Children in Court CRINmail 73

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14 August 2017 subscribe | subscribe | submit information
  • CRINmail 73:
    Children in Court

    In this issue:

    Introduction

    In this month’s Children in Court CRINmail, we feature the latest news on children’s rights in courts around the world, from compensation for surgery on intersex children in the United States to the obligation to provide humanitarian assistance to refugees in France. We also feature the latest cases on juvenile justice and challenges to the impact of austerity laws on the economic and social rights of children and young people.

    Latest news and cases

    LGBTI rights

    A medical university in South Carolina, United States has agreed to pay US$440,000 in compensation to an intersex child it performed surgery on. The child was born with male and female genitalia and the hospital, in consultation with social services, carried out surgery to remove the child’s male genitalia, though the child grew up to identify as male. The settlement follows four years of litigation brought by the boy’s adoptive parents, alleging that the hospital was negligent in carrying out the surgery and that the child had experienced pain, suffering, psychological harm, permanent impairment and medical bills as a result of the hospital’s actions. The hospital denies that it acted negligently. Last month, Human Rights Watch and interAct released a report on medically unnecessary surgeries carried out on intersex children, which can inflict irreversible physical and psychological harm. The consequences of surgery, most often carried out to assign a child a binary sex at birth, can amount to sterilisation without the patient’s consent, may risk incontinence, scarring, lack of sensation, and psychological trauma.

    It has been a busy month for courts considering the rights of children born through surrogacy. In July, France’s highest court ruled that same-sex partners may adopt the biological children of their partner when the child has been conceived through a surrogacy carried out outside the country. Surrogacy is banned in France, which has led to couples entering into surrogacy agreements abroad and returning home to register the birth and their parentage. The judgment falls short of automatically recognising the parents identified on a foreign birth certificate but is a significant change in a country that refused to recognise children as French citizens if they had been born through a surrogacy agreement until a 2015 European Court of Human Rights judgment. The Constitutional Court of the Czech Republic has also ruled that gay couples have a right to be recognised as parents of their children. The ruling emerged from the case of two men who had become parents through a surrogacy arrangement. The case must now return to the Supreme Court, which has jurisdiction to order that the birth and population register be amended.

    Meanwhile, the Supreme Court of Israel has postponed its hearings as to whether a law that prevents same-sex couples and single parents to undergo surrogacy in the country is discriminatory. The delay is to allow the Knesset to consider legislation on the issue.


    Juvenile justice

    The High Court of England and Wales has ruled that the isolation of a boy in a London prison with limited access to education was unlawful. For 100 days, the boy was held in Feltham Young Offenders Institution without contact with his peers and locked in his cell for more than 22 hours a day. The Court accepted that the use of isolation had not met with the prison rules for children in detention and that this amounted to a violation of the right to private and family life under the European Convention on Human Rights because it had not been carried out in accordance with the law, but rejected the broader argument that solitary confinement of children violated the ban on inhuman or degrading treatment. The Howard League for Penal Reform, who brought the case on behalf of the boy, intends to appeal this aspect of the ruling. Read a summary and full judgment of the case.

    Omar Khadr, the youngest person to be detained at Guantanamo Bay, is set to receive an apology and compensation for his treatment by the Canadian government. The reported payout comes in response to a wrongful imprisonment lawsuit, alleging that the Canadian government had not protected Khadr and had conspired with the United States in his abuse at the detention facility. Khadr was captured by US forces in Afghanistan and accused of throwing a grenade that killed an American soldier. Khadr spent ten years detained at Guantanamo Bay where he confessed to murder, though when he was returned to Canada to serve out his sentence, he claimed that the confession was made under duress. The payout has been delayed, however, as the widow of the American soldier has filed a lawsuit in Canada in an attempt to block compensation being paid.

    Iran has executed Alireza Tajiki for offences he allegedly committed when he was 15. Alireza, was sentenced to death in 2013 following a conviction for murder and “forced male-to-male anal intercourse”, despite havingrepeatedly retracted his forced confessions during proceedings. The sentence handed down by a provincial court was initially quashed by the country’s Supreme Court because of a lack of forensic evidence linking him to the alleged sexual offence, but the criminal court resentenced him to death in November 2014, ignoring concerns surrounding the conviction. Alireza is the fourth person to be executed this year in Iran for an offence allegedly committed as a child, while 88 child offenders remain on death row.

    At least two young men are at risk of imminent execution in Saudi Arabia for offences they allegedly committed while they were children. Mujtaiba Sweikat and Salman Qureshi were 17 years old when they were convicted of offences related to protests they allegedly participated in. A further 12 adults are also at risk of execution in relation to the same protests, with the Supreme Court now having confirmed that all 14 will be put to death unless they are granted a royal pardon. Reprieve, a British NGO, reports that the men were subjected to unfair trials involving prolonged pretrial detention, denial of access to a lawyer and  “confessions” extracted under torture. These are not the first cases of child offenders being sentenced to death for offences related to protests in the country. Ali al-Nimr, Dawood al-Marhoon and Abdullah al-Zaher have been on death row since 2012 after they were arrested and sentenced to death for protest-related offences. For more information on the legality of the death penalty for children in Saudi Arabia, see our inhuman sentencing campaign report on the country.

    Austerity

    The European Committee on Social Rights has ruled that austerity laws imposed by Greece between 2010 and 2014 violate the economic and social rights of children and young people. The Committee found that a range of Greek laws passed during this period violate rights under the European Charter on Social Rights, including with regards to discrimination in setting too low a minimum wage for people under 25, limiting the right to collective action, insufficient rest periods, and the excessive length of the working week permitted. Many aspects of the decision focus specifically on children and younger people, including the low minimum wage for children aged 15 to 18, which the Committee found to violate their right of young workers to a fair wage.

    Privacy

    The North Gauteng High Court in South Africa has ruled that child offenders, witnesses and victims may be identified when they turn 18, in a judgment that the Centre for Child Law and other NGOs have said they will appeal. The ruling centres around a case involving a woman who was snatched from a hospital as a baby and raised by her kidnapper. The woman does not want the media to release her real identity. The appeal draws on expert opinion to argue that victims traumatised in childhood will need more therapy than their adult counterparts, and that their recovery and rehabilitation process will continue into adulthood. They argue that future exposure of identity can cause them to relive their trauma and hinder their recovery, as well as prevent them from finding work and otherwise reintegrating into society. The media groups opposing the application argue that the public have the right to know about criminal cases, and that identifying information is important to their duty to inform.

    A class action has been filed in California, United States, alleging that Disney allowed technology companies to embed software in its apps toallow for the unlawful collection of children’s personal information to facilitate “commercial exploitation”. The Children’s Online Privacy and Protection Act (COPPA) requires verifiable parental consent for the collection of personal information of children under the age of 13 and the complaint alleges that the company failed to meet this requirement. Thelawsuit also alleges that children’s information is being sold to third-party companies for the purposes of tracking individual children’s behaviour across different apps and devices. The complaint relates to Disney’s online games played on smartphones, but also makes allegations against three other advertising technology companies who are claimed to have embedded software used to collect data within the games. Disney faced litigation over COPPA allegations in 2011, when its subsidiary Playdom was fined US$3 million by the Federal Trade Commission after it was found to have registered 1.2 million users for online games.

    Health

    A teenage rape survivor in El Salvador has been sentenced to 30 years’ imprisonment after having a stillbirth. The high school student had been repeatedly raped by a gang member for months, and had not realised she was pregnant until she gave birth in a bathroom, aged 18. Medical experts were unable to establish whether the foetus died in utero or after delivery, and a judge held that the failure to seek antenatal care amounted to murder. The prosecution accused the girl of deliberately avoiding seeking antenatal care because she did not want the baby, and of throwing the baby into the toilet with the intention to kill. Commenting on the verdict, Morena Herrera, executive director of the Citizen’s Group for the Decriminalisation of Abortion, said: “in El Salvador, justice is applied without direct proof, without sufficient evidence that clarifies what a woman has done”. El Salvador is one of five countries where abortion is illegal in all circumstances, and many young women are imprisoned for murder after suffering complications during childbirth. After her arrest, the student spent a week handcuffed to a hospital bed while being treated for severe anaemia and a urinary tract infection. She has been detained ever since. Her lawyers will appeal the verdict.

    India's Supreme Court has refused to allow an abortion for a 10-year-old girl, allegedly raped by her uncle, on the grounds that she is too far into her pregnancy. A medical panel told the court that, at 32 weeks, termination of the pregnancy would be "too risky". India’s law on abortion does not allow terminations after 20 weeks unless doctors confirm the mother's life is in danger. Her pregnancy was discovered several weeks ago, after she complained of a stomach ache and her parents took her to hospital. A lower court had earlier turned down her plea on similar grounds. Without disclosing the details of the medical report, the Supreme Court judges ruled that termination was "not good for the girl" and that the Indian government should set up a permanent medical board in each state to take prompt decisions in such cases in the future. The court order came after a lawyer filed a public interest petition saying that their doctors had examined the girl and found that the life of both mother and baby were at "very serious risk" if the pregnancy went ahead.

    A case has been brought against African Medical Investments, accused of illegally dumping hazardous biological waste including blood tubes, surgical gloves and injection powder bottles at an open space in Harare, Zimbabwe. The court heard that children playing in the area nearby picked through the litter and used the blood from tubes and intravenous fluid packs to paint their lips and nails. The hospital was tracked down after parents raised the alarm and a health inspector visited the site. Despite much of the waste having already been burned, the health inspector found patients’ records bearing the hospital address. The inspector reported the matter to the police, and interviews with the community revealed that children had collected the waste. The hospital is accused of violating the Environmental Management Act. The hospital has argued in its defence that it had been deceived by a former employee responsible for waste management, by diverting funds intended for waste disposal into personal bank accounts. The trial will continue this month.


    Refugees

    The highest administrative court in France has ordered the government to provide humanitarian aid to the hundreds of migrants, including children, who continue to arrive to the northern port city of Calais in the hope of crossing into the United Kingdom. The court held that the living conditions faced by the migrants indicate a “failure of public authority” and expose them to inhuman and degrading treatment that constitutes a serious violation of fundamental freedoms. Interior Minister Gérard Collomb responded to the ruling by promising to open two facilities in the region to house and better inform incoming migrants about the asylum process. He guaranteed better access to water but emphasised the need to avoid the resettlement of camps. The so-called “Jungle” camp was demolished by French authorities last October, but up to 500 migrants continue to live on the streets and in wooded areas around the cities. A recent report by Human Rights Watch documented routine harassment of migrants by police, including the use of pepper spray on child and adult migrants while they are sleeping or in other circumstances in which they pose no threat. The report also described how police disrupt the delivery of humanitarian assistance, by regularly spraying or confiscating sleeping bags, blankets, clothing and sometimes food and water.

     

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    Last Word

    Justice Peter Jackson is fast becoming a regular feature of the Children in Court CRINmail for pushing the limits of legal judgments to make them not only child friendly, but also written for the children who are affected by the case. The latest example, written as a letter to the boy at the centre of a custody dispute, explains how the judge came to the decision in a simple, direct and compassionate way. Read the case in full.

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