Code (Article 63: Rights to Custody; Article 100-3: Conditions for Adopting a Foreign Child)
Decree 97-771 of September 1, 1998 (Articles 1, 4, 5: Conditions for Adoption)

Case Summary:
Background:
On February 26, 1998, 37-year-old E.B., a French nursery school teacher, submitted an application for the authorisation to adopt a child. At the time of her application, E.B. acknowledged that her same-sex partner of 8 years, Ms. R, would not be party to the adoption and did not feel committed to it. Upon review, the adoption board made a recommendation that E.B.'s application be rejected, citing Ms. R's noncommittal behavior and concerns around the lack of a paternal figure in the household. E.B. subsequently and successfully appealed in an administrative court, but this decision was overturned by a court of appeal, which opined that the rejection by the adoption board had not been based on the applicant’s choice of lifestyle. In June 2002, the Conseil d'Etat dismissed her appeal, and in December of that year E.B. submitted an application to the European Court of Human Rights.

Issue and resolution:
Adoption and discrimination. The Court determined that France had unlawfully discriminated against E.B. in denying her application for authorisation to adopt.

Court reasoning:
The Court acknowledged that there was no right under domestic law or the Convention to found a family or to adopt, nor was there such a right enshrined in any of the other relevant international instruments, such as the Convention on the Rights of the Child or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption. But, once a country had established a right and allowed for adoptive proceedings, it could not discriminate against potential parents. In this particular case, the French government had made it possible for single individuals to adopt, and hence could not refuse authorisation on the grounds that the child would not have a paternal figure given the nature of E.B.’s same-sex relationship.

Dissent:
E.B.’s partner’s indifference regarding the adoption was a valid reason for denying E.B.’s application, and concerns about her homosexuality were not necessarily unfounded and did not “contaminate” the decision to do so. Furthermore, adoption must be viewed as a “privilege” and not a “right”, and hence does not implicate the European Convention.

Excerpts citing CRC and other relevant human rights instruments:
30. The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1989 and which came into force on September 2, 1990 read as follows...[Article 3, Article 4, Article 5, Article 20, Article 21].

…

O-V15 Article 4 of Decree 98-771 of September 1, 1998 requires the president of the council for the relevant département to satisfy himself that the conditions in which an applicant is proposing to provide a child with a home meet the child's needs from a family, child-rearing and psychological perspective. The importance of these safeguards— of which the authorities must be satisfied before authorising a person to adopt a child— can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of November 20, 1989 , the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children .

…

42. Nor is a right to adopt provided for by domestic law or by other international instruments, such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989, or the Hague Convention of May 29, 1993 on the Protection of Children and Co-operation in Respect of International Adoption.

…

77. The Court notes, moreover, that Art.4 of the Decree of September 1, 1998 requires the president of the council for the relevant department to satisfy himself that the conditions in which the applicant is proposing to provide the child with a home meet the needs of an adopted child from a family, child-rearing and psychological perspective. The importance of these safeguards – of which the authorities must be satisfied before authorizing a person to adopt a child – can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of November 20, 1989, the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children.

Notes:
The State did not express views regarding the damages, costs, and expenses alleged by the applicant. Despite this, the Court maintained the State's obligation to award the applicant EUR 10,000 in respect of non-pecuniary damages and EUR 14,528 for costs and expenses. However, the Court unanimously dismissed the remainder of the applicant's claim for just satisfaction.

CRIN Comments:
CRIN believes that this decision is consistent with the CRC. While there is no right to adoption or to be adopted, States that provide for these arrangements should not be permitted to discriminate against applicants on the basis of their sexual orientation or other status. Rather, the focus of all adoptive proceedings should rest squarely with the best interests of the child as in line with Article 3 of the Convention.

Citation:
Case of E.B. v. France [2008] ECHR 43546/02 (22 January 2008).

Link to Full Judgment:
http://www.asil.org/pdfs/ilib080125_1.pdf

Back to top

In re Namugerwa Joyce et al.

Title:
In the matter of Namugerwa Joyce, Nantongo Harriet, Nakafero Jackline (Minors) and In the matter of an Application for Guardianship of the Estates of the Said Minors by Nakabugo Cate (Paternal Aunt)

Court:
High Court of Uganda (Jinja)

Date:
February 10, 2010

CRC Provisions:
Article 12: The child's opinion

Domestic Provisions:
The Children's Act (sections 1, 3, 4 and 5)

Case Summary:
Background:
Ms. Nakabugo was the paternal aunt of three children and had been taking care of them following the death of their father, though she had not been appointed as their legal guardian. Ms. Nakabugo and the three children were joint owners of a piece of land, and she sought to be appointed the legal guardian of the children so that she could sell part of the land in order to provide for the children's needs.

Issue and resolution:
Guardianship. Insufficient information was provided by Ms Nakabugo for the court to determine whether making her the children's guardian would best further their welfare.

Court reasoning:
Relevant information that was not provided included information as to the existence of a mother or mothers of the children, how Ms. Nakabugo obtained powers to take care of the children, the quantity of land she wished to sell and details of other financial arrangements.

Excerpts citing the CRC and other relevant human rights instruments:
[I]n all such applications the court only has the word of the applicant and in many cases the children who may be of too young [an age] to give details to the court of what is happening in their lives are not consulted. Neither are children who are 14 years and above who have the legal capacity to give evidence on oath consulted. This is contrary to Article 12 of the Convention on the Rights of the Child (CRC) which preserves the child’s right to be heard. Article 12(2) provides that the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Uganda ratified the CRC on 17th August 1990 and it has more or less been re-enacted in paragraph 4 (c) of the First Schedule to the Children Act as follows:

4. Rights of the child.
A child shall have the right...
c) to exercise, in addition to all the rights stated in this Schedule and this Act, all the rights set out in the United Nations Convention on the Rights of the Child and the Organisation for African Unity Charter on the Rights and Welfare of the African Child with appropriate modifications to suit the circumstances in Uganda, that are not specifically mentioned in this Act.” 

Notes:
Ms. Nakabugo could make another application to be named as the children's guardian, but she would have to provide adequate information to enable the court to make a decision that would leave “little or no room to prejudice the interests of the minors”. It is not known whether she made such an application.

CRIN Comments:
CRIN believes that this decision is largely consistent with the CRC in that the Court was unwilling to appoint the children a guardian without evidence that the decision was in the children's best interests. This said, it is unclear from the Court's decision whether the children old enough to form views were consulted in considering the request for guardianship as would be required under Article 12 of the Convention. In addition, the Court could also have cited Article 3 of the CRC, which clarifies that the best interests of the child must be a primary consideration in all actions cocerning children.

Citation:
[2010] UGHC 123

Link to Full Judgement:
http://www.ulii.org/ug/cases/UGHC/2010/123.html

Back to top

THE LAST WORD

Back to top