Halsbury Chambers’ Partner Nerissa Greene Speaks on The Best Interest of the Child

January 19, 2015

Halsbury Chambers Header for AnnouncementsSince the introduction of the UN Convention on the rights of children, countries the world over have adopted the international laws as part of efforts to protect the rights of persons under the age of 18. While human rights apply to all age groups with children having the same general human rights as adults, world leaders sought to ensure that the world recognized that children have human rights too. The convention takes into account the special care and protection which children, unlike their adult counterparts, often need.

During a recent presentation to the Caribbean Regional Conference 2014: The International Society of Family Law and The Bahamas Bar Association, Halsbury  Chambers Partner Nerrissa Greene discussed the evolution of the international law and its deficiencies in relation to local laws on the protection of children.

The Convention on the Rights of the Child (CRC) which was ratified in the Bahamas on the 20th February, 1991 is the first legally binding international instrument to incorporate the full range of human rights- including civil, cultural, economic, political and social rights for children. Like most Caribbean countries, we have reviewed and revised our laws, policies and programs to fully comply with the spirit of the CRC. Unfortunately, Greene notes, attempts to protect children “…have fallen short in comparison to other regions in the Caribbean and other English speaking countries.”

On October 1, 2009, The Government of the Bahamas passed The Child Protection Act which sought to address the myriad of lingering issues surrounding the rights of children. It also sought to protect the children from would be feuding parents during the breakdown of marriage. Among other characteristics, the Act was designed to ensure that basic needs of the child – educational, medical, dental, housing and food – were fully met.

“The objective of the Act, targets the paramount concerns to which the Courts will have regard, “THE BEST INTEREST OF THE CHILD”, she explains.

According to Greene, the local law attempted to adopt provisions of the CRC, such as (i) Non-Discrimination (Birth Status/Inheritance Rights), (ii) Maintenance Rights, (iii) Registration of Birth, (iv) Disability, (v) National, Ethnic or Social Origin, (vi) Sex and gender discrimination and (6) other areas of discrimination. Both laws according Green however, failed to address certain key issues, namely:  Accountability of Parents, Trafficking and Abduction of Children and the creation of Sex Offender’s Registry.

In recent decades the number of persons under the age of 18 who commit serious criminal offenses has increased significantly, pushing the issue of parental accountability into the forefront.

“The age of parental accountability is one such area in need of imminent consideration,” Greene suggests. “In The Bahamas, no parental responsibility has ever been legislated.”

“Historically, the general rule was that a parent is not responsible for the acts of a child. BUT I ASK YOU – Should parents not be held partially responsible for the act or actions of children?  It could even be said, had the parent properly supervised the child, those crimes would not have happened.”

Some societies around the world have evolved to the point where the law now hold parents or guardians financially responsible for the actions of children under the age of 18, particularly in cases where injury is caused or there is damage to property.

“This is also a vexing problem in our country and legislation should be considered to make parents legally accountable for the actions of children.”

In recent years, various groups have proposed legislation that places affirmative responsibility on parents to “…exercise reasonable care, supervision, protection, and control”. The objective of these laws is to impose affirmative duties on parents to provide necessities for the youth in their custody and to ensure they do not abuse or abandon their children. Such parental accountability laws would hold parents legally responsible for crimes committed by their children and operate on the premise that parents firstly, have a legal duty to prevent their children from committing crime and secondly that increasing parental accountability is an effective way to positively impact the juvenile crime rate.

“While some may argue that the parent cannot be made accountable for a child’s action, I differ with that suggestion,” Greene opined.

“In the Bahamas, the laws governing the protection of children make no such provision. It is believed that imposing stricter penalties on parents would reduce the ailments which presently exist in The Bahamas” she continues. “In turn resources used by governmental organizations could be directed to other useful means.

Some schools of thought have suggested that a parent and/or guardian would be liable for types of criminal or civil acts committed by their child. For example, the US State of Oregon provides that the parents or guardians of individuals under the age of 18 or those have not been emancipated under the law are legally responsible for the actual damage caused by the acts of that child.

Like every civil act of liability however, the proposed limitations must also come with limitations which govern the extent to which one can recover damage(s).

“The objective is not to break the bank, so to speak, but to make parents accountable for their children and in turn reduce the rate of crimes or tortious acts by unsupervised and neglected children,” explained Greene.

Other deficiencies within local child protection laws include a failure to address matters related to Child trafficking/abduction. In such cases, children are removed from a protective environment with the intent of preying on their vulnerability for the purpose of exploitation.

While few statistics exist to quantify the number of children taken from the Bahamas to other countries, the practice – which has been condemned by the likes of the United Nations Children Emergency Fund (UNICEF) and the Commission on Human Rights (IAHCR) – is prevalent in other part of the region including The Dominican Republic and Haiti where minors are often forced into slavery, or sexual exploitation.

Under the Bahamian legislation the Trafficking in Person (Prevention and Suppression) Act, Chapter, 106, makes it an offence to traffic person or to detain a person against their will.  However, stronger penalties ought to be fixed when it comes to the removal and trafficking of children from their countries.

According to Greene though, the legislation in its current form represents a step in the right direction but will require continued reform if it is to fully address this aspect of child protection in a more holistic way.

“There is much more that should be done when we consider the protection of children from abuse and exploitation.  In this regard, the protection of children from plausible abductors requires imminent reform.”

Closely related to the issue of child abduction and trafficking is the need in The Bahamas for a Sex Offender’s Registry which remains absent in practice. The term sex offender is a term used to define an individual found to be a sexually violent predator, one who has been convicted of the kidnapping, molestation, exploitation seduction or solicitation of a minor.

Legislation governing sex offenders also makes provisions to protect former and potential victims by regulating the distance a registered sex offender may live from the dwelling place of a victim or from places where minors frequent such as schools or parks.

“The Sex Offenders Registry ought to not only target local criminal offenders, but it also has to target the international criminal offenders who visit the shores of the Bahamas or intend to become residents of the Bahamas.”

Courts across the world are flooded with cases which detail with the sexual abuse of children; at the hands of strangers but more often by the hands of family members. Four years ago, the Bahamas was shaken by a similar story. The disappearance of an 11 year old boy traumatized inner city communities in New Providence. The child was later found sodomized, murdered and discarded at the rear of an apartment complex.

“Cases like these are considered horrific to the sane mind, but they do exist and there are persons in the world that prey on the very young and not so young.”

Deficiencies in local laws are amplified by the strides being made in other jurisdictions. Countries, such as the United States, Australia, New Zealand and United Kingdom have compiled such registries with a view to protecting the most vulnerable in their societies.

“But the question is what are we doing in The Bahamas about this? How have we protected the ones, we claim to be the future leaders of tomorrow. What have we done to legislate the protection of the innocence of a child?” Greene questioned.

“It is widely accepted that our present Family Laws require reform and the legislation regarding the rights and protection of children appears to be lacking teeth, so to speak.”

“As a champion for the rights of children, Former United Nations Secretary General, Kofi Annan, once said: “‘there is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace’”.

“Indeed, our children are one of the most vulnerable people in our society; I endorse the protection of our children so they do not become endangered species.”

Nerissa Greene of Halsbury Chambers

Nerissa Greene

Partner | Halsbury Chambers

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