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What happened? | What was the decision? | Significance
What happened?
J.A. was violent to his partner J.I. throughout their relationship, which began in 2010, including extreme violence such as attempted suffocation, a bloody nose, being dragged by the hair and thrown against a door. Their child E.A was born in 2011. Violence escalated after the birth, J.A. broke one of J.I.’s ribs, and a few weeks later, hit her head with a 30cm metal drill bit that caused a wound, requiring hospitalisation. J.A. was arrested and detained, as J.I. was still in hospital, 8-month-old E.A. was cared for by child welfare authorities. E.A. remained in the care of the authorities while an assessment was made of “the ability of the parents to provide for safety and […] care of the child against the background of their continual disagreements.” J.I. became concerned that instead of trying to help her and her child, the authorities kept them apart. She separated permanently from J.A. and sought to begin a new life with E.A. J.A. instead filed an application for sole custody of E.A. and this was granted, the judgment focused on the hostile attitude of J.I. against J.A. and expressed concern about how that might affect the child detrimentally in future: and that both J.I. and J.A. were guilty of using violence. J.I.’s mental health was assessed several times by psychologists in the course of the custody procedures – whereas J.A. was not subjected to such examinations. In 2014, J.A. was convicted of assaulting J.I. during an episode of violence in 2011. He was fined and required to pay J.I. compensation – which has not been paid. J.I. appealed against the decision to award J.A. sole custody, but even despite being criminally convicted of violent assault, the custody decision was upheld. The child E.A. has repeatedly told J.I. that his father hurts him and has shaken him, and that he wants to live with his mother. Investigations into these complaints have been slow and ineffective – although serious concerns have been raised that E.A.’s situation is unbearable to him and that his safety and well-being are in danger.
J.I. complained to the CEDAW Committee that the authorities do not take into account the reality that the majority of the victims of domestic violence are women and their children, while the perpetrators are generally men, and therefore the law is not applied in practice in a manner to protect the victims of domestic violence effectively. J.I. also complained that her son’s best interests were not protected in the decisions about custody, residence and visitation, and applied to the CEDAW Committee on her son’s behalf as well as her own.
J.I. applied for interim measures from Finland, specifically a review of the safety and well-being of her son. The Finnish authorities claimed that J.I. does not have standing to represent her son, who does not know about the CEDAW communication on his behalf. In response, the CEDAW Committee said:
“The Committee notes the other arguments of the State party to the effect that the author does not have standing to make a claim on behalf of her child and failed to explain her reasons for making such a claim, that she is asking the Committee to act as a fourth instance and reassess facts and evidence in the case and that her claims are inadmissible ratione materiae, as most of them have been disproved. It also notes the author’s position that, as his mother, she has the right to make a claim for the protection of her child, especially given that it is made in connection with violence by J.A. against herself and the child and that her claims have been vindicated by the conviction of J.A. for assault, and that she is asking the Committee to examine the case on the basis that the national authorities discriminated against her and denied her justice. The Committee finds that the author’s claims are sufficiently substantiated for the purposes of admissibility and that they are within the competence of the Committee to decide, that she does have standing to act on behalf of her child where his safety is concerned and that she is requesting a review of the national processes on the basis of a denial of justice and discrimination based on sex rather than merely challenging the factual conclusion drawn by national decision makers. It therefore does not consider itself to be precluded from considering the matter on any other grounds of admissibility and proceeds with its consideration of the merits.” (paragraph 7.5)
What was the decision?
Firstly, the CEDAW Committee was firm that the Finnish authorities should have acted on its request for interim measures to assess the safety and well-being of the child E.A.
The Committee notes with concern that the request for interim measures that it made, and reiterated, was never passed on to the local authorities and that no action was taken to protect E.A. from alleged violence by his father. The Committee recalls that interim measures, as provided for under article 5 of the Optional Protocol and rule 63 of its rules of procedure, are essential to its work on individual communications submitted under the Optional Protocol. Flouting of the rule, especially by measures such as, in the present case, failing to protect women and children at risk of serious harm, undermines the protection of Convention rights through the Optional Protocol.(paragraph 8.4)
Secondly, the CEDAW Committee reviewed the decision-making by the Finnish authorities as follows:
“The Committee observes that the Varsinais-Suomi District Court questioned the mental state of a victim of domestic violence and her hostility towards her alleged abuser without questioning the mental stability or carrying out an assessment of an accused abuser before giving him the sole custody of a child. It notes that, almost immediately after the custody decision, the prosecutor brought charges against J.A. for violent assault but that, two weeks later, E.A. was handed over to his father without further checks being carried out. The Committee also notes that the mother was subjected to a psychiatric assessment in relation to custody and visitation rights, which showed no cause for concern, but that the father was never subjected to such an assessment, despite his criminal conviction. It also notes that the final custody decision of 14 October 2013 contains very little or no reasoning for the change in custody from the mother to the father, that no reasoning in either the Court of Appeal decision or the decision on the application for leave to appeal to the Supreme Court explains why the violence was not given prominence in the decision-making process, even after the conviction of J.A. for violent assault against the author in the interim, that reports to the police were not investigated and that, in spite of the number of child welfare reports and the father’s conviction, no investigation or assessment of his parental abilities has been carried out. The Committee is also persuaded that there has been a violation of the obligation of due diligence, as it took more than a year for J.A. to be brought in for questioning with respect to complaints of criminal conduct.” (paragraph 8.5)
The CEDAW Committee noted that this decision indicated gender stereotyping in the judicial decision-making, and referred to General Recommendation 33:
“Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes. Stereotyping as well affects the credibility given to women’s voices, arguments and testimonies, as parties and witnesses. Such stereotyping can cause judges to misinterpret or misapply laws. This has far reaching consequences, for example, in criminal law where it results in perpetrators not being held legally accountable for violations of women’s rights, thereby upholding a culture of impunity. In all areas of law, stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the revictimization of complainants.
Judges, magistrates and adjudicators are not the only actors in the justice system who apply, reinforce and perpetuate stereotypes. Prosecutors, law enforcement officials and other actors often allow stereotypes to influence investigations and trials, especially in cases of gender-based violence, with stereotypes, undermining the claims of the victim/survivor and simultaneously supporting the defences advanced by the alleged perpetrator. Stereotyping, therefore, permeates both the investigation and trial phases and finally shapes the judgment.” (paragraph 26 and 27).
Taking all these comments into account, the CEDAW Committee found that “the authorities, in deciding on the custody of E.A., applied stereotyped and therefore discriminatory notions in a context of domestic violence by treating what appears to be a repetitive pattern of unilateral violence by J.A. as a disagreement between parents, affirming that both parents committed violence despite not evidence to support this apart from a statement made by the author the day after she had suffered a serious assault, dismissing the importance of J.A.’s criminal conviction, and according custody to a violent man. They have thus failed to provide due supervision in accordance with their obligations under Articles 2(a), (c), (d), (e), and (f), 15 (a) and 16(1)(d) and (f) of the CEDAW Convention.” (paragraph 8.9)
Significance
In this case, the CEDAW Committee clarified its working methods in assessing whether an applicant has been subjected to discrimination. While the CEDAW Committee emphasises that it cannot replace the national authorities in their assessment of facts and evidence, what it does is to:
“Review, in the light of the Convention, decisions taken by the national authorities within their purview and to determine whether, in making those decisions, they took into account the obligations arising from the Convention. In the present case, the decisive factor is, therefore, whether those authorities applied principles of due diligence and took reasonable steps to ensure, without discrimination based on sex, the protection of the author and her son from possible risks in a situation of continuing domestic violence.” (paragraph 8.2)
In this case, as in many other CEDAW cases relating to violence against women, the State failed to take action to investigate, prosecute, and prevent further violence from alleged perpetrators. The CEDAW Committee cited the recently adopted General Recommendation 35, which updates the original General Recommendation 19:
“The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women in cases in which its authorities are aware or should be aware of the risk of such violence, or the failure to investigate, prosecute and punish perpetrators and provide reparations to victims and survivors of such acts, provides tacit permission or encouragement to perpetrate acts of gender-based violence against women. Such failures or omissions constitute human rights violations.”
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