Children in Court CRINmail 72

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10 July 2017 subscribe | subscribe | submit information
  • CRINmail 72:
    Children in Court

    In this issue:

    Introduction

    This month’s Children in Court CRINmail brings you the latest news on children’s rights in courts around the world, from “digital inheritance” in Germany, to accountability for sexual abuse committed by soldiers in Burkina Faso. We also feature news on the latest court challenges on the right to citizenship for stateless children in the United Kingdom and on religious education in South Africa.

    Latest news and cases

    Privacy

    In Germany, the parents of a girl who died in 2012 after being hit by an underground train have no claim to access her Facebook chat history to find out if her death was a suicide, Berlin’s court of appeal has ruled. The decision raises questions about "digital inheritance" between children and parents, and goes against an initial judgment from 2015 in which emails and Facebook entries were found to be similar to letters and diaries and therefore capable of being inherited regardless of content. Judges in the latest ruling based their decision on Germany’s telecommunications secrecy law, which precludes heirs from viewing the communications of a deceased relative with a third party, and held that the parent’s obligation to protect their daughter’s rights expired with her death. The child’s family have said they are desperate to find out whether the girl’s death in Berlin was a suicide and, if so, whether it was the consequence of online bullying, and may appeal the case further. The girl reportedly gave her mother the login details to her account when she was 14, but Facebook froze her account after being informed of the girl’s death by one of her friends. Photos and posts the girl had shared remain visible, and friends can pay tribute to her, but it is no longer possible to log in to the account.

    The European Court of Human Rights (ECtHR) has ruled that the publication of a Russian child’s photo without parental authorisation amounted to a violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights. The case concerned the use of a boy’s photo on the cover of a booklet prepared by a state body, which aimed to inform the public about state efforts to protect orphans and provide assistance to families looking to adopt. The mother argued on her own behalf and on behalf of her son, that the unauthorised use of the image had harmed their honour, dignity and reputation. The ECtHR held that in their decision to dismiss the complainant’s claims, the domestic courts had incorrectly focused on the authorisation given by the complainant to photograph her son, failing to examine whether she had given her consent to the publication of the image. The Court also found that the publication could have given its readers the impression that the complainant’s son had no parents or that his parents had abandoned him. The Court ordered Russia to pay €7,630 in damages.


    Discrimination

    The European Court of Human Rights has ruled that Russia’s “gay propaganda” laws violate the rights to freedom of expression and non-discrimination under Articles 10 and 14 of the European Convention on Human Rights. The case was 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 Court 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 Court went on to note that the vagueness of the terminology used in the laws gave them a potentially unlimited scope of application. Above all, the laws reinforced stigma and prejudice and encouraged homophobia, and were as such incompatible with the values of a democratic society. The Court ordered Russia to pay the three activists between €8,000 and €20,000 in damages.

    A Sikh couple from the United Kingdom are taking legal action after being advised by an adoption agency not to apply for adoption because of their “cultural heritage”. The couple had wanted to adopt a child of any ethnic background but, because only white children were in need, the agency told them that white British or European applicants would be given preference and that they were unlikely to be selected. The couple were instead advised to try to adopt from India, a country with which they claim to have no close connection. The case highlights the complexity and sensitivity of the matching process: while children might benefit from being the same ethnicity as their adoptive parents, there is a risk of disproportionate focus on race at the exclusion of other more important factors. In 2012, the then education secretary Michael Gove pointed out that “a black child is three times less likely to be adopted from care than a white child”. The lawyers representing the couple are arguing that too little attention had been paid to the best interests of children in need of adoption, as the couple were “the best candidates for parenthood”.

    The United States Supreme Court has reversed a ruling by the Arkansas Supreme Court that married lesbian couples must get a court order to have both spouses listed on their children’s birth certificates. The case was brought by two couples who complained that an Arkansas birth certificate law discriminated against lesbians because the presumption of parenthood, regardless of biological relationship, only applied to a mother’s husband and not to a married female partner. Both couples were issued birth certificates bearing only the birth mother’s name. The US Supreme Court held that the Arkansas court ruling conflicted with its 2015 Obergefell v. Hodges decision, which legalised equal marriage nationwide, by denying same-sex couples a “constellation of benefits that the state has linked to marriage”. Dissenting judges disputed this interpretation finding that nothing in that case suggested that a birth certificate regime based on biology is unconstitutional. The court sent the case back to the Arkansas Supreme Court to review the decision, and the Department of Health has indicated that it will collect information from same-sex couples who wish to amend their children’s birth certificates.

    Health and reproductive rights

    The European Court of Human Rights (ECtHR) has ruled that two high-risk operations performed on a child in Turkey, leaving her with severe neurological damage and 92 percent disability, amounted to a violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights. The daughter and her parents complained of the lack of an effective remedy to assert their rights in domestic civil proceedings, alleging in particular that they had been unable to contest the expert report on which the national courts had relied to dismiss their compensation claim. The ECtHR held that the applicants had not received an adequate response from the court, finding that the expert report had given insufficient explanation for whether the doctors in question had contributed to the damage as it had not examined whether the doctors had acted in compliance with modern medical standards before, during and after the operation. The Court ordered Turkey to pay the applicants €7,500 for non-pecuniary damage and €1,023 for costs and expenses.

    The United Kingdom's Supreme Court has ruled that Northern Irish women and girls are not entitled to free abortions under the National Health Service (NHS). Abortion in Northern Ireland is legal only in very narrow circumstances, causing many women who usually live in Northern Ireland to travel to England to secure an abortion at a fee-charging private clinic. The case concerned a woman who became pregnant in 2012 at the age of 15 and who paid £900 to undergo an abortion in Manchester. She alleged that the UK Secretary of State for Health had acted unlawfully in failing to provide for access to free abortions, arguing that this was a duty under the National Health Service Act 2006 and that failure to act amounted to discrimination under the European Convention on Human Rights. The Court dismissed the appeal by a majority of three to two, finding that the scheme established by Parliament was that separate authorities in each of the four countries in the UK should provide free health services to those usually resident there. The Secretary of State for Health was therefore entitled to make decisions in line with this scheme, to respect the democratic decision of the people of Northern Ireland not to fund abortion services, and to take into account the ability of Northern Irish women to travel to England and purchase abortion services there. The Court also found that the difference in treatment was justified and therefore did not amount to discrimination. However, soon after the decision, UK government ministers announced funding for Northern Irish women to have abortions in England, with funding to be made available through the government Equalities Office.  

    The Supreme Court of Iowa in the United States has ruled that the parents of a severely disabled child can sue doctors who failed to inform them about foetal abnormalities that, if revealed, would have prompted the mother to have an abortion. The parents allege that after an ultrasound in her 22nd week of pregnancy, the mother was told by her doctor that “everything was fine” with the foetus, but that in reality a radiologist had found “head abnormalities” and recommended further testing. The parents were never informed of the problems, and the child was born with cerebral palsy, intellectual disability and other impairments that require frequent visits to the doctor and make it unlikely that he will ever walk or speak. The parents filed a lawsuit in 2013 seeking damages for past and future medical care, mental anguish and loss of income. The Iowa Supreme Court found that the parents have a right to sue for “wrongful birth” because they were denied the opportunity to make an informed choice on whether to terminate the pregnancy, and ordered a trial to establish whether the medical providers had been negligent. The ruling marks the first time that a personal injury claim for wrongful birth has been recognised in Iowa, although other states have previously allowed such lawsuits, and the dissenting judge warned that the decision “leads to a slippery slope”.
     

    Sexual abuse

    The trial of a man from Newfoundland, Canada accused of possessing child pornography after he bought a sex doll of a child is set to continue next month despite the defendant’s attempt to stop the case on the basis that it violated his rights under Canadian human rights law. The defendant was charged after police intercepted a package shipped from Japan containing the unassembled doll. The case, which began January last year raises the question of whether an inanimate object can constitute child pornography. Expert for the prosecution, psychiatrist Dr. Peter Collins has testified that possession of a sex doll is “just another form of depicting a child for a sexual purpose” and therefore meets the criteria for child pornography under Canadian law. The Canadian Criminal Code contains a broad definition of child pornography, including that "the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years" forms a “dominant characteristic” of the material in question. In their application to stay proceedings, lawyers for the defendant argued that the possible sentence of six months to two years in prison would be grossly disproportionate, and that the section of the Canadian Criminal Code dealing with child pornography is so broad that it interferes with the defendant’s personal autonomy as well as “the physical and psychological integrity of paedophiles”. They further argue that the Code violates the defendant’s right to freedom of expression by prohibiting expression “that possesses social value and is linked to the value of self-fulfilment”. Many experts on paedophilia emphasise that the condition should not, unlike child molestation, be treated as a crime, and some even suggest that sex dolls could be of benefit to society by keeping sex drives under control.

    After confessing to molesting two children in Burkina Faso, a French soldier has been sentenced to one year in prison, with one year suspended. Radio France Internationale reports that the man will not spend any time in prison unless he violates certain conditions, despite being found guilty of abusing two children, aged three and five. A French court passed the sentence on the special forces soldier known as Sébastien L and banned him from any job that would bring him into contact with children for five years. The incident occurred in the West African country in 2015 when the soldier was staying at a hotel in Ouagadougou and abused the two children in a swimming pool. Sébastien L and another soldier filmed the abuse and then befriended one of the girls' mothers, a French-Burkinabé woman who invited them to her house. The pair left the camera behind and the woman alerted the French embassy after viewing the images, leading to both soldiers’ immediate suspension and return to France. The court ordered Sébastien L to pay compensation to the victims and their families, totalling €19,000, but investigators found no case against the other soldier who was with him at the time.

    Education

    The Delhi High Court in India has ordered the Delhi government and municipal bodies to respond to a public interest litigation (PIL) alleging that they have not maintained records of children and schools in their areas as required by the Right of Children to Free and Compulsory Education (RTE) Act 2009. The complaint was brought by the NGO Justice for All, which claimed that the failure of the authorities to maintain the records has resulted in hundreds of thousands of children in the national capital being deprived of an education, as well as thousands of students dropping out of school. The petition contends that state authorities have failed to even start the process of identifying children and school mapping mandated by the RTE Act passed eight years ago, and that this failure has caused significant hardship to children belonging to marginal groups of society, who are required to submit various documents to prove their neighbourhood residence and their “Economically Weaker Section” status. These requirements would become unnecessary if the authorities maintain proper records of each child, the NGO argued. The court gave the respondent until 12 September to respond.

    The High Court in Johannesburg, South Africa has ruled that public schools may not promote themselves as subscribing to one particular religion at the exclusion of others. The case was brought by the Organisation for Religious Education and Democracy against six predominantly Christian schools in an attempt to prevent them from carrying out 71 religious observances, including singing, handing out Bibles, opening the day with scripture and explicit prayer dedicated to a particular religion. The court did not grant the restraining order, but held that by subscribing to a single particular religion, the schools had breached section seven of the South African Schools Act. A spokesperson for the national department of education said that the ruling was consistent with its own policy and highlighted that “the aim is not to ban religious practices in schools but about protecting children and emphasising that schools should engage in religion education rather than religious instruction.”

    Citizenship and statelessness

    The High Court in the United Kingdom has ruled that a stateless child born in the UK to Indian national parents is entitled to register as a British citizen. Under the British Nationality Act 1981, a child or young person born in the UK can be registered as a British citizen if he or she is under the age of 22 at the date of application; has lived in the UK for five years before making the application; and has has never had a nationality. Indian citizenship law grants children born to Indian parents outside of India a right to Indian citizenship but children must register through the appropriate administrative procedures. The case therefore turned on the question of whether a child who has a right to citizenship of another country is stateless. Rejecting the application of stricter principles established in refugee case law, the court instead drew its definition of statelessness from an earlier Supreme Court decision, in which a Home Office order depriving the complainant of British citizenship was found to have, unlawfully, rendered him stateless, despite the possibility that he could immediately restore his Iraqi nationality on application to the Iraqi authorities. Applying this standard, the High Court held that for the purpose of the relevant English legislation, a person is stateless if he or she has no nationality and that the ability to acquire a nationality is irrelevant. The child did not have an Indian nationality and was therefore entitled to register for British citizenship.  

    The United States' Supreme Court has ruled that laws which include different conditions for male and female unmarried parents to pass on their citizenship to children born abroad violate the US Constitution’s equal protection guarantees. US law generally allowed children born outside the country who have one parent who is a US citizen and one parent who is not, to inherit the citizenship of their parents if the parent had been physically present in the US for ten years prior to the child’s birth. The general rule applied to married parents and unmarried fathers who are US citizens, but unmarried mothers were only required to have been present in the US for a year to pass on their citizenship. The case was brought by a man facing deportation proceedings who would have been entitled to citizenship had his mother been a US citizen rather than his father.

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    Last Word

    CRIN’s collection of case studies illustrates different approaches to using the law in children’s rights advocacy. Throughout the world advocates are changing legislation and societies for the better through what is known as strategic litigation - when a case seeks broader impact than simply bringing justice in a case at hand. Looking at how these efforts work in practice, CRIN is interviewing those involved in cases and looking at their outcomes and the impact they created. We will highlight both successful cases and less successful ones - which have still had an impact - to allow advocates to learn from previous efforts to challenge children’s rights abuses.

    In our latest study, we look at the story of two blind parents who argued against the removal of their seven children and claimed that the authorities were obliged to provide financial support to help them and follow it to the European Court of Human Rights

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