Domestic, Argentina Gisela Sin Gomiz Domestic, Argentina Gisela Sin Gomiz

Civil Association for Equality and Justice (ACIJ) against Government of the City of Buenos Aires (Ministry of Education) and others, EXP 8849/2019-0 CUIJ - Argentina

Background

The case concerns a collective complaint brought by the civil association Asociación Civil por la Igualdad y la Justicia (ACIJ) on behalf of children who had been denied enrolment in private schools for presenting some form of disability. The applicants sought a declaration of the illegality and unconstitutionality of the failure of the Government of the City of Buenos Aires to control, evaluate, audit, and sanction this practice for being in violation of the rights to education, equality and non-discrimination. Prior to this decision, the Court had already ordered precautionary measures to be taken by the local government at the request of the applicant.

Reasoning

The Court declared unconstitutional the failure of the Government of the City of Buenos Aires to control, evaluate, control and sanction the discriminatory practice of private schools in denying the enrolment of children with disabilities, taking into consideration the state’s performance. Firstly, the Court ruled that the local government had failed to comply with the constitutional, legal and regulatory obligation to control the activity of private schools, according to domestic law (CCABA, Article 25; National Education Law, Articles 13 and 121; and Law No. 2.681, Article 1 and Decree No. 107/11, Article 2). Secondly, the Court found that the lack of accessible, specific and effective channels to adequately control the activity of private schools was contrary to national law, which sets out the obligation to provide the necessary mechanisms to facilitate and speed up the receipt of claims and complaints (National Education Law, Article 8). Moreover, the Court criticised a number of procedural omissions by the City of Buenos Aires Government (e.g., absence of notifications, lack of resolution of the issues, etc.) that breached the duty to guarantee the right to due process of those affected by the government’s decisions (Decree No. 107/11, Article 9). Thirdly, the Court noted the limited activity of the City Government in terms of sanctions, the excessive delay in the resolution of appeals filed by private schools against sanctions and the lack of publication of sanctions on the website of the Ministry of Education (Law No. 2.681, Article 10). Fourthly, the Court noted a lack of dissemination of information on the right to inclusive education by the City Government – a right that is expressly recognized by national and international law. The Court also criticised the failure by the City Government to create the Observatory of Public Policies for full educational inclusion provided for in the law (No. 3.331, Article 5). Lastly, the Court highlighted the multiple failures of the City Government to comply with the precautionary measures previously imposed.

The court held that the City Government should implement positive action measures to effectively counteract the structural inequality experienced by children with disabilities. The City Government should do so in compliance with the constitutional and international law provisions projected in the body of law, in particular the CRC (Articles 3, 23, 29), the CRPD (Article 24) and the General Comment No. 4 on the right to inclusive education.

Remedy

Due to the structural nature of the problem, the court avoided imposing a concrete and immutable order. Instead, the defendant (Ministry of Education of the Government of the City of Buenos Aires) was ordered to formulate a proposal involving a diversity of social actors to provide a solution to the case and fulfil its obligations. The minimum content of the proposal was delimited by the court so that its compatibility and adequacy could be analysed by the judiciary.  

Role of children

There were no children directly involved in the case. The children's parents submitted their complaints to Asociación Civil por la Igualdad y la Justicia (ACIJ) and ACIJ filed the collective complaint.

Enforcement and other outcomes

The Government of the City of Buenos Aires was granted a period of 30 days to formulate a proposal to provide a solution to the case and fulfil its obligations. The ruling was appealed by the Government. However, the Ministry of Education has offered to reach an agreement and negotiations with ACIJ are still ongoing.

Significance of the case from a CRSL perspective

In terms of standing, this case is a significant example of an organisation deciding to bring a collective action (acción de amparo colectivo), i.e., a rapid judicial procedure allowing organisations defending collective rights or interests to claim a human rights violation when collective interests or rights are affected (Article 14, Constitution of Buenos Aires), rather than in the name of specific children.

This case is also significant because public schools in Buenos Aires can no longer exclude students with disabilities and the City Government was obliged to make a new inclusive educational public policy. The court’s judgment prompted a change in the current educational system of the city and opened future opportunities for children with disabilities to have the same rights and opportunities as other children without disabilities.

Country

Argentina

Forum and date of decision

First Instance Administrative and Tax Court Nº 6, Judicial Authority of the City of Buenos Aires.

June 26, 2022

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

For the Respondent:

Amicus curiae:

Case documents

Secondary documents

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Domestic, India Gisela Sin Gomiz Domestic, India Gisela Sin Gomiz

Supreme Court of India, Gaurav Jain v. Union of India and others, 9 July 1997, [1997] 8 SCC 114 - India

Background

The case was initiated by Gaurav Jain, an advocate who filed a Public Interest Litigation (PIL) after having read an article on the situation of children of sex-workers and the difficulties and discrimination they faced on their upbringing and education. Mr Jain requested the Indian Supreme Court (the “Court”) to establish separate educational institutions and accommodations for these children in Gaurav Jain vs. Union of India & Ors. [1990 Supp. SCC 709]. The Court observed that "segregating children of prostitutes by locating separate schools and providing separate hostels" would not be in the interest of the children and the society at large and that they "should be segregated from their mothers and be allowed to mingle with others and become a part of the society" (see headnote). However, the Court considered that "accommodation in hostels and other reformatory homes should be adequately available to help segregation of these children from their mothers living in prostitute homes as soon as they are identified" (see headnote).

The Court ordered to set up a committee (the “Committee”), made up of fouradvocates and three social workers, to assess the economic and social circumstances and mental condition of children of sex-workers and to prepare a report giving suggestions for appropriate action to the Court. The judgment at hand was issued based on this report, eight years after the Committee was formed.

Reasoning

The main questions that the Court considered were: (i) what were the rights of the children of female sex workers and the ways to segregate them from their mothers and others so as to give them protection, care and rehabilitation “in the mainstream of the national life”; (ii) what scheme should be put in place to prevent and eradicate prostitution, including child prostitution, for enduring results; and (iii) what aid and what support could be provided to the victims of prostitution.

As to the first question, the Court based its reasoning on a number of international law provisions (Articles 3, 4, 6, 7, 9, 14, 17, 18, 19, 28, 29, 32, 34, 36, 37 of the CRC; Principles of the Declaration on the Rights of the Child; Articles 1, 2, 3, 4, 5, 6, 7, 8 of the UDHR; Article 8 of the Declaration on the Right to Development; Articles 1, 2, 5, 12, 13, 16 of the CEDAW) and Indian legal standards (Part III and IV of the Constitution; Section 2 (a) of the ITP Act; Sections 5, 7, 9, 10, 11, 12, 13, 14, 15 of the Juvenile Justice Act 1986) on human rights and fundamental rights of women and children. The Court found all of these applied directly to this case. In particular, the Court found that the children of the sex-workers have the right to equality of opportunity, dignity, care, protection and rehabilitation and to be part of the “mainstream of social life” without any attached “pre-stigma”.

With regard to the second and third questions, the Court observed that “counselling, cajoling by persuasion and coercion” (the latter as a last resort, according to the Court) were necessary to ensure the successful rescue and rehabilitation of sex-worker’s children. More specifically, based on the Committee’s findings and considering the actions already taken throughout the country to help children of sex-workers, the Court decided that the state was obliged to establish and make available juvenile homes for these children. Noting that the existing state-operated juvenile homes were not yielding the desired results, the Court also ruled that coordination amongst “the officers in charge of the juvenile homes, the welfare officers and the probation officers” should take place in order to guarantee the protection and the rehabilitation of these children. The Court added that NGOs needed to be more involved in the management of the Child Development and Care Centres (CDCC). In this context, the Court cited a detailed catalogue developed by the Committee as how such management should look, repeatedly giving concrete, additional “suggestions” and/or “directions” to the State, including to provide the funding for the institutions. The Court also found that the children of sex-workers should not be separated from their mothers unless this was the best solution in terms of the child’s interests.

Further, the Court ruled that sex-workers should be rehabilitated through self-employment schemes and invited the state to evolve procedures and principles to ensure that sex-workers would also enjoy their fundamental and human rights.

Remedy

The Court went beyond the initial petition and instructed the state of India to take a range of specific measures to, first, eradicate prostitution and, second, better protect the children of sex-workers.

Role of children

There were no children directly involved in the case.

Enforcement and other outcomes

Notably, the decision was later partially overruled by the Supreme Court of India (Gaurav Jain And Another. Vs. Union Of India And Others 1998(3) ALL MR 433 (S.C.)). The decision’s part regarding measures to protect the children of sex-workers was not overturned, however.

As of early 2023, children of women in prostitution still face discrimination and abuse from other children in schools due to stigma and many of them are out of school, especially girls. There is still a need to strengthen existing laws and pass legislation to regulate access to foster homes while guaranteeing that the system ensures that these children receive the same treatment and opportunities as other children and that stigma is overcome.

Significance of the case from a CRSL perspective

This decision is significant because it expressly recognised the rights of children of sex-workers (to equality of opportunity, dignity, care, protection and rehabilitation) and established that the state has a duty to protect those rights. The court directly applied the provisions of international law, such as the Convention on the Rights of the Child.

This case is the first of three major cases upholding the rights of children of women in prostitution (see ABC v. State (NCT of Delhi), (2015) 10 SCC 1, on the issue of parentage, guardianship and parental responsibility, and Sakshi v. Union of India, AIR 2004 SC 3566, on the issue of prevention of sexual abuse of children). It was not, however, cited in these latter decisions.  

Country

India

Forum and date of decision

Supreme Court of India

July 9, 1997

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

Gaurav Jain, Advocate (filing a Public Interest Litigation)

Case documents

Secondary documents

Bhartiya Kisan Sangh, “Educational Status of Children of Traditional Sex Workers in India” (National Commission for Protection for Child Rights December 2018), accessed November 8, 2022

Chawla S, “Raised in Brothels: The Children of Delhi's Red Light District” (FairPlanet July 22, 2022), accessed November 9, 2022

PTI, “Sex Workers's Children Face Discrimination in Schools by Other Kids: Study” (The Indian Express January 24, 2019), accessed November 8, 2022

Rattan K and others, “A Red-Light Trap: Society Gives No Chance to Prostitutes' Offspring” (India Today November 26, 2013), accessed November 7, 2022

Sinha S, “Born in Brothels: Rights of Children of Sex-Workers” (CRC CNLU, PatnaMarch 28, 2021), accessed November 8, 2022

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