THE RIGHTS OF THE CHILD AND THE CARIBBEAN:
PROSPECTS AND CHALLENGES FOR THE 21ST CENTURY.
“I believe the children are our future,
Teach them well and let them lead the way,
Show them all the beauty they possess inside,
Give them a sense of pride to make it easier,
Let the children’s laughter remind us how it used to be.”
Protocol having already been established, I say to you all, Good Evening. I
am very honoured, privileged and extremely happy to be here this evening to
address you on the occasion of your celebration of the 15th anniversary of the
adoption of the United Nations Convention on the Rights of The Child.
On the 25th anniversary of independence of the Republic of Trinidad and
Tobago, a calypsonian named Lord Funny, known for his wit and humour,
asked a very serious question of that nation, my nation: “Twenty-five years
have passed, how you feel”? With apologies to Lord Funny, I ask you today,
since the adoption of the CRC, fifteen years now have passed, how do you
feel? Do you feel happy, proud and pleased that the children of the
Caribbean are now recognized as having rights? Do you feel a sense of
confidence that children’s issues are at the forefront of the human rights
agendas of Caribbean states? Do you feel satisfied that we are now doing for
children the best that we can do? Do you feel truly sure that we have evolved
from a paternalistic or welfare approach to children to one of recognition of
child rights in all issues involving children, whether these issues be by
nature, civil, political, economic, social or cultural? How do you feel?
As a Caribbean people we have come together and formulated the Belize
Commitment to Action for the Rights of the Child, the Kingston Accord, the
Lima Accord. Commitment, accord, all very positive words, a prelude, no
doubt to positive actions to fulfil our covenant to “ review and revise our
laws, policies and programmes to fully comply with the letter and spirit of
the CRC.”1 How have we done these past fifteen years? What do we still
need to do? In the context of Child Rights and the Caribbean, what are the
prospects and challenges for the 21st century?
“ Belize Commitment to Action on the Rights of the Child” in Report of the Caribbean Conference on the
Rights of the child: Meeting the Post Ratification Challenge. Belize city. Belize 1996Unicef. Bridgetown:
1996
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The Committee on the Rights of the Child has identified four articles as
being basic to the implementation of all rights contained in the Convention,
namely:
1. .Article 2- non discrimination;
2. Article 3- best interests of the child;
3. Article 6 - the right to life, survival and development;
4. Article 12- respect for the views of the child.2
I propose to situate my discussion within the four corners of these
foundation principles.
1. NON- DISCRIMINATION
Article 1 of the CRC specifies: States Parties shall respect and ensure the
rights set forth in the present Convention to each child within their
jurisdiction without discrimination of any kind, irrespective of the child’s
or his or her parent’s or legal guardian’s race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin,
property, disability or other status.
This article impacts on other articles of the CRC as it enjoins States Parties
to respect and ensure the rights in the CRC to every child.
As we look around the Caribbean we see that we have made some
significant strides in the area of eliminating discrimination against children.
1. Birth status – the out of wedlock child
(a) Inheritance rights
Even before the advent of the CRC, Caribbean nations showed evidence of
commitment to the cause of non-discrimination. Status of Children
legislation has been enacted in several jurisdictions such as Jamaica,
Barbados, Trinidad and Tobago, St. Kitts and Nevis, St. Vincent and the
Grenadines, Antigua and Barbuda, Guyana, Saint Lucia and now happily, in
the country where I now temporarily reside, The Bahamas. Belize has
included similar status of children provisions in its comprehensive Families
and Children Act. It is to be hoped that other jurisdictions such as the British
Virgin Islands, which has a draft bill, Dominica and Montserrat will soon
have such a law on their statute books. Status of Children legislation
generally proclaim that: “the status and the rights and obligations of the
Cantwell, Nigel. Introduction – United Nations Convention on the Rights of the Child. Defence for
Children International. International Secretariat. Geneva, Switzerland 1995
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parents and all kindred of a child born out of wedlock are the same as if the
child were born in wedlock.” 3
Perhaps the most important aspect of this type of legislation is its abolition
of the old rule of construction whereby in any will, deed or other instrument
words of relationship in the absence of a contrary expression of intention
signify relationship derived only from wedlock. This has had the most
important impact in the area of the law of Succession. Before this
legislation was passed , once the word “ children” was used in a will or other
instrument, it was taken to mean legitimate children, unless the children born
out of wedlock were specifically referred to by name in the will or other
instrument or the circumstances were such, for example, if there were no
legitimate children in existence, only the illegitimate children could have
been meant. After Status of Children legislation, the position now is that
once paternity is admitted or established, the child born out of wedlock can
get his or her fair share of the father’s estate either on intestacy, that is,
where there is no will, or on testacy, where the will uses the word:
“children” and the testator has both legitimate and illegitimate children.
Before we go patting ourselves on our collective backs about this great
advancement in the law, to wipe out discrimination against children born out
of wedlock, I must alert you to the challenges that yet face us for the twentyfirst century in the area of that innovative piece of legislation. Unfortunately,
discrimination has not been abolished in its entirety. In varying degrees, in
the different pieces of legislation, aspects of discrimination are retained,
making of the legislation a flirtatious maiden, promising much more than
she intends to deliver.
An example of one such vexed provision is the one which limits the time for
bringing the application to “within the lifetime of the father” or “the lifetime
of the parties”. In Saint Kitts and Nevis it is a blanket provision – paternity
must be established within the lifetime of the father. In Barbados and the
Bahamas, the law sets out various situations where paternity may be
presumed, then states that where two presumptions exist they cancel out
each other, so there is no presumption. It further provides that where no
presumption exists, the application can only be brought within the lifetime
of the father. The Jamaican statute provides that for any purpose related to
3
section 3(1) (b) Status of Children Act Ch 46: 07 of the Laws of the Republic of Trinidad and Tobago.
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succession paternity must have been admitted by or established during the
lifetime of the father.
To illustrate the injustice that may result from such provisions, allow me to
share with you two cases in which I was personally involved. A young girl
eighteen years old was sent to me with an Emergency Certificate from the
Legal Aid and Advisory Authority. Her father, with whom she had lived all
of her life had recently died. Her uncles had come to the home, shortly after
the funeral, had removed her passport, the statutory declaration in which her
father had admitted paternity of her and which had been attached to her birth
certificate, and had forcibly removed her from the only home she had ever
known. They had installed my client’s cousin, the son of one of her uncles,
and had told her the lawyer said she had to leave until everything was fixed
up.
I immediately moved to gather evidence to prepare affidavits to prove
paternity. I got statements from her, her mother and the principals of all the
schools she attended. At each of her schools, the father was well-known. He
had been the person who had registered her and attended PTA meetings. The
application was granted by the Court. We then filed an application for the
estate and, since the father had no other children and had never been
married, my client got the entire estate.
The other case was one in which another young lady was involved. She had
been engaged to be married to a young man, was pregnant and wedding
plans were well in train, when unhappily, the intended groom and father- tobe, drowned. At the time she came to me, she had just given birth to the
child of her deceased fiance. She shared that she had come because the
mother- in- law to be, who never was, and who had promised to give her a
share when she got the estate, was now distancing herself.
My investigations revealed that the estate had been applied for and had been
granted to the mother of the deceased. We then set about to prove paternity
as a preliminary step to having the grant of representation set aside. In
addition to the young lady herself who gave affidavit evidence of her
relationship with the deceased, I got the pastor who had been counseling the
couple to go on affidavit. A colleague of the young man who used to drive
the girl to the doctor for medical checks, and who had been asked by the
deceased to buy baby clothes when he went on holiday abroad, also swore
an affidavit. I exhibited photographs of the proud grandmother, who had
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now turned enemy number one, holding the baby at the christening. In crossexamination she sought to explain that she was only showing sympathy for a
girl in trouble. She denied the child was her grandchild. She could not
satisfactorily explain why she used to take the child for weekends. The estate
was quite a sizeable cash estate with insurance policies and death benefits
from the young man’s workplace. The reluctant grandmother had already
begun to spend the money to buy parcels of land for her remaining children.
Ultimately, the judge found in favour of my client.
In the first scenario my client’s mother had been married, but separated from
her husband when my client had been conceived and born, and there would,
therefore, have been two presumptions operating, one that my client was the
child of her mother’s husband and two, since the natural father had admitted
paternity, that she was his child. In the Bahamas and Barbados this child’s
case could not have been taken to court after the father’s death. In the second
case, the case could not go to court in Saint Kitts and Nevis or in Jamaica.
Other areas of discrimination being perpetuated in some Status of Children
legislation are the provisions in some jurisdictions which state that the Act
does not affect or limit in any way the rule of law relating to domicile,
citizenship, provisions of the Adoption of Children Act which determine
relations of any person who has been adopted, and the construction of the
word ‘heir’ or of any expression used to create an entailed interest in real or
personal property. The Jamaica and Bahamas Status of Children legislation
are two cases on point. The most significant of these limitations in terms of
consequences, is the one dealing with citizenship.
A number of jurisdictions provide in their law that citizenship cannot be
derived from the father, if the child is born out of wedlock and outside the
jurisdiction, e.g the Constitution of Barbados and The Bahamas and in some
cases, even if the child is born within the jurisdiction.
The Bermuda Immigration and Protection Act denies Bermudian status to be
derived through the father of a child born out of wedlock, whereas a child
born in wedlock or one subsequently legitimated can derive status through
either of his parents.
Let me illustrate a practical consequence of this limitation on nationality and
citizenship. An out of wedlock child of a Bahamian or Jamaican father and a
non- West Indian mother who wishes to study at any one of the Council of
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Legal Education Law Schools, will have to pay the economic cost of tuition.
His brother, however, born in wedlock to the same father will have eighty
per cent of his fees paid by the government. This discrimination should be
addressed by expunging those provisions from the legislation.
In this age of modern medical technology, is it really justifiable to deny a
child his or her rights in this way? I recommend that we adopt the position as
in Argentina where every effort is made to determine paternity. Professors
Cecilia Grosman and Ana Maria Checile, in their article entitled Recent
Judicial Decisions Giving Effect to The Convention On The Rights of the
Child in the International Survey of Family Law, 2004 edition, cites a
decision of the Argentina courts which found in favour of the filiation
claimed on the basis of blood tests carried out on the brother of a deceased
putative father. The test indicated a 98.53 % probability that he was the
clamant’s uncle. Other brothers of the deceased had refused to be tested to
reconstruct the genetic make-up of the dead brother.
Another limitation in some legislation is one making the legislation
applicable only to instruments made after the commencement of the
legislation. This is the case in Jamaica, Saint Christopher and Nevis, St.
Vincent and the Grenadines and Barbados. The Trinidad and Tobago and
Antigua legislation, make the Act applicable to instruments executed before,
as well as after, its commencement.
A challenge for us in the 21st century is to expunge all these limitations from
the Act, which make the removal of discrimination more illusory, than real.
b). Maintenance rights
Article 27 of the CRC enjoins States Parties to recognize the right of
every child to a standard of living adequate for the child’s physical,
mental, spiritual, moral and social development.
Thus, States are urged to “ take all appropriate measures to secure the
recovery of maintenance for the child from the parents or other persons
having responsibility for the child…”
Many children who are born out of wedlock are discriminated against in the
area of recovery of maintenance. In all of the jurisdictions, save Trinidad
and Tobago and Barbados, there is a time limit in the relevant legislation for
bringing an application for maintenance. This ranges from twelve months in
jurisdictions such as Antigua and Barbuda, Anguilla, Grenada and
Montserrat, to three years in the Bahamas, and up to five years in Saint
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Vincent and the Grenadines. There is no time limit for a mother of a child
born in wedlock to bring an application for maintenance of a minor child.
She can approach the court at anytime during the child’s minority, once
there is wilful neglect to maintain.
Limitations also occur in the legislation in terms of the amount of
maintenance that the court will grant in favour of a child born out of
wedlock. This may arise either because there is a stated maximum figure for
the amount of maintenance that the court can allow in respect of a child born
out of wedlock and this ranges from $15.00 per week to $100.00 per week,
and up to $200 in Montserrat; or it may result from the differential criteria
which the court must have regard to, in deciding the award for maintenance.
Trinidad and Tobago has recently, in its Miscellaneous Provisions
(Children) Act 2000, abolished the disparity by including in the criteria two
provisions which obtained for the child born in wedlock, but which were
previously omitted from the criteria that the court must be guided by, when
deciding the quantum of maintenance for the child born out of wedlock.
These are:
1. the manner in which the minor was educated or trained and the manner
in which the parents expected him to be so educated or trained and
2. the standard of living enjoyed by the family while the members of the
family resided together.
The out of wedlock child is also disadvantaged in the choice of court that
has jurisdiction to make the order and the types of orders that can be made.
As a general rule, applications for maintenance of the child born out of
wedlock can only be heard in the magistrates’ courts. These courts are
generally under-resourced, the facilities are crowded and the applicants for
maintenance have to encounter petty criminals and sometimes hardened
criminals on their way to court. The type of order that can be awarded may
be limited to a small weekly sum and the method of enforcement may be
frustrating with warrants to be served that are sometimes given little
attention by the police.
This may be contrasted with the situation in the High Court where the
facilities are generally cleaner, there are more human resources, fewer
cases, and the Court, in most jurisdictions, is empowered to make a variety
of orders, such as lump sum orders and secured payments and secured lump
sum payments, in respect of children born in wedlock. Dual jurisdictions for
maintenance orders are provided in the Family Law (Domicile,
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Guardianship and Maintenance) Act of Trinidad and Tobago and the Family
Law Act of Barbados as provision is made in both legislation for
maintenance applications to be brought in either the magistrates’ courts or
the High Court. In jurisdictions where there are Family Courts, namely St.
Vincent and the Grenadines, Jamaica, Belize, Saint Lucia and very recently,
Trinidad and Tobago, applications for maintenance are brought in that court
and the facilities are generally of a higher standard.
All of the problems highlighted with respect to maintenance are easily
remediable and since there are precedents in the region, they present a
challenge for the 21st century for which the prospects for change are
extremely positive.
c. Registration of Birth
Articles 7 and 8 of the CRC protect, inter alia, the child’s right to be
registered immediately after birth to be known and cared for by his or her
parents, to preserve his identity, including name and family relations.
As a general rule, the father of the child born out of wedlock is unable to
register his paternity of such a child. He must go with the mother or, not at
all, unless, in certain jurisdictions, if the mother is dead or cannot be found.4
The inability of the father of an out of wedlock child to register his paternity
without the mother’s cooperation can result in the child not knowing his or
her parent and being denied family relations with his or her paternal family.
In a case that I was involved in my early years of practice, and I must add,
in my pre-child rights advocate days, I encountered a situation where the
Registrar of Births and Deaths had allowed a father to register the birth of
his child born out of wedlock. This was only discovered when he applied
for access and exhibited a birth certificate in which he was named as the
father. My client had a birth certificate in which no father had been named
and sought to deny him access. I subpoenaed the Registrar to explain to the
Court how this had occurred and she admitted to not following the correct
procedure. The mother was successful in denying access to the father. Older
and wiser, I would have handled things a bit differently. As it was, the child
was denied the association with her father, an important right of the child.
Sometimes children who are not able to carry their father’s name, or do not
know their father can be very hurt by this. I recall, as a primary school
teacher, two situations: one of my pupils came to me and said: “Miss, talk
4
Section 21A Births and Deaths Registration Act. Ch. 44:01 Laws of the Republic of Trinidad and Tobago
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to Mammy for me, please, tell her I want to carry my Daddy’s name, not
hers.” Another, had attempted suicide, because she said:, “ Miss, Mammy
don’t want to tell me who my daddy is. Miss, I don’t care if he is a thief or a
vagrant, Miss. I just want to know who he is.”
ii.
Disability – the disabled child
Article 23 of the CRC enjoins all States parties to recognize that a
mentally or physically disabled child should enjoy a full and decent life,
in conditions which ensure dignity, promote self-reliance, and facilitate
the child’s active participation in the community.
In this Article, the right of the disabled child to special care, financial
assistance, education, training, health care services, rehabilitative
services, preparation for employment and recreation opportunities in
a manner conducive to the child’s achieving the fullest possible social
integration and development is recognized and promoted. Too many
children who are disabled, and whose parents cannot afford the necessary
services, are growing up disadvantaged and thus unable to take their
rightful place in the society. The parents of disabled children, too
frequently, have to appeal to the goodwill of the public for financial
assistance for surgery or some assistive device that the State does not
provide. Many disabled children whose parents are poor do not realize
their true potential as they cannot access necessary specialized
educational services as the fees are sometimes too prohibitive. An
example will be children who are autistic and whose needs are not
catered for in the mainstream educational system. A system of early
comprehensive assessment of children and periodic evaluation ought to
be put in place so that remedial action can be undertaken at the earliest
opportunity, thus maximizing the chances of successful intervention. At a
recent conference of the National Commission on Special Education, of
which I am a member, our legislative sub-committee called not only for
legislative reform of the law with respect to special education, but also
for the amendment of the Constitution to outlaw discrimination on the
basis of disability. The provision of adequate care for the disabled is a
challenge that faces us in the Caribbean in the twenty-first century.
iii. national, ethnic or social origin
Article 7 of the CRC provides that a child shall be registered
immediately after birth and shall have the right from birth to a name,
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the right to acquire a nationality and, as far as possible, the right to
know and be cared for by his or her parents.
Some States deny nationality to certain children born within their
jurisdiction because their parents are not themselves nationals of that State,
and to others born outside their jurisdiction, whose parents are nationals.
The Constitution of some Caribbean States, their citizenship, immigration
and Status of Children legislation may all deny automatic citizenship to
children born within the State whose parents are not themselves nationals of
that State and /or whose parents, while possessing nationality are not
domiciled in the State. The laws of Bermuda, Turks and Caicos and The
Bahamas are instructive on this point5.
Children who are born outside of the jurisdiction of the country of which
one or both of their parents are nationals may also be denied their status as a
national if both parents were not domiciled in the particular country at the
time of their birth. See the Bermuda law referred to earlier. Since such
children may be in a position where they cannot be registered in the land of
their birth and cannot be registered in their parents’ homeland, they may
become stateless, belonging neither to their parents’ homeland, nor to the
adopted home of their parents. They will be denied a birth certificate, and,
consequently, will not hold a passport during minority and must wait until
attaining majority to register as a citizen of the State. In the Bahamas,
children and grandchildren of Haitian immigrants frequently find
themselves in such a position. States are to be reminded that, in ratifying the
CRC, they have accepted the mandate to ensure the rights set forth in the
CRC to each child within their jurisdiction without discrimination of
any kind. I will return to the nationality issue in discussing gender.
iv. Sex and gender discrimination
The justice system, as well as the wider society, evidence gender bias
against girls and women. An examination of the laws, policies and practices
throughout the region, will show instances of gender bias. Gender bias has
been defined by Bobbie Welling and Susan Mather as stereotypical
attitudes about the nature and roles of women and men; cultural
5
The Bermuda Immigration and Protection Act, 1956, section 18;Turks and Caicos Immigration Ordinance
section 3
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perceptions of their relative worth; and myths and misconceptions about the
social and economic realities encountered by both sexes6.
Discrimination against the parent of the child sometimes results in
discrimination against the child. In certain states, women are discriminated
against in the area of citizenship. One example, which has been mentioned
before, is the Bahamas, where the Constitution provides that a child born
outside the jurisdiction can become a citizen if at the date of birth, the
father was a citizen of the Bahamas, but the mother of a child born in
wedlock cannot automatically pass on citizenship to her child. All the
British overseas territories, since the British Nationality Act, 1981, have
legislation which preclude children born out of wedlock from acquiring
citizenship by descent from their fathers. They can only acquire such
citizenship through their mothers. This works considerable hardship when
the mother is not herself a national of that country.
There are still disparities in the minimum age for marriage for boys and
girls in certain jurisdictions among certain religions. The Hindu and
Moslem marriage laws evidence such disparity. Trinidad and Tobago is a
State in which there is firm resistance to raising the minimum age for
marriage. This is particularly urgent in the case of Muslim girls whose
parents can consent to their being married as early as twelve years of age.
I commend to Caribbean governments the Revised Family Code of
Ethiopia 2000 which had as one of its principles: “to amend existing laws
in such a way that they give priority to the well-being, upbringing and
protection of children.” This Code raised the minimum age for marriage
from 15 to 18 years “ in accordance with the prevailing policies in the
constitution and to make the law compatible with the CRC policy.”
Some jurisdictions make no provision for remand or detention of older girls
who are offenders in the juvenile justice system and may place them in the
women’s prison. This situation obtains in Trinidad and Tobago, Suriname
and Antigua.
Many parents and teachers still persist in socializing boys and girls
differently. This may have long –term effects and may impact negatively on
the self esteem of girls. Boys receive approval for being aggressive.
6
Welling, Bobbie& Mather, Susan eds. Gender and Justice; Implementing Gender Fairness in the CourtsImplementation Report of the Judicial Council of California Advisory Committee on Gender Bias in the
Courts 1996
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Messages that boys, who will ultimately become men, are superior to girls,
give to boys the authority to assume power and control and to exercise the
concomitant right to dominate and disadvantage girls. Girls may receive the
message that they are subservient to the boys, may define their worth by
motherhood and their career success by marriage. Their supreme
accomplishment may lie in “making a baby”, or two or three or four. This is
particularly true of girls in the low socio-economic stratum. Thus, the seeds
may be sown for girls to become victims of domestic violence.
One of the greatest challenges of the 21st century is to stem the tide of
violence against women and girls. It involves a long and arduous process of
re-education, a new socialization and restructuring of values involving the
home, the school, the church, the media and all aspects of the wider society.
The Centre for Gender Studies of the University of the West Indies at Cave
Hill, Mona and St.Augustine, The Faculty of Law and government
ministries responsible for gender affairs have been doing yeoman service to
raise awareness in this area. Many states have passed domestic violence
legislation and provide community resources. The prospects for change
seem positive, but the process is slow.
v. Other areas of discrimination
Children in rural areas, homeless children, children in institutions, children
living in poverty, children infected by HIV in the Caribbean, frequently, do
not receive the care and attention and access to resources as other children.
This situation provides a serious challenge for us in the Caribbean in the
21st century to redress the balance. It is no great accomplishment to provide
free education for all children, if there are children who cannot pay for the
necessary transport to go to school, do not receive proper meals and cannot
buy the necessary school books.
The Committee on the Rights of the Child in commenting on States Reports
has expressed its concern for such disadvantaged children. States have
generally been trying to rise to the challenge facing them in these areas
where a great deal of assistance is rendered by various NGOs. The
prospects in meeting this challenge are good, as increasingly, fuelled also
by public opinion, governments are becoming sensitized to their need to
provide realistically for all children under their jurisdiction.
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2. BEST INTERESTS OF THE CHILD.
Article 3 of the CRC states: In all actions concerning children,
whether undertaken by public, or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration. .
The principle of “best interests of the child” pre-dates the CRC and has
been a guiding light in legislation concerning children. Child welfare
legislation in the region speak to this principle. The Adoption Acts uses it
as a guide and case law and statute in matters of custody and access, as
well as alternative care, are replete with references to this principle. The
CRC has taken the principle, widely recognized in domestic law, into the
realm of international law for due recognition and action.
The CRC however mandates that the best interest principle be applied to
all actions concerning children. It, therefore, poses a challenge to all
institutions, public and private, social welfare institutions to act in the
best interests of children. All institutions which act for, and on behalf of
children must be supervised. Guidelines for them must be set down,
widely disseminated and policies put in place to ensure their compliance.
Courts of law, administrative and legislative bodies must be made aware
of the CRC and its provisions to ensure that they act in accordance with
what is in the best interests of the child.
One area in which the best interest principle is not at all well-served is in
the area of juvenile justice. Until about a generation ago the best interest
principle in juvenile justice was equated with the welfare model of caring
and helping the child. The child was perceived as not the bearer of rights,
but as the object of benevolent care and protection. Due process was
foreign to this regime and frequently, in stead of receiving care, the child
was subjected to abuse.
Article 40 of the CRC which speaks to juvenile justice is the most
comprehensive of all the articles. In this article States Parties are urged to
recognize the right of every child alleged as, accused of, or recognized
as having infringed the penal law to be treated in a manner consistent
with the promotion of the child’s sense of dignity and worth, which
reinforces the child’s respect for the human rights and fundamental
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freedoms of others and which takes into account the child’s age and the
desirability of promoting the child’s reintegration and the child’s
assuming a constructive role in the society.
Article 40, together with Article 37, sets out the child’s entitlement to due
process, namely, to the presumption of innocence, the right to be
informed promptly and directly of any charges, to have legal assistance
in the preparation of the case, the right to a fair hearing, to a speedy
trial , to protection from self incrimination, the right to participate in
the proceedings, the right to review, and the child’s right to have his or
her privacy respected at all stage of the proceedings . Article 40 also
sets out the child’s right to the establishment of laws, procedures,
authorities and institutions applicable to children.
In addition to the juvenile justice laws, some of which are in urgent need
of reform, there are policies and practices at every stage of the juvenile
justice system, which are inimical to the best interests of the child.
The Committee on the Rights of the Child, in commenting on Reports of
Caribbean States Parties, has expressed its concern about several aspects
of juvenile justice. The Caribbean 2000 Consensus on Juvenile Justice
which embodied the recommendations from the Regional Symposium on
Juvenile Justice held in Port of Spain, Trinidad, in September 2000,
recommended that all States should review and reform their legislation to
ensure compliance with the CRC and related instruments.
The age of criminal responsibility is one such area in need of reform. In
some jurisdictions such as Trinidad and Tobago, Grenada and the
Bahamas, no age for criminal responsibility has ever been legislated. It
remains at the common law age of 7 years. The Caribbean 2000
Consensus recommended that in all States of the Caribbean, legislation
be enacted to the effect that the age of criminal responsibility, shall not
be less than 12 years of age. This, at present, obtains only in Dominica
and Jamaica.
Another recommendation was that legislation be enacted in all
jurisdictions to ensure that all children under the age of 18 years are
afforded the full protection of the juvenile justice system.
Recommendations were also made for diversion of juveniles from the
criminal justice system, for legal representation for juveniles, for
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deprivation of liberty to be a last resort, for the abolition of status
offences, for the provision of sufficient human, social, financial,
administrative and physical resources for the effective functioning of the
juvenile justice system and for training of personnel throughout the
criminal justice system.
A major problem in the enforcement of the laws which are protective of
children’s rights, is the lack of a system of monitoring the various
agencies’ compliance with these laws and the reluctance of the State to
enact prohibitive penalties for the breach of those laws.
Thus, in defiance of the law, and despite my continued advocacy in this
area, some of the mass media continue to reveal the names, addresses and
schools, of children who are arrested and publish their photographs with
impunity. When I spoke to a television station about their showing the
face of a thirteen year old girl who had been charged with murder, I was
told that it was a mistake.
The abuses to which a child may be subjected in the juvenile justice
system also infringes another aspect of Article 37 of the CRC which
enjoins States to protect the child from torture or other cruel ,inhuman
or degrading treatment or punishment . Article 37 also seeks to protect
the child from arbitrary arrest and provides that when deprived of
liberty, the child is to be treated with humanity and respect for the
inherent dignity of the human person and in a manner which takes into
account the needs of persons of his or her age. Article 37 also calls for
separation of children from adults and the maintenance of contact
between the detained child and his family.
As recently as last week in the Republic of Trinidad and Tobago, it was
reported that a 14-year-old boy was arrested for his involvement in a
fight at his school. He was kept in a police station where he was detained
and subjected to physical and psychological abuse from Friday to
Tuesday before being granted bail.
Lest one believes that there is nothing positive in this gloomy area of
child rights, let me point you to some hopeful signs. One positive in the
region is that in all of the Caribbean, the death penalty has been wiped
off the statute books in respect of juveniles. The law provides that no one
under eighteen at the time of the commission of an offence punishable by
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death may be executed. All of the Caribbean States have juvenile justice
laws. There are either separate courts for juveniles, or courts are held on
separate days or at separate times, from the adult courts.
Probation officers are generally present in the court to prepare presentencing reports to assist the magistrate or juvenile panel in the
disposition of the case. A number of jurisdictions have panels which
include participants of both sexes to hear juvenile cases. Juveniles are
generally transported to court in vehicles separate from those used to
transport adult prisoners and are detained in separate facilities. More and
more, jurisdictions are considering diversion measures, such as police
caution, mediation, restorative justice and alternative methods of
sentencing such as parole, community service and suspended sentences.
One challenge is to ensure that there is no discrimination in the selection
of cases for soft penalties, to ensure that the affluent child does not get a
slap on the wrist, while the poor and disadvantaged child feels the full
weight of the law.
The best interest principle illustrates the inter-relatedness of the articles
of the CRC as it underpins all the other articles. It is truly an umbrella
provision, covering as it does, the principle of non-discrimination,
maximum survival and development and the child’s right to be heard in
all relevant administrative or judicial proceedings. It continues to present
a challenge of interpretation and implementation to us in the 21st century.
3. THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT
Gabriella Mistral, a Chilean poet, wrote:
Many things can wait; the child cannot.
Now is the time his bones are being formed,
his blood being made, his body being developed.
To him, we cannot say, tomorrow. His name is today.
Article 6 of the CRC provides:
States Parties recognize that every child has the inherent right to life.
States Parties shall ensure to the maximum extent possible the survival
and development of the child.
This right of the child is considered a fundamental right.
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The child’s right to survival and development involves not only basic health
and welfare issues and the right to life, but issues of protection of
childhood. It does not only outlaw the imposition of the death penalty on
children, but charges the State with positive action on behalf of the child’s
survival and development.
The challenge to ensure immunization of all children, to provide them with
proper nutrition, clean drinking water, reduce infant mortality and morbidity
remains a perennial concern of the Committee on the Rights of the Child..
Child abuse, child abandonment, abduction, sale of, or trafficking in
children, sexual exploitation, early marriage, child labour, the right to
maintenance, to be cared for by parents, to maintain contact with them, the
right to education, including early childhood education, the right to the
development of his or her personality, talents and mental and physical
abilities, the right to rest and leisure, to be protected and insulated from the
illicit use of narcotic drugs, to be protected from involvement in armed
conflict and to receive rehabilitative care when necessary, are all threads
interwoven in the tapestry of this fundamental principle of the child’s right
to life, survival an development. This must mean for the child the right, not
to mere existence, but must speak to his or her quality of life.
States Parties continue to rise to the challenge to protect the children under
its care and consequently, have enacted legislation or amendments to their
existing legislation to provide severe penalties for drug trafficking, sexual,
physical and psychological abuse of children, sexual exploitation of
children, including involving them in pornography and prostitution.
Increasingly, States are ratifying the Hague Convention on the Civil
Aspects of Child Abduction and putting the necessary machinery in place to
ensure its effectiveness. There is legislation for treciprocal enforcement of
maintenance across numerous jurisdictions regionally and internationally.
There are still challenges which face our Caribbean regional States. One of
these is the challenge to review adoption laws to enact with safeguards,
provision for international adoption. This would go a long way to protect
children from abuses which occur because of dishonest practices which
have arisen to avoid the laws which forbid adoptions across States Borders
and which may result in exploitation and denial of rights to children and
parents involved and the enrichment of procurers.
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Lest one believes that the sale of or trafficking in children is something that
occurs in places far removed from us here in the Caribbean, I will tell you
that as recently as 1995, I had good reason to believe that some suspicious
activities of that nature were taking place in Trinidad and Tobago.
Unfortunately, for some persons, a social worker sent one of the parents to
me. In representing her interests, I found out that there was quite a lucrative
business going on, where poor children were being handed over to local and
foreign persons, for a price. I subsequently exposed the practice at a lecture
that I gave at the Centre for Gender Studies at St. Augustine and thereby
incurred the wrath of several respectable members of society.
Another challenge in this area is the frequency of child abandonment in the
Caribbean. Just last week a new born baby was found abandoned in the
bushes in one area of Trinidad and Tobago. A few weeks ago another new
born baby was found abandoned under some galvanized sheeting in another
part of Trinidad and Tobago. In spite of the existence of non-governmental
organizations which care for mothers- to -be and their new born babies,
young women are still concealing their pregnancies and then abandoning
their new- born babies. Perhaps the challenge lies in making these helping
organizations more widely known to potential users.
4. RESPECT FOR THE VIEWS OF THE CHILD
Article 12 of the CRC enjoins States Parties to assure to the child who is
capable of forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child.
States Parties are also charged with the responsibility to provide to the
child the opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the
procedural rules of national law.
This article presents a challenge to some long-standing beliefs of many
adults that children should be seen and not heard; that children, because
they have not had the experiences of adults can make no meaningful
contribution to any discussion on their welfare. This article, more than any
other, seems potentially to give credence to the belief held by many parents
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that to give children rights would undermine the authority of the parents and
would provide children with an autonomy that they were not yet equipped
to handle. A careful reading of the article , however , would reveal that this
article fully pays cognizance to the evolving capacity of the child,
containing as it does the important proviso,” the views of the child being
given due weight in accordance with the age and maturity of the child.”
There have always been occasions for the voice of the child to be heard. In
custody and access cases and adoption cases, magistrates and judges seek
the views of children either directly or through the probation officer or
guardians ad litem. Although the child’s legal representative, which is a
feature of the judicial system in the Ontario, Australian and other court
systems is not a feature of Caribbean justice, it is to be hoped that with the
advent of Family Courts in the region, the child’s voice will be taken to that
higher level of participation. But the tide has begun to flow, schools are
allowing children to sit on the councils, to discuss curricula, prescribe
disciplinary measures for their peers and to act as peer counselors. The mass
media have handed over microphones and have opened up pages in the
press to the views of children. Our own homes are beginning to listen to the
voices of children. Children are participating and expressing their views on
the governing of their world, the environment, their educational and other
needs. We are challenged to let them have a say in matters of their health,
and reproductive rights. These are areas fraught with controversy. Surely,
our children cannot do worse than the adults to destroy a world that is more
theirs than ours. The challenge remains for us adults to put aside our fears
and guide these voices in an appropriate manner that respects the dignity
and the evolving capacity of the child as the child prepares to enter the adult
world.
CONCLUSION
During the course of my discourse, I have pointed to a number of
challenges that yet face us in the 21st century. Another one of those
challenges is, as stated in Article 42, to make the principles and provisions
widely known, by appropriate and active means, to adults and children
alike. There are still too many persons who perform administrative,
legislative and judicial functions and who should be operating within the
policies, principles and practices outlined in the CRC, who are not aware of
its provisions of the CRC.
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Finally, I must pay tribute to Unicef, the organization that has risen to the
challenge of promoting the implementation of the CRC. This organization
has performed above and beyond its mandate given in Article 45 of the
CRC to provide technical advice or assistance. Unicef in the Caribbean
region, no less than in other parts of the globe, perhaps, even more than in
other parts of the globe, has done outstanding work in promoting the
implementation of the CRC. They have mounted seminars, conferences,
workshop, symposia, provided financial assistance for training,
commissioned and funded numerous country reports and studies and have
supported legislative reform activities all in the name of child rights. These
duties they have performed all with willing hearts, cheerful voices and
smiling faces.
They have been firm and decisive, encouraging and persuasive, diplomatic
and strategic, but always getting the job done. They have cooperated with
NGOs and governments, international and regional organizations and
individuals, but worked they always have, tirelessly and always in
furtherance of the goal of promoting the rights of the child in the Caribbean.
Members of Unicef, on behalf of our children in the Caribbean, I salute you.
At the beginning of my speech, I quoted Lord Funny and asked: Fifteen
years now have passed, how you feel? Now that I have reached the end, I
respond to the question in the words of another calypsonian: “The journey
now start, the journey now start”.
Thank you for your kind attention.
HAZEL THOMPSON- AHYE
17- 11- 04
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