Rights of the Child

The High Court of Tuvalu cited the CRC in interpreting the Constitution, which failed to protect the legal rights of children in situations in which children defendants had not yet been interviewed by the police. Through the CRC, the Court held that children in police custody had the right to be informed by the police that they had a right to have a parent, guardian or legal adviser present. The Court also held that the police must take reasonable measures to ensure that such assistance was in place before the police could interview the child.

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A male was convicted of murder. The incident occurred when the male was sixteen years old. Following his conviction, he did not appeal, and had served over four years of his sentence when he petitioned the High Court of Tuvalu for a review of his case, given that he was a minor when the crime occurred. In deciding on the case, the Court cited the CRC and said that Tuvalu, as a signatory, was “required to review [its] laws in relation to children.” The Court then suggested that legislation be passed mandating greater review by the government of life imprisonment or sentences of many years, especially for children. However, the Court refused to alter the applicant’s sentence of life imprisonment, as he had not appealed and was essentially asking the Court to review one of its earlier decisions.

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A Tuvalu court rejected the argument that CEDAW and CRC could be relied on in deciding suits involving children. Although the Tuvalu government had ratified CEDAW and CRC, the court held that the Tuvalu legislature must enable the conventions locally through legislation. If the conventions are not enabled through domestic legislation, the court said, they will only apply when ambiguities or inconsistencies in domestic law arise. The court held this despite the Constitution allowing for the use of human rights conventions in the appropriate situation.

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The Supreme Court of Tonga held that, although the United Nations Convention on the Rights of the Child (UNCRC) had not been enabled by legislation in Tonga, there was a strong need for it regardless. Therefore, the Court said, courts in Tonga could legitimately refer to the CRC as a guide regarding acceptable forms of treatment for children. It then ruled that child offenders were entitled to have present their parents during questioning.

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A 12-year-old was arrested by the police after being falsely accused of theft. He was in police custody for 20 hours before being released. In police custody, he was beaten. The officer pled guilty. In awarding the minor monetary compensation, the Supreme Court of Tonga had to consider whether the CRC came into play when minors were possibly being tortured. The Court hinted that courts in Tonga should be willing to be bound by its terms. The Court also cautioned that, considering the average Tongan’s income, future money damages should be kept in proportion to reality. This was the first application of the CRC in Tongan courts (but not the first application of a human rights convention, as seen in 2005 in R v Vola). Both cases show a departure from traditional Tongan courts’ reluctance to apply international human rights standards.

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A person had pleaded guilty to manslaughter of a child and was sentenced to a three and a half years imprisonment. The state appealed, arguing that the sentence was an insufficient punishment for a crime of such magnitude. The Court of Appeal of Samoa cited the CRC regarding the right not to be subjected to cruel treatment or punishment. It held that “[a]ll Samoan Courts should have regard to this Convention in cases within its scope.” The Court then quashed the original sentence and replaced it with a five-year sentence.

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As in the Maumasi case the previous year, the Court of Appeal of Samoa quashed a sentence (this time the sentence of a person who was convicted of engaging in sexual intercourse with a minor) and replaced it with a longer sentence (the nine months sentence was replaced with a three-year sentence). In so doing, the Court cited the CRC again, and quoted the Court’s previous holding in Maumasi, that “[a]ll Samoan Courts should have regard to this Convention in cases within its scope.”

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Citizens of New Zealand who had been born there challenged the deportation order of their parents by the Department of Immigration. The parents had been born outside of New Zealand and were undocumented. The Supreme Court of New Zealand cited Article 3 of the Convention on the Rights of the Child. The Court held that the best interests of the child, as per Article 3, in this case should be granted “due weight”. In this particular context, however, they should not be granted “paramount weight”. The Court stated that giving “paramount weight” to such interests would disproportionately overlook other relevant considerations.

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Nauru: In Re Lorna Gleeson, [2006] NRSC 8

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The appellant, a citizen of Nauru, wished to adopt a child also a citizen of Nauru. The appellant’s spouse, however, was not a citizen of Nauru. Under the Constitution, both parents had to be citizens of Nauru in order for the couple to adopt. The appellant challenged this in court and cited the CRC. The Supreme Court of Nauru sided with the appellant and said that such a law was in violation of the spirit of the CRC. The Court considered the CRC even though it had not been incorporated into domestic law in Nauru.

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The plaintiff challenged a provision of the Japanese legal code. The provision stated that the intestate share guaranteed by Japanese law to an illegitimate child shall be one-half of the share guaranteed to a legitimate child. The Supreme Court of Japan ruled that this was constitutional. Although the Court cited the ICCPR, it nevertheless seemed to decide in opposition to it, in particular Article 24. The decision was made with ten justices in the majority and five in the dissent. The five dissenting justices asserted the importance of Article 26 of the ICCPR. They opined that the Court was divided over how heavy the legal weight of international human rights treaties should be in the Japanese legal system.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 477)

A non-Japanese mother gave birth in Japan to a child. The father was a Japanese national. He acknowledged as such only after the child was born, and the child was born out of wedlock. According to the Nationality Act, such a child was not afforded Japanese nationality. The Supreme Court of Japan declared this unconstitutional. In so doing, the Court cited the ICCPR and CRC. The Court also referenced the worldwide movement to dispel discrimination against illegitimate children. Since the trend worldwide was to rule in favor of nationality for such children, the Court said, the Court could take that into account.

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Fiji: Devi v The State, [2003] FJHC 47

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The High Court of Fiji had to decide whether to grant bail to a father of a four-year-old boy. Without the mother, the son had no caregiver and his clothes were locked up at the mother’s house. The Court cited the CRC and noted that it had to consider the best interests of the child. Using these guidelines, the Court granted the mother bail. See also Yuen v The State, [2004] FJHC 247, a case in which the High Court of Fiji considered a similar fact pattern. The Court granted bail to the mother, but noted that although under the CRC the best interests of the child are to be given primary importance, they are not to be given paramount importance. Other factors could overrule the best interests of the child.

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A couple, neither of whom were citizens of Fiji, wished to adopt a child. The Constitution of Fiji contained a residency requirement for those wishing to adopt, and the couple had not satisfied it. Nevertheless, the couple cited the CRC, CPCC, and South Australian Adoption Act 1988 in court in an attempt to adopt regardless. They argued that, regardless of what the Constitution said, the best interests of the child were at stake, and would best be served by an adoption. If the courts allowed this argument, it would mean a direct overruling of the Constitution by an international human rights norm.

The High Court of Fiji rejected the argument. The Court said that although it should consider the best interests of the child, its job was to apply the law and not to amend it. Moreover, the Court said, there was no factual determination of what would be in the best interests of the child at issue (there was no home study report on the prospective parents).

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There was a custody dispute between the mother of a child and the respondents, who were relatives of the child and who had helped raise the child. The High Court of Fuji, in deciding that the mother should have custody of the child, referred to the Hague Convention for the first time, even though it was an unratified convention in Fiji. The Court also interpreted section 43(2) of the Constitution as meaning that courts in Fiji had an obligation to apply human rights conventions, even if not cited by any parties.

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The High Court of Samoa imposed punitive damages as a deterrent against future violations of the rights of the child under the CRC. In so doing, the Court ruled against the powerful Village Fono (council and local traditional law body). The Village Fono had banished children and their families from their village homes. Such banishment is a customary punishment in Samoa.

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