Court/Judicial body: High Court Division
Date: September 3, 2009 CRC
Provisions: Article 1: Definition of a child Article 3: Best interests of the child Article 12: The child’s opinion Article 27: Standard of living Article 33: Drug abuse Article 37(d): Torture and deprivation of liberty Article 40(2)(b)(ii): Administration of juvenile justice
Domestic provisions:Children Act, Bangladesh, 1974 (Section 50: Submission of information to probation officer by police after arrest; Section 58: Order for committal of victimised children)Constitution of Bangladesh ( Article 35(5): Protection in respect of trial and punishment)
Background: A 7 year-old girl was allegedly raped by her neighbour and distant relative. The police recorded the girl’s case and sent her to the Magistrate Court. The Magistrate ordered the girl to be kept in a safe home managed by the Department of Social Welfare. The girl’s parents were denied access to the safe home. After learning of the case from a news report, the High Court issued a “Suo Motu Rule” to the government (the Secretary, Ministry of Law, Justice & Parliamentary Affairs and other responsible departments), forcing them to explain whether and why the girl needed to be held in the safe home.
Issue and resolution: Separation from parents and State custody of child victims. The Court found that the Magistrate had acted illegally in ordering the girl to be kept in state custody. The Court also made a number of recommendations, calling for, among other things, the establishment of child-specific courts in every district, specialised training for police and other members of the criminal justice system who deal with children (including training for lawyers and judges on the CRC and other international instruments) and new laws implementing Bangladesh’s obligations under international treaties and covenants (such as the CRC).
Court reasoning: State custody of a child victim under Section 58 of the Children Act, 1974 (the “1974 Act”) is a measure of last resort. Custody should be given to the parent or guardian of the child victim, provided they are fit and capable of exercising proper care, control and protection. Where such a parent or guardian exists, there is no need for the courts to even consider the two alternatives provided under Section 58 of the 1974 Act—namely committing the child to a certified institute or home or to the care of a relative or other fit person. In addition, the Magistrate’s order was not in the best interests of the child and violated the CRC, which the judiciary is obliged to follow to the extent its provisions do not conflict with Bangladesh’s domestic law.
Excerpt citing CRC and other relevant human rights We find that the neglect of the Bangladesh Government to implement the provisions of the CRC has led to numerous anomalies in our judicial system when dealing with cases where an offender and/or the victim are children. … We would, therefore, strongly recommend that immediate steps must be taken by the Government to enact laws or amend the existing law in order to ensure implementation of all the provisions of the CRC, which are beneficial to children and also to minimise the anomalous situations which arise when dealing with children. In particular, in order to avoid further complications in the proper application of the existing laws, prompt action must be taken to ensure that the definition of ‘child’ is uniformly fixed in all statutes as anyone below the age of 18 years [Art.1 CRC]; the date relevant for considering the age of the accused is the date of commission of the offence, which is fundamental to the concept of protection of children who are not fully mature and do not appreciate the consequence of their actions [explained in detail in the Roushan Mondal case]; in all matters where a child is an accused, victim or witness, the best interests of the child shall be a primary consideration [Art.3 CRC]; that a child’s views shall be considered by the Court [Art.12 CRC]; in ALL cases where a child is accused of commission of any offence under the Penal Code or under any special law he is to be tried by a Juvenile Court or any other appropriate Court or Tribunal in accordance with the provisions of the Children Act and Children Rules [discussed in Roushan Mondal]; the use of children for the purpose of carrying drugs or arms or in any other activity which exposes them to physical and moral danger or any harm must be made a criminal offence to be tried under the Children Act [Art.33 CRC]. … [O]ne Court in each district must be designated as being a Court dedicated to hear cases involving child offenders so that children’s cases can be heard and disposed of on priority basis [Art.37(d) CRC]. Legal Aid must be made available in all matters involving children so that no child remains unrepresented [Art.40(2)(b)(ii)CRC]. Make Probation Officers available on call round the clock in all parts of the country to enable proper and effective implementation of section 50 of the Children Act. Similarly, places of safety must be set up, at least one in every district and local health clinics must be empowered for the purpose of medical examination of victims so that the need to detain victims in custody will be considerably reduced. … We are dismayed that till today Bangladesh is still lagging far behind in caring for its children. Because of our failure to implement the beneficial provisions of the CRC, the plight of our children has not improved to any measurable extent. The fact that we are lagging behind is only too apparent from the persistent recommendation of the Committee of CRC for Bangladesh to incorporate and implement the provisions of the international instrument. … In the facts of the instant case, had the best interests of the child been considered then the learned Senior Judicial Magistrate, Sylhet should have realised that the best interests of a seven year old girl demands (emphasis added) that she be allowed to remain with her parents. The learned Magistrate, if he had any sense of common humanity in his dealings with a child and if he had applied a humane attitude, then he would have searched out the girl’s parents in order to ascertain that they are fit and capable of retaining her custody…. When it is apparent that the girl was crying to be with her mother, that clearly is an expression of the view of the child to be with her mother and in compliance with Article 12 of the CRC the learned Magistrate should have given effect to it.… There is nothing on record to suggest that the learned Magistrate at all considered the views of the child which shows abject ignorance of the international provisions, which are meant to be for the welfare and wellbeing of children. Moreover, the tearing away of a seven year old female child from the bosom of her mother can be nothing other than cruel and inhuman treatment which is contrary to Article 27 of the CRC as well as Article 35(5) of our Constitution. The learned Magistrate has clearly acted in contravention of the provisions of law, the Constitution and the CRC, to which Bangladesh is a signatory.
CRIN comments: CRIN believes this decision is consistent with the CRC. In general, States should make every effort to ensure that children remain with their families whenever possible. Children should also be given a voice in proceedings that affect them, including custody determinations, and the Court should always consider the child’s views when making a decision about what might be in his or her best interests. CRIN also believes that extensive legal reform is necessary to bring laws, policies, and practices in line with the CRC, and supports this decision’s recommendations to the Government of Bangladesh to better respect children’s rights.
Citation: State v. Secretary, Ministry of Law, Justice & Parliamentary Affairs and Others, Suo Motu Rule No.5621 of 2009, High Court Division, Bangladesh (3 Sept. 2009).
Link to full judgement: Download a pdf version of this opinion here.