EUROPEAN UNION
The Council adopted a directive on February 12th, 2016 the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings. The purpose of the directive is to enhance the right to a fair trial in criminal proceedings by laying down minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. The text, based on a 2013 Commission Proposal, is not yet published.
The Permanent Representatives Committee (Coreper) approved on December 16th, 2015 a compromise text agreed with the European Parliament on a directive on procedural safeguards for children suspected or accused of having committed a criminal offence. Member states should make sure that the child is assisted by a lawyer, where necessary by providing legal aid, has an individual assessment, medical examination and the right to audio-visual recording of questioning. Special safeguards for children during deprivation of liberty, in particular during detention. Original text of the directive proposal COM/2013/0822 final.
The Victims' Rights Directive 2012/29/EU entered into force on November 15th, 2015. It lays down a set of binding rights for victims of crime, and clear obligations for EU Member States to ensure these rights in practice. Persons who have fallen victim of crime must be recognised, treated with respect and receive proper protection, support and access to justice. More information on European Commission/Criminal Justice/Victims.
PORTUGAL
Portugal has significantly changed its regulation concerning children's rights in criminal and civil justice:
Act of Law of 15 January 2015, nr 4 amends and improves the Tutelary Educational Law (Law No. 166/99 of 14 September) for minors aged between 12 and 16 years. The Tutelary Educational Law applies to each person under the age of 18 instead of the the Criminal Code.
Act of Law of September 8, 2015 nr 141 on protection of children and young people at risk
This new legal regime expressly recognises the right of the child to be heard in legal proceedings, and that their views must taken into consideration by judicial authorities, while determining a solution that best fulfills the child's interests. This Act of Law applies to all ongoing and future lawsuits.
Act of Law of September 8, 2015 nr 142 - Second amendment to the law on protection of children and young people at risk. This law recognises the right of children to the integrity of their deep psychological relationships. Each public intervention impacting on a child’s life must respect the child’s structuring deep affective relationships, which are instrumental to their healthy and harmonic development. Measures which respect a reassuring link of the concerned child with a persons(s) should be preferred, even before biological parents' rights.
Act of Law of September 8, 2015 nr. 143 changed the Portuguese Civil Code, the Civil Registration code and adoption procedures. It unifies in a comprehensive text all rules on the adoption process which previously were scattered across various regulations. The adoption of foreign children and its international process is now included in this Act of Law and enables adopted children, in some cases, to come to know their biological origins.
Case Law
Court of appeal of Évora, June 25th, 2015, Process No. 789/13.7 TMSTB-B. E1
This decision deals with the present-day issue of separated parents publishing their children’s photos in social networks, without or against the other parent’s consent. The Court ordered that the parents shall refrain from releasing photos or information in social networks allowing identification of the child. Such a decision is adequate and proportionate to safeguard the child's right to privacy and to the protection of personal data and, above all, to safety in the internet.
UNITED KINGDOM
14th January 2016: Government announcement of changes in adoption law and increased funding to improve life chances of children waiting in care. The changes will mean Courts and Councils will have an obligation to pursue adoption when it is in a child’s best interests.
January 2016 - UK Government has proposed last-minute changes to the Immigration Bill, currently going through the House of Lords. Government ministers have suggested withdrawing the normal standards of support for young people leaving care whose asylum or other claims to stay in the country have failed. Currently, any 18-year-olds leaving care receive help with accommodation where their welfare requires it, personal advisers, funding for higher education and training, and the right to stay in foster care for longer if they wish. These rights, under the Government’s proposed legislation, would be removed as the looked-after child turns 18 if they have had their asylum application rejected, or leave to remain otherwise denied.
November 2015: the Northern Ireland Children’s Services Co-Operation Bill passed final stage of approval in the Assembly. Once the legislation receives final Royal Assent, it will place a statutory obligation on agencies and departments in Northern Ireland to work together in the planning, commissioning and delivery of children’s services
Case Law
January 20th, 2016 (case not yet published):
The Upper Tribunal, Immigration and Asylum Chamber ordered the Home Office to immediately allow three unaccompanied Syrian children and an adult to be reunited with their families in the UK. The Dublin Regulation should theoretically only allow an asylum seeker in Calais or elsewhere in Europe to join a close relative in the UK if they have themselves already been granted asylum in France. However campaigners argued that bureaucratic failures meant this rarely happened, and the court has agreed that evidence of a written claim for asylum in France was sufficient to prove that the children had initially sought safety there.
The Court of Appeal, Home Office v VS – [2015] EWCA Civ 1142
S. was an Iranian national who had arrived in the UK. He was arrested and detained. He gave a date of birth which made him 16 and he was treated as a minor. While in the care of the local authority, S was assessed as being an adult and, on that basis, the Secretary of State treated him as an adult and detained him again. The Court of Appeal upheld the finding of the High Court that the detention was unlawful and that his age had been determined in a way that was not compatible with the best interests principle and established age assessment procedures in place in England.
ITALY
On January 20th, 2016 entered into force Legislative Decree of December 15th, 2015 nr. 212 implementing Directive 2012/29/EU on the rights, support and protection for victims of crime. The decree amends the Criminal Code and the Criminal Process Code to ensure adequate level of protection and assistance, in both stages of access and participation to criminal proceedings, both outside the trial and independently from it.
Act of Law of October 19th, 2015 nr. 173 amends the national regulation on adoption of by favoring the adoption of children by their foster parents. The judge shall decide based on the assessments of social services and upon due consideration of the child's opinion when twelve years old, or younger "if the child is capable of judgement."
Case Law
Supreme Court, Criminal Section III, judgement of January 18th, 2016, nr 1620
It is legitimate conviction for sexual child abuse also on the basis of testimonies from relatives that show the victim's statements. No provision requires the court to hear the direct testimony of the child, based on the presumption that such verification may result in risks for his psycho-physical state.
Supreme Court, Civil Section I, judgement of November 24th, 2015, nr 23976
The I Civil Section judges affirm that parties have a full right to participate in all measures of investigation. That involves full discovery of the reports of each institution and service involved, of specialised operators from the judicial authority regarding the psycho-physical condition of the child, accompanying acts of the process. Each party has a right to examine such documents, to take copies and perform deductions or requests for further investigations.
PUBLICATIONS
NEW HANDBOOK "Child rights in European law: new practical guide from the EU Fundamental Rights Agency and the Council of Europe"
This comprehensive guide to European law with regards to child rights includes a section on "Children’s rights within criminal justice and alternative (nonjudicial) proceedings", December 2015.
Newsletter edited by Lara Olivetti, Save the Children Italy
