High Court

Trinidad and Tobago

CV 2015-02799; CV 2015-03725; CV 2015-02944

BS
and
Ayers-Caesar and Attorney General
SS
Ayers-caesar et al
May 24, 2016

Kokaram, J.

Constitutional Law - Whether the YTC or the Women's Prison fell within the definition of a Community
Residence or specifically a rehabilitation centre within the meaning of the Children's Legislation —
Whether a Magistrate in exercising the power under section 54(1) of the Children's Act and section 5 of
the Bail Act had the jurisdiction, power or authority in law to order that a juvenile who is not released
on bail be remanded to the YTC or in the case of a girl at the Women's Prison — Whether such
decisions of the Chief Magistrate ordering the claimants to the YTC and Women's Prison were unlawful
and illegal — Whether such decision of the Commissioner of Prisons to keep the children at these places
of detention was unlawful and illegal — Whether the detention of the claimants amounted to a breach of
their constitutional rights and freedoms guaranteed under section 4(a) 4 (b) and 5(2)(f)(i) of the
Constitution — Whether the failure of the State to provide a licenced Community Residence upon the
coming into force of the Children's Act and the Community Residences Act to which the claimants could
be detained pending the hearing and determination of the Preliminary Inquiry into a criminal offence of
which they were accused was in breach of the claimants' rights guaranteed under section 4(a) 4(b) and
5(2)(b) of the Constitution — Whether and in what way are these provisions of the constitution were to
be interpreted to give life to and recognize the rights of the right of the child in the criminal justice
system.

Damages - Constitutional relief — Quantum.

Appearances:

Mr. Anand Ramlogan SC leads Mr. Gerald Ramdeen instructed by Mr. Darryl Heeralal and Ms. Jayanti
Lutchmedial Junior Counsel for the claimant

Mr. Douglas Mendes SC leads Mr. Karel Douglas instructed by Ms. Kendra Mark for the first defendant in
CV 2015-02799 and CV 2015-02944

Ms. Deborah Peake SC leads Ms. Tamara Maharajh and Mrs. Maria Belmar instructed by Ms. Amrita
Ramsook for the second defendant in CV 2015-02799 and CV 2015-03725

Mrs. Deborah Peake SC leads Ms. Josefina Baptiste, Ms. Cherise Nixon and Ms. Elena Da Silva instructed
by Ms. Jenna Gajdhar for the second and third defendants in CV 2015-02944
Kokaram, J.

INTRODUCTION
My heart leaps up when I behold / A rainbow in the sky: / So was it when my life began; / So is it now I
am a man; / So be it when I shall grow old, /Or let me die! / The Child is the father of the Man / And I
could wish my days to be/Bound each to each by natural piety; [“My Heart Leaps Up” William
Wordsworth March 26 1802.]

There are many themes in Wordsworth's famous poem “My Heart Leaps Up” but one of them resonates
with the claims for administrative orders before this Court brought on behalf of children in the prison
system. It is Wordsworth's portrayal of the innocence of childhood looking at the world through the eyes
of the child. It was a celebration of the child's own sense of wisdom, acknowledging the child's emerging
development into adulthood and the importance of the child's nurturing long before the proclamation of the
Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child
which recognized the importance of protecting and caring for the child.

The claims for administrative orders involve two teenage children, BB and his sister SS, seeking to assert
their rights to be treated with humanity and respect for their inherent dignity in the adult world. Their
claims challenge our view of emerging human rights as it does of the meaning of “first generation” rights.
It refocuses our perception of the child in our society. The care that should be provided for them in the
criminal justice system. Their human rights as children, their view of the adult world and giving effect to
their voice, recognizing their future as men and women in our society.

BS and SS are in trouble with the law. They have been accused of committing murder and are jointly
charged with two other adults. At this stage they are presumed innocent. Their charges were laid on 18th
January 2014. BS, then aged 12, was remanded at the Youth Training Centre (“YTC”), an Industrial
School for young boys within the prison system. SS, then aged 15, was remanded to a woman's prison, an
institution outfitted to imprison female adults. They have been denied bail pursuant to the Bail Act Chap
4:60 and remanded pending the hearing of their preliminary enquiry.

In May 2015 a suite of Children's legislation was proclaimed; (i) the Children's Act 2012, (ii) the
Children's Community Residences Foster Care and Nurseries Act 2000 (“The Community Residences
Act”), and (iii) The Children's Authority Act Chap 46:01 (collectively referred to as the “Children's
legislation”) [On 23rd October 2000 the Community Residences Act was assented to and by proclamation
dated 15th May 2015 specified sections of the Act came into effect. See LN 74 of 2015. On 6th August
2012 the Children's Act 12 of 2012 was assented to by His Excellency and by proclamation dated 15th
May 2015 specified sections of this Act were brought into effect. See LN 73 of 2015]. The children both
sought the protection of the Court by filing their separate administrative claims: BS on September 1st 2015
and 6th November 2015 and SS on 16th September 2015. They complained firstly that the orders made by
the Chief Magistrate remanding them to the YTC and the Women's Prison were unlawful and in the second
instance that the failure of the State to provide for Community Residences under the Children's legislation
amounted to a breach of their rights to “due process”, protection of the law and not to be exposed to cruel
and unusual treatment. They seek declaratory reliefs declaring their detention null and void, orders of
certiorari quashing the remand warrants of the Chief Magistrate and declarations of constitutional breaches
together with damages for breach of their constitutional rights.

In essence, their argument is that the suite of Children's legislation which came into effect in May 2015
ushered in reforms in the juvenile justice system to protect the rights of children. One of those reforms is
provided for in section 54 of the Children's Act which expressly provides for children to be remanded at
Community Residences if they were denied bail. Accordingly, as the YTC and the Women's Prison are not
Community Residences their detention is against the law. It is accepted that at the time of their remand,
there were no licensed Community Residences under the Children's Act. The evidence suggests that in
remanding the children the best was made of a bad situation: to remand a girl to an adult female prison and
a boy to an Industrial Institution which provides for the detention of young offenders aged 16 to 18
sentenced to a period of detention under penal discipline. At the time of his remand, BS was neither
convicted of a crime nor at that time between 16 to 18 years of age.

At the interlocutory stage interim relief was granted by the Court of Appeal, in the first instance for SS to
be removed from the Women's Prison and placed in a suitable Community Residence, and in the case of
BS for the Children's Authority to have access to him at the YTC. SS, upon attaining the age of 18, is no
longer considered a child under the Children's legislation. She was transferred to the adult prison [However
the circumstances of that transfer was not made known to this Court and Community Residences do have a
discretion to keep persons above the age of 18 in certain circumstances]. BS as at 14th April 2016, was
remanded to the St. Michael's Home for Boys and is no longer at the YTC [The circumstances in which
this decision was made was also not disclosed to the Court and was made after the Court reserved
judgment in this matter.].

At no stage in the criminal proceedings since the passage of the Children's legislation were the Children's
Authority notified of the detention of these children. The Children's Authority is charged under the
Children's Authority Act to secure the welfare of children. They are the advocate for children's rights.
They are the experts in the area of the protection of the welfare and rights of children. [See sections 5, 6, 7
and Part 3, of the Children's Authority Act]

However, the detention of these children in an adult prison under the Prison Service Act Chapter 13:02 and
at an Industrial Institution under the Youth Offenders Detention Act Chap 13:05 raises fundamental issues
of children's rights in the juvenile justice system. Such issues include the following: Parliamentary intent in
the treatment of criminal behavior in juveniles which sought to devise ways to end recidivism in our
troubled youth. The recognition of the rights of the child universally acknowledged in the United Nations
Convention on the Rights of the Child (UNCRC) and the intersection of that corpus of international human
rights law, which promoted a grundnorm of “the best interest of the child” with domestic legislative intent.
The bundle of rights of the child in our juvenile system of justice and the responsiveness of the
Constitution to emerging human rights that postdate it in the context of a living instrument that preserves
and protects the needs, security and rights of its otherwise previously forgotten constituent: the Child. The
vision of a society which was declared by the framers of our Constitution to be essential to our nationhood
recognizing the dignity of man and affirming that the Nation of Trinidad and Tobago is founded upon
principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms, the
position of the family in a society of free men and free institutions, the dignity of the human person and the
equal and inalienable rights with which all members of the human family are endowed by their Creator.

The claims also raise the constitutional difficulty where due to administrative shortcomings of the
Executive, the intention of the Legislature has been frustrated by a failure to provide for the safeguards to
ensure the child's best interest. The child is the father of the man and to the child it is the Court's role to
protect his or her fundamental rights recognizing the child's need for nurturing, rehabilitation and
development.

The Courts must now navigate the rights of the child and give meaning to the Constitution as our view of
society evolves. Human rights by nature are dynamic. It is the recognition that evolution is an underlying
premise of our character as free human beings and by extension the evolving order of our society. “Society
changes. Knowledge accumulates. We learn, sometimes, from our mistakes” [US Supreme Court Justice
John Paul Stevens, Concurring in Graham v. Florida (No.08-7412), 17 May 2010]. It is not so much as
new rights are “created” as if by some process of “discovery” akin to Columbus stumbling on a
“discovery” of La Trinity, but rather a realization through evolving sensibilities that makes those rights
recognizable and actionable. The evolving standards of decency play a critical role in our constitutional
jurisprudence. The “Constitutional Court” in giving effect to the supreme law does not engage in any act of
law making. It is simply discharging its moral commitment to give life to human rights by continuously
fleshing it out keeping faith to the first generation rights and the core facets of human dignity which is
everlasting, inalienable and unobjectionable. As a society develops, punishments and treatment which did
not seem cruel and unusual at one time may in the light of reason and experience be cruel and unusual at a
later time. In the intersection of rights, duties and the law against the backcloth of history, experience and
consciousness, the Constitutional Court is always drawn into making value judgments in balancing
individual rights and societal needs. The analysis is no different when seeking to secure the best interest of
the child.

As a society evolves, we do so, not in isolation with the world, but in congruence with it and so we
modulate our expectations of our development by international standards. The Court in giving due regard
to international rights, given birth to by treaties ratified by this Government in relation to children, are
simply underscoring what society has accepted to be value judgments expressed through its government. A
subscription to international norms and responsibilities provides a morality which must impact our view of
our own social order and our perception of rights. The monism and dualism debate loses sight of the fact
that the core discussion is on inalienable human rights which inhere in humans and not conferred to us by
the State by way of some charity. There is no gainsaying that short of expressly incorporating all the
several treaties that deal with children's rights into domestic law, the principles of the best interest of the
child, the securing of their welfare, protection, education and development are fundamental principles
accepted by our society as what makes us human. This is reflected in our discourse with our academics,
social commentators, not forgetting our calypsonians, as much as it is in our suite of Children's legislation
proclaimed in 2015 revolutionizing the state of child law from 1925.

There are no express provisions in our Constitution which recognizes the rights of the child as compared to
some of the other Commonwealth constitutions such as South Africa. This does not mean that they do not
exist or are lost in-between the black ink of the constitutional text. They indisputably fall within the
parameters of broad and fundamental human rights. The right to liberty. The right to the protection of the
law. The right to be treated humanely. The section 4 fundamental rights are all human rights attributed to
the adult as it is for the child as his or her own birth-right. A child in our society has evolved from one of
property in a plantocracy to one that is seen as the ward of the parent in the early 20th century, to now in
the 21st century as persons in themselves, as deserving of liberties and freedoms in their own right
recognizing their inherent moral vulnerability. They are not to be viewed as miniature adults, or tiny men
and women, but as a class of individuals with their own dignity, needs, freedom and rights and who
constitute an important component of a human family. They are to be recognized as “child citizens”,
recognizing they have a vested future in our nation's development.

The child today is not the child that worked on the plantation reaping crops for their master's gain. Nor is
the child today ignorant or imperceptible. The family today is not the unit that existed in close knit safer
communities of an earlier time. In the criminal justice system, our standards of decency have evolved to
recognize the inherent vulnerability of children in its evolving familial setting, that even though capable of
committing heinous crimes, their acts are much a result of their criminogenic settings and dysfunctional
lifestyles as it is of lack of parental or elder care and guidance. Many studies have increasingly shown that
children are falling through the cracks of family life and the village that once raised the child is now
confined in prisons of their own, drying up the compassion, guidance and nurturing which once existed in
a community based society of days long gone.

The penumbra of rights recognized in the UNCRC and later international instruments such as the Beijing
Rules, the Havana Rules and the Riyadh Rules, have therefore indisputably led to a radical change in the
creation and fulfillment of rights for the child. This no doubt has been accepted by the government in its
passage of a suite of legislation to provide for a more comprehensive juvenile justice system which
safeguards the inalienable rights of the child. In giving effect to international norms and perceptions of
children's rights, specifically in the juvenile justice system is the promotion of the principle of restorative
justice where the child is rehabilitated not by doing things to them but by doing things with them. This
simply means that the value of love, compassion and respect previously nurtured in the homes are now
being administered by the State filling the obvious gaps in our family life.
One of the main issues in this case ultimately is to determine whether the failure to place children in
trouble with the law in Community Residences is a breach of the State's obligation to provide for the
welfare and safety of children to secure their best interest and which give rise to constitutional relief. The
State has argued that no issue of constitutional rights arises. There are no fundamental rights of the child
which have been granted under the Children's legislation and which have been infringed. The procedural
safeguards such as the provisions of Community Residences are mere matters of process but go no further
to create fundamental rights, nor does its absence remove the facets of a fundamental fair system of justice.
So long as the criminal process of a fundamentally fair hearing is intact; that is, of receiving a fair trial then
BS and SS can have no complaint.

But I disagree. What is a fundamentally fair hearing for a child in the juvenile justice system? A child that
is further agonized and broken by his detention, before the Court can deal with his innocence or guilt? This
certainly misses the mark in understanding the adult world through the eyes of the child, the breadth of the
rights of the child and the obligations of the State in preserving the hallmarks of a fundamentally fair
system of justice for juvenile offenders, balancing the interest of the child and the wider society. There is
much at stake here. The future of children who are involved in the criminal justice system. The end to
recidivism by a restorative approach rather than punitive one. The fundamental safeguards of a juvenile
justice system recognizing at its core an international norm, expressly recognized in the legislation which
promotes the principle of the “best interest of the child”. These safeguards give the child a voice, abhors a
child's arbitrary detention, cruel punishment, prolonged periods of detention prior to the determination of
innocence and guilt or detention in places which are not designed for their rehabilitation, care and welfare
or the mixing of children with adults at those places of detention. This is the content of the child's
fundamental rights in a criminal justice system.

The lack of any institution to properly cater for the child as recognized by the legislative framework and
international norms is a matter of grave concern and equally there can be no difficulty in recognizing that
the fundamental rights of the child to due process, protection of the law and to protection from cruel and
unusual treatment have been actioned in these cases.

The first question therefore, is whether the places of detention for BS and SS qualify as “Community
Residences” within the meaning of section 54 of the Children's Act. If they are not Community
Residences, are the circumstances of their incarceration, including the fact that they are not being kept at
Community Residences, in breach their fundamental rights as children of “due process”, protection of the
law and to protection from cruel and unusual punishment? The definition of Community Residence
includes a “rehabilitation centre” which is defined as “a residence for the rehabilitation of youth offenders
in which youth offenders are lodged, clothed, fed as well as taught”. It is no answer for the State to point to
both the YTC and the Women's Prison to say that it is a place where youth offenders are lodged, clothed,
fed and taught without reference to its character and purpose. A rehabilitation centre firstly and primarily,
is as the definition states, “a residence”. A residence is not a detention centre, nor is it a prison. It is a
home. A place of rehabilitation is a place of care and nurturing where the primary concern is the best
interests of the child where that child is shown empathy, care, understanding and love. Such an
interpretation is consistent with the internal and external context of the legislation, the international
instruments and corpus of human or child rights law which create a superstructure for the protection of our
Nation's children. In treating such juveniles in trouble with the law, it is recognized that they are from
troubled homes and backgrounds. Therefore, their “biological residence” is being replaced by a
“Community Residence” where, in such a home, a multifarious approach is adopted to treat and
rehabilitate. They are not objects to whom people dole out treatment, but persons deserving of protection
and individualized care to give effect to their sense of dignity and self-worth. Reformation is a related but
different exercise and the legislators were careful to avoid the use of that word, which would have
permitted practices that are not consistent with restorative rehabilitation approaches.

By no stretch of the imagination can a warrant which reads “Women's Prison” bring any comfort to a child
that she is being taken to a place of caring and nurturing let alone a residence for her rehabilitation. SS was
placed in a cell and was confined behind bars. She used a slop pail like any other prisoner. She had the
same diet as other prisoners, went to the same hall for dining, bathed in the same bathrooms as adults
“under supervision”, mixed with adults at “classes” and worship designed for the adult prisoners, was in
close proximity to adult inmates at her cell, was stripped searched and transported to and from Court in the
same vehicle as adults. There is no doubt that SS was in a setting which was a prison, as one officer will
describe it a “para military organization”.

The YTC is of course a different character from the Women's Prison, but it too holds the characteristics of
a prison or detention centre: a euphemism for a “boys' prison”. Assuming that the State has acted
consistently with its duty of candor and full disclosure, it has not been demonstrated that YTC's primary
goal is the creation of a residence designed to rehabilitate, to treat the individual needs of BS consistent
with his best interest as distinct from a place of detention where he participates in a regime of educational
and vocational activities. Neither has it been demonstrated that YTC has acted consistently with the
legislation to become a Community Residence. The officers at YTC may be all well-intentioned, but there
are in-built deficiencies which disqualify it as a Community Residence. Putting aside the statements of the
Acting Superintendent of Prisons in charge of YTC, there was no manual or policy document produced to
explain the rehabilitation policy of YTC. The manual or policy document is in fact the Act and the
Regulations. YTC is governed by the Prison Rules. It maintains a disciplinary structure which punishes
boys in a regime which includes solitary confinement, corporal punishment and restriction of meals. Such
means of punishment are expressly prohibited under the Children's legislation. There is no staff suitably
qualified to deal with the boys' psychological and behavioral challenges. There are no individualized
treatment plans for the welfare and best interest of BS let alone the other inmates. There is a “cookie
cutter” approach of submitting all boys to a regime of standard education and vocational study without any
emphasis on the assessment of the child's individual challenges and determination of the best plan of action
to rehabilitate and care for that child individually. If it is not a prison as defined by the Prisons Act, it is not
a rehabilitation centre within the meaning and intent of the legislation. There is a difference in the juvenile
system of justice between a place of detention and a Community Residence.

The fact that these institutions are not Community Residences give rise to two important considerations:
what are the legal and constitutional consequences and more importantly what should be done for them by
way of remedies under the Constitution?

Firstly one feels sympathy for the Chief Magistrate who expressed her difficult position and tried to do the
best that she could in the awkward circumstances created by the Executive in hastily passing legislation.
The fact is however that YTC-St Michael's, the place to which the Magistrate remanded the child, is a
misnomer not recognized in law and is not a Community Residence. Further the Women's Prison to which
SS was remanded was not a Community Residence. This was acknowledged by her. These orders were
without jurisdiction and unlawful on their face.

Secondly the constitutional relief which gains traction is the right not to be deprived of liberty except by
due process and protection of the law and by the very fact that the children were placed in detention
centres not designed for their needs exposed them to conditions that were cruel or inhumane.

This is a fitting case in which compensation should be awarded to both S and BS to reflect the illegality of
their detention and the deprivation in the case of SS of the opportunity to remain in a Community
Residence upon turning 18. In the circumstances of their detention I award damages in the sum of
$300,000.00 for SS and $150,000.00 for BS. The latter will be paid into Court. I will also order the
Children's Authority to provide such counselling and support to advise and guide both children and in the
case of BS, his mother, as to the appropriate use of the funds for their benefit.

But to make declarations of illegal or unconstitutional actions still does not solve the problem for these
teenagers who have found themselves in the void between parliamentary intent and administrative
realization. SS has as of 24th January 2016 turned 18 and is remanded in the adult prison. Her counsel has
not sought any further relief save for damages. With BS however, he should be placed firstly in a
Community Residence that is approved by the Children's Authority.

The deeper question is whether the fundamental rights that are in play are so important as to order BS's
release on bail for what are non bailable offences. To do so will trump legislation which mandates the
denial of bail for those accused of murder, a law which pre-dates the Constitution and therefore passes
constitutional muster by the savings clause. But to do otherwise would necessarily mean that BS is to
remain in a place that is unsuitable for him, in defiance of the Children's legislation and in breach of his
fundamental rights. In that scenario the question of devising the most effective remedy by a Constitutional
Court tests its resolve as a protector of the Supreme Law as well as the arbiter of fundamental rights in a
society that is built on the notions of the dignity of the child their importance in family life and the
interests of the society as a whole. It puts to the test the moral commitment to uphold the Supreme Law to
give life to fundamental human rights. The recognized wide powers of a constitutional court must
necessarily empower it to fashion practical remedies which will prevent its “constituents” from falling into
a human rights “black hole”. But equally it is no licence to assault the Constitution based on a
compassionate leave of the senses to champion a cause, at the expense of other legitimate interests. If
murder is a non-bailable offence and such deprivation of liberty is legitimized by the Constitution, equally
by parity of reasoning impliedly the corollary right must be that there is a suitable place to detain such a
person. If a law which is declared constitutional by its saving, must stand scrutiny by implication to having
balanced the interests of the individual with the object of the measure. We must be careful that laws that
we say are saved by the Constitution do not result in the death of the very fundamental right and liberty the
Constitution is meant to protect. The issue of proportionality or reasonableness must by necessity arise and
will imply the principle that bail must have been refused not only because of the categories of offences but
on the basis that there is a place to detain such persons. Deprivation of liberty and a place of detention
therefore go hand in hand. In the case of children if there are no places available to preserve and protect
their fundamental rights the Court must be empowered to make constitutional excursions into the existing
law to protect the weak and vulnerable. Examined in this way the grant of bail for a non bailable offence
which is premised on the existence of a suitable place of detention is not so much as incongruous with an
existing law as it is in fulfilling it.

However in the event the Authority, as it did in the interlocutory proceedings, declare that there are no
suitable Community Residences to house BS I have considered appropriate that he be placed in the custody
of the Children's Authority. Recognizing that the child can only legitimately remain in the custody of the
Children's Authority for a limited period under the Children's Authority Act, if suitable arrangements are
not yet put in place for his care and rehabilitation, then the Court in exercising its constitutional
jurisdiction will order the release of the child on conditions to be determined by the Court.

THE APPROACH
In BS's claim, leave to apply for judicial review was granted on 20th August 2015 [See judgment dated
20th August 2015] for declaratory relief that the order remanding him at YTC by the Chief Magistrate and
his detention there by the Commissioner of Prisons was unlawful. In his subsequent fixed date claim he
alleged that it was a breach of his constitutional rights. SS's claim for constitutional relief was filed later in
time. Leave to apply for judicial review was granted by Justice Rampersad on 2nd September 2015. [See
judgment of Justice Rampersad dated 2nd September 2015]

The claims for administrative orders made by SS when they emerged were more extensive than those
sought by BS. In her claim she sought the following declaratory reliefs: that the First Named defendant had
no jurisdiction, power or authority in law to order that she be detained at the Adult Women's Prison
Golden Grove, Arouca; that the Second Named defendant in detaining SS at the Adult Women's Prison
Golden Grove, Arouca in conditions where SS was allowed to associate with adult prisoners without the
express permission of the Court was unlawful, illegal and ultra vires. Orders of certiorari to quash the
decision of the First and Second Named defendant. As against the State, she seeks a declaration that her
detention and the failure of the State to provide a Community Residence or a place where female youth
offenders could be detained and the actions, policy, practice and procedure of the Second Named
defendant, were in breach of her constitutional rights guaranteed under sections 4(a), 4(b), 4(d) 5(2)(b) and
5(2)(f)(i) of the Constitution of the Republic of Trinidad and Tobago. She also seeks orders that the State
do forthwith take all steps to provide a temporary rehabilitation centre that meets the requirements of the
Children's legislation along with damages.

The administrative claims of SS and BS were not formally consolidated however they were heard together.
For convenience only I have reduced my decision in relation to BS and SS into one judgment as much of
the analysis of the statutory framework governing their detention and the instruments which espouse the
rights of the child are applicable to both. Both cases however present their own unique facts for
consideration. I have also anonymized the children's identities so that no stigma unnecessarily attaches to
them by reason of the ongoing criminal process.

Additionally, SS during the course of the proceedings turned 18 years on 24th January 2016. She is now
remanded in the Women's Prison as an adult. No complaint has been made in these proceedings of her
detention as an adult and the proceedings were not amended to include any allegation that SS should still
be remanded at a Community Residence after turning 18. BS was remanded to the St. Michael's School for
Boys (“St. Michael's”) on 14th April 2016 and is no longer at YTC. This was a development which took
place after the Court reserved judgment.

Importantly there were other claims which were filed on behalf of children seeking administrative orders
with respect to their detention on remand at the YTC. There were the claims of TK in CV2015-03019 and
AP in CV2015-03225 which were filed on September 10th 2015 and September 29th 2015 respectively.
They were charged with the offences of wounding with intent and assault with the intent to rob
respectively and were remanded to the YTC on September 1st 2015 and August 18th 2015 respectively.
Eventually, they both secured bail and are no longer detained at the YTC. However the issue of whether
they should have been remanded at the YTC remains a live issue for determination. Additionally it
highlighted the problem facing Magistrates in this country with the passage of the Children's Act and how
the magistracy should give effect to section 54 of the Children's Act. The main issues in the claims of BS
and SS would therefore determine those other matters and provide guidance to Magistrates in the exercise
of their powers under section 54 of the Children's Act. For this reason at a case management conference of
those matters, TK and AP, the parties agreed that the determination of these issues will be binding in those
two other matters. I hope that it would also prove useful in the treatment of children who are presently
before the Magistrates' Court facing charges.

As a matter of process, both claims of BS and SS are “double barrel claims” seeking relief under the
Judicial Review Act and also constitutional relief. In BS's case however the claim for judicial review was
filed without reference to claims for constitutional relief. Recognizing the need to deal with the substantive
issues, I gave the claimant permission to formally file a constitutional motion and consolidate both matters.
The Attorney General has raised in their submissions and during pre-trial hearings that the claimant has
abused the process by not choosing to seeking constitutional relief simpliciter or judicial review and that
the claimant should deliberate and choose his process. Having consolidated the proceedings in BS's two
claims the arguments of process becomes esoteric when weighed against the very serious issues that must
be determined for the resolution of not only this matter but several other matters before the Court. Having
managed the case to deal with these agreed issues these points of procedure are purely academic and I
formally overrule those objections [In any event BS's claim is a consolidated claim where the reliefs are
being treated as a judicial review claim against the Chief Magistrate and constitutional relief against the
State. A public law court should not easily yield to suggestions of abuse, Jaroo v. AG [2002] 1 AC 871
notwithstanding, except in a plain case].

This judgment therefore addresses the following issues binding on the parties in CV2015-03019 and
CV2015-03225:
 A: The definition issueWhether the YTC or the Women's Prison fall within the definition of a
“Community Residence” or specifically a “rehabilitation centre” within the meaning of the Children's
legislation.
B: The jurisdiction issueWhether a Magistrate in exercising the power under section 54 (1) of the
Children's Act and section 5 of the Bail Act, has the jurisdiction, power, or authority in law to order that
a juvenile who is not released on bail be remanded, in the case of a boy, at the YTC or in the case of a
girl, at the Women's Prison.
C: The legality issue• Whether such decisions of the Chief Magistrate made on 29th July 2015 ordering
that BS be remanded to the YTC and that SS be remanded to the Women's Prison is unlawful and
illegal.• Whether such decision of the Commissioner of Prisons to keep the children at these places of
detention was unlawful and illegal.
D: The constitutional Issue• Whether the detention of BS from 29th January 2014 to 14th April 2016 at
the YTC and SS from 29th January 2014 to December 8th 2015 amounted to a breach of their
constitutional rights and freedoms guaranteed under section 4(a) 4(b) and 5(2) (f) (i) of the
Constitution.• Whether the failure of the State to provide a licenced Community Residence upon the
coming into force of the Children's Act and the Community Residences Act to which these juveniles
could be detained pending the hearing and determination of the Preliminary Inquiry into a criminal
offence of which he is accused, is in breach of the claimants' rights guaranteed under section 4(a), 4 (b)
and 5(2) (b) of the Constitution.• Whether and in what way are these provisions of the Constitution to
be interpreted to give life to and recognize the rights of the child in the criminal justice system.
E: RemediesIf there was a breach of the children's constitutional rights what is the appropriate remedy;
whether declarations and/or damages and/or the grant of bail?

THE BACKGROUND
The YTC is an Industrial Institution (Gazette Notice No. 85 of 1949). By section 7 of the Young Offenders
Detention Act, Chap. 13:05, the Court can detain a person at an Industrial Institution (such as YTC) upon
conviction in lieu of imprisonment. The Women's Prison is a prison as defined by the Prisons Act. Both
detention centres fall under the jurisdiction of the Prison Service. The YTC managed by a Superintendent
of Prisons under the Prison Service and the Women's Prison by a Commissioner of Prisons.

The suite of Children's legislation which came into effect in May 2015 are the following:

i. The Children's Act, 2012.

ii. The Children's Community Residences, Foster Care and Nurseries Act, 2000 (“Community
Residences Act') and
iii. The Children's Authority Act.

The Children's Act of 1925 was repealed. All parties agree and begin with the premise that this suite of
legislation introduced in Parliament for the protection of children and proclaimed in 2015 sought to
modernize the law with respect to the rights of children and align the rights of the child with those rights
internationally recognized by the United Nations Convention on the Rights of the Child (UNCRC). Section
54 of the Children's Act, 2012, provides that on remanding a child (defined by section 3 of the Children
Act, 2012 as a person under the age of 18 years) who is not released on bail (such as a minor charged with
murder), the child shall be placed in the custody of a Community Residence.

Community Residences are defined in the Community Residences Act as “a Children's home or
Rehabilitation centre. They fall under the jurisdiction and regulation of the Children's Authority
established under the Children's Authority Act. The Children's Authority Act provides for a regime of
licensure for such residences however that section has not yet come into operation. Under that system it
would be illegal for anyone to operate a Community Residence without a licence. There are currently no
licensed Community Residences in Trinidad and Tobago at which the minors can be placed as the system
of licensure has not yet been proclaimed. This does not affect the fact that residences can be considered
Community Residences so long as it fits the description of such a residence as contemplated by the Act.
The Children's Authority has recognized the existence of 48 Community Residences in this jurisdiction
which are being assessed and monitored, no doubt until the system of licensure is proclaimed. They
comprise 2 rehabilitation centres and 46 children's homes. The Authority has recognized serious
deficiencies in those residences' state of readiness to be licenced as Community Residences as they have
failed to meet even the minimum level of standards set by the Children's Authority.

The Chief Magistrate, subsequent to the coming into force of section 54 of the Children Act, 2012, on 29th
July 2015 remanded the minors to the YTC and the Women's Prison.

If indeed the YTC and the Women's Prison are not Community Residences for the purposes of section 59
of the Act, the problem that these cases present is simply what is the legal and constitutional effect of
hastily passed legislation on the rights of the children it is designed to protect, when the administrative and
institutional machinery for which it provides does not as yet exist. The respondents' immediate answer of
course is that the institutions to which they were reminded are Community Residences. If they do not, the
Chief Magistrate had no other alternative than to make the orders and no constitutional right has been
infringed.

INTERLOCUTORY PROCEEDINGS
In both claims the Court made proactive interim orders in an effort to ensure that the child's interest was
protected in this litigation.

In the case of BS the following interim orders were made:

(i) The Children's Authority do provide to this Court the name and location of a suitable Community
Residence or home or residence for the accommodation of BS during the pendency of these
proceedings and to inform the Court of such accommodation together with its assessment on Affidavit.
(ii) That the Children's Authority do conduct:a) A child assessment of BS taking into account the
considerations of which he is treated and such medical, psychiatric and psychological examination as is
necessary. The said child assessment is to be sent under confidential cover to the Registrar of the
Supreme Court and shall not form part of the public record until further order.
(iii) Conservatory order that the Commissioner of Prisons do release the Intended claimant into the care
of a suitable Community Residence or home or residence by the Children's Authority pursuant to
paragraph (a) and shall take effect upon this Court serving on all parties and Interested Parties its Order
certifying the name and place of such institution, and the Attorney General shall undertake that the
Commissioner of Prisons being a servant and or agent of the State of Trinidad and Tobago will no
longer detain the Intended claimant at the Youth Training Centre.
(iv) That the Second respondent do provide the following information and or make the following
disclosures pursuant to the Civil Proceedings Rules 1998 (as amended) parts 25, 26, 28 and 35:a)
Disclose the number of juvenile offenders on remand at the Youth Training Centre, along with their
names, date of birth and sex and the treatment plan prepared in respect of each child.b) To permit the
Children's Authority to inspect and view their accommodation for such children.c) The parties do agree
on the appointment of a Child Attorney to represent the interests of B within seven (7) days hereof or to
be determined by this Court in default of agreement.
At that stage of the proceedings, this order was deemed appropriate for the following reasons: (a) that there
was no evidence as to the stability of BS's family environment and that it was from that setting the offence
was alleged to have been committed. (b) The nature of the charge and that murder is a non bailable
offence. (c) That the YTC is not a Community Residence for the purposes of sec 54 of the Children's Act.
(d) That whereas no Community Residences have been licensed by the Children's Authority the Court
must be astute to the philosophy of the Children's legislation which seeks to place such residences under
the supervision of the Children's Authority. (e) There is at the least an unclear line of supervision and
responsibility by the Children's Authority of children at YTC. (f) That there was no evidence of suitability
of either YTC or St. Michael's. (g) That BS' s re-introduction at St. Michael's may disrupt the present
occupants and its condition was uncertain. (h) That the Children's Authority has the legislative machinery
to supervise and care for and advocate for BS during the pendency of those proceedings. (i) That the
Constitution is the supreme law and the fundamental rights of BS are yet to be ventilated fully.

In quick time, the Children's Authority was able to provide to this Court a comprehensive overview of BS's
history, his educational and social development, his previous living conditions, his present environment
and the urgent steps needed to secure BS's welfare and care in a private report which was shared with the
attorneys for the parties [See the affidavits and supplemental of Christalle Gemon and assessment reports
of BS and Community Residences]. The Children's Authority filed two affidavits describing their
assessment of the living conditions at St. Michael's, the Youth Training Centre (YTC) and the home of his
mother Karen Mohammed, and 48 other Community Residences. It concluded that “the Authority is of the
view that there is no suitable Community Residence or home or residence for the accommodation of BS at
this time. In the premises it is respectfully submitted that the State will need to urgently identify a suitable
rehabilitation centre for accommodating BS in accordance with the Act”. They also have demonstrated the
yawning gaps that need to be filled for existing Community Residences to meet the minimum standard of
compliance under the Act.

The Children's Authority's report at pages 10-12 and paragraphs 14-16 of their affidavits pointed out the
deficiencies that exist in the 3 options of the YTC, St. Michael's and the child's residence.

The Court had in the interim information of the positive steps that can be taken to put BS and his family on
the path of rehabilitation and restoration. The Court asked the Children's Authority to (a) identify the
suitably qualified persons who can perform the following tasks: psycho-educational assessment, individual
psychotherapy, family therapy and parent training programme. (b) Identify vocational courses and
extracurricular activities referred to in 3, 4, and 5 of their report.

The Court then ordered that the Children's Authority provide further information as to the identity of the
institutions referred to in paragraph 17 of their affidavit and other information on BS' needs and to
interrogate the representatives of the Children's Authority and their experts on the options suggested to
determine what practical steps can be taken.

The Court subsequently ordered that BS remain at YTC as there were no suitable Community Residences
in existence but that he receive the treatment as outlined by the Children's Authority by a privately
engaged service provider. The Court of Appeal quashed this order and held that the Court overstepped its
boundaries by interfering with the jurisdiction of the Children's Authority which was already empowered
by Act of Parliament to act in the child's best interest.

“The court's continuing discovery, interrogation and purported implementation of

the assumed role and function of the Children's Authority, when the Authority
itself had made no such requests of the judge as provided for by the law. The
obligation to act in the best interests of the child, cannot be a licence to do
whatever a judge thinks should be done in the best interests of a minor, where to
do so would be “to intervene on the merits in an area of concern entrusted by
Parliament to another public authority” – Lord Scarman, In Re W [1985] 2 WLR
892. (supra).”
The Court of Appeal added that judicial restraint is necessary.

“Though one understands and may even share in the judge's obvious concern for
the welfare of the minor, it is, and must always be, inappropriate, if not even
unfair to the parties, to infringe on the jurisdiction and initiative of a statutory
body set up by Parliament to act independently in a particular area – in this case,
the Children's Authority in relation to minors on remand without bail. Simply put,
the judge having most appropriately acted to include the Children's Authority in
 these proceedings, should then have exercised the judicial restraint so integral to
the perception of impartiality, to allow the Children's Authority or the Attorney
General, or even the respondent (acting through his mother), to take such steps as
either and/or all of them may have thought necessary.”
The Court of Appeal made the following interim order:–

“The Children Authority be permitted access to the premises of the Youth

Training Centre for the purposes of carrying out the Authority's duties and
functions under the law.”
In SS's case the Court of Appeal had no hesitation in ordering that SS be removed from prison to a suitable
Community Residence. It ordered:

• The Third respondent do provide a suitable Community Residence as provided for in the Children's
Act and the Community Residences Act for the placement of the appellant on or before 8th December
2015.
• Upon the provision of a suitable Community Residence as provided for in the last mentioned
paragraph, the 2nd respondent shall forthwith transfer the child from his custody into the custody of the
said Community Residence.
At that stage, the Attorneys for the State had indicated to the Court that Community Residences would be
available to house SS within 60 days. Importantly, in SS's case, in addition to the Children's Authority
being served, the Court had ordered the appointment of a Child Attorney who gave evidence by affidavit
of the treatment SS was being subjected to at the Women's Prison. At the case management and pre-trial
stages I made it clear that the court will not ignore the evidence adduced by the Children's Authority or the
Child Attorney. Although not formally introduced by notice in the final proceedings the claimants had
telegraphed their intention to use it by including it in the trial bundle. In any event I gave the 2nd and 3rd
defendants leave to reply to the affidavits of the child attorney. However no affidavit in reply was filed.
The 2nd and 3rd defendants chose instead to submit that the affidavit of the Child's Attorney are replete
with hearsay rendering the evidence of no value and unreliable. The Child's Attorney plays an important
role in proceedings where the Court must secure the child's best interest and give the child a voice in the
proceedings. Affidavits filed by parents or attorneys on behalf of the child lies in contrast to hearing from
the child herself. Justice Rampersad was perfectly correct in ordering such evidence and to give the child a
voice in these proceedings. It will be wrong if at the final stage we continue to ignore that voice. The Court
of course will ascribe what weight it can to that evidence taking into account all the circumstances.

No further affidavits were filed by the Children's Authority which generally adopted a neutral role in the
proceedings. There also can be no objection to refer to the evidence of the Children's Authority and to
ascribe the relevant weight to it, as indeed submissions of all parties made reference to some aspects of the
Children's Authority evidence. In any event reliance on it is not material to the decisions and material
findings of fact made in both claims of the circumstances of the children's detention.

Additionally, the claimant was granted leave to cross examine the witnesses for the Attorney General in
the SS claim. No formal application for leave to cross examine was made by the Attorney General and an
oral application to do so was dismissed on the morning of the trial. The reasons for allowing limited cross
examination are set out in my judgment dated 5th February, 2016. There was no cross examination in BS's
claim.

A PLACE THEY CALLED HOME

In 2014, prior to their incarceration, the children, BS aged 12 and SS aged 15, lived with their mother at
the family residence located at No. 24 Sea Trace Bagatelle, Diego Martin. The family home sits on 30,000
square feet of land, which comprised of two structures. A small and simple structure occupied by their
grandmother and the other in which they lived with their mother, step-father and younger sibling. The
property was protected with a chain link wire fencing and iron front gate. It was just enough to make them
feel secure without feeling restricted. Though it was a modest household and not a palatial residence, the
children were able to maintain a sense of privacy. They each had their own room. Their parents had their
own room. The house was outfitted with the usual amenities; toilet and bath and a kitchen. There is no
evidence that the children were enrolled in a secondary school. BS was being encouraged by his mother to
learn a trade of auto mechanics with an adult in the area.

THE INCIDENT
What was supposed to be a day of celebration for the claimants, instead turned into their first experience
with the law. On BS's birthday, 18th January 2014, they were charged for the murder of Dulraj Deodath
(deceased). On that day BS gives no description of the incident in his claim but his sister gives her
impression of the events that took place that day in her claim as follows.

Her brother had visited the home of the deceased several times before to pursue his interest in the trade of
auto mechanics, on the agreement of his mother. It was customary for SS to go to the home of the deceased
to retrieve her brother. On the evening of 18th January 2014, she had again gone to bring her brother
home. However her brother was not yet ready to leave. He was in the gallery of the home of the deceased
along with another man, with whom they are jointly charged for the deceased's murder. Both the deceased
and the other man were consuming beverages. SS recounts that she was asked by the deceased to have her
brother stay a while longer. She obliged. While awaiting her brother a second man arrived at the home of
the deceased. SS recalls that an argument between this man and the deceased quickly escalated to the point
that the deceased went inside and retrieved a cutlass. A fight ensued. Unsure of what was happening, SS
deposes that she remained outside while the men, the deceased and her brother all went inside the house.
Shortly thereafter she and her brother were ordered by the men into the vehicle of the deceased where they
were first taken to the home of a relative of the second man and then to their own home. Hours later she
learned of the death of the deceased when police officers showed up at her home to arrest her and her
brother for the murder of the deceased.

On Wednesday 29th January 2014, the claimants both appeared before the Magistrate where she was
remanded to the Women's Adult Prison and BS to the YTC, both located at Golden Grove, Arouca. The
preliminary enquiry is still before the Magistrate. The relevant suite of Children's Legislation came into
effect while both juveniles were being detained during the currency of their criminal proceedings on 18th
May 2015. Subsequently, in July 2015 after another hearing at the Magistrates' Court she was again
remanded to the Women's Prison and BS to YTC. [She stated when first remanded that “I was extremely
afraid of what was going to happen to me. I have never been charged with any offence before and this was
the first time that I was experiencing anything of this nature] SS remained in prison as a child from 29th
January 2014 to 8th December 2015 and BS remained in YTC from 29th January 2014 to 14th April 2016.
[BS's remand warrant read St. Michael's/ YTC with “St. Michael's” deleted from the warrant by a Justice
of the Peace]

BS'S DETENTION AT YTC

At the YTC BS's mother visited him periodically. She deposed as to his conditions under which he was
incarcerated. On 14th August 2015 he expressed his frustration to his mother who stated:

“He needs to come out from where he is because YTC is a hell hole. He said you
don't know what it is like in there and he is feeling helpless. He says that
conditions that he is being subjected to are getting worse every day.”
He complained about being bullied by bigger boys who steal his food and threaten to beat him up. BS is
very small in size and he was beaten up at least three times by bigger boys. His mother's complaint to
unknown officers was met with the remark “them is boys”. He was asked by an older boy to bring a cell
phone for him. The boy is in his 20s and bigger than BS. His mother observed that “BS is not focused and
every time I ask him if any of the boys try to interfere with him sexually he gets very quiet and is afraid to
talk”.
There are no medical reports nor corroborating evidence. The failure to follow any pre action protocols in
this matter meant that this litigation was launched by the claimant's attorneys without seeking or obtaining
any relevant documentation in relation to BS's incarceration.

Mr. Elvin Scanterbury, the Acting Superintendent of Prisons at the YTC deposed that BS was first placed
in a dormitory and exposed to educational programmes at the YTC. He was enrolled in school in the
Adolescent Development Programme and the Life Skills Programme from September 2014 to March 2015
and was successful. He also completed a 4 day Mind Power Programme in May 2015 and obtained a
certificate of achievement. BS also completed the Introductory Level Craft Training in wood burning craft
hosted by the Expo Centre Company Limited in July to August 2015. BS participated in training in
Agriculture. He also participated in recreational activities of football, cricket and table tennis, music, trade
and several development activities internally and externally. He further participated in interpersonal skills
training via the Adolescent Development Programme and the Life Skills Programme. He was visited by his
mother on more than ten occasions. Mr. Scanterbury received no complaints of ill treatment of BS. He said
the officers would look out for him because of his “small size”. [I met this child in Chambers together with
attorneys for the parties. He was a demure boy frail but well-spoken and respectful. He was under the
watchful eye of a sentry officer. When asked what he would like to become he told me a soldier]

The Permanent Secretary in the Ministry of Social Development and Family Services. Ms. J. Boodram,
deposed to the efforts made by the Government to comply with the legislation and to make provision for
Community Residences. While a decision was taken to construct new rehabilitation centres in Wallerfield,
a decision was taken in 18th June 2015 (prior to the order of remand under challenge in this case) to utilize
St. Michael's to accommodate male children on remand. No decision was taken for the temporary
accommodation of young girls on remand. No reason was advanced for not taking any such decision.
There was no decision taken to use YTC as a temporary “rehabilitation centre”. A transition team was
established to work with the Children's Authority to address the deficiencies noted at St Michael's. The
Ministry is also looking at other facilities to refurbish and utilize as rehabilitation centres subject to the
approval of the Children's Authority. The respondents submitted that based on Ms. Boodram's evidence,
the Government could not be accused of acting in bad faith or dragging its feet. Similar evidence was also
given in response to the claim made by SS. 64. According to the Chief Magistrate, BS was remanded to
“St Michael's-YTC”. After 18th May 2015 when she exercised her power under section 54, the Chief
Magistrate stated she knew that Community Residences had not yet been created and that at YTC there is a
separate holding facility for St. Michael's residents. She was not aware of any other holding facility in the
country for children and remanding him to St. Michael's at YTC was the best option available to the Court
at the time. No objection was made by those attorneys representing BS at the criminal proceedings. Similar
sentiments of remanding SS to prison as the best option were expressed by the Chief Magistrate in the
claim of SS as in her view there were no suitable Community Residences for girls.

BS remained detained at YTC 2 years [29th January 2014 – 14th April 2016] 3 months after his first
appearance at the Magistrates Court and he is yet to be committed to stand trial in the Criminal Assizes. It
is a fact of regrettable notoriety that indictable proceedings may take several years before a date is fixed
for its trial in the criminal assizes.

SS'S DETENTION AT THE WOMEN'S PRISON

SS' detention at the Women's Prison was traumatic. When she first arrived, she was made to undress in the
presence of officers something she said she was unaccustomed to doing. She undressed and was left naked
in front the officers which made her feel “very ashamed to do this but I had to because I was scared”.

Without any assessment of SS's needs or psychological treatment she was placed unceremoniously in an
area of the prison known as the “cell block”. Although she remained there by herself it was not the
bedroom she was accustomed to at her residence in Diego Martin. SS's cell was in close proximity to other
adult inmates who interacted with her. There was nothing to maintain a level of privacy while in her cell.
In this cell also was the first time she interacted with the infamous slop pail in our nation's prisons. It was
not the toilet she had at home. Something as intimate as being able to relieve oneself was now being done
in full view of others. She was horrified by this experience. She tried her best to maintain her dignity and
so she would use the pail either late at night or early in the morning when the other inmates were asleep.
But while they slept she could not. The scent from the slop pail of other cells was nauseating and made
sleep impossible for her. Showering too was also shared with other inmates and done in full view of others.

SS was eventually moved to a juvenile dormitory with four other juvenile inmates who indicated that they
were from St. Jude's Home. There she had access to a toilet and bath, television and a computer. She
interacted with other inmates and attended classes. The courses she attended though were with other adult
prisoners with whom she said she spoke openly to although some of them were on remand and others were
convicted prisoners. She also attended church with both juvenile and adult inmates.

SS's stay at the dormitory also brought with it unscrupulous lessons which she would have been better off
not ‘learning’. She deposes that she would be encouraged to commit crimes and told how she could get
away with it. She was ‘taught’ how to smuggle contrabands such as cigarettes, marijuana and cell phones
into the prison without getting caught. It is not the type of education any child should be exposed to. She
has had cause to change her manner of dress as comments by other inmates make her feel uneasy. She is
fearful that she will be raped and which causes her many a sleepless night. Further stories of other inmates
being raped does not assuage these fears. Her interaction with adult prisoners only served to steep her
consciousness in criminality and immorality.

She was then housed in an area known as “X” division where she shared a cell with another inmate. The
division comprises 8 cells, 4 on either side of a corridor and is situated in close proximity to the adult
inmates in the “A” division with only a corridor and a gate separating the two. Her cell is 8 feet wide by 10
feet in length and consists of a double decker bed and a slop pail, very similar to the conditions of the adult
block. In fact she states that they have the same routine as the adults. She eats, washes her clothes in the
same common area as do the adults. They were all attended to by the same prison officers.

SS's move to X division was not without complications. She tells of a particular incident on 25th June
2015 in which she claims she was beaten by prison officers who insisted that they would “teach her a
lesson for going to Court”. On the day in question, she was placed in an area known as the ‘cell block’
where both juvenile and adult inmates are housed. From her vantage point she could see beatings being
carried out on other inmates, including her cell mate. Her screams at the sight of seeing her cell mate being
beaten, allegedly resulted in her own share of “licks” by about six officers. She was initially denied the
opportunity to be medically examined and even when she was, she was told “nothing wrong with you”.
After the incident, she was asked to write a statement and sign it, which she refused to do. She was
subsequently charged with disobeying officers, creating a nuisance and using obscene language. However
these charges have not yet been determined.

During her stay at X division, SS has not attended any classes save for the first two weeks. She also does
not benefit from any recreational activities. Airing time for her is also limited. She spends the great
majority of her days in her cell. Her overall experience for the past nineteen (19) months at the time of
deposing the affidavit has been described as frightful. She lives in constant fear. In spite of this, she is
trying as best as possible to better herself although she cannot do the same of her situation.

Ms. De Graff is the Acting Assistant Superintendent of Prisons. She deposes that SS came into the prison
on 29th January 2014 and was housed in one of the cells on the cell block. Ms. De Graff gave no account
of how SS was searched upon arrival. SS's cell was located in the same area as the Juvenile dormitory on
the northern side of the Women's Prison. The dormitory is designed for juveniles and there are no adults
housed there. On 3rd July 2015, SS was moved to division X and again there are no adults housed there.
Additionally she is not seen by adults when she makes use of the bathroom and other facilities. Division X
has 8 cells with separate showers and toilet facilities. It is accessed through a riot gate that leads to the
main corridor and this remains locked. Also, there is a guard stationed there. The cell gate to the cells
however remains open. Currently SS stays in cell number 8 which is the furthest cell on the northern side
of the Division. Previously she was housed at cell number 4 which is nearest to the front of the division.
SS was the only other person in X division in a cell of her own, cell no 7. At the time of deposing, she
stated that SS attended classes at the school building under the care of Officer Hernandez. While there, she
is allowed to use the computer, watch movies or any other activity they wish to engage. While at the
dormitory, SS participated in various courses and academic study and also received counselling. She
continues to participate in activities and programmes planned and facilitated for juveniles. Moreover the
claimant is not restricted to her cell as she claims. She is allowed to move about within X division save at
specific times such as during shift changes. Further to this she states that on 10th September 2015 she was
instructed not to allow SS to have any interaction with adults and so she began receiving her meals in her
cell. Otherwise SS is not confined to her cell as she claims. In all instances SS remains under the watchful
eyes of the designated officer. She is not in contact with any adult prisoners.

The affidavit of Nicole Hernandez states, however, that contrary to what has been deposed by SS, she does
not share a cell but rather she shares the division with Sade another juvenile, they being the only 2 persons
currently there. She also states that SS is allowed airing time and is also allowed to participate in activities
such as prison school. They are never left alone or unattended once outside the division. Hernandez escorts
SS and the other juvenile to school followed by lunch after which they are taken back to school until the
end of the school day at 3:00pm. She also allows them airing time and even allows them to engage in
activities of their choice which most times would be to watch movies. Initially when courses such as music
class and balloon art were offered only to the juveniles and conducted on the North Wing area which is
separate from the adult inmates. The instances where juveniles share classes with adults they are closely
monitored. However when the number of juveniles were reduced to two, they started attending the
academic classes with the adult inmates but were supervised in those instances.

The affidavit of Officer Grant reflects on the occurrence which led to the incident at the juvenile dormitory
on 25th June 2015. Grant stated that she had asked Sade, the other juvenile inmate to remove shelving
which was obstructing her clear view of the inside of the dormitory. SS failed to comply with the order.
Instead she retaliated by banging the bed and shaking the gate. The other juveniles joined and this riotous
behaviour continued for some five hours. Grant stated that she had previously observed one juvenile lying
on her bed crying and was later informed by another officer that said juvenile was assaulted by SS who
had flipped her bed and thrown her on the floor. The injured juvenile was subsequently taken away for
medical attention and SS was taken to the cell block opposite the juvenile dormitory, which is located
within the same confines of the North wing.

Officer Garraway in her affidavit tells a different story as to why SS was removed from the dormitory to
the cell block. She states that SS was involved in a fracas with another inmate which resulted in her
transfer. In relation to the riot the Infirmary Officer on duty at the time said that SS at the time of the
incident indicated to her that she had not been a part of the riot when the officer questioned her. The
officer indicated that she reported “nil injuries” next to SS's name and proceeded to move on to the other
juvenile. However, some five hours later SS indicated that her hand was hurting and upon examination the
Officer observed that there was no swelling or discoloration of the area. SS was further examined a week
later by the Prison Doctor who also noted that there was no visible injury.

The Forensic Psychologist, in her interview of SS following the incident noted that “she appeared to be
coping well following the incident.”

Under cross examination the following facts emerge from the State's evidence:

• SS is under the care of several officers and only a few of them testified. They could only testify as to
their own peculiar knowledge of the standards they themselves imposed to supervise SS and would not
be in a position to say if there was a deviation under other officers. There is no official standard
operating procedure in the prison to deal with juveniles. There are no allowances in the prison rules for
 children. If a disciplinary problem arose, it was dealt with depending on the ‘leniency’ of the officer in
charge. It is also noted that SS was “charged” with offences punishable under Prison Rules. There were
no policies in place to reflect the change in the law and the handling of children after the
implementation of the Children's legislation. There is no evidence of special training to deal with
children nor any written or consistent policy addressing their detention attending to their needs. The
response to indiscipline was to remove SS from one location to another or charge her with offences
under Prison Rules. The officers handling of SS depended in the large part to verbal instructions from
superiors and upon their “common sense.” There is no evidence of their training to deal with juveniles.
• There were various instances where SS interacted and associated with adult inmates. SS stated that she
was allowed to interact with adult inmates from time to time while she did her laundry or at church.
Even in the vocational programs she participated in consisted of adults in her classes. Overall Officer
De Graff candidly conceded that adult inmates do come into contact with juveniles as “we can't lock
down the prison”.
• SS's dietary regime is largely that of an adult prisoner. The overall treatment and care provided to SS
was akin to that of an adult prisoner with little to no difference. The classes she attended were designed
for adults. Her routine is also largely similar to the adults with no free access to the toilet or bathroom.
For all intents and purposes SS was treated as a “little adult prisoner”. It is also very likely that she has
further interaction with adults when she is transported to court. The interaction with adult prisoners is
enough to influence SS in the vice of convicted criminals feeding the young mind with criminality.
• She received very little airing out time. Most times she was confined to her cell with the only
interaction with a juvenile being in another cell. In this cell was where her slop pail was located where
she was made to relieve herself. There was an unbearable stench making it difficult for her to sleep at
night.
• There is no individualized attention for SS to cater for her needs. SS informed the court that she did
not receive regular counselling and that there was no psychologist on duty. No assessment has been
done on her mental or psychological well-being or special needs for her rehabilitation.

In my view, she is for all intents and purposes in jail. She is not in a rehabilitation centre.

I am not encouraged by these stories of BS and SS as two youths in our criminal justice system. The
respective stories of these children are one of fear, anxiety, shame, anger, frustration and despair. This is
not the story one would expect to hear of children being rehabilitated and who are presumed innocent of
any crime. These stories do not demonstrate that the youths are being removed from a criminogenic setting
or are being encouraged, nurtured, protected and loved. Quite the opposite they were in an environment
that bred criminality in the case of SS, or exposed their vulnerability in the case of BS. It is the type of
environment which may develop criminals of young children by failing to provide systems to support
deficiencies in their development and behaviour.

If these places were truly a Community Residence under the new suite of Children's legislation designed to
protect and nurture children, prevent recidivism and truly reform those in trouble with the law, I would
have expected the evidence of trained psychologists, child behavioural experts or those who are trained in
the care of vulnerable young people. Instead the evidence given to the Court was from prison officers
trained in a “paramilitary organization”.

SUBMISSIONS:
I am grateful to all Senior Counsel [As well as their supporting legal term] for their very thorough
presentations in this matter and the assistance afforded to the Court. I mean no disrespect to them in briefly
summing up the main points of their submissions. Senior Counsel for the claimant emphasized the
“unpainted canvas” of the fundamental rights of life, liberty, security. He underscored the revolutionary
effect of the suite of Children's legislation and the international conventions ratified by this jurisdiction
which deal with the rights of the child. On the facts, he contends that the respondents all accept that the
children are in the wrong place. The YTC and the Prison are not Community Residences if one is to give
effect to the intention of Parliament and the definitions of the terms ‘children's home’, ‘Community
Residence’ and ‘rehabilitation centre’. The Magistrate had no power to remand the claimant to YTC as it
did not fall within the ambit of the powers conferred to her by section 6 of the Summary Courts Act.
Further she did not act in accordance to section 54 of the Children's Act and thus her orders ought not to
stand.

On the issue as to whether there has been a breach of the claimants constitutional rights and freedoms
under section 4(a), 4(b), 5(2)(b) and 5(2)(f)(i), it is submitted that any deprivation of the claimants liberty
that was not in accordance with what is required by law amounts to a breach of their rights. Moreover the
detention of BS at the YTC amounts to a breach of “due process” as he was deprived of the protection of
the Children's Act. The fact that he is being detained in an institution for convicted persons without being
convicted amounts to cruel and unusual punishment and a breach of this right under the Constitution.
Essentially the failure of the State to provide a licensed Community Residence to house him pending the
hearing and determination of the preliminary inquiry against him would in itself suffice as a breach of his
constitutional rights and the protection afforded to him under the Children's Act.

Senior Counsel for the Chief Magistrate accepted that SS was remanded to an adult prison which is not a
Community Residence but that BS is indeed at a Community Residence as the YTC falls within the ambit
of section 54 of the Children's Act. He fully accepted the effect of the legislation in aligning it with the
State's international obligations under international instruments executed for the benefit of children.
However this does not take away from the force of his argument that not every law that is passed by
Parliament gives rise to constitutional rights. Further there has been no challenge to the Magistrate's
legitimate refusal to deny bail nor to the decision to arrest and charge the children for criminal offences.
There can therefore be no legitimate complaint against the Chief Magistrate's warrant as there were no
suitable Community Residences and there is a statutory command to commit the persons who are denied
bail to prison pursuant to section 29(1) of the Indictable Offences Act. The YTC is recognized as a place
young people are sent for safe custody since 1949. It is further submitted that Parliament could not have
intended that an order that a child be remanded to a place which is not a Community Residence be invalid
because of inconsistency with sections 54 and 60 when it is not possible to comply with those sections,
thereby frustrating the intention of Parliament. On the face of it sections 54 and 60 cannot be complied
with. This however in no way means that it was intended that once those sections could not be satisfied,
any ensuing order remanding them to a safe place would be invalid. Therefore it is submitted that the
orders to remand SS and BS to the Women's Prison and YTC respectively are valid.

Senior Counsel for the Commissioner of Prisons and the Attorney General submitted that there has been no
breach as there is no duty placed on the State for establishing Community Residences. It was further
submitted that there has been neither deprivation of her liberty without due process nor breach of
protection of the law and moreover, the claimants had been remanded to a facility that meets the criteria of
a Community Residence. This respondent relies on the concept of protection of the law as referring to the
right to access to the Court to declare any act infringing one's rights illegal, which has not been denied in
this case. See Attorney General and anor v. McLeod [1984] 32 WIR 450 (PC), Chaitan v. the Attorney
General [2001] 63 WIR 244, Boodhoo v. the Attorney General [2004] 664 WIR 370 (PC) and Seepersad
and Panchoo v. the Attorney General [2012] UKPC 4. Access to the court to declare that their detention is
unlawful sufficiently preserves their constitutional right to protection of the law under section 4(b). Their
claims that there has been a breach of their rights by way of cruel and unusual treatment is unmeritorious.
BS has been the recipient of academic training, vocational programs, recreational activity and
psychological counselling. The case of Thomas v. Baptiste [1998] 54 WIR 387 (PC) demonstrates that
both children have not been subjected to cruel and unusual treatment or punishment as they have not been
treated in an inhumane or degrading fashion. It was further submitted that there is no evidence to support a
claim that the claimants right to “presumption of innocence” has been breached.

In any event the respondents contended that no award of damages should follow. All relief under
constitutional motions are discretionary and there is no constitutional right to damages. It is for the court to
determine the appropriate remedy. This was also the point made by the Privy Council in Daniel v. the
Attorney General [2011] 80 WIR 456 (PC) and in James v. the Attorney General (2010) 78 WIR 443 (PC),
where it was stated “to treat entitlement to monetary compensation as automatic where violation of a
constitutional right has occurred would undermine the discretion that is invested in the court by section 14
of the Constitution.”

It was submitted that the claimants are being properly cared for and rehabilitated at the facility. There is no
evidence that they have suffered any loss. The declarations sought should be refused especially in light of
the fact that there has been no Pre-Action Protocol letter served in these proceedings. Furthermore the
State is also in the process of taking the relevant steps to fill the void created by the unavailability of any
existing Community Residences.

It was further submitted that if the Court is minded to reject the submissions of the State, then only
nominal damages ought to be awarded having regard to the fact that it is not in dispute that as at the date of
the proclamation of the Act there were no licensed Community Residences available to house the claimant
and further a reasonable time frame should be allowed within which such residences could be approved
and licensed as the State has assiduously been working towards the same.

THE CHILD IN THE EYES OF THE LAW

“We all live in time and the passing of time affects our juridical condition” [Per President Cancado
Trindade Inter-American Court of Human Rights. Advisory Opinion OC-17/2002 of August 28, 2002,
requested by the Inter-American Commission on Human Rights. Juridical Condition and Human Rights of
the Child (Advisory Opinion 2002).]. Were we under 19th century law there would be no discussion about
BS and SS. They being over the age of 14 years they are no longer seen as children. Travelling further
back in time, children of the tender age of 5 were hanged for crimes. Were we yet earlier on the “newly
discovered” colonies of Europe or the sugar plantations of the Caribbean where despite the existence of
human rights, slaves let alone children of slaves, were not seen as human. The law has been changing over
time in its perception of the child as indeed our basic humanity. It was John Stuart Mills in 1859 for
instance who argued that the liberty principle applied “only to human beings in the maturity of their
faculties and disqualified from its exercise “children and young persons below that age which the law may
fix as that of manhood or womanhood”. Lucky for the slaves but not so lucky for children.

There is no dispute in this case that the child is deserving of special attention by reason of his physical and
mental immaturity. This proposition by Senior Counsel for BS and SS was not resisted by the defendants.
Children generally and more so those in conflict with the law, are a vulnerable group. In R Epstein's article
“Is prison any place for a child” she commented that those children in trouble with the law usually have
backgrounds marked by deprivation, loss and bereavement, lack of stability and lack of care. “Their
education has frequently been disrupted typically they have poor education attainments with levels of
numeracy and literacy well below the norm and they often have special educational needs which have not
been met”. This is indeed an apt description of the social and educational background of both SS and BS.
Such children are in need of care. Their offending should be viewed not as acts of defiance calling for
punishment, but as a problem to be solved. (Epstein). Such literature and the modern academic discourse
on the treatment of children and young offenders call for a radical shift in approach to treating young
offenders to end the cycle of violence by demonstrating love and understanding. It is a shift which calls for
an approach which does not criminalize the act of the young offender. A shift from punishment to care.

This approach of course does not take away the pain and suffering caused to the victim but it calls for a
more purposive approach to understand the cause for juvenile crime and to prevent the child developing
into an adult more steeped in criminality with no understanding of the acceptable principles of conduct in a
civilized society. The increasing criminalization of children in trouble with the law has been seen as a
source of reoffending.

In ‘Is prison any place for a child’ R Epstein's explains:

 “There are some developments of which we really should be ashamed-in
particular aspects of the way we lock up children, the demonization of young
people involved in anti-social behaviour and the coarsening of the political and
public debate about how to deal with young people in trouble. The key principle
in dealing with children in conflict with the law should be to assist them to grow
up into well-adjusted and law abiding adults. The essential outcomes for children
pursued by the department for Education and Skills being healthy, staying safe,
enjoying and achieving, making a contribution and achieving economic wellbeing
provide a far more appropriate framework for organizing services than does the
overarching aim of the Home Office which is public protection.”
The approach to child offenders is an emphasis on resolving their health, education and family difficulties
which lie behind much offending. “A shift from punishment to problem solving would move us toward a
society that is both safer and fairer”.

Several judgments both locally and internationally have recognized the limited culpability of the child and
the vulnerability of the child and hence, as argued by the claimants, the wisdom of protecting children
against the full rigor of the law. In C (A minor) v. DPP [1991] 1 A.C. (09) the Law Lords engaged in a
heated debate on the moral culpability of children in the context of the presumption in the common law of
doli incapax. The dissenting judgments do betray the view that children found guilty of heinous crimes are
to be treated severely and not be regarded less favourably because of their age. Young people in a modern
society are particularly vicious and no respite should be afforded to them. It was a traditional view of
“don't spare the rod”. However the majority view held sway that the child in law is not morally responsible
for the acts that they have committed unless proven otherwise. Referring to Harper J's, judgment in R v.
Whitty [ (1993) 66 Crim R 462] Lord Lowry commented that no civilized society regards children
accountable for their actions to the same extent as adults. The wisdom of protecting young children against
the full rigor of the criminal law is beyond argument. The difficulty lies in determining when and under
what circumstances that protection should be removed.

Lord Lowry makes the distinction between treatment and punishment of the child and recognizes that it
has political overtones and it is a social problem “with a dash of politics thrown in”. Importantly it is
within the remit of Parliament to determine the distinction. In this case Parliament by introducing
Community Residences into the child offenders' landscape deliberately took the course of treatment over
punishment in the Children's legislation and subscribed to the majority view of the inherent vulnerability
of children and their need for protection.

Roper v. Simmons 543 U.S. 551 (2005) deserves special mention as an authority which examined the
clinical studies of a child's development and crystallized the law with respect to the need to treat the child
differently as a result of his or her vulnerability.

Roper's judicial treatment of the child provides the legal springboard for appreciating the rights of the
child. The majority of the Supreme Court explained the value judgment that must be made in a developing
society on the penology for child offenders. Simmons at the age of 17 in junior high committed a heinous
act of murder. It was a chilling and callous act where he, together with another teenager, used duct tape to
cover the victims eyes and mouth, bound her hands, drove her to a state park, covered her head with a
towel, tied her hands and feet with electrical wire, wrapped her whole face in duct tape and threw her from
a bridge drowning her in the waters below. Her husband returning from an overnight trip reported his wife
missing. She was found by some fisherman later that afternoon. Simmons bragged he killed the woman
“because the bitch seen my face”. He was sentenced to death but the sentence was quashed by the Court
which held such a sentence unconstitutional as being cruel and unusual punishment for a child. The three
differences identified by the Supreme Court between the juvenile offender and adult deserves repeating:

“First, as any parent knows and as the scientific and sociological studies
respondent and his amici cite tend to confirm, “[a] lack of maturity and an
 underdeveloped sense of responsibility are found in youth more often than in
adults and are more understandable among the young. These qualities often result
in impetuous and ill-considered actions and decisions.” Johnson, supra, at 367;
see also Eddings, supra, at 115–116 (“Even the normal 16-year-old customarily
lacks the maturity of an adult”). It has been noted that “adolescents are
overrepresented statistically in virtually every category of reckless behaviour.”
Arnett, Reckless Behaviour in Adolescence: A Developmental Perspective, 12
Developmental Review 339 (1992). In recognition of the comparative immaturity
and irresponsibility of juveniles, almost every State prohibits those under 18 years
of age from voting, serving on juries, or marrying without parental consent. See
Appendixes B–D, infra.

The second area of difference is that juveniles are more vulnerable or susceptible
to negative influences and outside pressures, including peer pressure. Eddings,
supra, at 115 (“Youth is more than a chronological fact. It is a time and condition
of life when a person may be most susceptible to influence and to psychological
damage”). This is explained in part by the prevailing circumstance that juveniles
have less control, or less experience with control, over their own environment.
See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental
Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychologist 1009, 1014 (2003) (hereinafter Steinberg & Scott) (“[A]s legal
minors, [juveniles] lack the freedom that adults have to extricate themselves from
a criminogenic setting”).

The third broad difference is that the character of a juvenile is not as well formed
as that of an adult. The personality traits of juveniles are more transitory, less
fixed. See generally E. Erikson, Identity: Youth and Crisis (1968).

These differences render suspect any conclusion that a juvenile falls among the
worst offenders. The susceptibility of juveniles to immature and irresponsible
behaviour means “their irresponsible conduct is not as morally reprehensible as
that of an adult.” Thompson, supra, at 835 (plurality opinion). Their own
vulnerability and comparative lack of control over their immediate surroundings
mean juveniles have a greater claim than adults to be forgiven for failing to
escape negative influences in their whole environment. See Stanford, 492 U. S., at
395 (Brennan, J., dissenting). The reality that juveniles still struggle to define
their identity means it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably depraved character. From a
moral standpoint it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor's character
deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating
factor derives from the fact that the signature qualities of youth are transient; as
individuals mature, the impetuousness and recklessness that may dominate in
younger years can subside.” Johnson, supra, at 368; see also Steinberg & Scott
1014 (“For most teens, [risky or antisocial] behaviours are fleeting; they cease
with maturity as individual identity becomes settled. Only a relatively small
proportion of adolescents who experiment in risky or illegal activities develop
entrenched patterns of problem behaviour that persist into adulthood”).”
Roper therefore makes the following important contributions to the analysis of the rights of the child (a) In
that case the court made a value judgment on what constituted cruel and unusual punishment by the
evolving standards of decency of society. (b) That there are fundamental differences between an adult and
a juvenile which calls for special treatment for the juvenile. (c) Retribution and deterrence serves very little
purposes in relation to children. (d) Regardless of the heinous nature of the crime the child offender's
transient immaturity makes it difficult for traditional forms of punishment to have any meaningful result.
(e) The judges made a value judgment of what they viewed to be the “national consensus” on the treatment
of young offenders based on their own sensibility as well as reflecting on international norms. (f) Use was
made by the justices of international norms under the UNCRC even though that treaty has not been ratified
by the US.

As a postscript to that judgment one should note the powerful dissenting voice of Justice Scalia criticizing
the majority's decision to reach for international norms to decipher what is the national consensus on the
rights of children and their moral culpability. Even though he agreed that the Court is engaged in defining
human rights and their sense of the national consensus of human rights, he chided the lower courts for their
display of value judgments which departed from settled law and precedent. It was in his view “to crown
arbitrariness with chaos”.

On the other end of the spectrum from Justice Scalia's censure of the discerning of national consensus by
the judge “putting up his or her hand”, Baroness Hale herself has in her judgments eloquently championed
the rights of the child, even in cases where it was unnecessary to do so in order to dispose of the particular
appeals. Baroness Hale innovatively used ratified but unincorporated international treaties to give force to
the argument of the rights of the child.

Commenting on Roper, Baroness Hale seized the opportunity in R (Smith) v. Secretary of State for the
Home Department (2006) 1 A.C. 159 to add her own “footnote” on the reasons why it is right to treat
juvenile offenders differently from adults. The case dealt with the need to have sentences for juveniles
subject to continuing review. With Baroness Hale's analysis however the implication that the sentence is
subject to review was important to protect the child and seek the welfare of the child. Commenting on
Roper's analysis of the differences between juveniles and adults, Baroness Hale deduced that a juvenile's
irresponsible conduct was not as morally reprehensible as that of an adult, that juveniles have a greater
claim to be forgiven for failing to escape the negative influences around them and even the most heinous
crime is not necessarily evidence of an irretrievable depraved character. She pointed out that the legitimate
aims of sentencing for juveniles would be to promote the process of maturation, the development of a
sense of responsibility and the growth of a healthy adult personality and identity. Adopting this approach
the protection of the child was anomalous with the rule of law.

“It is important to the welfare of any young person that his need to develop into
fully functioning law abiding and responsible member of society is properly met.
But that is also important for the community as a whole, for the community will
pay the price, either of indefinite detention or of further offending, if it is not
done.”
She also advocated for the recognition of the rights of what she coined as the “child citizen” in Nadikie
and others v. AG of T&T (2004) UKPC 49. Had it not been for the intervention of Baroness Hale in these
judgments the articulation of the right of the child would not have been judicially crafted. They would
continue to be “invisible rights” [See Judging the Judges: Are they adopting the Rights Approach in
Matters involving Children? J Tobin, 33 Melb U L Rev 579 and Conceptualizing the child through an
“ethic of care” lessons for family law. F Kelly Int. J L C 2006 1 (4) 375] in the resolution of issues that
involved them and children in legal decision making would have continued to be “seen not heard” [See
also speeches of Baroness Hale “Who's afraid of Children's Rights” Welsh Observatory on The Human
Rights of Children and Young People 2013.]. Other cases that dealt with the recognition of the
vulnerability of the child include R v. Secretary of State for Home Department ex parte Thompson and
Venables [1998] AC 407 and T and V v. the United Kingdom (Application number 24888/94) implying
the right to continuous review of a sentence was as an intrinsic feature of the criminal justice system for
children [“A different policy was to be adopted towards child or young offenders from that adopted
towards adults. Protection and welfare lie at the heart of these provisions. Regard must be had throughout
to the welfare of the child or young offender.” Per Lord Hope in Seepersad and Panchoo v. AG [2012]
UKPC 4]. See also Chuck Attin v the State (2005) 67 WIR 276 and Seepersad and Panchoo v. AG [2012]
UKPC 4. There is a sound legal basis therefore to recognize the child as a special class of person deserving
of protection. See also Accepting that Children are not Miniature Adults: A Comparative Analysis of
Recent Youth Criminal Justice Development in Canada and the United States: Canadian Criminal Law
Review 19 Can Crim. L. Rev. 95 and Graham v. Florida 560 U.S 48 (2010).

THE EMERGING VIEW OF THE “HUMAN RIGHTS” OF THE CHILD

Human rights inure in every human being by virtue of being a member of the human family, in the wide
sense [Human Rights and Social Justice, Dr. Justice A Pasayat, World of All Human Rights, S Sorajbee].
Human rights are based on mankind's increasing demands for decent civilized life in which the inherent
dignity of each human being is well respected and protected. Jose W Diokno an eminent Philippine jurist
observed:

“No cause is more worthy than the cause of human rights. Human rights are more
than legal concepts they are the essence of man. They are what makes man
human. That is why they are called human rights. Deny them and you deny man's
humanity” [Mainland, Priscila S Ed (1987) A Nation for Our Children: Selected
Writing of Jose W. Diokno Foundation.].
The incarcerated child like any other detainee does not lose his or her human rights at the prison door. See
Raymond v Honey [1983] 1 AC. Marvin Scott v. Commissioner of Prisons. CA 135 of 2015.

The declared fundamental rights of our Constitution are cast in general terms. There is no specific right of
the child expressly provided for in the Constitution. However whereas our Constitution does not expressly
recognize a fundamental right of the child as in other commonwealth constitutions our fundamental
freedom and rights are broad enough to interrogate the concepts of “due process” rights, protection of the
law and cruel and unusual punishment when it comes to a special and vulnerable constituent in the family:
the child.

The UNCRC can be interpreted as having elevated the rights of the child to a fundamental right or simply
underscored a pre-existing right which were already recognized by the framers of our Constitution. So that
slaves did not suddenly become human, women did not suddenly become “persons”, it is an evolving
articulation of our sense of humanity previously ignored at the expense of our claim to being enlightened
humans.

The UNCRC is the first international instrument to incorporate the full range of human rights: civil,
cultural, economic, political and social rights for the child. There is no gainsaying that the Convention
galvanized the global community to change the way in which children are viewed and treated as humans as
a distinct set of rights holders and not passive objects of care and charity or persons whose rights were
subsumed into adults. It sparked a new generation of social awareness of the rights of the child.

Cynically, as some commentators have done, one may view the development of international human rights
by the developed countries as the proverbial “do as I say…” in the context of the harsh realities of human
rights violations by these very same developed countries [See Human Rights Debate, Need for Some Fresh
Approaches, Dr. S C Kaashyap, (World of All Human Rights S Sorajbee)]. The indignity of slavery or of
genocide side by side with an exposition of human rights is perhaps not so much a cause for cynicism but
recognition of an evolving sense of humanity. Eugene Kamenka in The Rights of Peoples [Human Rights,
Peoples' Rights, E Kamena. The Rights of Peoples (1998) p 127.] commented that rights are claims
requiring a special endorsement of successive legal rights by a legal system and human rights by
widespread endorsement of an international order. Human rights have a historical and social context and
an assertion of human aspiration and view of self:

“All rights arise in specific historical circumstances. They are claims made,
conceded or granted by people who are themselves historically and socially
 shaped. They are asserted by people on their own behalf or as perceived and
endorsed implications of specific historical traditions, institutions and
arrangements or of a historically conditioned theory of human needs and human
aspirations, or of a human conception of a Divine plan and purpose. In objective
fact as opposed to (some) subjective feeling, they are neither eternal nor
inalienable neither prior to society or societies nor independent of them. Some
such rights can be singled out, and they often are singled out, as social ideals, as
goals to strive towards. But even as such, they cannot be divorced from social
content and context.

The concept of human rights is no longer tied to belief in God or natural law in its
classical sense. But it still seeks or claims a form of endorsement that transcends
or pretends to transcend specific historical institutions and traditions, legal
systems, governments, or national and even regional communities. Like moral
claims more generally, it asserts in its own behalf moral and sometimes even
logical priority - connection with the very concept (treated as morally loaded) of
what it means to be a human being or person, or of what it means to behave
morally.”
Norberto Bobbio in The Age of Rights (1996) [The Age of Rights (Trans Allan Cameron) (1996).] saw
human rights as historical rights and arise from specific conditions characterized by the embattled defence
of new freedoms against old powers:

“The expression rights of man is certain emphatic, and even if that emphasis is
expedient it can be misleading because it implies that there are rights belonging to
an abstract man and thus removed from the historical context, and that by
contemplating this essential and eternal man we can arrive at the certain
knowledge of his rights and duties. Today we know that the so-called human
rights are the product of human civilization and not nature, because historical
rights are changeable and therefore susceptible to transformation and growth. It is
sufficient to look at the writings of the early advocates of natural law to realize
how the list of rights has been getting longer and longer. Indeed Hobbes only
recognized one right, the right to life…. If someone had told Locke, the champion
of the rights to liberty, that all citizens should have the right to participate in
politics, or even worse that they had the right to paid employment, he would have
called it madness.”
The concept of rights is therefore an evolving one. Our rich constitutional history has demonstrated how
our constitutional thought and perception of human rights is changing and evolving contextually and
historically. In Francis and Hinds v. The State CA Crim. No. 5 and 6 of 2010 the minority judgments of
Chief Justice Ivor Archie and Justice of Appeal P. Jamadar wonderfully set out an exposé of the tension
and balance of the fundamental rights, the embattled defence of new freedoms by the framers of the
Constitution set against our history and struggle with the colonial powers, the search for the guarantee of
human rights and the dilemma of casting the right in such terms as not to constrict the court's interpretation
of them.

It is Kofi Annan who would comment on human rights:

“Human rights are as fundamental to the poor as to the rich and their protection is
as important to the security and prosperity of the developed world as it is to that
of the developing world. It would be a mistake to treat human rights as though
they were a trade-off to be made between human rights and such goals as security
or development.” [“Young people should be at the forefront of global change and
innovation, empowered they can be key agents for development and peace. If
however they are left on societies margins all of us will be impoverished. Let us
 ensure that all young people have every opportunity to participate fully in the
lives of their societies”]

THE UTILITY OF INTERNATIONAL LAW AND NORMS IN INTERPRETING CHILDREN'S

RIGHTS
What should be made of developing norms, concepts and beliefs subscribed to by a community of nations?
The dualist nature of our legal system was underscored by the Bangalore Principles [The Bangalore
Principles of Judicial Conduct (UN Resolution ESOSOC 2006/23).]. International treaties form no part of
domestic law unless they have been specifically incorporated by the legislature. In order to be binding in
municipal law, the terms of a treaty must be enacted by the local Parliament. Ratification of a treaty cannot
ipso facto add to or amend the Constitution and laws of a State because that is a function reserved strictly
for the domestic Parliament. Treaty-making on the other hand is a power that lies in the hands of the
Executive.

However in the Courts of Australia, New Zealand and England and lately in the Caribbean there is a clear
acceptance of the influence of international norms on our perception of human rights and thereby
incorporating international norms into the cultural social and legal shape of rights and our common law.
One must be cognizant of the criticism of such an approach unnecessarily superimposing the Executive
over the Legislature, an undermining of the constitutional distribution of powers, the impermissible
importation of foreign values and beliefs, the restriction of the development of human rights along a body
of law with popular sentiment and endorsement, the cynicisms of the developed world re-colonizing others
with its perception of rights and the temptation of judicial creativity undermining the primacy of
democratic law by making those organs directly accountable to the people [Kirby J “Domestic
Implementation of Human Rights Norms”. Austin J Human Rights 10 (1999) at 119.]. These criticisms I
accept must temper a Court's approach to international norms with a degree of caution. However an even
stronger case has been made out for the infusing, as it were, of international norms in local conditions
where those norms to which the Executive has subscribed are reflected in the policies of enacted
legislation or which do not violate acceptable principles of law or value judgments on human rights but
which in fact complement and gives force to fundamental perceptions of human rights.

Significantly in Minister of State for Immigration and Ethnic Affairs v. Teoh (1995) 3 LRC 1 Mason CJ
and Deane J commented:

“It is well established that the provisions of an international treaty to which

Australia is a party do not form part of Australian law unless those provisions
have been validly incorporated into our municipal law by statute.

But the fact that the Convention has not been incorporated into Australian law
does not mean that its ratification holds no significance for Australian law. ….

Apart from influencing the construction of a statute or subordinate legislation, an

international convention may play a part in the development by the courts of the
common law. The provisions of an international convention to which Australia is
a party, especially one which declares universal fundamental rights, may be used
by the courts as a legitimate guide in developing the common law. But the courts
should act in this fashion with due circumspection when the Parliament itself has
not seen fit to incorporate the provisions of a convention into our domestic law.
Judicial development of the common law must not be seen as a backdoor means
of importing an unincorporated convention into Australian law.”
Teoh has been extensively dealt with in this jurisdiction. However the theory of legitimate expectations
created by the governments' ratification of a treaty is in fact a codification of such a backdoor implication
of international norms and rights into our common law. To regard a legitimate expectation requiring the
decision maker to act in a particular way is tantamount to treating it as a rule of law. McHugh J of course
strongly disagreed with such backdoor incorporation as a violation of the separation of powers. In England
in Behluli v. Secretary of State (1998) Imm AR 407, the Court of Appeal expressly declined to follow
Teoh. In Occidental Exploration v. Republic of Ecuador [2005] EWCA Civ. 116 Mance LJ recognized that
domestic legal persons were able to derive rights from bilateral treaties as it was clear on the construction
of the treaty that it was intended to confer free standing rights on investors. The mere fact that the treaty
was a freestanding agreement between the states did not preclude domestic legal persons from deriving
rights from them. Once it is accepted that individuals can derive rights from treaties it is a matter for the
courts on a case by case basis to decide whether it merely confers inter-state rights or a binding declaration
to the world at large that confers rights on individuals in domestic courts.

Michael P. Van Alstine in the Role of Domestic Courts in Treaty Enforcement [Treaty Enforcement, A
Comparative Study, D Sloss (2009) p 608] observed that in a comparative analysis of five traditional
dualist states including England, Canada and India there is the remarkable concurrence of domestic courts
according broad influence to treaties that have not been implemented in domestic law. He noted:
“Interestingly the notion of quasi incorporation parallel developments in other traditional dualist states
examined above. Prominent among these is the jurisprudence of the Supreme Court of Canada on “implied
incorporation” by which a fully unincorporated treaty may obtain domestic law effect through
parliamentary inaction on realized legislation. In the same vein is the possibility recognized in the United
Kingdom report that implied treaty rights may arise by interpretative deduction even where the legislation
does not expressly refer to the treaty.” These were powerful sentiments expressed on the impact of
international norms on domestic values [See also protecting the Rights of the Girl Child in Commonwealth
Jurisdictions, Dr. Bart Rwezaura, Hong Kong Judicial Colloquium on Women's Rights May 1996].

THE INTERSECTION OF MONISM AND DUALISM

In our jurisdiction we have recently subscribed to the view that international norms shape our perception of
rights. Therefore such human rights as recognized by a body of the international community and ratified
by our State may by a process of “osmosis” infect our local perception of rights and give rise to legally
enforceable rights. Of course one should recall Justice Scalia's abhorrence of reaching to international
norms in Roper. But even so, his colleagues were quite comfortable to reach for international norms
reflected in international treaties in the absence of the ratification by the State. So much for the dualist and
monistic theories.

In The Attorney General and Anor. v. Lennox Ricardo Boyce 2006 CCJ 1 (AJ) the CCJ classically entered
the fray of the dualist tradition and espoused a full recognition of the growing body of international human
rights. Former CJ M. de la Bastide explained that following the dualist tradition does not mean that
domestic courts are to have absolutely no regard for ratified but unincorporated treaties. The Court will
presume that the local Parliament intended to legislate in conformity with such a treaty where there is
ambiguity or uncertainty in subsequent legislation.

After reviewing the authorities the CCJ concluded that this branch of the law is unsettled and evolving
with strong divergence of view and opinions.

“The range is from the very assertive activist positions of the Indian Supreme
Court to the more conservative approach of the House of Lords.

The differences reflect in part a variety of responses to underlying changes that

have been taking place in the manner in which treaties, and human rights treaties
in particular, are drawn. These changes affect the reach of such treaties and the
entities that are accorded rights under them. Traditionally, individual citizens
derived no entitlement under treaties concluded between States. Such instruments
imposed obligations and conferred benefits upon States. The subject-matter of the
treaties was not intimately bound up with rights of human beings now regarded as
fundamental and inalienable.
 In the last sixty or so years, however, it has become quite common for treaties to
grant to individual human beings “rights” directly enforceable by them with the
result that, far from being passive subjects, individuals can now become active
players on the international plane pursuant to treaties entered into by their
Governments. These treaties contain provisions that are legally complete under
international law. They provide the process by which individuals may enforce the
rights conferred by them and no refinement is required by a State Party in order
for nationals to take advantage of such provisions. Pursuant to the ACHR for
example, without formal incorporation by Parliament, individual citizens may
initiate proceedings and obtain relief from an international body.

Development has been accompanied by the promotion of universal standards of

human rights, accepted both at the domestic and on the international level.
Citizens are now at liberty to press for the observance of these rights at both
levels. At the domestic level, the jurisprudence of international bodies is fully
considered and applied. In determining the content of a municipal right, domestic
courts may consider the judgments of international bodies. Likewise, on the
international plane, the judgments of domestic courts assist in informing the
manner in which international law is interpreted and applied. There is therefore
distinct, irreversible tendency towards confluence of domestic and international
jurisprudence.

The Australian decision in Minister of State for Immigration and Ethnic Affairs v.
Teoh appears to have been received and approved throughout the common law
world as an appropriate response to the evolving situation. The view seems to
have emerged that, unless municipal law rules this out, a ratified but
unincorporated treaty can give rise to a legitimate expectation of a procedural
benefit. When a treaty evidences internationally accepted standards to be applied
by administrative authorities in dealing with basic human rights, courts will be
hesitant to regard the relevant terms of the treaty as mere “window-dressing”
capable of being entirely ignored on the domestic plane.” [As per former CJ De
La Bastide in AG v. Boyce at paras 103-107]
The CCJ has laid an important platform with this decision. Unincorporated international treaties that have
been ratified by the State cannot be ignored by the Courts. It can give rise to actionable human rights. The
CCJ rationalized this on the ground of legitimate expectations. However, equally it can be treated as the
acceptance of norms of humans in a global community of humanity. The question which this analysis
throws up, is that too much attention may be placed on sovereignty to deny the individual his right even
though it is internationally recognized by the world as a human right and which has been accepted as such
by the State although unincorporated into local law. How could it then be asked in a contest between the
rights of the individual and the State, that theories such as monism and dualism still have currency which
simply perpetuates the State's denial of human rights, allowing the State to accrue to itself a sense of
arrogance over living souls, freedoms and liberties which are not consonant to our rights as humans? It is
much a reflection of how far we have not moved from some commentator's view of the Magna Carta as a
document signed by the King for purely banal reasons without any intention of observing it, but yet it gave
rise to fundamental rights and liberties much from his outward expression of consent [See the speeches of
Linda Dobbs and Prof Drayton.]. The lesson in the judgments of Judge Oliver Jackman and Judge Antonio
A Cancado-Trindade in Caesar v. Trinidad and Tobago [Inter American Court of Human Rights, March
11th 2005] is a classic example of the global community asking quizzically of the sovereign signatory:
why have you not recognized this human right globally accepted as an inalienable and fundamental right?

“The principle that states should abide in good faith by the terms of treaties into
which they voluntarily enter (pacta sunt servanda) is the bedrock of international
comity in international law. Article 26 of the Vienna Convention on the Law of
 Treaties (“the Vienna Convention”) reads as follows: Every treaty in force is
binding upon the parties to it and must be performed by them in good faith.

It ought to be obvious that good faith compliance is of even greater importance in

the area of international human rights law where what is at stake is not the
impersonal interests of states but the protection of the fundamental rights of
the individual.” [Justice Jackman acknowledged with regret this country's
denunciation of the American Convention to Human Rights but added “Its
contumelious refusal to acknowledge its continuing obligations under a treaty that
remained in force for it when the violations in this case took place represents a
gratuitous attack on the rule of law, all the more astonishing in a State
that…prides itself on its common law traditions where respect for human rights
and for the rule of law are deeply embedded in the legal culture.”] (Emphasis
mine).
Justice Trindade's contribution on this debate of the monists and dualists is illuminating:

“Meanwhile there persisted the old polemics, sterile and pointless, between
monists and dualists erected upon false premises which not surprisingly failed to
contribute to the doctrinal endeavours in favour of the emancipation of the human
being vis a vis his own State. In fact what both dualists and the monist in this
particular was to personify the State as subject of international law. The monist
discarded all anthropoism affirming the international subjectivity of the State by
an analysis of the juridical person and the dualists did not content themselves in
their excesses of characterization of the state as sole subjects of international law.
Ultimately all law exists for the human beings and the law of nations is no
exception to that guarantees to the individual his rights and the respect for his
personality [International Human Rights Court Advisory Opinion on Juridical
Condition and Human Rights of the Child OC 17/2002].”
It is true that the Executive would execute treaties for many reasons but it signals an adoption of a cultural
norm a subscription to a moral code binding in the international arena. It also underscores the importance
of globalization and staking a claim in the continuing debate and world view on international norms and
rights. It is a declared subscription to a vision of humanity which has developed into a groundswell of
acceptance. The CCJ's decision in Lennox Ricardo Boyce is therefore an important step to accepting
international norms established by ratified but unincorporated treaties.

In this case there is even a stronger case to “reach” for international norms in giving life to the rights of the
child. Firstly there is a synergy with the internationally recognized rights of children and our basic rights.
Second, our conception of rights is evolving. Third, there is legislative commitment to the recognition of
the rights of the child in the enactment of the Children's legislation even though there is no express
incorporation of all aspects of the Treaty [The objects of the Children's Authority Act include compliance
with “certain obligations” under the UNCRC. Section 3A] Four, following the Trendtex [Trendtex Trading
Corporation vs Central Bank of Nigeria. AER [1977] 88.] line of cases we have signed on to customary
laws. Finally as a matter of logic and good sense we live in a global community and as we develop in this
global village it is not so much that the international world will dictate to sovereign states impliedly or
explicitly as to how it shall develop its societies without acknowledging its own individual, social and
cultural norms, but it is for these States to ascribe to the good sense of international developments where
appropriate for the fulfilment of our own goals of national development and preservation of human dignity.
Short of expressly incorporating treaties into the body of national law, such indications of ratification give
clear signals to the courts in the interpretation of human rights as to the life that is being breathed into our
norms and democracy with due respect for the dignity of family life and all its members. It serves as a
valuable tool and backcloth for the value judgment our “Constitutional Courts” are called upon to make in
interpreting fundamental human rights [See Winston Anderson speech: The Role of the CCJ in human
rights adjudication – international treats law dimension – 14/3/11 Justice W. Anderson].
THE INTERNATIONAL NORM OF THE RIGHT OF THE CHILD
Senior Counsel for the claimants made reference to some of the international instruments that recognize
the rights to the child. These are not in contest in the proceedings. However the full scope and breadth of
these international instruments as it established an international norm of rights of the child should be fully
appreciated in the context of this case.

The 1924 Geneva Declaration on the Rights of the Child declares that mankind owes to the child the best it
has to give. Recognition of children's rights involves two components: their own independent right and
recognition that children require protection. The 1925 Geneva Declaration [Geneva Declaration of the
Rights of the child of 1924, adopted 26 September 1924, League of Nations OJ Spec. Supp. 21 at 43
(1924).] stated in no more simple and unobjectionable terms:

The Declaration of the Rights of the Child, GA Res. 1386 (XIV), UN Doc. A/4354 (1959) the General
Assembly: emphasized the importance of a happy childhood and enjoyment for his own good and for the
good of society the rights and freedoms set out in the declaration. It called upon parents, upon men and
women as individuals, and upon voluntary organizations, local authorities and national governments to
recognize these rights and strive for their observance by legislative and other measures progressively taken
in accordance with the following principles:

“Principle 1

The child shall enjoy all the rights set forth in this Declaration. Every child,
without any exception whatsoever, shall be entitled to these rights, without
distinction or discrimination on account of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status,
whether of himself or of his family.

Principle 2

The child shall enjoy special protection, and shall be given opportunities and
facilities, by law and by other means, to enable him to develop physically,
mentally, morally, spiritually and socially in a healthy and normal manner and in
conditions of freedom and dignity. In the enactment of laws for this purpose, the
best interests of the child shall be the paramount consideration.

Principle 3

The child shall be entitled from his birth to a name and nationality.

Principle 4

The child shall enjoy the benefits of social security. He shall be entitled to grow
and develop in health; to this end, special care and protection shall be provided
both to him and to his mother, including adequate pre-natal and post-natal care.
The child shall have the right to adequate nutrition, housing, recreation and
medical services.

Principle 5

The child who is physically, mentally or socially handicapped shall be given the
special treatment, education and care required by his particular condition.

Principle 6
 The child, for the full and harmonious development of his personality, needs love
and understanding. He shall, wherever possible, grow up in the care and under the
responsibility of his parents, and, in any case, in an atmosphere of affection and
of moral and material security; a child of tender years shall not, save in
exceptional circumstances, be separated from his mother. Society and the public
authorities shall have the duty to extend particular care to children without a
family and to those without adequate means of support. Payment of State and
other assistance towards the maintenance of children of large families is desirable.

Principle 7

The child is entitled to receive education, which shall be free and compulsory, at
least in the elementary stages. He shall be given an education which will promote
his general culture and enable him, on a basis of equal opportunity, to develop his
abilities, his individual judgment, and his sense of moral and social responsibility,
and to become a useful member of society.

The best interests of the child shall be the guiding principle of those responsible
for his education and guidance; that responsibility lies in the first place with his
parents.

The child shall have full opportunity for play recreation, which should be directed
to the same purposes as education; society and the public authorities shall
endeavour to promote the enjoyment of this right.

Principle 8

The child shall in all circumstances be among the first to receive protection and
relief.

Principle 9

The child shall be protected against all forms of neglect, cruelty and exploitation.
He shall not be the subject of traffic, in any form.

The child shall not be admitted to employment before an appropriate minimum

age; he shall in no case be caused or permitted to engage in any occupation or
employment which would prejudice his health or education, or interfere with his
physical, mental or moral development.

Principle 10

The child shall be protected from practices which may foster racial, religious and
any other form of discrimination. He shall be brought up in a spirit of
understanding, tolerance, friendship among peoples, peace and universal
brotherhood, and in full consciousness that his energy and talents should be
devoted to the service of his fellow men.”
Importantly these very principles were expressly set out in the Children's Amendment Act of 2000, though
it had not survived the enactment of the new legislation by 2015.

CONVENTION ON THE RIGHTS OF THE CHILD

The principle of the best interest of the child was further enhanced or codified with the UNCRC. The
UNCRC can be described as the “ magna carta” of children's rights. On 30th September 1990 Trinidad and
Tobago signed the convention and on 5th December 1991 it was ratified by Trinidad and Tobago [All
members of the United Nations bar United States of America and Somalia have ratified it.]. It developed a
world consciousness on the rights of children to see them as rights bearers and not simply as collateral to
or be subsumed in rights of their parents. It establishes four main principles or pillars of children's rights:

a) Non-discrimination, Article 2.
b) The best interest of the child, Article 3.
c) Rights to life, survival and development of the child, Article 6 and
d) The view of the child Article 12.

The very preamble sets out the spirit and nature of the rights of the child: A recognition of the inherent
dignity and equal and inalienable right of all members of the human family. Such dignity and rights is the
foundation of freedom, justice and peace in the world. It recognized the dignity and worth of the human
person and is determined to promote social progress and better standards of life in the larger freedom. That
childhood is entitled to special care and assistance. That such protection and assistance afforded to children
is so that it can fully assume its responsibilities within the community. Importantly for the full and
harmonious development of the child's personality he/she should grow up in a family environment in an
atmosphere of happiness, love and understanding, brought up in the spirit of peace, dignity, tolerance,
freedom, equality and solidarity. Taking into account tradition and cultural values and the importance of
international cooperation for improving living conditions.

The UNCRC is in 3 parts. The rights are dealt with in the first part and for the first time it dealt
comprehensively with the child as a composite human being deserving of their own dignity, respect, love
and nurturing. The rights were wide sweeping and included aspects of identity and rights of parents. Rights
were separated from parents for seeking reunification with the family, the expression of one's views,
thoughts, religion and conscience, freedom of association, rights to privacy, to access to information,
education, adoption, refugee status, health, indigenous origins, economic exploitation, drugs, sexual
exploitation, trafficking, cruel and inhumane punishment, rights in criminal justice system.

It sets out the rights that must be realized for children to develop their full potential, free from hunger and
want, neglect and abuse. It reflects a new vision of the child. Children are neither the property of their
parents nor are they helpless objects of charity. They are human beings and are the subject of their own
rights. The UNCRC offers a vision of the child as an individual and as a member of a family and
community, with rights and responsibilities appropriate to his or her age and stage of development. By
recognizing children's rights in this way, the UNCRC firmly sets the focus on the whole child. The
UNCRC and its acceptance by so many countries has heightened recognition of the fundamental human
dignity of all children and the urgency of ensuring their well-being and development. The UNCRC makes
clear the idea that a basic quality of life should be the right of all children, rather than a privilege enjoyed
by a few.

The best interest of the child is the governing principle which underpins the entire convention and arguably
has crystallized into customary international law.

Protecting the child from harm gives rise to the children's rights in the juvenile justice system and so
children are entitled to special protection when facing the criminal justice system. Special consideration
must be given therefore to children as a vulnerable group of people who are before the law. Arguably any
interference with the children's rights to be protected interferes with his process to a fair hearing and his
due process rights. The following articles are relevant for these claims:

“Article 31. 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.
 Article 4States Parties shall undertake all appropriate legislative, administrative, and other measures for
the implementation of the rights recognized in the present Convention. With regard to economic, social
and cultural rights, States Parties shall undertake such measures to the maximum extent of their
available resources and, where needed, within the framework of international co-operation.
Article 121. States Parties shall 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.2. For this purpose, the child shall in
particular be provided 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.
Article 131. The child shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of the child's choice.2. The exercise of
this right may be subject to certain restrictions, but these shall only be such as are provided by law and
are necessary:a. For respect of the rights or reputations of others; orb. For the protection of national
security or of public order, or of public health or morals.
Article 141. States Parties shall respect the right of the child to freedom of thought, conscience and
religion.2. States Parties shall respect the rights and duties of the parents and, when applicable, legal
guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with
the evolving capacities of the child.3. Freedom to manifest one's religion or beliefs may be subject only
to such limitations as are prescribed by law and are necessary to protect public safety, order, health or
morals, or the fundamental rights and freedoms of others.
Article 151. States Parties recognize the rights of the child to freedom of association and to freedom of
peaceful assembly.2. No restrictions may be placed on the exercise of these rights other than those
imposed in conformity with the law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of public health or morals
or the protection of the rights and freedoms of others.
Article 161. No child shall be subjected to arbitrary or unlawful interference with his or her privacy,
family, home or correspondence, nor to unlawful attacks or his or her honour and reputation.2. The
child has the right to the protection of the law against such interference or attacks.
Article 17States Parties recognize the important function performed by the mass media and shall ensure
that the child has access to information and material from a diversity of national and international
sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and
physical and mental health.
Article 37
States Parties shall ensure that:a) No child shall be subjected to torture or other cruel inhuman or
degrading treatment or punishment. Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by persons below eighteen years of
age;b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time;c) Every child deprived of liberty shall 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. In particular, every child deprived of liberty shall be
separated from adults unless it is considered in the child's best interest not to do so and shall have the
right to maintain contact with his or her family through correspondence and visits, save in exceptional
circumstances;d) Every child deprived of his or her liberty shall have the right to prompt access to legal
and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or
her liberty before a court or other competent, independent and impartial authority, and to a prompt
decision on any such action.”
Importantly Article 37 of UNCRC contains the leading principles in relation to the procedural rights of
every child deprived of liberty, provisions concerning their treatment and conditions for children deprived
of their liberty. The Committee on UNCRC has however had cause to comment on the implementation of
Article 37. Baroness Hale would describe such commentary by the Committee as “soft law”.

Of note is the Committee's comments on the following rights: a. Pre Trial Detention:

“i. The Committee noted with concern, that in many countries, children languish in pre-trial detention
for months or even years, which constitutes a grave violation of article 37 (b) of CRC. An effective
package of alternatives must be available (for the States parties to realize their obligation under article
37 (b) of CRC to use deprivation of liberty only as a measure of last resort. It was also noted that the
use of these alternatives must be carefully structured to reduce the use of pre-trial detention as well,
rather than “widening the net” of sanctioned children. In addition, the States parties should take
adequate legislative and other measures to reduce the use of pre-trial detention.
ii. Use of pre-trial detention as a punishment violates the presumption of innocence. The law should
clearly state the conditions that are required to determine whether to place or keep a child in pre-trial
detention, in particular to ensure his/her appearance at the court proceedings, and whether he/she is an
immediate danger to himself/herself or others. The duration of pre-trial detention should be limited by
law and be subject to regular review.
iii. The Committee recommended that the State parties ensure that a child can be released from pre-trial
detention as soon as possible, and if necessary under certain conditions. Decisions regarding pre-trial
detention, including its duration, should be made by a competent, independent and impartial authority
or a judicial body, and the child should be provided with legal or other appropriate assistance. b.
Mixing and associating with adults: The Committee noted that there is abundant evidence that the
placement of children in adult prisons or jails compromises their basic safety, well-being, and their
future ability to remain free of crime and to reintegrate. The permitted exception to the separation of
children from adults stated in article 37 (c) of CRC, “unless it is considered in the child's best interests
not to do so”, should be interpreted narrowly; the child's best interests does not mean for the
convenience of the State parties. State parties should establish separate facilities for children deprived
of their liberty, which include distinct, child-centred staff, personnel, policies and practices.”
This rule does not mean that a child placed in a facility for children has to be moved to a facility for adults
immediately after he/she turns 18. Continuation of his/her stay in the facility for children should be
possible if that is in his/her best interest and not contrary to the best interests of the younger children in the
facility.

“c. The Committee wishes to emphasize that, inter alia, the following principles and rules need to be
observed in all cases of deprivation of liberty:
- Children should be provided with a physical environment and accommodations which are in keeping
with the rehabilitative aims of residential placement, and due regard must be given to their needs for
privacy, sensory stimuli, opportunities to associate with their peers, and to participate in sports, physical
exercise, in arts, and leisure time activities;
- Every child of compulsory school age has the right to education suited to his/her needs and abilities,
and designed to prepare him/her for return to society; in addition, every child should, when appropriate,
receive vocational training in occupations likely to prepare him/her for future employment;
- Every child has the right to be examined by a physician upon admission to the detention/correctional
facility and shall receive adequate medical care throughout his/her stay in the facility, which should be
provided, where possible, by health facilities and services of the community;
- The staff of the facility should promote and facilitate frequent contacts of the child with the wider
community, including communications with his/her family, friends and other persons or representatives
or reputable outside organizations, and the opportunity to visit his/her home and family;
- Restraint or force can be used only when the child poses an imminent threat of injury to him or herself
or others, and only when all other means of control have been exhausted. The use of restraint or force,
including physical, mechanical and medical restraints, should be under close and direct control of a
medical and/or psychological professional. It must never be used as a means of punishment. Staff of the
facility should receive training on the applicable standards and members of the staff who use restraint
or force in violation of the rules and standards should be punished appropriately;
 - Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and
the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC
must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary
confinement, or any other punishment that may compromise the physical or mental health or well-being
of the child concerned.”

These observations in my view should be a code for good practice for the child in the juvenile criminal
justice system as recognized in the suite of Children's legislation.

THE BEIJING RULES

The Beijing Rules of 1990 continued the orientation of the global view on the rights of the child and our
treatment of children with specific reference to juvenile justice. The core principle arising from the Beijing
Rules was the treatment of children which emphasized the principles of care, humanity, love and
compassion. There is a continued emphasis on the family as the central unit responsible for the primary
socialization of the child. The society has a responsibility to assist the family in providing care and
protection and in ensuring the mental and physical wellbeing of children. Critically in juvenile justice, it
proclaimed that all governments should enact and enforce specific laws and procedures to promote and
protect the wellbeing and rights of the child. Importantly it re-emphasizes that the child should not be
subjected to harsh or degrading correction or punishment measures at home in schools or in other
institutions.

It called for the radical shift in juvenile justice as conceived as an integral part of the national development
process with a comprehensive framework of social justice for juveniles “thus at the same time contributing
to the protection of the young and the maintenance of a peaceful order in society.” [“United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) Adopted by
General Assembly resolution 40/33 of 29 November 1985.] Rule 1.4

“The many adverse influences on an individual that seem unavoidable within any
institutional setting evidently cannot be outbalanced by treatment efforts. This is
especially the case for juveniles, who are vulnerable to negative influences.
Moreover, the negative effects, not only of loss of liberty but also of separation
from the usual social environment, are certainly more acute for juveniles than for
adults because of their early stage of development.”
Rule 2.2 (a) clearly makes the distinction that juveniles are to be treated differently from adults in relation
to offences. Accordingly the nature of the juvenile justice system emphasizes the well-being of the juvenile
and ensures that any reaction to juvenile offenders shall always be in proportion to the circumstances of
both the offenders and the offence. 5.1. It is a fundamental principle of juvenile justice that the wellbeing
and best interest of the child is emphasized. The principle espoused in Rule 5 of the Beijing Rules also
advanced the principle of proportionality. The response to young offenders should be based on the
consideration not only of the gravity of the offence but also of personal circumstances.

The Beijing Rules also prescribed for appropriate scope for the exercise of discretion to allow for a fair and
humane juvenile justice administration. In Rule 6, procedural rights and safeguards are preserved for the
child such as the presumption of innocence, the right to be notified of charge, right to silence, the right to
counsel, the right to the presence of a parent or guardian, the right to confront and cross examine
witnesses, the right to appeal. The protection of the juvenile's privacy rights Rule 8. In dealing with
investigation and prosecution in a juvenile system, emphasis is placed on special treatment by the police to
secure the best interest of the child. Rule 10. Radically it imports the idea of diversion recognizing the least
harm to the child is effected by dealing with them without resorting to formal trial. Rule 11. That practices
serves to hinder the negative effects of subsequent proceedings in juvenile justice administration such as
the stigma of conviction and sentence.
Specifically in dealing with detention pending trial rule 13 underscores the danger of criminal
contamination of juveniles while in detention pending trial. Rule 13 highlights the special needs of the
juvenile in detention pending trial and emphasizes the principles of “the best interest of the child” and
“proportionality”. Detention therefore should only be used as a last resort and for the shortest possible
time. Detention pending trial shall be replaced by alternative methods such as close supervision, intensive
care or placement with a family or an education setting or home. Indeed the concept of a Community
Residence seeks to achieve this objective of rehabilitation centres or homes to cater for the special needs of
the child pending trial. Such juveniles shall be kept separate from adults and detained in separate
institutions or in a separate part of an institution also holding adults. Importantly while in custody'
“juveniles shall receive care, protection and all necessary individual assistance-social educational,
vocational, psychological, medical and physical that they may require in view of their age sex and
personality.” Importantly in our Community Residences Act the requirement of have a treatment plan
addresses the individualized needs of the child that is under detention. Again the emphasis being care,
welfare, protection and compassion.

This underlying principle is reflected in rule 19 dealing specifically with institutionalization. “The
placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum
necessary period. Treatment of the juvenile does not end at the door of the institution. Part 5 of the Beijing
Rules deal with institutional treatment with the objective of training and treatment being to provide for the
care protection education and vocational skills with a view to assisting them to assume socially
constructive and productive roles in society.

The “paramountcy” of the principle of the well-being of the child is also reflected in the principles that
guide adjudication and disposition Rule 17. Such principles as the welfare of the child, the non-imposition
of capital and corporal punishment. The restriction on personal liberty imposed after careful consideration
and limited to the possible minimum. Rule 18 therefore provides for a variety of measures to dispose of a
matter which does not include imprisonment. It also highlights the importance of parental supervision Rule
18.2. The examples have in common a reliance and appeal to the community for effective implementation
of alternative dispositions, such as care guidance and supervision orders, probation, community service
orders, participating in group counselling. Rule 26 deserves mention with its core emphasis on care,
protection, holistic development and special treatment [Rule 26 of the Beijing Rules emphasizes the
importance of care following a period of institutionalization. Semi institutional arrangements such as half
way houses, educational homes, day time training centres and other appropriate arrangements should be
made to assist juvenile's in the proper reintegration into society]. See also the Havana, Ridyah and Tokyo
rules. [The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana
Rules) adopted by the General Assembly resolution 45/113 of 14 Dec 1990. The United Nations
Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) adopted by the General
Assembly resolution 45/112 of 14 Dec 1990. The United Nations Standard Minimum Rules for Non-
custodial Measures (The Tokyo Rules) adopted by the General Assembly resolution 45/110 of 14 Dec
1990]

In 2007 at the 44th session of the Committee on the Rights of the Child after its experiences in reviewing
state parties performance in the field of juvenile justice it published its comments to encourage parties to
develop a comprehensive juvenile justice policy to address juvenile delinquency, to provide guidance and
recommendations for the content of the comprehensive juvenile justice policy and to promote the
integration in a national and comprehensive juvenile justice policy.

The Committee re-emphasized the best interest of the child as a primary consideration in all decisions
taken with respect to juvenile justice. They commented “Children differ from adults in their physical and
psychological development and their emotional and educational need. Such differences constitute the base
for the lesser culpability of children in conflict with the law. These and other differences are the reasons
for a separate juvenile justice system and require a different treatment for children. The protection of the
best interest of the child means for instance that the traditional objectives of criminal justice such as
repression and retribution must give way to rehabilitation and restorative justice objectives in dealing with
child offenders. This can be done in concert with attention to effective public safety”.

Further the Committee on the Rights of the Child published its General Comment on the effect of Article
3. In its General Comment No 14 (2013) it emphasized that “best interests” is a ‘threefold concept’ and
applies as follows:

i. A substantive right to have his best interests assessed and taken as a primary consideration when
different interests are being considered.
ii. A fundamental interpretative legal principle which requires that, where more than one interpretation
is possible, that which serves a child's best interest is to be preferred.
iii. A rule of procedure that a decision which affects a child will include an evaluation of the possible
impact of it on the child.

TRANSPOSING THE UNCRC AS A BODY OF ENFORCEABLE RIGHTS INTO DOMESTIC

LAW
These international norms create a level of consciousness demanding that the child be recognized as rights
bearers and not mere objects of protection, beneficiary or charity. Making this point firmly is the Juridical
Condition and Human Rights of the Child (advisory opinion). This does not mean to say that in conferring
independent rights means that the child is recognized as having full capacity to act. That is to confuse the
right of the child with the right of an adult. But in recognizing that they do not have the full capacity to act
does not make them disappear as human beings entitled to inalienable and inherent rights of dignity.

The immutable rights that children are to be treated separately from adults and not seen as minor adults can
be summarized as follows:

• That in all actions concerning children undertaken by institutions or courts of law the best interests of
the child is a primary consideration.
• Using the best interest principle is to say that it is a dominant principle but it must be balanced with
equally competing interests of society.
• In the criminal justice system children are not to be subjected to prolonged periods of pre-trial
detention or detention without review.
• Detention before trial is a measure of last resort and if so must be done in furthering the best interest
principle.
• There is a duty of the family, society and the State to protect the child.
• It is evident that the child participates in criminal proceedings under different conditions from that of
an adult. There is the need to equalize the conditions the child faces in the criminal justice system
recognizing its disability and vulnerability so that there can be true justice for all.
Baroness Hale firmly placed the human rights of the child in the bundle of rights under the UNCRC of the
“best interest principle”. In Home Secretary she explains “This Court has held that the “best-interests” or
“paramountcy” principle creates a right that is independent and extends beyond the recognition of other
children's rights in the Constitution”. (Minister of Welfare and Population Development v. Fitzpatrick and
Others [2000] ZACC 6; 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC) (Fitzpatrick) at para 17. See also
Fraser v. Naude and Others [1998] ZACC 13 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) at para 9.)
The “ambit of the [best-interests provision] is undoubtedly wide.” (S v. M (Centre for Child Law as
Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (M) at para 15.)

“The contemporary foundations of children's rights and the best-interests

principle encapsulate the idea that the child is a developing being, capable of
change and in need of appropriate nurturing to enable her to determine herself to
the fullest extent and to develop her moral compass. This Court has emphasized
the developmental impetus of the best-interests principle in securing children's
right to “learn as they grow how they should conduct themselves and make
choices in the wide and moral world of adulthood.” In the context of criminal
justice, the Child Justice Act affirms the moral malleability or reformability of the
child offender.

[37] A number of key principles arise from this approach to the best interests of
the child offender. First, the law should generally distinguish between adults and
children. (See Centre for Child Law v Minister of Justice and Constitutional
Development and Others [2009] ZACC 18; 2009 (6) SA 632 (CC); 2009 (11)
BCLR 1105 (CC) at paras 26-9, in which this Court explained the importance of
differentiating the treatment of children from that of adults: “The Constitution
draws this sharp distinction between children and adults not out of sentimental
considerations, but for practical reasons relating to children's greater physical and
psychological vulnerability. Children's bodies are generally frailer, and their
ability to make choices generally more constricted, than those of adults. They are
less able to protect themselves, more needful of protection, and less resourceful in
self-maintenance than adults. These considerations take acute effect when society
imposes criminal responsibility and passes sentence on child offenders. Not only
are children less physically and psychologically mature than adults: they are more
vulnerable to influence and pressure from others. And, most vitally, they are
generally more capable of rehabilitation than adults. These are the premises on
which the Constitution requires the courts and Parliament to differentiate child
offenders from adults. We distinguish them because we recognize that children's
crimes may stem from immature judgment, from as yet unformed character, from
youthful vulnerability to error, to impulse, and to influence. We recognize that
exacting full moral accountability for a misdeed might be too harsh because they
are not yet adults. Hence we afford children some leeway of hope and possibility.
This is not to say that children do not commit heinous crimes.” As explained
above, section 50(2) applies, without distinction, to adult and child offenders.

[38] A second important principle is that the law ought to make allowance for an
individuated approach to child offenders. The best-interests standard should be
flexible because individual circumstances will determine which factors secure the
best interests of a particular child. In M, this Court held:

“A truly principled child-centred approach requires a close and individualized

examination of the precise real-life situation of the particular child involved. To
apply a predetermined formula for the sake of certainty, irrespective of the
circumstances, would in fact be contrary to the best interests of the child
concerned.”

(See also AD and Another v. DW and Others (Centre for Child Law as Amicus
Curiae; Department for Social Development as Intervening Party) [2007] ZACC
27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) at para 55 in which this
Court held: “Child law is an area that abhors maximalist legal propositions that
preclude or diminish the possibilities of looking at and evaluating the specific
circumstances of the case…. This means that each child must be looked at as an
individual, not as an abstraction.”

[39] Individualized justice is foreseen in the Child Justice Act. It requires that
certain guiding principles are taken into account in the implementation of
criminal justice concerning children. These include that all “consequences arising
from the commission of an offence by a child should be proportionate to the
circumstances of the child, the nature of the offence and the interests of society.”
In R (on the application of SG) and Others v. Secretary of State for Work and Pensions [2015] UKSC 16
the Supreme Court revisited the issue of when, and how, the substantive provisions of the United Nations
Convention on the Rights of the Child (UNCRC) are directly enforceable in English Law. In ZH
(Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, the Supreme
Court followed the EtCHR in its use of Article 3 as an interpretive tool in judicial decision making and
further accepted that it applied to any decision in respect of a child's right to family life under Article 8(1).
Baroness Hale observed that the ‘spirit if not the precise language’ of Article 3(1) had been translated into
English law. Lord Kerr observed that while it was not a factor of ‘limitless importance’, it was a factor
which ‘must rank higher than any other’.

In H (H) v. Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening); H (P) v.
Same (Same intervening); F-K v. Polish Judicial Authority [2012] UKSC 25, [2013] 1 AC 338. Lady Hale
drew on ZH as authority for the use of Article 3 of the UNCRC directly in the English courts but explicitly
in the context of determining whether there had been an interference with the Article 8 right to family life
of a child. Lady Hale stated at paragraph 15:

“However the matter is put therefore ZH (Tanzania) made it clear that in

considering article 8 in any case in which the rights of the child are involved, the
best interests of the child must be a primary consideration. They may be
outweighed by other countervailing factors but they are of primary importance.”
Lord Mance stated in reference to Article 3 “that such interests must always be at the forefront of any
decision maker's mind, rather than that they need to be mentioned first in any formal chain of reasoning or
that they rank higher than any other considerations. A child's best interests must themselves be evaluated.
They may in some cases point only marginally in one, rather than in another direction. They may be
outweighed by other considerations pointing more strongly in another direction.”

Lord Wilson noted that the rights of children under Article 8 need to be considered through the ‘prism of
article 3’ and he noted that on analysis in a decision making process other factors may exceed the
importance of the best interests of the child. H (H) is therefore considered to impose an obligation on the
legislator to give appropriate weight to the interests of children as a primary consideration in the overall
balancing exercise [In this case Baroness Hale rejected the argument of the Secretary of State that the
application of the UNCRC was confined to informing the substantive content of Convention rights, but not
the approach to proportionality and discrimination. She considered that the best interests of the child were
to be taken into consideration when determining whether discrimination is justified under Article 14 (para
222). She concluded that it was the measure itself which had to be justified rather than the discrimination
and as part of that process it was necessary to be satisfied that proper account was taken of the children
affected by it].

Lord Kerr considered that the approach to unincorporated treaties allowed for an exception in the case of
human rights treaties drawing on comments of Lord Slynn in Lewis v. AG of Jamaica [2000] UKPC 35,
[2001] 2 AC 50 PC and Lord Steyn in Re McKerr [2004] UKHL 12, [2004] 1 WLR 807 at para 48.

Article 3 was interpreted as being directly applied and that it creates an enforceable obligation on the State
to take account of the children's best interests as a primary consideration in any and all decisions.

Justice Heureux-Dube J in Mavis Baker v. Minister of Citizenship and Immigration [1999] 2 RCS
interpreted the reasonableness of administrative action in line with whether such a decision properly
balanced the best interest of the child adopting that principle from the UNCRC and international law.
Recognizing that Canada is a dualist state and the treaties are not part of the law unless ratified he
recognized that the values reflected in international human rights law may help inform the contextual
approach to statutory interpretation..

“The values and principles of the convention recognize the importance of being
 attentive to the rights and best interest of children when decisions are made that
relate to and affect their future…the principles of the convention and the
international instruments place special importance on the protection of children
and childhood and in particular consideration of their interests, needs and rights.
They help show the values that are central in determining whether this decision
was a reasonable exercise of power.”
See also other judgments setting out a clear duty of care towards children: Mubilanzila v. Belgium
(Application no 13178/03), R v. Secretary of State [2013]. Interestingly in the past we have dealt with
constitutional issues involving the rights of the child such as in Sumayyah Mohammed. [ Sumayyah
Mohammed v. Moraine [1996] 49 W.I.R. 371] In that case the right of the child to wear a hijab in a Roman
Catholic school was explored within her constitutional rights of freedom of religion without expressly
articulating the child's fundamental rights under the UNCRC. See also Multani [Multani and another v.
Commission Scolaire Marguerite-Bourgeoys and another (World Sikh Organization of Canada and others
intervening) 2006 SCC 6].

THE CHILD IN THE CRIMINAL JUSTICE SYSTEM AND “DUE PROCESS”

A criminal justice system must conform to the basic and fundamental rights of man and family. Our
criminal justice system balances fine matters such as the legitimate termination of life with the
constitutional guarantee of life. The legitimate deprivation of liberty with the right to liberty. The
balancing of the principles of retribution, punishment, reformation and restoration. The criminal justice
system is one against which a society is adjudged and based on its ability to maintain order and respect.

Submissions were made of the inability of legislation to create constitutional rights and that the “right of
due process” deals with fundamental rights of justice. This may be so, but the inquiry is: what are the
fundamental rights of the child in the criminal justice process. The right not to be detained for longer than
usual, the right not to be associated with adults, the right not to be subjected to inhumane treatment, the
right to participation and to preserve their “best interest”. Interference with these rights is an interference
with the fundamental rights associated with the criminal justice system for children. As the authorities,
instruments and commentaries above clearly show, there is a discernible and recognizable bundle of rights
of the child in the criminal justice process.

As our society emerged over the years it is apparent that there has been an evolving sense of individualized
justice for the child in our society. Our law has finally in the 21st century responded to recognize these
rights of children and the cumulative cry of anthropologists, sociologists, social workers, and academics of
the need to rehabilitate youth at risk. Our children in this generation, the generation X, are not property or
waifs nor underlings. They are the next generation of our society, deserving of protection care and for
those in our criminal system securing their best interest by protecting their presumption of innocence to,
reduce the risk of re offending and giving hope that there may be a future for them to positively contribute
to national development.

THE STATUTORY FRAMEWORK: GIVING LIFE TO THE RIGHTS OF THE CHILD IN OUR

JURISDICTION
Again time is important. To understand the significance of our present legislation which governs the rights
of children, it is important to trace the history of the legislation as it governed our children as our country
developed and evolved from a plantation society to a Republic.

In the 19th century the governing law for children was the Children's Act 1908 UK with legislation
governing industrial and reformatory schools pre dating to 1845. In 1911 it was the Dickens' infamous
illustration of the Poor Law in the 1834 which represented the societal view of the child as the subject of
punishment to effect his or her reformation. He was highly critical of the systems' treatment of an innocent
child born and raised in the workhouse system where no fault could be attributed to the child.
The famous illustration of George Cruickshank of Oliver shows the poor orphan Oliver standing utterly
alone- standing behind him were boys equally neglected, ill-treated, underfed, and facing him is the bully
of a workhouse master preparing to unleash the powers of retribution. The pauper woman helper in the
background recognizing the danger of what Oliver has done to “ask for more” food, throwing her hands in
horror [See Ruth Richardson's “Dickens and the Workhouse, Oliver Twist and the London Poor”.]. It was
a time when punishment was unleashed on children, who were hanged for offences, starved caned
solitarily confined, kicked and cursed “hauled up before a magistrate and sent to work in an undertakers
fed on scraps and forced to sleep on coffins” [Ruth Richardson]. It was a brutish time.

Turning to the islands when “sugar was king.” By the 1830's there may have been the much maligned Poor
Law but in a plantocracy, the notions of human rights at that time justified the servitude of people. It was a
time when the declaration of the rights of men being inalienable jurisprudentially, co-existed with an
entrenched system of slavery and later indentureship. Indeed “man was born free and yet we see him
everywhere in chains”. They were chattels. Their children were equally property. Emerging from such an
experience was no easy matter and to a large measure in post-colonial society, education or the lack
thereof was either the gateway to liberty or the barrier that perpetuated servitude. Dr. Eric Williams in his
“The Negro in the Caribbean” in 1942 wrote that “It is the deliberate policy of planters and governments to
keep the people ignorant and unlettered.” Selwyn Ryan was equally critical of the ruling class in the newly
emancipated society. Focusing on Thomas Carlyle's “Occasional Discourse on the Nigger Question” he
quoted Carlyle as saying the “answer to the problem is not a black Ireland achieved by immigration but a
regulated West Indies with a happy black working population.” He commented that the desire was for
cheap labour to disincentivize the youth from seeking education and the majority “little black girls in
particular remained on the periphery of the secondary system”. The interesting discourse with a “plantation
owner Mr. Knox makes the point of our society's perception of the child in the “agricultural” society in the
early 20th century [The evidence of two sugar planters, Mr. E.A Robinson and Mr. C. Knox, in evidence
before a Select Committee of the Legislative Council appointed in 1926 to ‘enquire whether it is desirable
to introduce legislation to fix or restrict the hours of labour in any particular trade, business or industry in
the colony’. The committee included two of the first elected members in the Legislature of Trinidad and
Tobago, Capt. Cipriani and Mr. A.V. Stollmeyer]:

“Mr. O' Reilly: Do you think it is satisfactory to employ children under 12?

Mr. Knox: What are you going to do with them?

Mr. O'Reilly: Send them to school.

Mr. Knox: They prefer to work in the fields.”

This remained largely the case until the 1950's when Eric Williams made his iconic statement on the eve of
this nation's independence in 1962, “each and every one of you carries the future of your country in your
school bags”.

This was the concept of the child despite the dust settling on the World Wars and the Geneva declaration
recognized the rights of the child. The first umbrella Act introduced in this island for children was the
Children's Act of 1925 adopting for the most part the Prevention of Cruelty to, and protection of, Children
Act 1889. It was a time when children was viewed as objects of care and where the common law
recognized the right of the father to custody of his child which he could enforce by habeas corpus.
[Halsbury Statute of Volume 12 2nd edition page 928.] The family unit in our society evolved from a male
dominated stereotype with the central idea of childrearing and caring being female jobs. In spite of this,
Caribbean histography and sociology have unfolded around a meta narrative of male marginalization and
female dominance. [See Contribution of Patricia Mohammed in Selwyn Ryan's No Time To Quit Report]

From 1925, a UNICEF report [Situation Analysis of the Children in Especially Difficult Circumstances in
Trinidad and Tobago, Sharpe and Bishop] would also observe, the family unit was subject to cultural
pluralism. In addition to moral monogamy common law unions, there were visiting unions “many families
with children may be constituted of mothers who are not in any social union or their visiting unions may
have been terminated and they may have embarked on other similar or alternative unions. As a result
children of one woman living together with their mother may have different fathers. Men may be engaged
in multiple visiting unions and have children with each partner or may be engaged in a familial marriage or
common law union while still maintaining visiting unions elsewhere again there may be children from
each union. If family structure is looked at from the point of view of children and the question to whom do
children live? Is asked the variety and complexities of the family structure is obvious”.

The 1925 Children's Act remained the law governing children subject to amendments until the 21st
century. The 1925 Children's Ordinance was described as an Ordinance Relating to the protection of
Children and Young Persons Industrial Schools and Orphanages and Juvenile Offenders. The idea of the
rights of the child at that time was that the child was a ward or an object to be protected. It protected
children from acts of cruelty and offences such as begging, being burnt by coal pots, or kept in brothels. At
this time the age of a child was 16 and under. Offences such as prostitution, begging and being subject to
abuse for those above the age of 16 would naturally be treated as adults.

Part 1 of the Act dealt with prevention of cruelty to children and young persons. It was under this
machination that the idea of the Industrial School emerged under Part III of the Act. An industrial school
meant a school for the industrial training of youthful offenders in which youthful offenders are lodged,
clothed and fed as well as taught. In the 1908 UK Children's Act it recognized two types of schools; first
an industrial school carrying the same meaning as that in the TT Ordinance and second a “reformatory
school” which means “a school for the industrial training of youthful offenders in which the youthful
offender are lodged clothed and fed as well as taught”. Prior to the Children's Act there was the
Reformatory Schools Act of 1908. Both types of schools, the industrial school and the reformatory school,
therefore catered for two different categories of youth, children generally and on the other hand youthful
offenders in the reformatory school. In our present legislative landscape the closest analogy to the
“reformatory school” would be the “industrial institution” established by the Young Offenders Detention
(YOD) Act with the word “reformation” surviving in the YOD Act.

Under the Children's Ordinance, there were government and private Industrial schools. The government
Industrial Schools were to be established by the Governor in Executive Council and managed by a
manager. The general supervision of the school fell under an Inspector who would make such reports to
the Governor from time to time. Private schools were subject to certification. Importantly upon the
enactment of the Children's Ordinance the existing industrial schools were deemed to be certified schools
thus catering for any lacuna that may have existed between the passage of the Ordinance and certification.
An obvious difficulty in this case. Thus Diego Martin Boys Industrial School, the Belmont Girls Industrial
School were two of the industrial schools which pre dated the Ordinance and immediately fell under the
provisions and the Act “as though they were schools originally certified”. In a subsequent report of
UNICEF in 1993 it was noted in its review of the legislation that those two industrial schools were St.
Michael's and the St. Jude's Home for girls.

The side note of section 32 referred to the young offenders as “inmates”. The word “inmate” is repeated in
section 38 of the Ordinance. It reflects a time where the child in trouble with the law is treated as an
“inmate” a prisoner. Again notably in these sections of the Ordinance the youth offenders are “detained” at
these schools.

The certification of the schools was left in the discretion of the Governor. Upon an application being made
by a manager of an industrial school the Governor may direct the inspector to examine into the conditions
and regulations of the school and its fitness for the reception of youthful offenders or children to be sent
there. See Sections 34 and 35. The only obligation of these schools is to “teach, train, lodge, clothe and
feed during which she is liable to be detained”. There is therefore in the early 20th Century a basic regimen
to follow for the “detained” “inmate”, the youthful offender.
Section 43 permitted the Court to send any youth offender between the ages of 10 to 16 to the Industrial
School. Under the age of 10 the child is sent to an orphanage. Section 44(4) deals with the inability of the
parent to control a child and may apply to the magistrate to send the child to an Industrial School. The
child may in certain circumstances be placed in the care of a relative or under supervision of a probation
officer.

Interestingly section 59 empowered the Governor if he thought it fit, to order a person sentenced to
imprisonment who is under 17 years for prison to the industrial school. Refusal to conform to school rules
and escaping from these schools could be met by punishment of imprisonment and hard labour.

The Ordinance provided for bail for young persons arrested but if there is no bail then the child is detained
in a place of detention under the Ordinance. Under section 85 it was the duty of the Inspector General to
provide such places of detention in each magisterial district. The obligation was placed on the Inspector
General to “as far as practicable” to make arrangements to prevent the child charged with an offence from
associating with adults except relatives. The law will change in the new legislation to make this
mandatory.

Notably there were few offences which were created to protect the child from harm. They were offences
such as burning, prostitution, begging and smoking. It was a simple society.

A child in the eyes of the law was still under the age of 14. In the eyes of the law based on this legislative
scheme the child was very much the ward and under the control of the parent. The parent had the right to
make decisions on behalf of the child. Section 22 gave the parent, teacher or who had lawful control of the
child the right to administer reasonable punishment. To the parent the Court would summon and place the
child in its care. Culturally this aspect of the child being under the control of the parent or that the child's
rights only exist through the parent would seem more so evident in the Muslim, Orisha and Hindu
populations that sanctioned child marriages through the consent of the parents. It either recognized the
child's maturity to make such bold choices or it re-emphasized the vulnerability to decision making made
on their behalf on a cultural mantra “we know what is best for you”. It also reflected a male dominated
culture. In the 1945 Hindu Marriage Act, section 11 provided for the age of persons contracting marriage
to be eighteen years in the case of males and fourteen years in the case of females. Consent to marriage is
given not by the children of course, obviously because of their inability to make such informed choices,
but equally consent was imposed on them by the father of the party under age, and if the father is dead by
the guardian or guardians appointed. Only in the case there is no such guardian then by the mother of the
party so under age. If the mother is dead then the State through the President can appoint such a person!

In the Muslim faith, child marriages are solemnized by the parent exercising dominion over them. The age
at which a person, being a member of the Muslim community, is capable of contracting marriage shall be
sixteen in the case of males and twelve in the case of females. It certainly reflected a time where the rights
of the child in this case female children were invisible and a male dominated society that demanded “do as
I say” without recognizing the rights that inhere with the child to protect his or her own sense of dignity
and self-worth.

Hand in hand with the Children's Ordinance in 1925 was the Young Offenders Detention Act of similarly
equal vintage enacted in 1925. It created the super structure that defines and characterizes the industrial
institution. Harmonizing the industrial institution under the YOD Act and the Industrial School saw that
youthful offenders were the subject of reformation at the industrial institution and a place where
punishment on sentencing is mitigated by being detained in this institution. The institution which has been
recognized as the industrial institution was and is still the YTC. The YTC was proclaimed in 1949 as an
Industrial Institution under the Young Offenders Detention Act.

The Act was one which provided for the detention of young offenders. It is easy to see why it is a sophism
for a boys' prison. The long title was “An act to provide for the reformation of young offenders and for
their detention in an industrial institution”. Section 2 of the Act provides as follows:

“Young offenders whilst detained may be given such industrial training and other
instruction and be subject to disciplinary and moral influences as will conduce to
their reformation and prevention of crime”.
Reformation in the early 20th century was consistent with the philosophy of the treatment of prisoners, to
reform them and change their nature by strict discipline. It is the type of treatment which is consistent with
the Poor Law. The institution detains young offenders convicted of offences other than murder between the
ages of 16 and 18 years or where he is in breach of school rules in the industrial schools. Clearly the
primary role of the institution is one of detention. See Sections 9, 10 and 11 of YOD. The institution falls
under the direction and control of the Commissioner of Prisons. Section 5 allows the Minister among other
things to classify persons detained in the institution.

Sections 8, 11, 12, 13 and 14 of the Prisons Act dealing with the punishment of prisoners are incorporated
into the regime of the YTC “as if it were a prison”. Alarmingly section 13 of the Prisons Act which has
been incorporated provides:

“For the purpose of preventing escape or violent assault and for the purpose of
preventing or suppressing mutiny any prison officer having charge of any
prisoners may use firearms or any other mode of force and shall not be
responsible for the consequences of the use, if necessary for any of the purposes
mentioned above.”
The character of the institution as a boys' prison is further made clear upon reading the Regulations which
have not been amended. It is clear from this that the following is evident: (a) the regime is one of seeing
the charges as “inmates” and that one of the main objects is to serve a term of punishment by labour. See
sections 13 and 19 (b) the medical officers role plays no part in the psychological assessment of the child
for treatment save for dealing with the symptoms of his detention Regulation 25. (c) Training of inmates is
provided under regulation 27 and religious instruction under regulations 31 to 36 and vocational and
academic training under 76 to 79. (d) The children are grouped in grades of conduct and work. The
methodology of increasing grades on the basis of conduct is regimental in nature. Penal grades are
provided for See regulations 41 to 43. They are also divided into field labourers and tradesmen. They
receive earnings for their trade and can purchase tools on discharge. (e) Alarmingly their ability to
correspond is restricted to one letter per month and visits to them are regimented. (f) Punishments provided
by regulation 6 include corporal punishment, solitary confinement, fines, diminution in grades, and
restriction of diet. A child who is being punished for instance can face the punishment of receiving a diet
of bread 3 times a day for 3 days. The picture of young Oliver Twist comes to mind.

Importantly however when committing a youthful offender to stand trial, the youthful offender is not sent
to the industrial school but to a place of detention provided under that part. Specifically it deals with the
youthful offender on remand for trial. Section 84 gives the Commissioner of Police the power to provide
for such a place of detention.

The religious persuasion of the child plays a huge factor in the child's placement and this would be
consistent with the ideology of reformation and religion in the early 20th century.

Over time in the 1980s and 1990s there were several amendments and small steps to modernize the law in
relation to children such as the taking of the children's evidence and sexual offences legislation. The
Children's Act 1925 itself was amended in a piece meal fashion overtime until its consolidated version
published in the laws of T&T as Chap 42:01. These pieces of legislation being enacted by Parliament
obviously reflected a growing urgency consistent with the international community to protect the welfare
of the child from being the subject of abuse and cruelty.

By the 1990's the problem facing young people in a developing society became more acute in Trinidad and
Tobago, as in the Caribbean, in an age of globalization. It attracted the attention in the Report of the West
Indian Commission in 1992. It recognized the growing trends of the young criminal offenders as well as
victims of crime. “Caribbean societies like most other parts of the world have become more violent
societies”. [The Caribbean Summit for Children held in the early 1990 equally recognized the need for a
safe and stable environment for children to grow and develop]

In 1993 UNICEF commissioned a study to analyze the situation of children in difficult circumstances such
as children in institutions, victims of abuse or delinquency in Trinidad and Tobago. They surveyed this
country's state of development at that time and commented:

“It is against this background of stringent economic circumstances and raised

expectation that the present generation of children and adolescents of Trinidad
and Tobago are growing toward adulthood. Within the generation are those who
are falling behind, unable to keep pace with these more difficult times. These are
the children who are living in families where the stresses of poverty,
unemployment and relative disadvantaged of other kinds lead to parental mental
illness, substance abuse, domestic violence and neglect or complete family
disintegration.

These are the children who are abused and or neglected, abandoned or so severely
neglected that they end up in institutions of one kind or another these are the
children who live on the streets or spend significant proportions of their lives in
survival strategies that interfere with their healthy development. These are the
adolescent girls who are thrust into premature “pseudo adult” situations that so
often lead to unplanned pregnancy and thus start the cycle of disadvantage all
over again. These are the children in especially difficult circumstances”.
In its 2013 to 2016 Report it commented even further:

“Despite overall progress, children remain one of the most vulnerable groups in
Trinidad and Tobago. Children's experience of risk, vulnerability and deprivation
is shaped by characteristics of childhood poverty that is multidimensional and
embracing both monetary and non-monetary aspects and also reflects children's
vulnerability over the course of the lifecycle.

Trinidad and Tobago is in a unique situation for having better data collection for
children and women than many countries in the Caribbean region. The country is
completing a second round of the Multiple Indicator Cluster Survey (MICS 3 and
MICS 4) that will provide disaggregated data on children and women, including
20/60 of MDG indicators. There is need to enhance further analysis on the basis
of this available data and strategic appreciation of the benefits of collecting,
sharing and using social data on children for planning and measuring performance
of public policies.

While the process of aligning children's legislation with the CRC has commenced
with the enactment of the Children's Act, there are unresolved legal concerns. For
example, marriage of children as young as 12 years is sanctioned by law in the
country. Violence against children is a key concern, especially child sexual abuse.
In the first 9 months of 2009, 13,684 calls were made to Child Line to report
issues such as sexual, verbal, physical, and emotional abuse, neglect and incest in
Trinidad and Tobago [See TT Strategic Work Plan Trinidad and Tobago Strategic
Actions for Children and GOTT Unicef available at
www.unicef.org/…/ECAO__TNT_Strategic_Actions_for_Children.pdf>].”
In 2013 the Selwyn Ryan's No Time to Quit report looked at among other things youth and criminality. It
observed the propensity of crime from certain conditions including broken homes, dysfunctional families,
juvenile delinquency, peer rejection, failure or disruptive behaviour at school, gang membership and
incarceration. The availability of drugs, opportunities to gravitate to crime and marked changes in values
over the last six decades since Independence. It recommended among other things community
empowerment and a comprehensive youth development policy. [See also P. Mohammed's contribution in
Selwyn Ryan's No Time to Quit Report] Such conditions affecting this generation of youth compelled
commentators to label the youth at risk as “the missing generation.” Barbara Bailey and Suzanne Charles
(2008).

No greater recognition of the contribution to our evolving responsibility as a society to protect children and
to secure their best interests was made than through our calypso. Historically and anthropologically
recognized as the voice of our social consciousness, a renewed focus on the youth was made since the
declaration of International Year of the Child in 1979 with Bill Trotman's plea to recognize the children's
right to be educated: “Back to School”. There was Merchant's discourse in that year on dysfunctional
families and lack of parenting guidance and role models to build the children: “Think about the Children”.
Later Ras Shorty's “Watch out my children” will make his plea to the children who are vulnerable to drugs
and illicit crime. Ella Andall's plea for “de missing generation” inquiring into the growing spate of youth
delinquency. Gypsy's controversial “Little black boy” summing up social conclusions on the link with
youth delinquency with lack of education, demotivation, marginalization and lack of self-esteem: “He
never learn how to read, He never learn about math, He never learn how to write, He never learn about
that, All he study was he sneakers, he sneakers and clothes. So he learn how to dress and he learn how to
pose, Now he can't get no work He can't get no job, So he decide to steal and he decide to rob, But little
Black Boy couldn't last long at all, The police put a bullet through he duncey head skull. Little black boy
go to school and learn.”

Faced with these huge social challenges, the evolving youth delinquency in Caribbean society, the
groundswell of academic and social commentary to protect and care for the children of this country, the
law in this jurisdiction remained largely static. By 1999 the law in relation to the custody and detention of
juveniles remained the same under the Children's Act Chap 42:01. The industrial schools housed offenders
charged with an offence punishable by imprisonment. The magistrate on enquiry if it is expedient so to
deal with the child offender order him to be sent to an Industrial school. It was a school that housed
children who were found begging, wandering, destitute, not under the care of parents, parents who are
unfit, who were not convicted of a sexual offence, and frequents the company of thieves and prostitutes or
lodging in circumstances that would encourage prostitution or who are unruly and unmanageable. So
things stood at the turn of the 21st century. The criminal justice system appeared for the large part to be
inflexible and unresponsive to the societal demands for care for the child.

By the Children's Amendment Act in 2000 very important changes were made to the Children's legislation
as it related to juvenile offenders in keeping with the UNCRC. It expressly incorporated several
obligations under United Nations Conventions with respect to the rights of the child.

It is against this historical and social context that the Children's legislation is seen as revolutionizing
children's law in this jurisdiction. The law's response in the 21st century is to protect. There can be no
doubt that the Children's legislation was enacted for the purposes of not only protecting the child but
recognizing the rights of the child to be treated with dignity and as an important component of the human
family.

I refer firstly to the Children's Authority Act as that legislation envisioned, the Children's Authority to be
the advocate and a specialist in the care and protection of the nation's children.

The Children's Authority Act 2000: The Act was partially proclaimed by legal notice 187 of 2008.
Amendments were made to the Act in 2003 and 2008. The long title captures its purpose and intent as
follows: “An Act to establish a Children's Authority of Trinidad and Tobago to act as the guardian of the
children of Trinidad and Tobago”. The Act was phased into operation. On 5th December 2008 those
provisions critical for the establishment of the Children's Authority came into operation. It clearly meant
that for Parliament the new scheme of Children's legislation for the protection of their rights would have
been implemented in a phased basis to fulfil the object of this legislation to:

“(a) Promote the wellbeing of all children in Trinidad and Tobago;

(b) Provide care and protection for vulnerable children; and
(c) Comply with certain obligations under the United Nations Convention on the Rights of the Child.”
It took however another 7 years before this legislation was fully proclaimed. In that intervening period the
function carried out by the Authority was to advise the Minister with responsibility for the Children's
Authority on matters relating to the operation of the Act and essentially to begin the process of staffing the
organization. See sections 6(1e) 7, 8, 9, 10, 11, 16, 17, 19, 20, 21, 46, 48, 49, 50, 51 of the Act. Apart from
acting in an advisory capacity its significant operations in that period included maintaining Assessment
and Support Centres and Reception Centres for the assessment and referral of children coming to the
attention of the Authority. Reception centres were responsible for the temporary care of children received
by the Authority for a period not exceeding 12 weeks.

Those centres are dynamic cells of support for children in the Children's Authority's care. It has available
qualified social workers, a child psychologist, medical and other qualified personnel including a child
psychiatrist who will carry out medical examinations, diagnostic assessments, formulate treatment plans,
make recommendations to the Board for the child's placement and implement plans in respect of any child
in the care of the reception centre. The authority also could make arrangements for the availability of other
qualified personnel as it may need to carry out these functions and source any support services it may
require.

The Authority was also empowered to provide accommodation for children in its care by supporting,
providing, equipping and maintaining Community Residences for this purpose and by entering into
arrangements with private bodies for the accommodation in its care as provided under the Community
Residence Act. It also ensured that children over 16 with no place to reside be accommodated in hostels
near the place they may be employed or seeking employment or educational training. Hostels are a
voluntary residences for persons up to the age of 21 on paying a fee.

By 2015 the full effect of the Act was implemented. By then after 8 years of operation one would expect
the Authority to be ready and rearing to discharge its duties and functions which reinforced the State's
obligation to care for and seek the best interests of children in this jurisdiction.

Their powers and functions of the Children Authority included the following:

“(a) Provide care, protection and rehabilitation of children in accordance with Part III of this Act;
(b) Investigate and make recommendations with respect to the adoption of children in accordance with
the Adoption of Children Act, 2000;
(c) investigate complaints made by any person with respect to any child who is in the care of a
Community Residence, foster home or nursery, that the said residence, home or nursery failed to
comply with the requisite standards prescribed under the Children's Community Residences, Foster
Care and Nurseries Act, 2000 and any incident of mistreatment of children in such places;
(d) Investigate complaints or reports of mistreatment of children;
(e) Upon investigation, remove a child from his home where it is shown that the child is in imminent
danger;
(f) Monitor Community Residences, foster homes and nurseries and conduct periodic reviews to
determine their compliance with such requirements as may be prescribed;
(g) Issue, suspend and revoke licences of Community Residences and nurseries as provided under the
Children's Community Residences, Foster Care and Nurseries Act, 2000;
(i) Do all such things as may be necessary or expedient for the proper performance of its duties.”
For those children who are assessed to be in need by the authority they will provide the following services
while the child is living with the families:

“(a) Advice, guidance and counselling;

(b) Occupational, social, cultural or recreational activities;
(c) Home help; and
(d) Facilities for or assistance with travelling to and from home for the purpose of accessing any other
service provided by the Authority or any similar service.”
Additionally, in full compliance with its international obligations, the State through the Children's
Authority was not only empowered to promote the rights of the child, it performed an overarching duty
and responsibility to provide care and protect the nation's children. Its duties are to pursue the well-being
of the child, act as an advocate to promote the rights of all children in this jurisdiction, take all reasonable
steps to ensure the availability of accommodation necessary for compliance with the Act, protect the
children from suffering, ill treatment or neglect, promoting contact with the child and his family take such
acts as to serve the best interest of the child and make use of whatever facilities are available for children
provided by other agencies [Interestingly section 6(1) (b) recognized and give effect to the right of the
parent to be heard and the right of the parent to a fair hearing seems to be obvious legislative errors and
should have been reference to the child].

The international principle of the “best interests of the child” has been expressly incorporated into the Act
and sets out a number of criteria which will assist the Authority to make a determination as to whether a
decision or action it may take is in the child's “best interest”. These factors set out in the Act, reflect the
international norms and principles examined in exhausting detail earlier in this judgment and represents a
clear commitment to giving effect to the recognition of the rights of the child which inhere to the child by
reason of its existence as a member of the human family. Those considerations emphasize such humanistic
principles of love, affection, emotional ties, stability of the child's environment, his or her right to be heard,
to a fair hearing, the holistic development of the child, the preference to maintaining the child's
relationship with the family unit and giving voice to the child's preference and needs if of an age and
maturity to express such preference.

One of the most important duties of the Children's Authority as a supervising body of the rights of children
in this jurisdiction, is to determine when children are in need of care and protection and to act to protect
their best interests. I do not know why the Children's Authority has been silent in the face of children being
detained in prisons awaiting trial, but presumably it may be that it never came to the Authority's attention
until these proceedings were served on them. In any event where they see their intervention necessary in
the child's best interest it shall investigate the matter and it can receive the child into its care. This is an
important and radical change in the treatment of children. Whereas as in the previous legislative landscape
children who were exposed in brothels or destitute or found wandering or begging were thrown into
industrial schools, the emphasis in this new dispensation is to care for the children with the advocate of
children's rights being the first champion for these children in taking them under its care and protection.

Children in need of care and protection include those children who are orphans, lost or abandoned,
exposed to moral danger, beyond control of their parent or guardian, ill-treated, destitute, begging or
receiving alms, loitering, frequents the house of a criminal prostitute. See section 22(1). The child is no
longer some object of charity or some person to be removed from society. The child is now seen as an
integral part of the human family and our society. The emphasis is not to remove “out of sight or out of
mind” but to intervene, care for, treat, and build up the child so that he can be a future asset to the
community and society. For this reason a child who is in need of care and protection immediately falls
under the Authority's remit to approach the Court for a wardship order and the child may receive several
forms of assistance for its care and assistance and development. Family assistance orders, secure
accommodation orders, care orders, child assessment orders, emergency protection orders, recovery orders,
fit person orders, ordinance order, foster care, adoption, contribution orders or any other order as the court
may think fit are part of the Children's Authority armoury to protect such a child.
Indisputably the Children's Authority has a vital role to play in the protection of the nation's children and
their vigilance and strength as advocates must be developed to effectively discharge these laudable objects
of the Children's legislation to give full meaning and effect to children's rights. They should take a more
proactive part in proceedings and in doing so ensure that the voice of the child is heard and the Court is
fully appraised of the multidimensional approach to the treatment of issues of the child in our adult world
and the modern approach to give full life to the rights of the child. To do otherwise would be to force
Courts to take interventionist approaches better left for the Children's Authority. Indeed when this Court
pointed out the obvious difficulty of these children especially SS being detained in an adult prison and the
ability of the Children's Authority to bring children under its care and protection, the submission of the
Children's Authority was more along the line of what it cannot do rather than what it can. This Authority
has a wide spectrum of duties and powers under the Act, these are not free standing. It is for a specific
purpose which is to give effect to and protect the rights of children. They are the guardians of children in
this jurisdiction and they must do better than saying what they cannot do rather than what they can. It is
expected in the future with regard to matters such as these, the Authority becomes a partner with all
stakeholders including the judiciary in helping them give full protection to children and if there are
obstacles; cry like children and make it known.

The Community Residences Act. Apart from the Young Offenders Detention Act, which outdated
conception survived the new paradigm, the idea of residences to “reform” children was removed entirely
from the ideology of the treatment of the child. The child was no longer an object that could be changed or
reformed. It was a child who had free standing rights of dignity and deserved, due to their vulnerability and
lack of capacity, to be cared for protected and rehabilitated. The Community Residences Act therefore set
about a monitoring, licensing and regulating framework for places of care that were in effect the “alter
egos” of the children's residences. The Act therefore envisioned three types of places where children could
be cared for outside of their natural homes: Community Residences, foster homes and nurseries. It is
obvious if one examines the residence as a group that these three places are places of nurturing, care and
protection. There can be no doubt that the main purpose of such places is not to detain a child, let alone
subject it to ideologies of reformation. Quite apart from introducing a system of regulation of these places
of care for children, this Act was revolutionary in introducing for the first time a system of foster care in
this jurisdiction. This allowed persons to apply to be foster parents and be subject to supervision by the
Authority ensuring the health, welfare and educational needs of the child are being met at the foster home.

Turning to Community Residences, unlike the previous Children's Act 1925 there was no automatic
statutory certification of existing institutions as Community Residences. Community Residences are
described as Children's homes or rehabilitation centres. A rehabilitation centre is defined as a residence for
the rehabilitation of youthful offenders in which youthful offenders are lodged, clothed and fed as well as
taught. The difference of course between all these places contemplated under this Act of Community
Residences, Foster Homes, and Nurseries is that Community Residences would house youthful offenders
and the focus of the rehabilitation centres is to rehabilitate the children in their care.

All managers of existing Community Residences were, within 3 months of the Act coming into operation,
to apply for a residence licence from the Children's Authority. Notably neither the Women's Prison nor
YTC applied nor were they considered by the Children's Authority to be Community Residences. The
scheme of licensure has not yet come into effect and so a Community Residence can continue to operate
without a licence, without the sanction of section 3(2) of the Community Residence Act. Presumably this
is to accommodate existing Community Residences making the necessary adjustments to be ready for
licencing. However if a residence is to qualify as a Community Residence they must demonstrate some
measure of making adjustments to comply with the legislation. Of course, one such obvious measure is
making an application for licencing. The Children's Authority has supervisory jurisdiction over these
Community Residences to inspect its premises, its books and they are to provide information to the
Children's Authority. Importantly if the Children's Authority is dissatisfied with the conditions or rules of
the Community Residences it may terminate the licence. This is significant when the YTC's rules are
examined as it presently operates.
The importance of the Children's Authority's jurisdiction over the welfare of the children in care of
Community Residences is emphasized by the fact that it is the Authority who under section 15 will transfer
children to another Community Residence when the existing Community Residence ceased to be a
licenced Community Residence.

The Act requires there to be a manager of the Community Residence to have the management and control
of the Community Residence. Importantly section 25 places an obligation on managers within 60 days of
the proclamation of the Act to provide the Children's Authority with the information of the children in its
care: the names, date of birth and sex of the child, the names, addresses, contact number of the child's
relatives, the circumstances the child came to be in the Community Residences and the treatment plan
prepared in respect of such child. Notably, the YTC nor the prison provided this information prior to the
intervention of the Court. This information is important for the Children's Authority to evaluate the child
and the suitability of the placement of the child at that Community Residence.

Children's Act. The rights and responsibilities of parent and children reflected in the new Children's Act
mirrors to a large extent the obligations under the UNCRC. The age of the child is now 18. The
Community Residences replaced references to a certified school. Industrial schools and orphanages were
to be treated as rehabilitation centres and children's homes. Importantly, the Children's Act makes
reference to the UNCRC.

The structure of the Act is important. Now the focus is on the prevention of cruelty against the child and
wide and generous protection has been given to the child from a host of criminal activity. Begging, and
burning (indeed reference to the “coal pot” in 1925 had vanished in the 21st century) recognizing the
upsurge in gun violence section 7 deals with death by firearm. The Act now deals with female genital
mutilation. A part of the Act is now dedicated to child prostitution and other sexual offences. The Act
recognized the sexual maturity of children with “sweetheart” clauses where children from 12 years can be
romantically involved with someone no more than 14 years where there is no act of exploitation, coercion,
threat, deception, grooming or manipulation. It also dealt with child predators through the internet, sex
offenders and extensive measures made for child victims, dangerous drugs and alcohol, child porn and
provision for their safety in Part IX.

Insofar as the Act made provision for preserving a child's rights in the juvenile justice system, there was a
shift to protecting the welfare of the child and treating the child individually for special needs to set him or
her on the path of rehabilitation. For juvenile or child offenders the following new developments are
noteworthy. It is the responsibility of the police to notify the Children's Authority and place the child in a
Community Residence until he/she is brought before the Court. The child is entitled to bail and the Court
must notify the Children's Authority. If the child has to be remanded such as for a non bailable offence he
shall be placed in the custody of a Community Residence. Parents or guardians must attend the court
proceedings and may be liable to pay “fines or damages or costs instead of the child”. In determining
sentences the Court will take into account a number of reports from probation officers, the Children's
Authority and other submissions that seek to promote the welfare of the child and its best interest. A child
shall not be detained in an adult prison nor allowed to associate with adults in any facility except with the
permission of the Court. Children could be subject to periods of training if they have conducted themselves
well in a Community Residence. It establishes the office of child attorney and provides new procedures for
the participation for the child in court proceedings.

Paradoxically while BS and SS were being detained prior to trial for over two (2) years, notwithstanding
the benefit of the presumption of innocence, it is noted that if found guilty there are a host of remedial
powers conferred unto the Court which includes giving the children their freedom. This re-emphasizes the
importance of the international norm of not exceeding reasonable limits for pre-trial detention of juveniles
and underscores the international community's concerns of the length of pre-trial detention of children.
Notably in Section 59(4) the framers of the Act deliberately drew a distinction between a Community
Residence and prison. Importantly this suite of legislation was in gestation for 15 years and in the case of
the Children's Act of 3 years. Certainly there is no legal requirement for the Executive to proclaim
legislation as expeditiously as possible and such a decision is political and administrative in character. The
Minister was not under any positive duty to bring the Act into effect. See Lord Brown Wilkinson in R v.
Home Secretary Ex p Fire Brigades Union (1995) 2 All ER 244.

However Ex p Fire Brigades Union is instructive for the proposition that such power to enact the
legislation is to be exercised so as to bring the Act into force when it is appropriate unless there is a change
in circumstances which would render it inappropriate to do so. In that case Parliament had reserved section
171 of the Act to the Secretary of State to bring a statutory scheme into effect at a later date. However he
subsequently introduced an entirely new tariff scheme inconsistent with that presented in the legislation.
Lord Mustill observed that there are legitimate objects served by the legislature in delaying the
implementation of legislation. This included further studies, international law, or financial circumstances
may change. But for whatever its reasons to delay, that is the Parliament's prerogative. It is presumed then
that when the legislation was eventually proclaimed, the administrative machinery to give effect to the
legislative intent would also be in place. If not why the rush? What the House of Lords held as
impermissible however was for the Minister to act inconsistently with the un-proclaimed legislation as
though it did not exist. Far worse than for the Government to act inconsistently with proclaimed
legislation. Lord Berwick rationalized that “the government's intentions may be judged by their deeds as
well as their words. The introduction of the tariff scheme, which is to be put on a statutory basis as soon as
it had time to settle down is plainly inconsistent with a continuing power under section 171 to bring the
statutory scheme into effect.” Plainly as conceded by Senior Counsel for the Attorney General in this case
it would be irresponsible for the Government to pass legislation without ensuring that Community
Residences to keep the children were not in place. In this respect the reliance on ‘lack of resources’ to
fulfil the requirements in section 54 of the Children's Act is a non-starter. The Act was enacted in 2000. It
took 15 years before it was proclaimed. Whatever its reason for the delay clearly there was enough time to
become institutionally ready. In this respect, this case is far removed from Suratt where the State delayed
in implementing legislation in the belief that the Act itself was unconstitutional. To give effect to the “best
interest” principle in the new paradigm, there must have been a sense of urgency to get the Community
Residences up and available by 2015. It is no excuse to say, after such a long period of time as if by way of
apology to children, that they must ‘wait’ while their rights to be protected in the criminal justice system
are being breached.

THE DEFINITION ISSUE

I turn now to the issue whether the YTC or the Women's Prison fall within the definition of “Community
Residences” under the Children's Act. It is the duty of this Court to authoritatively construe legislation that
is, determine its legal meaning. This function is exclusive to the Court, and a meaning found by any other
person, for example an authorizing agency, an investigating agency, an executing agency, a prosecuting
agency, or even the legislature itself except when intending to declare or amend the law, is always subject
to the determination of the court. [1078 Role of court in interpretation. (Halsbury's Laws of England 5th
Edition, 2012, Vol 96, pg. 750] The Court's determination of legislative intention is not a search for the
actual subjective intention of a particular group of politicians, but an objective search for the intention that
must be imputed to the legislature by reference to the words used and the context in which they are used.
The golden rule of course is that words are prima facie given their ordinary meaning. See Statutory
Interpretation Cross 3rd edn. 1, McCormick v. Horsepower Ltd (1981) 2 All ER 746. Lord Reid Black-
Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 commented
that an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general
context of the statute.” Considering it as a whole and in its context, “Consideration of the purpose of an
enactment is always a legitimate part of the process of interpretation”: Fothergill v. Monarch Airlines Ltd
[1981] AC 251 at 272, [1980] 2 All ER 696 at 700, HL, per Lord Wilberforce. ‘ In Oliver Ashworth
(Holdings) Ltd v. Ballard (Kent) Ltd [2000] Ch. 12, [1999] 2 All ER 791, CA “where an enactment grants
a statutory right but fails to determine its limitations, the court must determine that right by reference to the
purpose for which it was granted. Thus judges have referred to ‘the power of the courts to disregard the
literal meaning of an Act and to give it a purposive construction’ [See also Statutory Authorities Service
Commission v. Solomon-Sankar, Jacqueline, [2014] C.A.CIV.122/2008 the Court of Appeal. In Law
Association of Trinidad and Tobago v. The Attorney General of Trinidad and Tobago; See Lord Nicholls
in R v. Secretary of State for the Environment, Transport and the Regions, Ex-parte Spath Holme Ltd.
(supra.) at 397 H to 398 B].

Lord Bingham pointed out in R. (Quintavalle) v. Secretary of State for Health (2003) 2 WLR 692 at 697
D-G that the task of statutory interpretation is multidimensional:

“The basic task of the court is to ascertain and give effect to the true meaning of
what Parliament has said in the enactment to be construed. But that is not to say
that attention should be confined and a literal interpretation given to the particular
provisions which give rise to difficulty. Such an approach not only encourages
immense prolixity in drafting, since the draftsman will feel obliged to provide
expressly for every contingency which may possibly arise. It may also (under the
banner of loyalty to the will of Parliament) lead to the frustration of that will,
because undue concentration on the minutiae of the enactment may lead the court
to neglect the purpose which Parliament intended to achieve when it enacted the
statute. Every statute other than a pure consolidating statute is, after all, enacted to
make some change, or address some problem, or remove some blemish, or effect
some improvement in the national life. The court's task, within the permissible
bounds of interpretation, is to give effect to Parliament's purpose. So the
controversial provisions would be read in the context of the statute as a whole,
and the statute as a whole should be read in the historical context of the situation
which led to its enactment.”
Involved in the search for meaning is not only asking what are the literal meaning of the words
“rehabilitation centres” or “Community Residences” but also asking the questions: Did Parliament intend
that a prison and an Industrial Institution be considered as Community Residences? What did Parliament
intend when defining and creating the concept of the Community Residence? Senior Counsel for the A.G.
submitted that it would be absurd to think that Parliament would have intended YTC not to be a
Community Residence as to hold otherwise would lead to scores of children being remanded there being
unlawfully detained. These are all some of the questions of common sense which comes into play when
deciphering the statutory language.

Section 54 of the Children's Act under Part X “Child Offenders” (a term which includes children on
remand in the context of the legislation) provides:

“A court on remanding or committing for trial a child who is not released on bail,
shall order that the child be placed in the custody of a Community Residence
named in the Order for the period for which he is remanded or until he is brought
before the Court.” [Section 54 as amended states “where in any other written law
reference is made to an orphanage or industrial school such reference shall be
read as a reference to children's home or rehabilitation centre”. (References to
Community Residences are also made in section 59(2) (3) 76 (1) 64(1) (74(1) of
the Children's Act).]

A “Community Residence” means a “Children's home or rehabilitation centre”

[Section 2 of the Community Residences Act]. The Community Residences Act
further defines “Children's Home” and “Rehabilitation Centre” as:

“Children's Home” means a residence for the care and rehabilitation of children”

“Rehabilitation Centre” means a residence for the rehabilitation of youthful

offenders, in which youthful offenders are lodged, clothed, and fed as well as
taught.
The Children's Act Chapter 48:02 defines “Industrial schools” and “Orphanages” as follows “Industrial
School” means a school for the industrial training of youthful offenders, in which youthful offenders are
lodged, clothed, and fed, as well as taught. “Orphanage” means a school for the industrial training of
children, or a home or institution, in which children are lodged, clothed, and fed, as well as taught.

The literal meaning of residence does not give the impression that it is a place of detention. “Residence” is
defined in the Collins English Dictionary 14th Edition 2006 as: - “Home or house”. The Osborn's Concise
Law Dictionary defines “residence” as: The place where a person lives or from which the affairs of a
company are directed. “The place of a person's residence governs their domicile and liability to taxation. A
company is resident for tax purposes in the country where its central management and control are
exercised”.

It is in such a residence, which connotes a place to live and call home, where your affairs and operations
are carried out or your base of conducting your daily life that one is rehabilitated. Rehabilitation is not the
same as reformation. Rehabilitation is: “The action of restoring someone to health or normal life through
training and therapy after imprisonment, addiction, or illness” Oxford Dictionary. It is from the Latin word
rehabilitare “to restore”. Reformation means “to make changes in something especially an institution or
practice in order to improve it. To cause someone to relinquish an immoral criminal or self-destructive
lifestyle” Oxford Dictionary. It is from the Latin word reform “to form again”. Reformation is not the
purpose of these residences which is the word used in the YOD Act and although may be used
interchangeably with the word “rehabilitation” it conveys a different meaning. Reform may be the act of
affecting change but theoretically and conceptually through much different means, whereas rehabilitation
is an act of restoration. Reformation therefore imposes change while rehabilitation restores, it allows
change to manifest itself. Reformation begins with the concept that there is something unnatural to be
changed. Rehabilitation seeks to give life to the good qualities that exist. Principles of restorative justice
are more consistent with the notion of rehabilitation than with reformation.

A stark but vivid example of reformation can be seen in the “reformation” of the Amerindians by the
Spanish to Catholicism in the 15th century perceiving the subject of reformation as brutes or the Hindus' to
Presbyterianism in the mid-19th century perceived to be ignorant and childish. In such reformation your
sense of self is converted and your past forgotten lost in memories of the ghosts of silent ancestors. Such
was the cruel and inhuman treatment meted out to the Canadian aborigines in the process of reformation at
their Residential Schools. Only a cynic would perhaps refer to such a process as “rehabilitation”. These
were not “cures” this was the superimposition of cultural and ethical norms at the expense of one's
indigenous characteristics. In this sense, reformation may have been a form of treatment applicable in the
19th century but it does not reflect the modern and populist view of restorative justice and rehabilitation.

In the context of the Community Residences Act, a Community Residence therefore is a home which
replaces that of the child's. It is a safe and secure place for remanded youths where the children are
supervised and taken care of by qualified persons. The children are given the opportunity to be educated.
There are exercises available and sporting activities. The children are able to receive help for their
problems such as anger management issues, drug or alcohol problems. There is specialized treatment for
each child by means of a treatment plan. There is no strict regimen of punishment. There are provisions for
care and the absence of violence in any form on the child. It is not a place in which the child associates
with adults. See the Children's Community Residence Regulations 2014.

Another indicator as to whether YTC or the Prisons falls in the definition of Community Residences
therefore is to examine the character of the institution and determine whether it exhibits the characteristics
of a rehabilitation centre. In reviewing the characteristics of a Community Residence contextually, it is
plainly obvious that the Prison and YTC are institutions that do not fall within the definition of
Community Residence. The Women's Prison is governed under the Prisons Act Chapter 13: 01 Act 27 of
1900. Remanded and convicted inmates days begins at 6:00am and by 7:30am breakfast is served. Lunch
is served at 11:30am. The inmates are involved in various activities such as working in the ration rooms,
tailor shop, maintenance, and library or attend classes. Remanded inmates are allowed to participate in
programmes including CXC O' Level and cosmetology classes. There are different religious programmes
available for adults of different denominations, psychological services, and medical services, drugs in
prison treatment and rehabilitation program, individual counselling, life support programme among others.

But this is a centre for adults with programmes designed for adults. There is no evidence that there is any
modification suitable for children and more so for SS's individualized needs. The basic amenities of a toilet
is missing and in its place is the infamous slop pail. The child is placed in a cell. These fall far short of
what the regulations contemplate are Community Residences.

The YTC falls within the ambit of the Trinidad and Tobago Prisons Service. It caters for Young Offenders
between the ages of sixteen(16) to eighteen(18) who have been sent there by the Courts for a period of
training in lieu of imprisonment for a period of not less than three(3) nor more than four(4) years. Basic
needs regarding shelter, clothing, food, health, recreation and religious expression are provided. Activities
and programmes are available such as school, trade and sporting activities. The Institution has the Youth
Training Centre Government School, with trained teachers from the Ministry of Education together with
qualified officers and volunteer personnel. I have already examined the modes of punishment earlier in this
judgment.

However there is no manual nor policy document produced setting out the rehabilitative goals and
objectives of the YTC. Instead the Court has the Act and the Young Offenders (Male) Detention
Regulations which set out the characteristics of this place of detention. The following are some of the
features which make it far removed from a rehabilitation centre as contemplated by the Community
Residences Act.

• It falls under an Act which describes itself as a “detention” Act.

• The institution as the title of the Act stipulates is for the detention and reformation of young offenders.
•. The treatment received in an industrial institution is not rehabilitative nor restorative as it is one
where young offenders while detained “may” be given such industrial training and other instructions
and be subject to such disciplinary and moral influences as will conduce to the reformation and the
prevention of crime. The purpose is first and foremost detention. It is discretionary whether the
instruction will provide any other assistance to the child. If it does it is along the lines of a retributive
and not a restorative approach of giving training and instruction, disciplinary and moral influences to
reform the detainee to prevent crime.
• The instruction is under the control of the Commissioner of Prisons and is part of the prison system.
This is not to say that the prison system cannot be reformed, but to do so the structural and legislative
machinery must be enacted to provide for such reformation.
• Sections 8, 11, 12, 13 and 14 of the Prisons Act apply to the YOD Act, which alarmingly includes the
power of officers to retaliate against “inmates” with arms without repercussion.
•. The “reformative” regime is focused on punishment to effect change rather than on restoration. See
regulation 64 YOD regulation.
• Treatment of children in the regulations appear regimented such as being placed in grades with an
emphasis on manual labour.
• The treatment described by Mr. Scanterbury in his affidavit is the same which is administered for all
the children on remand. This is not reflective of any rehabilitative approach to dealing with children's
individual needs in their care. It is reflective of a “para military” administrative regimen to enforce rules
and discipline and a top down authoritarian style consistent with a prison or detention centre.
• There is evidence that adults are in fact on remand at the YTC and there is no distinction in the
affidavit of Mr. Scanterbury between boys on remand and those convicted of crimes or those who are
above the age of 18.
From this overview of the legislation and the services provided by these institutions and treatment received
by the children, the YTC and Women's Prison do not qualify as Community Residences under the
Children's Act.
ILLEGALITY
There can be no challenge to the legality of the decision of the Commissioner of Prisons to continue to
keep the children in YTC or at the prison as they were merely obeying a lawful command. See Quinland v.
Governor of Belmarsh Prison (2002) EWCA Civ. 174 and Isaac v. Robertson (1984) 43 WIR 126.

However, the fact that YTC and the Women's Prison are not Community Residences would mean that the
warrants issued for the remand of the children are illegal on their face. The defendants raise the argument
that there is no challenge against the decision not to grant bail as murder is not a bailable offence, therefore
BS and SS were not entitled to be released on bail and as there was no other suitable place to house them
on remand, the orders remanding them to YTC and Prison are not invalid.

I am not attracted to this proposition in the context of the obligations to and rights of the child under the
Children's legislation. First the Court could not legitimately arrive at a well-informed or reasonable
conclusion that no suitable Community Residence exists to house the children without consulting or
notifying or activating the assistance of the Children's Authority. Second it would appear that an
assumption was made that no Community Residences exist and so they ought to be remanded to places
which have been accepted by the Chief Magistrate as not community residences and in the face of an
absolute prohibition of detaining children in prisons. Third it ignores the principle of the “best interest of
the child” which was not applied in arriving at that decision and the rights of the child not to be detained
prior to trial but only as a last resort and not for an unduly long period of time. Fourth in the face of two
statutory mandates in not granting bail for the offence of murder and that the child offender must be
remanded to a Community Residence, if they were denied bail there was no exercise of balancing “the best
interests” of the child with the statutory mandate not to grant bail before the decision was made to find a
suitable place for the child. Fifth the evidence demonstrates that there were Community Residences in
existence (48 of them) but that their conditions at that time did not meet the standards of the Children's
Authority for licencing. Without further enquiry as to whether temporary arrangements could be made at
the Community Residences for these children, the balancing exercise in fulfilling the statutory mandate
simply was not conducted and there was a failure to give primacy to the best interest of the child. Sixth
Parliament intended to give full effect to the bundle of human rights in the child. To remand children to
prisons or places that are not rehabilitation centres is not only a retrograde step in our understanding of the
rights of the child, it defeats the intention and policy of the legislation, inconsistent with the principles of
juvenile justice and is no longer recognized as a feature of our or any civilized society. Finally as discussed
below the orders are a breach of the child's fundamental rights to due process, protection of the law and not
to be exposed to cruel and unusual treatment.

As a matter of evidence according to the Children's Authority, there were 48 Community Residences
which were in existence. It is therefore not a proper submission that it was impossible to comply with
section 54 of the Children's Act which simply says that the child is to be remanded to a Community
Residence. The evidence of the Chief Magistrate was that she was aware of St. Jude's and St. Michael's as
residences for both girls and boys respectively but having made her own assessment of those residences,
without any supporting evidence, the children were remanded to places which were plainly not
Community Residences. The question of whether the Community Residences, meet the Children's
Authority's standards for licencing, is an entirely different matter. It is clear Parliament had intended a
grace period for Community Residences to come up to the level appropriate for the licencing by the
Children's Authority. This does not mean that they are not Community Residences. In fact it is the duty of
the Children's Authority to closely monitor these Community Residences and in this case where young
offenders are being remanded to ensure that all available information is obtained, inspect the premises,
carry out their investigations and where necessary activate their powers under the Children's Authority Act
to seek the child's best interest and welfare. It is in my view clear that what was contemplated by
Parliament first breathing life into the Children's Authority from 2008 to 2015 is to ensure that this central
supervisory body as to advocate for children's rights was ready and competent to regulate the Community
Residences. Their role must be one of grandfathering these institutions into a state of compliance. This is
the principal reason why the Children's Authority must be notified when a young offender is before the
Court or arrested by the police.

The principal theme in London and Clydeside Estates Limited v. Aberdeen District Council [1980] 1WLR
182, Wang v. IRC (1995) 1 All ER 367, Ex parte Jeyeantahn [Secretary of State for the Home Department
v. Ravichandran; R v. Secretary of State for the Home Department, ex parte Jeyeanthan - 21 MAY 1999]
is that the question whether a statutory requirement must be complied with is fact specific and varies with
the nature of the particular requirement and the consequences of its breach. I have set out in detail earlier
in this judgment the fundamental principles of the best interest of the child underpinning the legislation
and in particular the child's rights in the criminal justice system. To deprive a child who is presumed
innocent his or her placement in a Community Residence while awaiting trial is in my view tantamount to
denying the child his or her childhood. This is not a mere procedural irregularity as considered in those
cases. This goes to a fundamental root issue of the welfare of the child during criminal proceedings
pending trial, when in any event the child is not to be deprived of her liberty for any undue length of time
and if so his or her best interest must be safeguarded. In this case as Parliament intended their best interest
is secured in a place of rehabilitation, a place of care.

Section 29(1) of the Indictable Offences Preliminary Act Chapter 12:01 provides that “an accused person
who is not released on bail shall be committed to safe custody to prison or as the case may require”.
Section 29(1) of the Indictable Offences Act is not incompatible with the Children's Act it simply means
that the child offender must be committed to the safe custody of a “prison” or as the case may be. Clearly
Parliament would not have intended that the Indictable Offences Act could sanction a breach of the
Children's Act. Certainly the law would have moved on beyond 1917. The Court must therefore
legitimately read into the provision the word “Community Residence” in place of the word “prison” if it is
to reconcile both statutes.

If there are no Community Residences then the youth offender can be committed for safe custody to the
Children's Authority. This is a logical conclusion upon reading both sections 54 and 60 in the context of
the changes effected for children under the Children's legislation and the responsibilities of the Children's
Authority. Such an interpretation (a) Accords with the obligations, duties and powers invested in the
Children's Authority for the maintenance of Reception Centres, to secure the child's best interest generally
as well as those in need of care and protection. Indeed a child who is about to be sent to prison would
certainly be exposed to the very least to “moral danger”. (b) Gives effect to the “best interest” principle. (c)
Is consistent with the fundamental rights of the child as discussed in this judgment. (d) Provides coherency
in the new system of juvenile justice where youth offenders are either placed in Community Residences if
they must be remanded or placed in the custody of the experts in the care and welfare of children, the
Children's Authority.

Furthermore the difficulty as advanced by the defendants in the case is not an excuse for the breach of
fundamental rights. In fact the cases referred to me on the “impossibility argument” were not on the hard
edged questions of human rights.

Regina v. Accrington Youth Court and Others, Ex parte Flood [ 1997 Times, 10 October] the applicant, a
16-year-old female, was sentenced to 8 months detention in a young offender institution. She was
however, sent to Risley Prison, which was not a young offender institution. The applicant applied for a
writ of habeas corpus and was granted bail pending her application on the ground that the warrant of
commitment issued was unlawful. The respondent argued that the Home Secretary had powers to derogate
from the principle that young offenders should be detained in young offender institutions and that a young
offender should only be detained in a prison for a temporary purpose. The applicant contended that the
Home secretary had misdirected himself as to where his powers allowed him to direct her to be detained
and that her remand to Risley, even temporarily, was unlawful. Sedley J viewed that a warrant of
committal to prison of a person on the warrant who is under 21 years old is a nullity. Unless and until a
lawful warrant is issued the applicant is entitled to her liberty. Sedley J also commented on the conditions
of adult prisons and its effect on young offenders who are placed there. He also noted that there is no
young offender institution in the country. He further noted that the law also did not permit the secretary to
keep the young offender in prison or remand centre for however long it takes to make lawful placement in
a young offender institution. Therefore, such practice of the Home Secretary was a violation of the law in
section 1C of the Act and an excess of powers granted by that section. Sedley J also ruled that because the
warrants are therefore unlawful, the applicant is entitled to her liberty [It is noted that the offence there was
a bailable offence] until a lawful warrant is issued even though the sentences had been pronounced in
proper form as sentences of detention in a young offender institution.

From a principled approach therefore the orders made by the Chief Magistrate were without jurisdiction
and were illegal. The only legitimate orders that could have been made were to remand the children to
Community Residences. This could have been any rehabilitation centre or children's home. The Court of
Appeal in BS commented on judicial excursions and so I imagine it is not for judicial officers to make the
enquiries as to whether a place is safe or suitable so long as it is compliant with the law and under the
supervision of the Children's Authority. To say that St. Michael's or St. Jude's was not suitable or even to
adjudge the suitability of YTC over the others is not a legitimate consideration if they were not
comparative institutions. Furthermore it was illegitimate without the input of the Children's Authority.
YTC and the Women's Prison were and are not rehabilitation centres. Even so there was no evidence of a
balancing exercise to give primacy to the “best interest” of the child in any of the decisions.

In my view sections 54 and 60 of the Children's Act could have been complied with and the order under
challenge remanding the children to YTC and Women's prison are hereby quashed.

It must stand to reason however that the orders should be substituted with the lawful orders that they are to
be detained at a Community Residence or where no suitable residence is available, in the custody of the
Children's Authority, not at YTC and the Women's Prison [This is no longer relevant for SS after she
became an adult].

The further question is whether this illegality has also given rise to constitutional relief.

CONSTITUTIONAL INTERPRETATION AND THE ROLE OF THE COURT

The issue of constitutional interpretation arise in this context. Recognizing that the children were deprived
of their liberty by detaining them to places that did not comport with the law, recognizing that the law
which was enacted to protect their best interests was not obeyed, recognizing that they were exposed to
treatment to which the law did not intend and is inconsistent with the concept of rehabilitation, care and
securing their best interests, how is the Constitutional Court to interpret due process, the protection of the
law to which they are entitled and cruel and unusual treatment or punishment from which they must be
protected. Certainly the application by the respondents of the Privy Council's decision in Steve Ferguson v.
The A.G. [2016] UKPC 2 in the restricted approach to interpreting due process does not take into account
children in the criminal justice system.

The Constitution is not to be read as an immutable historical document but as a living instrument, a living
tree. In 1928 the Supreme Court of Canada struggled with the question whether “person” in section 24 of
the BNA Act included female persons. They concluded it did not! Much time was devoted to what person
would have meant in 1867. The Privy Council emancipated the constitutional courts from history in
Edwards v. AG (1930) AC 124, where Lord Sankey suggested that an appeal to history was not conclusive
and resulted in an effect which was “a relic of days more barbarous that ours”. The basic constitutional
document was a living tree capable of growth and expansion within its natural limits.

One of the most beautiful trees in this country is the Poui, it withstands the harshest of weathers, its roots
grow deep, it grows for ages, its bark reveals the experience of its age and in the driest spells when nature
is ravishing its harshest conditions Poui blooms its most radiant and beautiful flowers. American jurist
Oliver Holmes would comment that “the life of the law has not been logic, it has been experience. The law
embodies the story of a nation's development through many centuries and it cannot be dealt with as if
contained only the axioms and corollaries of a book of mathematics.” It is this living tree that has bloomed
for many years in our constitutional jurisprudence dotting the landscape of human rights.

There are no dead ends. As the roots continue to grow more flowers will bloom. If it were not it would
stifle human progress, national development and the rule of law as the law will be out of touch with the
needs of an evolving society with changing perceptions of self-dignity and self-worth.

In carefully mapping out the history of the movement of children's rights the cold hand of the past cannot
be used to stifle the prospects of the future for our youth. Jackson JA so correctly echoes the ‘evolving
standards’ of decency noted in Roper when he commented in IRV v. Lilleyman (1964) 7 WIR 496:

“A constitution must not be construed in any narrow or pedantic sense. The words
used are necessarily general and their full import and true meaning can often only
be appreciated when considered as the years roll on in relation to the vicissitudes
of fact which from time to time emerge. It is not that the meaning of the words
changes but changing circumstances illustrate and illuminate the full import of
that meaning.”
Justice of Appeal Kangaloo in Ish Galbaransingh v. AG C.A. Civ. 207/2010 would describe the
Constitution as not cast in stone as “the Ten Commandments handed down to Moses on Mount Sinai”.
Literally however the supreme law is our commandment “Thou shall not deprive me of my liberty save as
to due process….” but it is in its interpretation and application that reflects its dynamism Justice of Appeal
Kangaloo continued:

“It must be interpreted in a way that keeps apace with our modern democratic
society and our current notions on human rights and fundamental freedoms. A
universal feature of modern day existence is the increasing levels of legislative
intervention as Parliament attempts to fulfil its role to make laws for the peace,
order and good governance of the multi-racial, multi-ethic and multi-cultural
melting pot that is Trinidad and Tobago. In fulfilling this mandate a balancing of
rights and freedoms is wholly appropriate. When courts are called upon to
pronounce on the constitutionality of legislation they are of necessity engaging in
a balancing exercise. Call it proportionality, inconsistency, or reasonable
justifiability, a rose by any other name would be as aromatically attractive.”
Senior Counsel for the claimants described the three liberties in the Constitution as the tripod upon which
nationhood stands. Lord Wilberforce saw the Constitution not as any statutory instrument but as a supreme
law which set the scaffolding for the emergence of developing society. It is to be treated sui generis with
principles of interpretation of its own. Those principles give deference to the text as a living instrument,
that it was set in a historical context of a negotiated text to maintain a smooth transition from colonialism,
that respect must be paid to the language of text and to tradition and usages but a point of departure for the
process of interpretation will be a recognition of the character and origin of the instrument and the
principle of giving full recognition and effect to fundamental rights and freedoms. See Minister of Home
Affairs v. Fisher (1980) AC 319.

In this context our Courts have paid particular regard to the vulnerable in our society giving rise to a duty
to protect. Four cases illustrate this: George Daniel v. the Attorney General of Trinidad and Tobago HCA
393 OF 2005, Seepersad and Panchoo v. the Attorney General [2012] UKPC 4 and Maya Leaders Alliance
and Others v. AG (2015) CCJ 15 (AJ) Belize Alliance of Conservation Non-Governmental Organizations
v. The Department of the Environment and anor. [2003] UKPC 63

These cases illustrate the value judgments that are made by our judges in preserving the dignity of human
beings in our society in an evolving and developing world. So that in Daniel it was unacceptable for our
physically impaired citizens to suffer the indignity of being wheeled into the Hall of Justice in a
roundabout manner. It was not consistent with our developed society for us to ignore the original rights of
the indigenous people in Mayan Leaders Alliance and Others v. AG (2015) CCJ 15 AJ. It is not legitimate
to inflict unusual harm on children in trouble with the law by a sentence without review by a court
Panchoo v. AG. Cast under “due process” and “protection of the law” rights, the Courts have been vigilant
in protecting vulnerable groups from obtrusive and insensitive acts of the State which compromise their
sense of dignity, self-worth and broadly the rule of law.

If I may paraphrase the words of Justice Bernard CCJ Judge that “Judges have a creative function. They
cannot afford to just mechanically follow the rules laid down by the legislature; they must interpret these
rules so as to reconcile them with the wider objectives of justice which are encapsulated in the
international norms of children's human rights. So long as judges are sensitive to (children's) human rights
and are prepared boldly to advance the law through a process of creative interpretation, (children's) human
rights will be safe”.

As discussed in Charles Matthew v. The State [2004] UKPC 33, [2005] 1 AC 433, [2004] 3 WLR 812 the
task of constitutional interpretation involves a much broader vision recognizing that the over literal
approach to interpretation may be inappropriate when seeking to give effect to “the rights, values and
standards expressed in a constitution as these evolve over time”.

The infamous savings law clause which was so extensively debated in the death penalty cases and in the
Trinity Cross judgments [“Trinity Cross” case: Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc.
v. Attorney General of Trinidad and Tobago, [2009] UKPC 37.] recognized the potential of stunted growth
of the constitutional tree if its roots become entangled over the rocks of history. The Privy Council have
repeatedly underscored that we must change with the times. “Time has changed Human rights, values set
higher standards today, conduct once tolerated is no longer acceptable. A sentence of death which lacks
proportionality lacks humanity”. What shackles can ever be on a “Constitutional Court” entrusted with the
solemn, amoral and legal obligation to give life to our vision of an evolving common humanity. No greater
endorsement for the need to change can be given than by Lord Nicholls in Charles Matthew:

“I do not believe the framers of these constitutions ever intended the existing laws
savings provisions should operate to deprive the country's citizens of the
protection afforded by rising standards set by human rights values. The savings
clauses were intended to smooth the transition, not to freeze standards for ever.
The constitutions of these countries should be interpreted accordingly, by giving
proper effect to their spirit and not being mesmerized by their letter. A literal
interpretation of these constitutions means that the law of Jamaica, a country
which has taken steps to distinguish between different types of murders, is held to
be unconstitutional, whereas the laws of Barbados and of Trinidad and Tobago,
where no ameliorating steps have been taken, are held to be constitutional. This is
bizarre.

[70] Self-evidently, an interpretation of the constitutions which produces this

outcome is unacceptable. A supreme court of a country which adopts such a
literal approach is failing in its responsibilities to the citizens of the country. A
constitution should be interpreted as an evolving statement of a country's supreme
law.

[71] This is not to substitute the personal predilections of individual judges for the
chosen language of the constitution. Rather, it is a recognition that the values
underlying a constitution should be given due weight when the constitution falls
to be interpreted in changed conditions. A supreme court which fails to do this is
not fulfilling its proper role as guardian of the constitution. It is abdicating its
responsibility to ensure that the people of a country, including those least able to
protect themselves, have the full measure of protection against the executive
which a constitution exists to provide.”
Lord Nicholls would later say in Panday v. Gordon [2005] UKPC 36 that it is for the constitutional court,
in of course a principled and rational way, to determine, how the fundamental rights are to be applied in
the “multitude of different sets of circumstances which arise in practice”.

In India Dr. Justice AS Anand a former Chief Justice [Human Rights and Social Justice, Dr. Justice A
Pasayat.] noted:

“It is important to bear in mind that the Constitution, though by itself an

important document, is after all cold print on a piece of paper. What is important
to remember is the system the Constitution seeks to introduce and the way that
system works. The Constitution no matter how well-crafted it is, will not be able
to deliver the goods unless the system which it introduces functions effectively to
realize the dreams of the founding Fathers of the Constitution. When we talk of
the Constitution as living law it is usually understood to refer to the doctrines and
understandings that the courts have invented, developed, spread and applied to
make the Constitution work in every situation. Unless life can be pumped into the
cold print of the Constitution to keep it vibrant at all times it shall cease to be
living law. Generally speaking, this role of pumping life is assigned to the higher
courts, more particularly under a Constitution which has separation of powers as
its core. The Constitution of a State essentially reflects the aims and aspirations of
the people who gave to themselves the Constitution.

In human affairs there is a constant recurring cycle of change and experiment. A

society changes as the norms acceptable to the society undergo a change. Old
ideologies and old systems give place to new set of ideologies and new systems
which in their turn are replaced by different ideologies and different systems.
Judicial creativity (often being principles termed as judicial activism), as a means
of evolving new juristic principles for the development and growth of law, is an
accepted and well recognized role of the judiciary not only in this country but in
almost all the common law countries. The law must move with the times and
judiciary has forever to remain alive to this reality. This role of the judiciary is not
new either in India or elsewhere.”
The Courts will give life to human rights and “while fairness, justice and human rights are expressed in
any constitution as universal codes their boundaries, content and requirement should be given local
contextual flavour.” Per Kangaloo JA. The Privy Council has noted in Surratt that we would have a surer
sense of justice of what falls within the purview of the Constitution than “a court sitting many miles
away.”

In recent submissions by eminent jurists in this jurisdiction, an invitation has been made for our Courts to
respond to the call to make such value judgments against our own sensibilities and be ever vigilant with
emerging trends in human rights. Justice Saunders noted the Court of Appeal's role as the final arbiter in
this jurisdiction of value judgments that are for the good of our society [The Role of the Court of Appeal in
Developing and Preserving an Independent and Just Society (Second Distinguished Jurist Lecture 2012 by
Mr. Justice Adrian Dudley Saunders).].

“As this country's Court of Appeal instructs us in Collymore, the courts are the
guardians of the constitution. This guardianship role is central to the broad role of
the Court of Appeal in protecting democracy and advancing the rule of law. The
rule of law in this context means a lot more than guaranteeing simple adherence
to the law. It implies as well legal accountability, fairness, respect for minorities,
the observance of human rights, judicial independence, the separation of the
powers, equality before the law, the absence of arbitrariness. Ultimately, the final
court sets the standard in these matters but it does so only if and when appropriate
 cases reach it. And even before those cases get there they must first be dealt with
by the Court of Appeal.

The advancing of good governance and the rule of law is central to the role of
Courts of Appeal in our developing democracies. It creates the conditions for the
optimal social and economic development of our societies quite apart from
producing justice for the citizenry. In multi-ethnic and multi-cultural societies in
particular courts have a special responsibility to ensure equality of treatment.

Black letter law, the printed words of the law on a sheet of paper proclaiming, for
example, the human rights of the individual, those words, irrespective of how
flowery or comforting the language in which they are written, would not by
themselves guarantee the full measure of those rights. Each generation of judges
must examine and re-examine those printed words to ensure that their
interpretation is in sync with evolving standards of humanity and with
internationally accepted norms. Law must be certain and predictable, but it must
also be just and evolve with the times. It is the ongoing role of courts to resolve
this delicate tension.

I do not agree that humanizing the law in this fashion is a task that should always
be le. to the legislature. Elected representatives in a democracy are not often best
placed to make some of the tough calls and policy decisions that must be made on
issues of social justice. If you owe your place in the legislature to the electorate to
whom you are accountable, if you have been sent to parliament to represent the
interests of your constituents, then it is understandable that you will always be
very sensitive to popular views. But the rule of law will not flourish if the
Judiciary also embraced majoritarianism as a fundamental principle. On deeply
divisive and emotive social questions that impact on the enjoyment of human
rights, on those issues that are fed by prejudice but which appear to have popular
support, it is to the courts that society often must turn for fair, just and decisive
answers. The common law provides us with a legal heritage that is hailed
throughout the world, but the law is a living instrument. In the building of a just
and independent society I think our judges have an obligation to interrogate the
common law to discover those features of it that have been constructed for a
different time and a different society. Appellate courts should subject the common
law to a rigorous analysis to ensure that, in being faithful to precedent, we are not
inadvertently retarding the progress of our societies.

It is our Court of Appeal as distinct from the Privy Council which ultimately
makes such value judgments as judging where the national consensus lies in the
development of children's rights in this jurisdiction”. [Madame Linda Dobbs
exhorted the judiciary not to be afraid of second and third generation rights and
invited judges “for whom fairness is part of your DNA to apply a critical eye to
see how you can ensure that what you do give effect to international human rights
norms even in the face of difficulties posed by legislation and the constitution”.]
More recently Professor Drayton placed the constitutional courts in its proper social historical and political
contexts as the advocate for a free and independent society, recognizing the inherent dignity of humans. In
an equally passionate plea Professor Drayton theorized after analyzing the violence of our historical and
constitutional past, that the task of building a society lies with us in making such value judgments to
fulfilling the rights promised in our Constitution. We must become our own founding fathers and mothers:
“our task, one in which legislators' judges and citizens must share, is to create a constitutional identity
which we can claim as our own precious heritage… Laws can only move from external constraints to inner
inspirations if they are grounded in justice and embody the personality of all citizens… The duty of the
judge is to be the witness of the present in the work of giving laws their meaning.”

In this regard homage must be paid to the erudite judgments of Chief Justice Archie and Justice of Appeal
Jamadar in Francis and Hinds v State, in their discussion of the breadth of the Constitution, the values that
underpin it and the stretch of our historical past and our responsibilities of the present.

Emerging then from our colonial laws governing children when we have signaled our need to care for the
youth in trouble, where we have as a society been made consciously aware of this vulnerable group as a
source of concern in an upsurge of crime and criminality, that the constitutional rights of liberty, dignity,
protection from inhuman treatment must be engaged when BS or SS are detained in a place that is first
against the law and second inconsistent with the values we now hold true for the rehabilitation of young
offenders giving life to the principles of social justice and a just society. That they are associating with
convicted inmates. That they are detained in prisons. That they are subjected to treatment which is not
rehabilitative within the spirit and philosophy of the Children's legislation. That they are already victims of
abuse of their particular domestic circumstances further agonized at the hands of the State. If the Court is
astute to care for the child it must respond fully within the context of the principle of “best interests of the
child” and the rule of law.

THE CONSTITUTIONAL RIGHTS

DUE PROCESS: INTERPRETATION BREADTH AND WIDTH

The due process of law must be viewed through the lens of securing the child's best interest. One cannot
force fit what is due process for an adult on the due process for their vulnerable class. In its advisory
opinion on the right to information on consular assistance in the framework of the guarantees of the due
process of law Justice Trindade commented:

“To accomplish its objectives the judicial process must recognize and correct any
real disadvantages that those brought before the bar might have thus observing the
principle of equality before the law and the court and the corollary principle
prohibiting discrimination. The presence of real disadvantages necessitates
countervailing measure that help to reduce or eliminate the obstacles and
deficiencies that impair or diminish an effective defence of one's interest. Absent
those countervailing measures widely recognized in various stages of the
proceeding, one could hardly say that those who have the disadvantage enjoy an
opportunity for justice and the benefit of due process of law equal to those who
do not have those disadvantages.”
The due process of law invokes the concept of the rule of law. The rule of law is fundamentally the
observance of law which underscores, protects and preserves the inherent dignity of man and in this case
the child. Soli Sorabjee the former Attorney General of India stated:

“It needs to be emphasized that there is nothing Western or Eastern or Northern or

Southern about the underlying principle of the rule of law. It has a global reach
and dimension. The rule of law symbolizes the quest … to combine that degree of
liberty without which the law is tyranny with that degree of law without which
liberty becomes licence. In the words of the great Justice Vivien Bose of [the
Indian] Supreme Court, the rule of law “is the heritage of all mankind because its
underlying rationale is belief in … the human dignity of all individuals anywhere
in the world.”[“The Rule of Law: A Moral Imperative for South Asia and the
World”, lecture delivered at Brandeis University, 14 April 2010”]
It invokes the universally accepted standards of justice observed by civilized nations which observe the
rule of law. “It does not guarantee the forms of legal procedure existing when the constitution came into
force the clause is not immutably fixed at that date”. Per Lord Millet in Thomas v. Baptiste.
 “The due process of law is a compendious expression in which the word law does
not refer to any particular law and is not a synonym for common law or statute.
Rather it invokes the concept of the rule of law itself and the universally accepted
standards of justice observed by civilized nations which observed the rule of
law.”
Indeed in Lennox Ricardo Boyce the CCJ observed the two senses in which the due process can be seen. In
one sense when one says an accused is entitled to the due process of the law one means he is to be tried
according to law. The mandatory requirements of the criminal process must be observed. On the other
hand the narrower constitutional meaning refers to the “fundamental principles which are necessary for a
fair system of justice”. It is important therefore when one invokes the due process law clause and when the
Court interprets it that to give life to the rule of that one remains fixed on the fundamentals of a fair system
of justice.

The rule of law is more than just simple legality or the observance of law. Indeed the apartheid system and
slavery fulfilled the quality of legalism of rule by law. Dred Scott v. Sanford 15 ELD 691 (1857) in the
United States, in the aftermath of apprenticeship and the commencement of industrialized system of
labour, held that a Negro was the property of his master and not a citizen. A century later in Brown v.
Board of Education 347 US 483 it was held that slavery is a dehumanizing institution denying human
dignity to such an extent no court of law can uphold it. There is a synergy with the rule of law and social
justice, fundamental justice human dignity rights and freedoms. “It may not include all human rights
within its purview but in general it is a vital instrument of justice and institutional morality”. Professor
Jowell QC.

The concept of social justice has been engrafted in our Constitution and an integral part of the justice in the
generic sense. In Consumer Education and Research Centre v. Union of India AIR 1995 SC 922:

“Justice, according to law, comprehends social urge and commitment. The

Constitution commands justice, liberty, equality and fraternity as supreme values
to usher in the egalitarian social, economic and political democracy. Social
justice, equality and dignity of person are corner stones of social democracy. The
concept “social justice” which the Constitution of India engrafted, consists of
diverse principles essential for the orderly growth and development of personality
of every citizen. “Social justice” is thus an integral part of “justice” in generic
sense. Justice is the genus, of which social justice is one of its species. Social
justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits,
Tribals and deprived sections of the society and to elevate them to the level of
equality to live a life with dignity of person. Social justice is not a simple or
single idea of a society but is an essential part of complex of social change to
relieve the poor etc., from handicaps, penury to ward off distress, and to make
their life liveable, for greater good of the society at large. In other words, the aim
of social justice is to attain substantial degree of social, economic and political
equality, which is the legitimate expectation. Social security, just and humane
conditions of work and leisure to workman are part of his meaningful right to life
and to achieve self-expression of his personality and to enjoy the life with dignity,
the State should provide facilities and opportunities to them to reach at least
minimum standard of healthy, economic security and civilized living while
sharing according to the capacity, social and cultural heritage.”
Forty-five years ago our constitutional court in LaSalle v. A.G. (1971) 18 WIR 379 first examined the
concept of the “due process” clause of the Constitution. Tracing its roots to the “palladium of basic
liberties” in the Magna Carta to Hood Phillip's famous treaty on constitutional and administrative law.
Philips JA favoured a construction that the clause embodies a protest against arbitrary punishment and
infringement of a person's liberty. “It is the antithesis of arbitrary infringement of rights. It asserts a right to
free trial to a pure and unwrought measure of justice”. The effect of the due process law clause is to
entrench not the particular form of legal procedure existing at the date of the constitution for the
adjudication of rights but rather his fundamental right to such adjudication by fair independent and
impartial trial in accordance with legal principles that have come to be well understood in our democratic
society-his right to justice as we know it. Fraser JA recognized the concept of both procedural and
substantive due process limiting his decision to the concept of procedural process as it was the relevant
right being activated in that case. Hence his discourse on process is not to be confused with limiting the
scope of the due process of law clause to the ambit of procedural justice as at the expense of substantive
due process.

In the cases of Ong Ah Chuan v. Public Prosecutor (1981) A.C. 648 and Hau Tau v. Public Prosecutor
(1982) A.C. 136 the Privy Council was being asked to evaluate rules which were commonly described as
procedural. In doing so they in effect were engaging in an assessment of the policy of the law and its
merits and there is a substantive due process exercise. This frequently arises when a challenge is
contending that a particular rule or process is not fair or unjust [See M. DeMerieux, Fundamental Human
Rights]. Indeed in this case a process where by virtue of section 29(1) of the Indictable Offences Act a
child can be sent to prison when denied bail in the face of an imprimatur that a child is not to be sent to
prison but to a Community Residence under the Children's Legislation raises an issue of substantive due
process.

The principles of due process can be summarized as follows: The right is not an absolute rights. The
context is both substantive and procedural. The right not to be deprived of liberty except by due process is
engaged when a person is deprived of liberty “Law” does not refer to any particular law and not a
synonym for common law or statute. It is the rule of law itself and standards of justice. A generous and
purposive approach is needed. The section 5(2) rights of the Constitution simply spell out in greater detail
what is included in due process but is not meant to limit the definition and width of “due process”.

In the case of a child accused, no authority was referred to this Court as to the fundamentals of a fair
system of justice in the juvenile justice system. Indeed to be deprived of some matters of procedure which
does not affect the substantial fairness of the system of justice may not be a breach of the” due process of
law”. It is argued by the defendants that in this case the child being accused of a non bailable offence was
deprived of his liberty in accordance with the law.

In Ferguson v. the AG supra, the due process of the law is considered as substantive unfairness. The
question of whether there is a breach “must be approached in light of the proceedings considered as a
whole”. Lord Sumpton in deciding whether the legislation that was repealed offended the due process of
law by depriving the appellant of their right to be acquitted, held that there was no such right. It is not
surprising that from a principled perspective the Privy Council would have upheld the decision of the
lower courts which, in effect, gave primacy of the will of Parliament to repeal laws even if it interfered
with the judiciary's discretion. The rule of law, Lord Sumpton observed has never been exhaustively
defined but it includes the resolution of justiciable issues by courts of law without executive or legislative
interference. Accordingly, the rule of law is intact if legislation notwithstanding impinges on the rights or
defences in pending litigation but does not interfere with the judicial process.

In my view the absence of a suitable Community Residence for the treatment and maintenance of children
in trouble with the law is an interference with the judicial process for children. If there are no places to
detain children, they cannot therefore be provided with the due process of law prior to their hearing of the
charges. Fundamentally it affects their dignity and health. It cannot be said that without a suitable place to
detain children “the fairness of their trial continues”. “For the executive to interfere with the proper
implementation of the law of the land is not an option open to the executive. The executive is bound by the
law of the land as is the judicature”. [Ferguson v. AG]

Fundamental to a fair system of justice must be the place to which the young accused is detained. A fair
system of juvenile justice must mean that the basic tenent of care and protection is observed in detaining
the child. Hence the emphasis in international norms in limited pre-trial detention. In providing for a
Community Residence, the legislation is catering for a new system of justice where the detention of the
child is the commencement of rehabilitation of the young offender. It is looking at law through a
therapeutic lens of the restorative effect it can have on the child offender as he or she is treated within the
system more so having regard to the presumption of innocence. In this sense due process means a process
in which the law begins to rehabilitate and reform the child.

Considering the process as a whole there is fundamental unfairness to the young accused if while the
young child is being treated by the court their best interest is not being secured in “detention” where they
are not in a place of rehabilitation.

PROTECTION OF THE LAW: RECENT DEVELOPMENTS AND INCURSIONS

It has long been understood that the protection of the law is observed so long as the judicial system affords
a procedure by which a person affected by the invalidity of law or action can obtain from a court of justice
a remedy. “Access to a court of justice is in itself the protection of the law to which all individuals are
entitled”. [See AG v. McLeod Peters and Chaitan v. AG, (2001) 63 WIR 244 and Boodoo and Jagram v.
AG CV 102 of 1999] McLeod of course was dealing with the question of the validity of a law with the
constitution and not with the actions of the state in breach of the law. In Kent Garment Factory v. AG
(1991) CA 8 citing McLeod the Court of Appeal of Guyana stated:

“In my opinion the concept of the protection of the law is premised on the
existence of a court system to which all would have access in order to vindicate
any perceived wrong or to defend against any allegation of wrongdoing and
which after a fair hearing would render an irrational judgment which will be
binding and enforceable. Protection of law is conceptually quite different from a
mistaken application of the law or the evidence by a court of tribunal”.

See also Seepersad and Panchoo v. AG.

Kent v. AG therefore follows faithfully Lord Diplock's observation that the concept of the protection of the
law is premised on the existence of a court system to which all would have access in order to vindicate any
perceived wrong or to defend against any allegation of wrongdoing. See also Peters and Chaitan where
there can be no unfairness so long as the judicial system provides a procedure by which the appellant can
seek relief.

It is entirely an acceptable proposition that not every breach of the law means that the protection of the law
is engaged. If there is a legal remedy the law has provided protection. The question is what law is alleged
to have been breached or what effective remedy is being made available by the law? Underlying all this is
the fundamental fairness of the system of justice and the rule of law. Of course no declaration of
constitutional breaches would be made if it is purely academic and the refusal of courts to grant relief
should not be construed as a lack of jurisdiction to make such orders as distinct from declining to exercise
the discretion to do so. However I do not think that McLeod in any way was meant to limit the breadth of
the constitutional right of the “protection of the law”. Indeed at times the argument can sound rather
circular and superficial that in other words: the State can breach the law and deny you the protection
afforded by the law yet no issue of a constitutional right of protection of the law arises as the law provides
a remedy to complain and obtain redress. When McLeod is invoked in this way it resembles an abuse of
process point as though it is being argued that the litigant has available to him another remedy provided by
the law that is some procedure that the judicial system has made available for the person aggrieved to
establish the invalidity of that law and there is no need to obtain constitutional relief. Instinctively there is
something unfair in limiting this right in that way.

Access to the courts is itself protection of the law. This was the principle enunciated by Lord Diplock of
but one aspect of protection of the law but Lord Diplock was careful in McLeod, even when invited to do
so, not to define the breadth of protection of the law clause. Indeed neither can I nor any judge suitably
seek to straightjacket rights which were formulated by the architects of the Constitution or predict how
they may be fleshed out with the passage of time as a fundamental aspect of our human dignity, liberty and
consciousness. See Francis and Hinds v. The State. Lord Diplock himself noted instead that the task of
defining what is included in the concept is best dealt with on a case to case basis.

In Boodoo the Privy Council observed that a delay in delivering a judgment is a breach of the protection of
the law. Boodoo v. AG in fact demonstrates that the McLeod approach is but one example and application
of the meaning of the phrase. It extended it by of course extrapolating that if access to the court is a
fundamental right it is rendered meaningless if no judgment or decision has been made to determine one's
rights. In other words the protection of the law is frustrated by the inability of the law to provide relief.
“Surely if protection of the law means anything it must mean that persons are entitled to have recourse to
the appropriate court or tribunal prescribed by law of the purpose of enforcing or defining their right
against others or resolving disputes of one kind or another. It is axiomatic that such a right is meaningless
without a decision by the court to which the claim is referred for adjudication”.

I accept as a general proposition the intersection of the due process rights and the protection of the law as
they concern the rule of law. See Rees v. Crane (1994) 2 AC 173. Breach of natural justice is as much a
breach of due process as it is protection of the law. Procedural fairness is an elementary principle
permeating both concepts of due process and protection of the law.

In Ferguson v. AG Lord Steyn recognized that due process protection of the law and fair hearing are
guarantees “of generous width”. Capable in principle of covering unfairness in the treatment of an accused
at a preliminary inquiry. The base line question is fundamental unfairness of process.

However these interpretations of the right of the protection of the law in no way limits the breadth and
scope of the words protection of the law. It is not protection “by” the law.

In this context Surratt and Ferguson provide for some elucidating theories. Does it at all limit our
conception of what is meant by protection of the law? I believe it would be wrong to say of these eminent
jurists that they intended to limit the breadth of the meaning of these fundamental rights. These are simply
illustrations of how the rights was worked out and applied without restriction on its evolution. To say that
so long as one can file a constitutional motion of a breach of a right ipso facto there can be no complaint of
breach of due protection of the law is a narrow interpretation rendering such a right rather meaningless or
insignificant. This narrow view of the protection of the law is however no longer the modern approach.
See Wrenrick Theophillus v AG CV 2009-01683 and Maya Alliance v. Belize (2010) 77 WIR 108.

Protection of the law includes the right to due process. It includes access to an appellate process. It
prescribes executive action or inaction from rendering a legal appellate process nugatory. It can encompass
delay in producing judgment. Non implementation of legislation may constitute a breach of a fundamental
right.

In Maya Alliance the CCJ demonstrated that past precedent has in no way crusted the concept of this
fundamental right and gave effect to the duty of the constitutional court to continuously interrogate these
fundamental rights as Lord Diplock had hinted in McLeod “on a case to case basis”.

The child offender is entitled to the protection of the law. It looks to the law to fulfill its promise of care
and reformation. To pass legislation which provides for the child's care, welfare and best interest in
remanding them to a Community Residence is a fundamental aspect of preserving their welfare and
dignity, a fundamental aspect of their due process and the rule of law. To fail to implement such “best
interest” provisions for the child deprives the child of protection of the law.

CRUEL AND UNUSUAL TREATMENT: A VALUE JUDGMENT AND MATTER OF POLICY

The evidence from BS on the conditions in which he is housed is thin. Admittedly in his written
submissions no focus is placed on his actual conditions but the fact that he is in a place where he ought not
to be. Much then depends upon the test for determining whether treatment is to be deemed cruel and
unusual for a child. Is it a mere placement in a facility which is not designed for a child or must there be
evidence of treatment which rises above normal that invokes an innovative revulsion to escalate to cruel
and unusual?

The test is a value judgment [ AG v. Ramdeen [2005] 67 WIR 264]. Essentially it is a value judgment to
be made by the Court after an overall assessment of the conditions under which the child is detained.
Simply breaching rules and the law is not sufficient See Thomas v Baptiste. Thomas v Baptiste of course is
one end of the spectrum dealing with adults in cells awaiting their execution. Nothing as in those
conditions are in existence here:

“The condition in which they were kept were in breach of the prison rules and
thus unlawful. It does not follow that they amounted to cruel and unusual
punishment. …The expression is a compendious one which does not gain by
being broken up into its component parts. In their Lordships view the question for
consideration is whether the condition in which the applicants were kept involved
so much pain and suffering or such deprivation of the elementary necessities of
life that they amounted to treatment which went beyond harsh and could properly
be described as cruel and unusual… Whether or not the conditions in which the
appellant were kept amounted to cruel and unusual punishment is a value
judgment in which it is necessary to take account of local condition both in and
outside prison.”
The test however should be whether the treatment attains a minimum level of severity and involves actual
bodily harm or intense physical or mental suffering. “Where treatment humiliates or debases an individual
showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear and
anguish or inferiority capable of breaking an individual's moral and physical resistance it may be
characterized as degrading.” Pretty v. UK 35 EHRR 1.

In the judgments of Sharma JA and that of the Privy Council and the International Courts in Thomas
Hilarie and Baptiste [1993] UKPC 13 it clued in or the question of a detention as being inhumane is indeed
a value judgment.

Sharma JA's judgment demonstrates that such a determination is a value judgment made by the judge.

“Condemned murderers do not cease to have human rights within the prison
walls. Some would obviously be curtailed but there is no reason to dehumanize a
man nor subject him to the whims and fancies of authority. …There is a strong
societal element in determining what is cruel and unusual punishment. The fact
that a state chooses to retain corporal punishment and hanging for murder
provides us with some guidance on how cruel and unusual punishment should be
defined. It is true that cruel and unusual punishment is a highly subjective matter
and is capable of generating all sorts of esoteric and philosophical arguments. Be
that as it may one could hardly dispute that whatever the relative values basic
requirements should be met and a fair balance struck between dehumanizing a
prisoner and discipline, order and instructions necessary in a prison”.
Indeed the Privy Council “cutlassed” [See Professor Drayton's speech] through the incorporation of
international norms and value systems to declare the treatment of Thomas as inhuman treatment and to
quash the sentences of death and replace them with life imprisonment. The mere breach of the prison rules
was sufficient to hold that he was subjected to cruel and unusual punishment. See also Gobin J judgment in
Edghill v. AG HCA 3178 of 2004 on prison conditions and her value judgment on the need to preserve the
dignity of persons.
But these are all cases that dealt with adults. The Court must give effect to the best interest of the child in
its interpretation of the treatment he or she receives which will deem it cruel and unusual treatment or
punishment in the eyes of the child.

“How can we, in effect deny that a child is in a different situation from that of an
adult and the diverse situation may rationally require diverse approaches? For the
child requires because of these characteristics, conditions, special, different and
more intense and meticulous protection than an adult, if there is any for the latter?
And how can we deny on the other hand that the child, above all a human being is
entitled to irreducible rights some of which are generic while others are specific?
And that he or she is not and cannot be seen as an object of the proceedings
subject to the discretion or whim of the authorities but rather as a subject of the
proceedings since he or she has true and respectable rights both substantive and
procedural? And that in his or her case as in any other procedure must abide by
clear and legitimate rules and be subject to control throughout a system of
guarantees?

If that is true then probably the time has come to leave behind the false dilemma
and recognize the true dilemma that are present in this field. Those of us who at
one time addressed these issues rightly or mistakenly and not weeping to
overcome these mistakes or better to move forward by revising concepts that are
no longer justified has to correct our earlier assertions and reach new
conclusions.” [Per Trindade J.]
The authors of Cruel and Unusual Treatment or Punishment [Just Deserts or cruel and unusual
punishment? Where do we look for guidance [1978] 10 Ottawa Law Review.] proffered the following to
assist in determining if punishment (not treatment) amounted to being characterized as cruel and harsh:

a) Is it treatment that goes beyond what is necessary to achieve a legitimate penal aim?
b) Is it unnecessary because there are adequate alternatives?
c) Is it unacceptable to a large segment of the population?
d) Is it such that it can't be applied upon a rational basis in accordance with ascertained or ascertainable
standards?
e) Is it arbitrarily imposed?
f) Is it such that is has no value in the sense of some social purpose such as reformation rehabilitation
deterrence or retribution?
g) Is it in accord with public standards of decency or propriety?
h) Is it of a character to shock general consciousness as to be intolerable in fundamental fairness?
i) Is it unusually severe and hence degrading to human dignity and worth?
In this case the abolishing of corporal punishment for children, the absence of solitary confinement and
punishment in the Children's Community Residences Regulations, the focus on rehabilitation should point
the direction to striking the fair balance between a humanizing approach to the child and discipline in the
Community Residence. Having regard to the history of the legislation the evolution of the rights of the
child and the purpose of the juvenile justice system in my view there is a revulsion in the treatment meted
out to both BS and SS.

I have examined the unsatisfactory conditions of detention earlier in the judgment. BS is detained in an
instructional institution, its character is not in essence rehabilitative, there are no special programmes
designed specifically for BS's needs or development, there is mixing of BS with convicted inmates and
those over the age of 18, there are feelings of fear and apprehension, there is a cookie-cutter approach for
the treatment of BS, there are no policy documents in place for the discipline of BS leaving it to the
discretion of officers where the institution disciplinary regime includes corporal punishment. SS has been
treated as a miniature adult prisoner and in the analysis of the facts above subjected to treatment which no
civilized nation should subject its children.
REMEDIES
The final question then is what should be the effective remedy for BS and SS? The claimants' submitted
that the only remedy would be to award damages and grant declarations. Senior Counsel for the claimant
suggests, using the rationale from the case of Edghill v Mc Honey and the Attorney General of Trinidad
and Tobago H.C. 3178 of 2004 where the judge awarded the claimant compensation at a rate of $75 per
day for each day he was detained in dreadful conditions, that a figure of $300 per day should be used to
assess the compensation to be awarded to B, for each day he remained detained in conditions which fell
below the minimum standard.

The defendants contend that if the court is of the view that a breach of the claimants constitutional rights
did in fact occur that redress as given in the cases of Suratt v. the Attorney General (No. 2) and George
Daniel v the Attorney General HC 393/2005 are appropriate.

Relying on the case of Seepersad and Panchoo v. the Attorney General [2012] UKPC 4, at para 38 it is
stated:

“It is well established that the power to give redress under section 14 of the
Constitution for a contravention of the applicant's constitutional rights is
discretionary: Surratt v. Attorney General of Trinidad and Tobago [2008] UKPC
38, para 13, per Lord Brown of Eaton-under-Heywood. The rights protected by
section 4 are, as Lord Bingham of Cornhill said in the first stage of the appeal
before the Board in that case, at least in most instances, not absolute: Surratt v.
Attorney General of Trinidad and Tobago [2007] UKPC 55, [2008] AC 655, para
33. There is no constitutional right to damages. In some cases a declaration that
there has been a violation of the constitutional right may be sufficient satisfaction
for what has happened: Inniss v. Attorney General of St Christopher and Nevis
[2008] UKPC 42, para 21; James v. Attorney General of Trinidad and Tobago
[2010] UKPC 23, para 37. In others it will be enough for the court to make a
mandatory order of the kind that was made in this case, when Madam Dean-
Armorer ordered that the terms of the appellants' detention should be determined
by the High Court. As Lord Kerr said in James v. Attorney General of Trinidad
and Tobago, para 36, to treat entitlement to monetary compensation as automatic
where violation of a constitutional right has occurred would undermine the
discretion that is invested in the court by section 14. It will all depend on the
circumstances.”
The respondent contends that the relevant period of detention began at the point the Act was proclaimed,
that being May 15, 2015 which is 10 months and not the length of time proposed by the claimant. If the
court is to find in favour of the claimant a single award representing detention for a 10 month period is
what ought to be granted and not a daily rate calculation.

The respondents submits that the claimant has been housed at an institution where his rights and welfare
have been accommodated. Even if the Court is to find that the detention is unlawful, it is submitted that his
overall detention is not. They are currently charged with a non bailable offence. Section 54 on the face of it
is not concerned with the Magistrate's decision to grant bail or not but rather all it is concerned with is the
Magistrate placing a child who has so been denied bail into a Community Residence. At best the claimants
are entitled to declaratory relief and no more.

EFFECTIVE REMEDY
The grant of declaratory relief and damages have been the traditional tools of the Constitutional Court in
granting relief to persons aggrieved by a breach of their fundamental rights. But these motions are sui
generis and section 14 of the Constitution provides a potent vehicle to the individual complaining of
breach of the fundamental law. “The clear intention of the redress clause was to create a new remedy
whether or not there was already some other existing remedy” [See the case of Maya Leaders Alliance].
De Merrieux in her text Fundamental Rights in the Commonwealth Caribbean Constitutions recognized
that traditionally courts tend to provide common law relief within the framework of the constitutional
remedy. However this does not mean that the Constitutional Court is so restricted and the Constitutional
Court should have at their disposal in addition to all the traditional forms of relief, new forms of relief that
can be conceived and formulated. TTT v Rambachan, H.C 4789/1982 Gairy v AG of Grenada GD 1994
CA 7 and Maya Leaders Alliance v AG are perfect examples.

The Court's approach in granting relief must be an acknowledgment that it is administering the supreme
law. It is protecting the fundamental rights consistent with the vision of the Nation, society and democracy
that the Constitution contemplated. The Court was entrusted with the task of fleshing out rights and ergo
granting the appropriate relief to remedy the wrong. Whether it is the “cutlassing” of the statute to
commute death sentences to life imprisonment (Thomas) or ordering compensation orders or giving
directions for discovery (Rambachan) or the establishment of funds as a step to complying with agreed
obligations (Maya Leaders Alliance) or liberty to apply to the aggrieved to apply to the Court for further or
consequential relief (Suratt), there should be no limit to the innovation and creativity of the Court in
granting relief when it has already been emboldened to make critical value judgments on the state of the
Republic.

Such a refreshingly broad perspective on the breadth of the redress clause to give full effect to protect
fundamental rights are indeed consistent with new approaches of judicial problem solving which in some
jurisdictions is referred to a “therapeutic jurisprudence “when the law is seen as a healing agent. Professors
Bruce Winick and David Wexler observed that the problem solving court movement may influence general
applications of therapeutic jurisprudence” in the creation of an overall judicial system attuned to problem
solving “to therapeutic jurisprudence and to judging with an ethic of care”. See Bruce Winick and David
Wexler Judging in a Therapeutic Key therapeutic Jurisprudence and the Courts.

In this instance, the children have been detained in conditions in breach of their fundamental rights as
children. They have been deprived of the opportunity to be rehabilitated. They are from not well off
circumstances and it is not too hard to connect the dots from their assessed backgrounds and their current
difficulty. Indeed the mother laments that she regrets sending her son to learn a trade at a friend in the
village. But this is the reality of our society. This is how our young people get involved in crime. The
social legal literature described above is the panorama to understand the plight of these two children. There
is no formal education. There are from poor backgrounds. BS has clearly not had the benefit of a formal
education. He is good with his hands. His mother cannot afford any remedial education. His community is
not one that fosters development of a positive lifestyle. We do not know whether he is a slow developer, or
a talented child. SS is not engaged in any activity. Again no formal education. It is quite easy to see these
are vulnerable children. Their vulnerability and the lack of opportunities saw BS in an environment of
adults when he simply should not have been. Who knows what he was learning while in the auto mechanic
shop. It is not an accredited school. These are the children that were sent to prison and an institution to
reform offenders when at the first encounter with the law they should have been immediately surrounded
by positive influences.

They have spent about one year in conditions which do nothing for their rehabilitation in a prison and in
the YTC force fitting reformation programmes without treatment plans is equally disastrous. There is an
opportunity lost for those years. But with this encounter with the law, the Constitutional Court, effective
remedies must be fashioned. These will be declaratory relief and orders, damages, including bail if
necessary and further directions.

DECLARATORY RELIEF:
In this case even though the children are no longer, in the case of BS, in the YTC and in the case of SS, no
longer a child, declaratory relief is still appropriate and not academic. It is meant to signal the illegality and
the unconstitutionality of their detention at these places as children. The Court will make the following
declarations in the respective cases:

BS
In the claim of SS

DAMAGES
It is not in dispute that there is no constitutional right to damages. The Court has the discretion as to what
award it will make. The Court of Appeal in the recent case of the Attorney General v. Mukesh Maharaj
Civ. App. No. 67 of 2011 was very clear on this point. An order granting redress may include an order for
assessment of damages or it may be confined to a declaration or a mandatory order. See Lord Hope in
Seepersad v. Persad [2004] UKPC 19. The court in its constitutional jurisdiction is concerned to uphold or
vindicate the constitutional right which has been contravened. See Merrick v. A-G of Trinidad and Tobago
(Civil Appeal No 146 of 2009) (5 February 2013, unreported) at [57].

In Attorney General v. Ramanoop [2005] UKPC 15, it is submitted that the appropriate form of redress
would be under the Constitution. Lord Nicholls stated:

“Section 14 recognizes and affirms the court's power to award remedies for
contravention of chapter I rights and freedoms. This jurisdiction is an integral part
of the protection chapter I of the Constitution confers on the citizens of Trinidad
and Tobago. It is an essential element in the protection intended to be afforded by
the Constitution against misuse of state power. Section 14 presupposes that, by
exercise of this jurisdiction, the court will be able to afford the wronged citizen
effective relief in respect of the state's violation of a constitutional right. This
jurisdiction is separate from and additional to (“without prejudice to”) all other
remedial jurisdiction of the court.

When exercising this constitutional jurisdiction the court is concerned to uphold,

or vindicate, the constitutional right which has been contravened. A declaration
by the court will articulate the fact of the violation, but in most cases more will be
required than words. If the person wronged has suffered damage, the court may
award him compensation. The comparable common law measure of damages will
often be a useful guide in assessing the amount of this compensation. But this
measure is no more than a guide because the award of compensation under
section 14 is discretionary and, moreover, the violation of the constitutional right
will not always be co-terminous with the cause of action at law.”
Notwithstanding this, the Court is also well within its discretion to grant monetary compensation in
instances it deems equitable to do so. If the court finds that monetary compensation is the proper and just
award, it can then award a single sum for damages. There is no need for a separate award under the banner
of a vindicatory award. In the Attorney General v. Mukesh Maharaj Civ. App. No 67 of 2011, the court
said:

“‘Vindication’ of the right applies in both the widest and narrowest of senses. To
the extent that a compensatory award is granted in respect of the breach of the
right and as ‘recompense for the inconvenience and distress suffered during the
illegal detention’ (per Maharaj v A-G of Trinidad and Tobago (No 2) [1978] 30
WIR 310), such an award is, in the widest sense, a vindication of the right.

Archie C.J further stated that:

“It has always been my view that this expression is somewhat misleading and that
there should be a single award of damages to take into account all that is
 reasonable and just in the circumstances. I am fortified in this regard by the
observations of Lord Toulson in the most recent Privy Council case of Alleyne &
Ors v. The Attorney General [2015] UKPC 3 where he acknowledges that any
award under section 14 of the Constitution, however described, ‘has the character
of a general award’ and that does not change by virtue of the fact that it may be
outside of what may be regarded as quantifiable pecuniary loss.…If the purpose
of any ‘additional award’ is not punitive then any other intended purpose can be
achieved by its explicit recognition in the overall quantum awarded without any
need to set out a separate sum…the expression “vindicatory damages” in the
sense of a separate award has a rather tenuous lineage. A careful reading of the
authorities convinces me that it has never really been expressly approved by the
Privy Council (at least as a requirement), and its use may be misleading in that it
may tempt trial courts to artificially and doubly compensate claimants in respect
of breaches that are properly compensable by a single and undifferentiated award
of ‘damages’.”
Bereaux, J.A. who delivered the judgment in Mukesh Maharaj CA CIV 118/2010 CA CIV 67/2011 when
addressing the submission on vindicatory damages at paragraph 48 said:

“I find it difficult to conceive of the need to award an additional sum to vindicate

the right, when in virtually every case the gravity of the constitutional violation
will already have formed part of the compensatory award. Such an additional
award in my judgment has more than just a suggestion of double counting, if not
of punishment.”
In James v. AG of Trinidad and Tobago (2010) UKPC 23 at para 36- 37 the Privy Council observed that
compensation in the context of constitutional law can be seen to perform two functions. Redress for the in
personam damage suffered. Vindication of the constitutional right which does not have a punitive element
but is making the mark that a constitutional breach has occurred. It is not suggested that some specific type
of damage suffered by the victim of the constitutional breach was necessary before the question of
monetary compensation could be considered.

Recently the CCJ also contributed to the discussion of the appropriate award of damages. In the case of
Lucas and another v. Chief Education Officer and others (2015) 86 WIR 100, the Court at para 153 and
154 said:

“A determination that there was no fundamental rights breach naturally would

mean that there is no scope for awarding the appellants any constitutional redress.
In light of some of the views expressed by the Court of Appeal, I believe it is
important, notwithstanding, to say something about allegations of damage, that is
to say injury, in cases of this kind. The impression that was given was that there
was here no evidence of such damage and therefore no evidence of constitutional
violation and/or, even if fundamental rights were infringed, since no injury was
established there was no basis on which to award damages or any other form of
redress. These are two separate issues.

Not every finding of constitutional breach will yield monetary damages. But a
mere declaration that an arm of government has acted in contravention of the
Constitution constitutes in itself powerful relief, even in circumstances where the
victim of the violation can establish no entitlement to monetary damages. Any
notion that a finding of constitutional infringement should be premised on an
applicant's ability to establish an entitlement to monetary damages must be
rejected. When a litigant approached the court for constitutional redress the court
is as much concerned about compensating the wronged citizen as it is with
upholding the rule of law. In these judicial review proceedings an award of
 damages could properly have been made provided that (a) damages were claimed
on the fixed date claim form; or (b) the facts set out in the claimant's affidavit or
statement of case justified them; and (c) the court was satisfied that, at the time
when their application was made, the claimant could have issued a claim for
damages for breach of a constitutional right.”
In this case the very fact that these children were subjected to conditions which were unsuited to them and
not in conformity with the philosophy of their rehabilitation or their best interest there have been tangibly
effected even if not vociferously canvassed as in the case of BS. It is noted that “the difficulty in assessing
the amount of compensation for that type of injury should not deter a court from recognizing its
compensative potential.” [See the case of Lucas v. Chief Education Officer [2015] 86 WIR 100 at para
155]

The compensation to be awarded to the claimants is as a result of the failure of the legal system or the
executive's administrative process to have in place a Community Residence appropriate for their respective
detentions.

I consider compensation appropriate in these cases taking into account the following: In the case of BS (i)
His age, (ii) the period of his detention, (iii) the conditions under which he has been kept which were not in
conformity with the Community Residences Act (iv) his obvious signs of deficient learning skills as seen
in his assessment by the Children's Authority and the YTC. (v) The failure of YTC to provide a relevant
and child specific treatment plan for BS to address his obvious deficiencies (vi) the social interaction with
boys over the age of 18 (vii) I have also taken into account the evidence of Mr. Scanterbury with the care
which BS actually received and the fact that there was no deplorable physical conditions in which he was
housed.

SS was subjected to “prison-like” conditions and treated as a young adult in an adult prison. She ought not
to have been placed in a woman's prison amongst other convicted persons and in conditions which were
designed to treat and reform adult prisoners. She associated with adults even in a limited way through the
eyes of the child this would have been a startling, frightening and scarring experience. There was an
apparent lack of proper amenities and facilities to preserve her human dignity as a vulnerable child.

I have reviewed the awards as canvassed by the parties [See skeleton arguments of the parties]. I award
damages for BS in the sum of $150,000.00 and $300,000.00 in the case of SS.

BAIL
There is no constitutional challenge to the right to bail in this case. However the right to bail is a
constitutionally guaranteed right. So too is that right balanced with society's view of the crime of murder to
justify a deprivation of bail when on a charge of murder. The difficulty is that section 29(1) of the
Indictable Offences Act provides that when remanding a person who is denied bail he shall be detained in
custody “in a prison or as the case may be”. Clearly the child is not to be detained in a prison and so one
must read into the section that upon not granting bail the child is to be detained in a Community
Residence. But that does not end the matter. If there is no Community Residence then it would be
illegitimate to detain the child where no suitable place of detention exists.

The section then should properly now be read that the child shall be detained in custody in a Community
Residence or “as the case may be”. This would permit the Court to release the child into the custody of
some person with suitable safeguards and conditions if no Community Residence exists. Alternatively it
would mean that implicitly the conditions for not granting bail that is having a place to detain the child in
custody cease to be relevant.

This reasoning can be cross checked or tested by looking at the discretion available to the Magistrate if the
child is found guilty. If the child is found guilty the Magistrate can actually discharge the offender or place
him on a bond or place him in the care of the Children's Authority. To therefore deny the child now
appropriate relief of being released into custody of another or being released on conditions is to inflict
further suffering inconsistent with the presumption of innocence. It is for these reasons that the law lords in
Matthew and Pratt and Morgan v. the Attorney General of Jamaica [1993] UKPC 1 saw the merit in
commuting death penalty to life sentences solely on the basis that to continue detention under the sentence
of death would be cruel and inhumane. By parity of reasoning to keep the children in custody in a place in
which they do not belong on the premise that the statute obliges them not to be released on bail is equally
cruel.

As I alluded to earlier in this judgment the deeper question is therefore whether the fundamental rights that
are in play are so important as to order his release on bail for what are non bailable offences. To do so will
trump legislation which mandates the denial of bail for those accused of murder, a law which pre dates the
Constitution and therefore passes constitutional muster by the savings clause. But to do otherwise would
necessarily mean that BS is to remain in a place that is unsuitable for him, in defiance of the Children's
legislation and in breach of his fundamental rights. The recognized wide powers of a constitutional court
must necessarily empower it to fashion practical remedies which will prevent its “constituents” from
falling into a human rights “black hole”. If murder is a non-bailable offence and such deprivation of liberty
is legitimized by the Constitution's savings law clause, equally by parity of reasoning impliedly the
corollary right must be that there is a suitable place to detain such a person. If a law which is declared
constitutional by its saving must stand scrutiny by implication to having balanced the interest of the
individual with the object of the measure. To do otherwise would mean that what law has been saved
results in the death of a fundamental right. The issue of proportionality or reasonableness must therefore be
applied in coming to a conclusion that bail is being refused on the premise that there is a suitable place of
custody to detain the accused. In the case of children if there are no places available to preserve and protect
their fundamental rights the Court must be empowered to make constitutional excursions into the existing
law to protect the weak and vulnerable. If therefore there are no Community Residences there must be a
safe place to keep the children in custody or else the implied balancing exercise that justified the
deprivation of the right to bail would cease to exist.

In the event the Authority as it did in the interlocutory proceedings declare that there are no suitable
Community Residences to house BS I have considered appropriate, balancing the interest of the child with
the interest of society, that he be placed in the custody of the Children's Authority. This of course is in
keeping with the wide mandate of this Authority under the Children's Authority Act.

Understandably if suitable arrangements are not thereafter put in place for his care and rehabilitation then
the Court in exercising its constitutional jurisdiction may order the release of the child on conditions to be
determined by the Court.

OTHER DIRECTIONS
The Court is not without additional powers to redress effectively the human rights problems that present
itself. In this respect clearly there is a role to be played by the Children's Authority in the continuing
management of these children and to adopt a partnering role with the judiciary and the executive in the
management of young offenders. For this reason I will also direct the Children's Authority to provide
assistance to the children and to the Chief Magistrate in the terms set out in my order.

BS
The court declares:

THE APPROPRIATE ORDER AND DECLARATIONS ARE THEREFORE AS FOLLOWS:

BS
IT IS HEREBY ORDERED that:

IT IS HEREBY DIRECTED that:

IT IS HEREBY FURTHER ORDERED that:

In the claim for SS

The Court declares:

IT IS HEREBY FURTHER ORDERED that:

IT IS HEREBY DIRECTED that:

IT IS HEREBY FURTHER DIRECTED that:

CONCLUSION
This judgment is not meant to be an indictment on any individual or group that have been working to
protect our children as best as they can in the difficult circumstances that they have found themselves. The
Chief Magistrate who felt compelled in the circumstances to make the orders she did. The Ag.
Superintendent of Prisons of YTC and the officers of the Women's' Prison, evincing no malice to the child.
But these are actors in a system which have been reformed by the Children's legislation and which is being
observed in its breach. It is the promise of a new system of juvenile justice which has been frustrated, yet
still born.

To answer the issues: Is YTC a Community Residence? No it is not a rehabilitation centre as defined by
the Act nor as contemplated by the objects and policy of the legislation or consistent with international
norms of rights of the child. Is the woman prison a Community Residence? No it is not. A prison is a place
of extreme detention a place no child under a modern system of juvenile justice is to be housed. Is there a
breach of the children's constitutional rights? Yes their “due process” right “protection of the law” and
“cruel and unusual treatment” rights have all been infringed. What remedy is appropriate? The children are
entitled to the payment of damages with appropriate safeguards as well as in the case of BS to be
immediately placed in a suitable Community Residence to be determined by the Children's Authority
failing which he is placed in the custody of the Children's Authority until further order.

Judge Cancado Trindade commented that “The social milieu which does not take care of its children has
no future. The social milieu which does not take care of its elderly people has no past and count only on
the escaping present is no more than a mere illusion”. The old adage “children are to be seen not heard” is
a relic of our history which no longer serve the purpose of an enlightened society that nurtures our youth.
Similarly children ought not to be detained and forgotten. Children rights do not end at the full stop on the
page of a warrant but continue throughout our system of justice. The right of the child to liberty, not to be
arbitrarily detained is to recognize its right as a component of the human family to be safe, to be protected,
and to be nurtured and for their best interests to be secured. The suite of Children's legislation proclaimed
in 2015 has recognized these fundamental rights. Rights which have been recognized as international
norms and which we as a society universally accept. In the development of the child the father of the man
administrative failures and resources challenges are no excuses to trample on the human rights of children.

All arms of the State must now contribute to their continued welfare and protection to give life to the
constitutional promise of preserving their dignity as child citizens, integral to the family unit and their
future in the development of our society. As our Courts continue to balance the rights of individuals and
that of society it will continue to flesh out the principles of the best interests of the child.

As Wordsworth reminds us that the child is the father of the man and the need to address the rights of
children, perhaps it is our own poet the Merchant in 1979 who eloquently states our duty more directly and
urgently:

“Think about the children

Not later, but now.

Think about the children

Not later. Right now.”

Vasheist Kokaram

Judge