Litigation

 

A key objective of the project is to develop and support concrete CRSL efforts in a number of thematic areas. These include Migration, Deprivation of Liberty and Climate Justice, which constitute key global challenges in child rights terms.

 
 

General Child Rights Strategic Litigation

 

Key partner: Centre for Child Law, University of Pretoria

 

  • The Centre for Child Law, as part of the ACRiSL Project represented a young client in a matter that challenged discriminatory guidelines of the Department of Higher Education and the National Student Financial Aid Scheme (NSFAS), which excluded applicants who are not South African Citizens from accessing funding for Higher Education.

    The Centre’s client, M, arrived in South Africa at the age of 4 as an unaccompanied minor fleeing genocide resulting from the Burundi Civil War. She was in the care of various adults through her childhood, but those adults either did not try to obtain a permit for her, or made numerous attempts but were unsuccessful. At a certain stage the Burundi Civil War ended, which meant that M was no longer eligible for a refugee permit - or any other permit for that matter. However, despite being ineligible for any permit available under South Africa’s laws, the Children’s Court deemed it to be in M’s best interests to remain in South Africa: by that stage, she had spent her formative years in South Africa, developed relationships with her foster mother and later the director of her Child and Youth Care Centre, and further, she did not know anyone in Burundi. Thus, by order of the Children’s Court she remained in South Africa until she turned 18 years old.

    When M was almost 18 years, M and staff of the CYCC she was in approached the Centre for Child Law to investigate whether there was any possibility of her obtaining a permit as a return to Burundi was not a viable option. Accordingly, the Centre prepared and applied for permanent residence based on M’s special circumstances. The application was submitted to the Minister of the Department of Home Affairs, who accepted it. In December 2019, the application for permanent residence was approved by the Minister of Home Affairs. In 2019, M matriculated with a university exemption. Following matric, she was offered a place at the University of Johannesburg to study Public Relations and Communications. She had intended to take up the offer but required funding for her tuition and residence to enable her to do so. She consequently applied for funding from the National Student Financial Aid Scheme (NSFAS). NSFAS, however, did not consider her financial aid application on its merits and took the view that only South African citizens are eligible for financial assistance from it.

    The Centre challenged the administrative decision in the High Court by filing court papers. In June 2021, the NSFAS which initially indicated that it would oppose the court action, withdrew its intention to oppose and agreed to revise its guidelines. On 1 June 2021, the Centre received the revised guidelines in which the financial eligibility criteria was amended to include permanent residents thus enabling M and other similarly placed young people to apply for funding to pursue their higher education. The Centre will use the lessons learnt from this case to assist other unaccompanied minors in need of special dispensation, permanent residence as well as education. Sadly, M’s case is not rare; the Centre is often made aware of other children in similar circumstances.

    See Centre for Child Law Founding Affidavit and Infographic.

Access to student financial aid for permanent residents

Centre for Child Law and Another vs NSFAS and Another

Download Infographic

  • On 31 July 2020, the High Court declared section 4(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992 (South Africa) unconstitutional and invalid to the extent that it criminalised the use and or possession of cannabis by children. The Centre for Child Law, as amicus curiae in the matter, presented arguments on the most appropriate response to children’s use and or possession of cannabis. The Centre argued that children were being treated as criminals for conduct which was no longer a crime for adults (see earlier decision of the Constitutional Court in The Prince Case), which was untenable considering that the criminality attached to possession and use of cannabis was not based on deviant behaviour which violated prevailing social norms but rather based on age and timing. This was contrary to the Constitution.

    In this context, the Centre submitted that several children’s rights were directly violated and unjustifiably limited (best interest of the child, right to not to be detained unless as measure of last, and right to human dignity) and argued that there were several alternative “less restrictive means” available to prevent children from using cannabis which would not expose them to the criminal justice. The High Court held that putting children through the criminal justice system as far as the use or abuse of cannabis was concerned, was not an effective and appropriate manner to protect children from the use and abuse of substances that are harmful to them. The Centre for Child Law filed the application for the confirmation as an Applicant in the Constitutional Court.

    On 29 September 2022, on application by the Centre, the Constitutional Court of South Africa delivered a judgment confirming the constitutional invalidity of section 4(1)(b) of the Drugs and Drug Trafficking Act 140 of 1992. The Constitutional Court essentially found section 4(1)(b) to be inconsistent with the Constitution to the extent that it criminalised the use and/or possession of cannabis by children without considering their best interests as provided for in section 28(2). The Court stressed that the focus of the matter was decriminalisation and not legalisation, and the proper process to be followed when a child is found to have used cannabis, which should not include the criminal justice. Decriminalisation does not mean that children are permitted to possess and/ or use cannabis, but that the consequence of possession and/ or use does not result in the criminal sanction of such a child. The Court also considered, in line with what the Centre had been arguing, that children should instead receive the support of parents, communities and the support already provided by the Department of Social Development and/or other certified social welfare services to ensure that the children receive the rehabilitative programmes needed, having taken their individual needs into account. The aim of this approach is to avoid children being exposed to the brutalising effect of the criminal justice system that does not have the necessary mechanisms to properly deal with cannabis dependency.

Migration

 

Key partners: ECCHR and the Human Rights Institute, University of Deusto 

ECCHR specialises in supporting litigation against pushbacks, which involve arbitrary and often informal expulsions as well as many other human rights violations. In this context, ECCHR is exploring avenues open to affected children to claim their rights. This work leads on from ECCHR's groundbreaking CRSL work, which resulted in the first decision of the UN Committee on the Rights of the Child on pushbacks in the case of D.D. v. Spain.

In 2015, ECCHR supported an unaccompanied minor in submitting an individual communication to the UN Committee on the Rights of the Child, challenging his arbitrary pushback by Spanish authorities to Morocco from the Melilla Spanish enclave. 

The Committee found that Spain had violated a range of D.D.’s rights under the UNCRC. However, despite being ordered to amend its legislation, compensate the complainant, and prevent future similar violations within a six-month period, this landmark decision remains unenforced by the Spanish Government.

The University of Deusto and ECCHR co-hosted a two-day workshop aimed at bringing practitioners and academics together to reflect on the implementation and follow-up strategies of decisions adopted by judicial and quasi-judicial bodies on children rights, in particular those from the UN Committee on the Rights of the Child on cases involving migrant children rights in Spain, such as D.D. v. Spain.

In 2022, ECCHR, as part of the ACRiSL project, together with Blindspots, supported an unaccompanied Rohingya child (U.F.) in submitting two individual communications to the UN Committee on the Rights of the Child challenging Croatia and Slovenia over violent pushbacks.. These are the first complaints of their kind against the two States. The applicant has argued multiple violations of the CRC in relation to his expulsions and ill-treatment, including the states’ failure to assess his age or apply any of the relevant safeguards under articles 3, 8, 20(1), and 37 CRC. 

U.F., who was 8 years old when became separated from his family while fleeing a military attack on his village, after many years in search of protection, was pushed back five times, over the period of one year, from Croatia to Bosnia and Herzegovina and was consistently faced with violence. He was subjected to a “chain” pushback in Slovenia, by which he was forcibly returned first to Croatia and then onwards to Bosnia and Herzegovina in a coordinated operation between the authorities of these States.

 The complaints submitted by U.F. are pending examination by the UN Committee on the Rights of the Child.

 Children Deprived of Liberty

 

Key partner: Follow-up programme of the UN Global Study on Children Deprived of Liberty based at the Global Campus of Human Rights 

 

  • In September 2021, the GSCDL team based at the Global Campus of Human Rights made a third-party submission to the UN Human Rights Committee in relation to the individual communication no. 3870/2021. The communication was submitted in November 2019 by a family from Chechnya, represented by the Helsinki Foundation for Human Rights (HFHR). It concerns a single father and two underage children who applied for international protection in Poland and were immediately placed in a Guarded Centre for Foreigners in Biała Podlaska, where they spent over 10 months. According to the communication psychologists had stated that the detention had caused the deterioration of the father's health and had a negative impact on the condition of his children. This is the first case concerning the wrongful placement of foreigners in a Guarded Centre to be communicated to the Polish Government under the Optional Protocol to the International Covenant on Civil and Political Rights.

    The brief offers the Committee an opportunity to enrich its analysis of the issues raised in the communication in terms of the ICCPR as interpreted in accordance with, first, the United Nations Convention on the Rights of the Child (particularly Articles 3 and 37), and, second, the International Covenant on Economic, Social and Cultural Rights (particularly Article 12).

    All parties are now awaiting the Committee’s decision.

  • From February to July 2022, as part of the work within the ACRiSL project, a cooperation was agreed between the GSCDL Team based at the Global Campus of Human Rights and three Greek lawyers from Arsis Association in order to support and monitor progress in five CRSL cases before national administrative courts: S.Z. v. Greek Administration AKY187/2022 (annulment application) and AND189/2022 (suspension application); A.R.Z. v. Greek Administration AKY 75/2021 (Annulment Application) and AND81/2021 (Suspension Application); H.Μ. v. Greek Administration ΑΚΥ528/2020 (Annulment Application) and AND268/2020 (Suspension Application); M.T. v. Greek Administration ΑΚΥ609/2020 (annulment application) and AND13/2021 (suspension application); M.A. v. Greek Administration AKY 434 (annulment application) and AND177/2022 (suspension application). All parties are now awaiting the national courts’ decisions.

    The CRSL activities undertaken in Cases 1, 2, 3 and 4 have prevented so far the risk of detention of the migrant children concerned. In Cases 1, 3 and 4 the children were previously placed under ‘protective custody’ and then in shelters for unaccompanied children, but they may still be at risk of being detained. In Case 5, the child concerned experienced unlawful migration-related detention with adults for four months.

  • From February 2022 to March 2023, as part of the work within the ACRiSL project, a cooperation was agreed between the GSCDL Team based at the Global Campus of Human Rights and a Maltase lawyer from Aditus Foundation, in collaboration with a lawyer from Jesuit Refugee Service (JRS), in order to support and monitor progress in two CRSL cases.

    In one case, in March 2022, Aditus filed an application to the European Court of Human Rights (ECtHR), A.D. v. Malta, Appl. 12427/22. The ECtHR communicated the case to the Maltese government in May 2022, with a series of questions for Malta to comment on regarding detention conditions and review mechanisms. The facts at issue span from 24 November 2021 until 7 July 2022, and the European Convention on Human Rights provisions allegedly violated includes Articles 3, 5(1), 5(4), 13 and 14. In August 2022, aditus received the government’s observations on the application, and in October 2022 submitted to the ECtHR their own final observations and request for just satisfaction. The submissions also included affidavitis made by the applicant and by two other persons detained at the same time. In October 2022, the Global Campus of Human Rights, AIRE Centre, ICJ and ECRE jointly submitted a Third-party Intervention to the ECtHR. In November 2022, aditus received Malta’s final submissions which provided useful information in relation to its asylum regime. On 17 October 2023, the ECtHR ruled that Malta had violated Articles 3 (prohibition of inhuman and degrading treatment), 5 (right to liberty) and 13 in conjunction with Article 3 (right to an effective remedy). The Court stressed on several occasions the applicant’s young age, holding that the extreme vulnerability and specific needs of children, whether accompanied or not, requires special attention of the authorities. It also highlighted how AD had been detained alone or with unrelated adults for too long without the authorities considering any alternatives. The Court emphasised that children ought to be regarded as such and that asylum-seeking children should not be exposed to circumstances that put them in "a situation of stress and anxiety". The court also found that Maltese authorities had failed to take into account the best interests of the child in decisions concerning the AD's mental and physical health.

    Another case, Ayoubah Fona et v. Ministry for Home Affairs, Security, Reforms and Equality, the Permanent Secretary, Ministry for Home Affairs, Security, Reforms and Equality, Director of the Detention Services, The Director of the Agency for the Welfare of Asylum Seekers, the Superintendent for Public Health and the State’s Advocate, originates from the situation of six migrants (from Sierra Leone, Liberia, Ivory Coast) who, after being rescued and taken to Malta in November 2021, were confirmed to be minors during the course of a protracted age assessment procedure. They were subsequently released after the Habeas Corpus application filed by the Aditus lawyers in January 2022, although such application was rejected by the national court (that confirmed the applicants’ detention) and it is not clear which entity ordered their release. In May 2022, Aditus filed an application before the Civil Court (Voluntary Jurisdiction) requesting authorisation to proceed with the children’s human rights application in the absence of the legal guardian’s consent. This court issued a positive decision in June 2022. In the meantime, some of the children left the country. However, in July 2022, a human rights application was filed for the remaining child (an asylum-seeking child from Liberia) before the First Hall Civil Court (Constitutional Jurisdiction). This was based on a violation of Articles 3 and 5 of the European Convention on Human Rights, Articles 1, 4, 6 and 24 of the Charter of Fundamental Rights of the European Union, and Articles 32, 34 and 36 of the Constitution of Malta. The applicant was confirmed a child by the national authorities and was provided with a legal guardian. In November 2022, Aditus prepared and filed an application to the Court requesting proceedings to be conducted in the English language. In January 2023, Aditus prepared, translated and filed 6 affidavits from children detained with or at the same time as the applicant. A new hearing was held in February 2023.

  • In summer 2022, as part of the GSCDL Team’s collaboration with a South Korean lawyer (Jean Kim) from the Duroo Association for Public Interest Lawyers, the GSCDL Team submitted a written opinion to the Korean Constitutional Court in relation to its case 2020HunGa1.

    The Court was requested by the Suwon District Court in January 2020 to rule on the constitutionality of Article 63(1) (Detention of Persons subject to Deportation Orders, or Release from Detention) of the national Immigration Act. The case concerns a 17-year-old asylum-seeker from Egypt who came to Korea in July 2018 as an unaccompanied child on a 30-day B-2 visa and was detained for about two months. The claimant’s representative has argued that Article 63(1) of the Immigration Act remains a legal ground for indefinite detention of migrants in practice because it states that persons under deportation orders who cannot immediately be repatriated can be detained in any detention facility pending when deportation is carried out. As the claimant was a child at the time of the detention, it is also argued that the immigration detention of a child must not be used even as the last resort.

    The GSCDL Team’s written opinion, which was submitted to the Court in July 2022, expressed a shared interest in ensuring that the protection of children from deprivation of liberty within the Korean legal system is rigorous in a national context where the constitutionality of Article 63 of the Immigration Act is being considered at the Constitutional Court level and where the Ministry of Justice announced in November 2021 that it will initiate a series of legislative and policy changes to improve the immigration detention regime, but has been firm in its position that there should be a room for detention of migrant children over 14 (aligning with the criminal detention of children).

    In March 2023, the Court ruled that the current Korean immigration detention system is unconstitutional, holding that the lack of upper limit and due process render it unconstitutional. The parties are currently awaiting the full judgment.

  • In May 2022, as part of the GSCDL Team’s collaboration with a Polish lawyer (Małgorzata Jaźwińska) from the Association for Legal Intervention, an amicus curiae brief was prepared pro bono by three Polish colleagues from the Global Campus of Human Rights network and submitted to the Polish Supreme Court, in relation to the case II KK 148/22 of cassation appeal, which concerns compensation for wrongful prolonged detention of a mother with her child.

    All parties are now awaiting the Supreme Court’s decision.

Climate Justice

Children and their rights are a growing focus of climate justice litigation. Given the increased engagement of child/youth plaintiffs as well as child rights argumentation in climate justice litigation, ACRiSL is seeking to get a sense of the practice of climate justice litigators and their engagement with child rights standards. A key aim of this work is to provide support to climate justice litigation practitioners in adopting (or advancing) a child rights-consistent approach to their work.

  • On 17 March 2021, practitioners and academics working on climate change litigation and child rights strategic litigation participated in an online workshop to discuss the practice of climate change litigators and their engagement with child rights standards. The workshop, which was organised and led by Professor Aoife Nolan and Shauneen Lambe, involved 18 key stakeholders working on this topic from the Americas, Africa, Europe and Asia. These included ACRiSL partners CRIN, ECCHR and CCL and ACRiSL advisor, Tessa Khan (Uplift).

    The objective of the event was to have a conversation focused on climate change litigation practice and children’s rights, seeking to address three sets of questions. First, what are climate change litigators’ understandings of children’s rights and how can these be guaranteed in the practice of climate change litigation? Second, what challenges and opportunities have climate change litigators experienced in integrating a child rights approach into their work? Third, what support would be useful to climate change litigators in order to strengthen the child rights component of their practice? 

  • ECCHR, as part of the ACRiSL project, hosted on 18-19 January 2022 an international workshop online, “Climate Justice in the Global South: Potentials and Visions for Child Rights Strategic Litigation”. It brought together 22 participants, including several of the ACRiSL partners, young activists and plaintiffs. This workshop was the chance to start a transnational conversation on framing domestic, regional and international climate justice strategic litigation from a children’s rights perspective. The goal of the workshop was to advance and strategise on the potentials of child rights strategic litigation regarding climate justice issues, in particular as they unfold in the Global South. As this is a developing field, the workshop was aiming at bringing together practitioners experienced in climate justice litigation with experts in child rights litigation. Through this exchange of knowledge and practice, the hope was to foster new perspectives and open new paths for transnational collaborative lawyering regarding child rights climate litigation.

    The participants engaged on different angles: the relevance and challenges of child rights strategic litigation to climate justice in the Global South; youth participation to legal efforts and their empowerment; and visions for future legal interventions.

  • The Advancing Child Rights Strategic Litigation Project (ACRiSL) held the event ‘Child Rights-based Argumentation in Climate Justice Litigation’ on 19 January 2023.

    The aim of the event was to enable litigators and academics to share ideas about particular challenges arising in relation to legal argumentation in child rights climate justice cases, with these ideas being addressed in short research briefs by academic experts to be produced under the auspices of the ACRiSL project over the coming months in order to support litigation of these issues in future cases.

    The event focused on two challenges: (1) the relationship between children’s rights and future generations, and (2) age/birth cohort discrimination. An hour was devoted to each topic, with the discussion being kicked off by presentations from two litigators followed by inputs from academics and by a general discussion. In order to facilitate open exchange, the event was held under the Chatham House Rule.

  • In 2023, the ACRiSL project supported child rights-based argumentation in the Aurora litigation. Aurora is a youth-led organisation that is currently challenging the Swedish government in a public court for failing to treat the climate crisis as a crisis.

  • As part of the Advancing Child Rights Strategic Litigation project, Child Rights International Network (CRIN) and the University of Nottingham Human Rights Law Centre (HRLC) have submitted observations in response to the request for an Advisory Opinion to the Inter-American Court of Human Rights (IACtHR) from the Republics of Chile and Colombia. The focus is on children's rights concerning the climate emergency, specifically addressing two key questions posed to the IACtHR.

    The submission stresses the importance of the Court considering a wide array of civil, social, economic, political, cultural, and environmental rights under the Inter-American human rights system and how they apply to children, including drawing on relevant international and comparative material to assist the Court in interpreting how these rights apply.

    The submission also highlights the importance of considering all pertinent rights under the ACHR, including those that are applicable in light of the CRC, such as the right to be heard (Article 12), freedom of expression, association and peaceful assembly (Articles 13 and 15), with a particular focus on access to justice.

    Finally, the submission suggests that if the Advisory Opinion addresses the rights of future generations, the Court should be clear about the definition of the term to avoid ambiguity in identifying and attributing responsibilities concerning rights in the context of the climate emergency, making clear the relationship between the rights of children and future generations.

    Given the overwhelming number of submissions received by the IACtHR, the court has announced two public hearing sessions for the submitting parties to present their arguments, which will take place during the month of March 2024.

    Read the full submission.