THE RIGHTS OF THE CHILD AND THE CARIBBEAN:

THE RIGHTS OF THE CHILD AND THE CARIBBEAN: PROSPECTS AND CHALLENGES FOR THE 21ST CENTURY.

“I believe the children are our future, Teach them well and let them lead the way, Show them all the beauty they possess inside, Give them a sense of pride to make it easier, Let the children’s laughter remind us how it used to be.”

Protocol having already been established, I say to you all, Good Evening. I am very honoured, privileged and extremely happy to be here this evening to address you on the occasion of your celebration of the 15th anniversary of the adoption of the United Nations Convention on the Rights of The Child.

On the 25th anniversary of independence of the Republic of Trinidad and Tobago, a calypsonian named Lord Funny, known for his wit and humour, asked a very serious question of that nation, my nation: “Twenty-five years have passed, how you feel”? With apologies to Lord Funny, I ask you today, since the adoption of the CRC, fifteen years now have passed, how do you feel? Do you feel happy, proud and pleased that the children of the Caribbean are now recognized as having rights? Do you feel a sense of confidence that children’s issues are at the forefront of the human rights agendas of Caribbean states? Do you feel satisfied that we are now doing for children the best that we can do? Do you feel truly sure that we have evolved from a paternalistic or welfare approach to children to one of recognition of child rights in all issues involving children, whether these issues be by nature, civil, political, economic, social or cultural? How do you feel?

As a Caribbean people we have come together and formulated the Belize Commitment to Action for the Rights of the Child, the Kingston Accord, the Lima Accord. Commitment, accord, all very positive words, a prelude, no doubt to positive actions to fulfil our covenant to “ review and revise our laws, policies and programmes to fully comply with the letter and spirit of the CRC.”[1] How have we done these past fifteen years? What do we still need to do? In the context of Child Rights and the Caribbean, what are the prospects and challenges for the 21st century?

The Committee on the Rights of the Child has identified four articles as being basic to the implementation of all rights contained in the Convention, namely: 1. .Article 2- non discrimination; 2. Article 3- best interests of the child; 3. Article 6 - the right to life, survival and development; 4. Article 12- respect for the views of the child.[2]

I propose to situate my discussion within the four corners of these foundation principles.

1. NON- DISCRIMINATION

Article 1 of the CRC specifies: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability or other status. This article impacts on other articles of the CRC as it enjoins States Parties to respect and ensure the rights in the CRC to every child. As we look around the Caribbean we see that we have made some significant strides in the area of eliminating discrimination against children.

1. Birth status – the out of wedlock child (a) Inheritance rights Even before the advent of the CRC, Caribbean nations showed evidence of commitment to the cause of non-discrimination. Status of Children legislation has been enacted in several jurisdictions such as Jamaica, Barbados, Trinidad and Tobago, St. Kitts and Nevis, St. Vincent and the Grenadines, Antigua and Barbuda, Guyana, Saint Lucia and now happily, in the country where I now temporarily reside, The Bahamas. Belize has included similar status of children provisions in its comprehensive Families and Children Act. It is to be hoped that other jurisdictions such as the British Virgin Islands, which has a draft bill, Dominica and Montserrat will soon have such a law on their statute books. Status of Children legislation generally proclaim that: “the status and the rights and obligations of the parents and all kindred of a child born out of wedlock are the same as if the child were born in wedlock.” [3]

Perhaps the most important aspect of this type of legislation is its abolition of the old rule of construction whereby in any will, deed or other instrument words of relationship in the absence of a contrary expression of intention signify relationship derived only from wedlock. This has had the most important impact in the area of the law of Succession. Before this legislation was passed , once the word “ children” was used in a will or other instrument, it was taken to mean legitimate children, unless the children born out of wedlock were specifically referred to by name in the will or other instrument or the circumstances were such, for example, if there were no legitimate children in existence, only the illegitimate children could have been meant. After Status of Children legislation, the position now is that once paternity is admitted or established, the child born out of wedlock can get his or her fair share of the father’s estate either on intestacy, that is, where there is no will, or on testacy, where the will uses the word: “children” and the testator has both legitimate and illegitimate children.

Before we go patting ourselves on our collective backs about this great advancement in the law, to wipe out discrimination against children born out of wedlock, I must alert you to the challenges that yet face us for the twenty-first century in the area of that innovative piece of legislation. Unfortunately, discrimination has not been abolished in its entirety. In varying degrees, in the different pieces of legislation, aspects of discrimination are retained, making of the legislation a flirtatious maiden, promising much more than she intends to deliver.

An example of one such vexed provision is the one which limits the time for bringing the application to “within the lifetime of the father” or “the lifetime of the parties”. In Saint Kitts and Nevis it is a blanket provision – paternity must be established within the lifetime of the father. In Barbados and the Bahamas, the law sets out various situations where paternity may be presumed, then states that where two presumptions exist they cancel out each other, so there is no presumption. It further provides that where no presumption exists, the application can only be brought within the lifetime of the father. The Jamaican statute provides that for any purpose related to succession paternity must have been admitted by or established during the lifetime of the father.

To illustrate the injustice that may result from such provisions, allow me to share with you two cases in which I was personally involved. A young girl eighteen years old was sent to me with an Emergency Certificate from the Legal Aid and Advisory Authority. Her father, with whom she had lived all of her life had recently died. Her uncles had come to the home, shortly after the funeral, had removed her passport, the statutory declaration in which her father had admitted paternity of her and which had been attached to her birth certificate, and had forcibly removed her from the only home she had ever known. They had installed my client’s cousin, the son of one of her uncles, and had told her the lawyer said she had to leave until everything was fixed up.

I immediately moved to gather evidence to prepare affidavits to prove paternity. I got statements from her, her mother and the principals of all the schools she attended. At each of her schools, the father was well- known. He had been the person who had registered her and attended PTA meetings. The application was granted by the Court. We then filed an application for the estate and, since the father had no other children and had never been married, my client got the entire estate.

The other case was one in which another young lady was involved. She had been engaged to be married to a young man, was pregnant and wedding plans were well in train, when unhappily, the intended groom and father- to- be, drowned. At the time she came to me, she had just given birth to the child of her deceased fiance. She shared that she had come because the mother- in- law to be, who never was, and who had promised to give her a share when she got the estate, was now distancing herself.

My investigations revealed that the estate had been applied for and had been granted to the mother of the deceased. We then set about to prove paternity as a preliminary step to having the grant of representation set aside. In addition to the young lady herself who gave affidavit evidence of her relationship with the deceased, I got the pastor who had been counseling the couple to go on affidavit. A colleague of the young man who used to drive the girl to the doctor for medical checks, and who had been asked by the deceased to buy baby clothes when he went on holiday abroad, also swore an affidavit. I exhibited photographs of the proud grandmother, who had now turned enemy number one, holding the baby at the christening. In cross- examination she sought to explain that she was only showing sympathy for a girl in trouble. She denied the child was her grandchild. She could not satisfactorily explain why she used to take the child for weekends. The estate was quite a sizeable cash estate with insurance policies and death benefits from the young man’s workplace. The reluctant grandmother had already begun to spend the money to buy parcels of land for her remaining children. Ultimately, the judge found in favour of my client.

In the first scenario my client’s mother had been married, but separated from her husband when my client had been conceived and born, and there would, therefore, have been two presumptions operating, one that my client was the child of her mother’s husband and two, since the natural father had admitted paternity, that she was his child. In the Bahamas and Barbados this child’s case could not have been taken to court after the father’s death. In the second case, the case could not go to court in Saint Kitts and Nevis or in Jamaica.

Other areas of discrimination being perpetuated in some Status of Children legislation are the provisions in some jurisdictions which state that the Act does not affect or limit in any way the rule of law relating to domicile, citizenship, provisions of the Adoption of Children Act which determine relations of any person who has been adopted, and the construction of the word ‘heir’ or of any expression used to create an entailed interest in real or personal property. The Jamaica and Bahamas Status of Children legislation are two cases on point. The most significant of these limitations in terms of consequences, is the one dealing with citizenship.

A number of jurisdictions provide in their law that citizenship cannot be derived from the father, if the child is born out of wedlock and outside the jurisdiction, e.g the Constitution of Barbados and The Bahamas and in some cases, even if the child is born within the jurisdiction.

The Bermuda Immigration and Protection Act denies Bermudian status to be derived through the father of a child born out of wedlock, whereas a child born in wedlock or one subsequently legitimated can derive status through either of his parents.

Let me illustrate a practical consequence of this limitation on nationality and citizenship. An out of wedlock child of a Bahamian or Jamaican father and a non- West Indian mother who wishes to study at any one of the Council of Legal Education Law Schools, will have to pay the economic cost of tuition. His brother, however, born in wedlock to the same father will have eighty per cent of his fees paid by the government. This discrimination should be addressed by expunging those provisions from the legislation.

In this age of modern medical technology, is it really justifiable to deny a child his or her rights in this way? I recommend that we adopt the position as in Argentina where every effort is made to determine paternity. Professors Cecilia Grosman and Ana Maria Checile, in their article entitled Recent Judicial Decisions Giving Effect to The Convention On The Rights of the Child in the International Survey of Family Law, 2004 edition, cites a decision of the Argentina courts which found in favour of the filiation claimed on the basis of blood tests carried out on the brother of a deceased putative father. The test indicated a 98.53 % probability that he was the clamant’s uncle. Other brothers of the deceased had refused to be tested to reconstruct the genetic make-up of the dead brother.

Another limitation in some legislation is one making the legislation applicable only to instruments made after the commencement of the legislation. This is the case in Jamaica, Saint Christopher and Nevis, St. Vincent and the Grenadines and Barbados. The Trinidad and Tobago and Antigua legislation, make the Act applicable to instruments executed before, as well as after, its commencement.

A challenge for us in the 21st century is to expunge all these limitations from the Act, which make the removal of discrimination more illusory, than real.

b). Maintenance rights Article 27 of the CRC enjoins States Parties to recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. Thus, States are urged to “ take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having responsibility for the child…” Many children who are born out of wedlock are discriminated against in the area of recovery of maintenance. In all of the jurisdictions, save Trinidad and Tobago and Barbados, there is a time limit in the relevant legislation for bringing an application for maintenance. This ranges from twelve months in jurisdictions such as Antigua and Barbuda, Anguilla, Grenada and Montserrat, to three years in the Bahamas, and up to five years in Saint Vincent and the Grenadines. There is no time limit for a mother of a child born in wedlock to bring an application for maintenance of a minor child. She can approach the court at anytime during the child’s minority, once there is wilful neglect to maintain.

Limitations also occur in the legislation in terms of the amount of maintenance that the court will grant in favour of a child born out of wedlock. This may arise either because there is a stated maximum figure for the amount of maintenance that the court can allow in respect of a child born out of wedlock and this ranges from $15.00 per week to $100.00 per week, and up to $200 in Montserrat; or it may result from the differential criteria which the court must have regard to, in deciding the award for maintenance. Trinidad and Tobago has recently, in its Miscellaneous Provisions (Children) Act 2000, abolished the disparity by including in the criteria two provisions which obtained for the child born in wedlock, but which were previously omitted from the criteria that the court must be guided by, when deciding the quantum of maintenance for the child born out of wedlock. These are: 1. the manner in which the minor was educated or trained and the manner in which the parents expected him to be so educated or trained and 2. the standard of living enjoyed by the family while the members of the family resided together.

The out of wedlock child is also disadvantaged in the choice of court that has jurisdiction to make the order and the types of orders that can be made. As a general rule, applications for maintenance of the child born out of wedlock can only be heard in the magistrates’ courts. These courts are generally under-resourced, the facilities are crowded and the applicants for maintenance have to encounter petty criminals and sometimes hardened criminals on their way to court. The type of order that can be awarded may be limited to a small weekly sum and the method of enforcement may be frustrating with warrants to be served that are sometimes given little attention by the police.

This may be contrasted with the situation in the High Court where the facilities are generally cleaner, there are more human resources, fewer cases, and the Court, in most jurisdictions, is empowered to make a variety of orders, such as lump sum orders and secured payments and secured lump sum payments, in respect of children born in wedlock. Dual jurisdictions for maintenance orders are provided in the Family Law (Domicile, Guardianship and Maintenance) Act of Trinidad and Tobago and the Family Law Act of Barbados as provision is made in both legislation for maintenance applications to be brought in either the magistrates’ courts or the High Court. In jurisdictions where there are Family Courts, namely St. Vincent and the Grenadines, Jamaica, Belize, Saint Lucia and very recently, Trinidad and Tobago, applications for maintenance are brought in that court and the facilities are generally of a higher standard.

All of the problems highlighted with respect to maintenance are easily remediable and since there are precedents in the region, they present a challenge for the 21st century for which the prospects for change are extremely positive.

c. Registration of Birth Articles 7 and 8 of the CRC protect, inter alia, the child’s right to be registered immediately after birth to be known and cared for by his or her parents, to preserve his identity, including name and family relations. As a general rule, the father of the child born out of wedlock is unable to register his paternity of such a child. He must go with the mother or, not at all, unless, in certain jurisdictions, if the mother is dead or cannot be found.[4] The inability of the father of an out of wedlock child to register his paternity without the mother’s cooperation can result in the child not knowing his or her parent and being denied family relations with his or her paternal family. In a case that I was involved in my early years of practice, and I must add, in my pre-child rights advocate days, I encountered a situation where the Registrar of Births and Deaths had allowed a father to register the birth of his child born out of wedlock. This was only discovered when he applied for access and exhibited a birth certificate in which he was named as the father. My client had a birth certificate in which no father had been named and sought to deny him access. I subpoenaed the Registrar to explain to the Court how this had occurred and she admitted to not following the correct procedure. The mother was successful in denying access to the father. Older and wiser, I would have handled things a bit differently. As it was, the child was denied the association with her father, an important right of the child.

Sometimes children who are not able to carry their father’s name, or do not know their father can be very hurt by this. I recall, as a primary school teacher, two situations: one of my pupils came to me and said: “Miss, talk to Mammy for me, please, tell her I want to carry my Daddy’s name, not hers.” Another, had attempted suicide, because she said:, “ Miss, Mammy don’t want to tell me who my daddy is. Miss, I don’t care if he is a thief or a vagrant, Miss. I just want to know who he is.”

ii. Disability – the disabled child Article 23 of the CRC enjoins all States parties to recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child’s active participation in the community.

In this Article, the right of the disabled child to special care, financial assistance, education, training, health care services, rehabilitative services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and development is recognized and promoted. Too many children who are disabled, and whose parents cannot afford the necessary services, are growing up disadvantaged and thus unable to take their rightful place in the society. The parents of disabled children, too frequently, have to appeal to the goodwill of the public for financial assistance for surgery or some assistive device that the State does not provide. Many disabled children whose parents are poor do not realize their true potential as they cannot access necessary specialized educational services as the fees are sometimes too prohibitive. An example will be children who are autistic and whose needs are not catered for in the mainstream educational system. A system of early comprehensive assessment of children and periodic evaluation ought to be put in place so that remedial action can be undertaken at the earliest opportunity, thus maximizing the chances of successful intervention. At a recent conference of the National Commission on Special Education, of which I am a member, our legislative sub-committee called not only for legislative reform of the law with respect to special education, but also for the amendment of the Constitution to outlaw discrimination on the basis of disability. The provision of adequate care for the disabled is a challenge that faces us in the Caribbean in the twenty-first century.



iii. national, ethnic or social origin Article 7 of the CRC provides that a child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Some States deny nationality to certain children born within their jurisdiction because their parents are not themselves nationals of that State, and to others born outside their jurisdiction, whose parents are nationals. The Constitution of some Caribbean States, their citizenship, immigration and Status of Children legislation may all deny automatic citizenship to children born within the State whose parents are not themselves nationals of that State and /or whose parents, while possessing nationality are not domiciled in the State. The laws of Bermuda, Turks and Caicos and The Bahamas are instructive on this point[5].

Children who are born outside of the jurisdiction of the country of which one or both of their parents are nationals may also be denied their status as a national if both parents were not domiciled in the particular country at the time of their birth. See the Bermuda law referred to earlier. Since such children may be in a position where they cannot be registered in the land of their birth and cannot be registered in their parents’ homeland, they may become stateless, belonging neither to their parents’ homeland, nor to the adopted home of their parents. They will be denied a birth certificate, and, consequently, will not hold a passport during minority and must wait until attaining majority to register as a citizen of the State. In the Bahamas, children and grandchildren of Haitian immigrants frequently find themselves in such a position. States are to be reminded that, in ratifying the CRC, they have accepted the mandate to ensure the rights set forth in the CRC to each child within their jurisdiction without discrimination of any kind. I will return to the nationality issue in discussing gender.

iv. Sex and gender discrimination The justice system, as well as the wider society, evidence gender bias against girls and women. An examination of the laws, policies and practices throughout the region, will show instances of gender bias. Gender bias has been defined by Bobbie Welling and Susan Mather as stereotypical attitudes about the nature and roles of women and men; cultural perceptions of their relative worth; and myths and misconceptions about the social and economic realities encountered by both sexes[6].

Discrimination against the parent of the child sometimes results in discrimination against the child. In certain states, women are discriminated against in the area of citizenship. One example, which has been mentioned before, is the Bahamas, where the Constitution provides that a child born outside the jurisdiction can become a citizen if at the date of birth, the father was a citizen of the Bahamas, but the mother of a child born in wedlock cannot automatically pass on citizenship to her child. All the British overseas territories, since the British Nationality Act, 1981, have legislation which preclude children born out of wedlock from acquiring citizenship by descent from their fathers. They can only acquire such citizenship through their mothers. This works considerable hardship when the mother is not herself a national of that country.

There are still disparities in the minimum age for marriage for boys and girls in certain jurisdictions among certain religions. The Hindu and Moslem marriage laws evidence such disparity. Trinidad and Tobago is a State in which there is firm resistance to raising the minimum age for marriage. This is particularly urgent in the case of Muslim girls whose parents can consent to their being married as early as twelve years of age. I commend to Caribbean governments the Revised Family Code of Ethiopia 2000 which had as one of its principles: “to amend existing laws in such a way that they give priority to the well-being, upbringing and protection of children.” This Code raised the minimum age for marriage from 15 to 18 years “ in accordance with the prevailing policies in the constitution and to make the law compatible with the CRC policy.”

Some jurisdictions make no provision for remand or detention of older girls who are offenders in the juvenile justice system and may place them in the women’s prison. This situation obtains in Trinidad and Tobago, Suriname and Antigua.

Many parents and teachers still persist in socializing boys and girls differently. This may have long –term effects and may impact negatively on the self esteem of girls. Boys receive approval for being aggressive. Messages that boys, who will ultimately become men, are superior to girls, give to boys the authority to assume power and control and to exercise the concomitant right to dominate and disadvantage girls. Girls may receive the message that they are subservient to the boys, may define their worth by motherhood and their career success by marriage. Their supreme accomplishment may lie in “making a baby”, or two or three or four. This is particularly true of girls in the low socio-economic stratum. Thus, the seeds may be sown for girls to become victims of domestic violence.

One of the greatest challenges of the 21st century is to stem the tide of violence against women and girls. It involves a long and arduous process of re-education, a new socialization and restructuring of values involving the home, the school, the church, the media and all aspects of the wider society. The Centre for Gender Studies of the University of the West Indies at Cave Hill, Mona and St.Augustine, The Faculty of Law and government ministries responsible for gender affairs have been doing yeoman service to raise awareness in this area. Many states have passed domestic violence legislation and provide community resources. The prospects for change seem positive, but the process is slow.

v. Other areas of discrimination Children in rural areas, homeless children, children in institutions, children living in poverty, children infected by HIV in the Caribbean, frequently, do not receive the care and attention and access to resources as other children. This situation provides a serious challenge for us in the Caribbean in the 21st century to redress the balance. It is no great accomplishment to provide free education for all children, if there are children who cannot pay for the necessary transport to go to school, do not receive proper meals and cannot buy the necessary school books.

The Committee on the Rights of the Child in commenting on States Reports has expressed its concern for such disadvantaged children. States have generally been trying to rise to the challenge facing them in these areas where a great deal of assistance is rendered by various NGOs. The prospects in meeting this challenge are good, as increasingly, fuelled also by public opinion, governments are becoming sensitized to their need to provide realistically for all children under their jurisdiction.



2. BEST INTERESTS OF THE CHILD.

Article 3 of the CRC states: In all actions concerning children, whether undertaken by public, or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. .

The principle of “best interests of the child” pre-dates the CRC and has been a guiding light in legislation concerning children. Child welfare legislation in the region speak to this principle. The Adoption Acts uses it as a guide and case law and statute in matters of custody and access, as well as alternative care, are replete with references to this principle. The CRC has taken the principle, widely recognized in domestic law, into the realm of international law for due recognition and action.

The CRC however mandates that the best interest principle be applied to all actions concerning children. It, therefore, poses a challenge to all institutions, public and private, social welfare institutions to act in the best interests of children. All institutions which act for, and on behalf of children must be supervised. Guidelines for them must be set down, widely disseminated and policies put in place to ensure their compliance.

Courts of law, administrative and legislative bodies must be made aware of the CRC and its provisions to ensure that they act in accordance with what is in the best interests of the child.

One area in which the best interest principle is not at all well-served is in the area of juvenile justice. Until about a generation ago the best interest principle in juvenile justice was equated with the welfare model of caring and helping the child. The child was perceived as not the bearer of rights, but as the object of benevolent care and protection. Due process was foreign to this regime and frequently, in stead of receiving care, the child was subjected to abuse.

Article 40 of the CRC which speaks to juvenile justice is the most comprehensive of all the articles. In this article States Parties are urged to recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in the society.

Article 40, together with Article 37, sets out the child’s entitlement to due process, namely, to the presumption of innocence, the right to be informed promptly and directly of any charges, to have legal assistance in the preparation of the case, the right to a fair hearing, to a speedy trial , to protection from self incrimination, the right to participate in the proceedings, the right to review, and the child’s right to have his or her privacy respected at all stage of the proceedings . Article 40 also sets out the child’s right to the establishment of laws, procedures, authorities and institutions applicable to children.

In addition to the juvenile justice laws, some of which are in urgent need of reform, there are policies and practices at every stage of the juvenile justice system, which are inimical to the best interests of the child.

The Committee on the Rights of the Child, in commenting on Reports of Caribbean States Parties, has expressed its concern about several aspects of juvenile justice. The Caribbean 2000 Consensus on Juvenile Justice which embodied the recommendations from the Regional Symposium on Juvenile Justice held in Port of Spain, Trinidad, in September 2000, recommended that all States should review and reform their legislation to ensure compliance with the CRC and related instruments.

The age of criminal responsibility is one such area in need of reform. In some jurisdictions such as Trinidad and Tobago, Grenada and the Bahamas, no age for criminal responsibility has ever been legislated. It remains at the common law age of 7 years. The Caribbean 2000 Consensus recommended that in all States of the Caribbean, legislation be enacted to the effect that the age of criminal responsibility, shall not be less than 12 years of age. This, at present, obtains only in Dominica and Jamaica.

Another recommendation was that legislation be enacted in all jurisdictions to ensure that all children under the age of 18 years are afforded the full protection of the juvenile justice system. Recommendations were also made for diversion of juveniles from the criminal justice system, for legal representation for juveniles, for deprivation of liberty to be a last resort, for the abolition of status offences, for the provision of sufficient human, social, financial, administrative and physical resources for the effective functioning of the juvenile justice system and for training of personnel throughout the criminal justice system.

A major problem in the enforcement of the laws which are protective of children’s rights, is the lack of a system of monitoring the various agencies’ compliance with these laws and the reluctance of the State to enact prohibitive penalties for the breach of those laws.

Thus, in defiance of the law, and despite my continued advocacy in this area, some of the mass media continue to reveal the names, addresses and schools, of children who are arrested and publish their photographs with impunity. When I spoke to a television station about their showing the face of a thirteen year old girl who had been charged with murder, I was told that it was a mistake.

The abuses to which a child may be subjected in the juvenile justice system also infringes another aspect of Article 37 of the CRC which enjoins States to protect the child from torture or other cruel ,inhuman or degrading treatment or punishment . Article 37 also seeks to protect the child from arbitrary arrest and provides that when deprived of liberty, the child is to be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age. Article 37 also calls for separation of children from adults and the maintenance of contact between the detained child and his family.

As recently as last week in the Republic of Trinidad and Tobago, it was reported that a 14-year-old boy was arrested for his involvement in a fight at his school. He was kept in a police station where he was detained and subjected to physical and psychological abuse from Friday to Tuesday before being granted bail.

Lest one believes that there is nothing positive in this gloomy area of child rights, let me point you to some hopeful signs. One positive in the region is that in all of the Caribbean, the death penalty has been wiped off the statute books in respect of juveniles. The law provides that no one under eighteen at the time of the commission of an offence punishable by death may be executed. All of the Caribbean States have juvenile justice laws. There are either separate courts for juveniles, or courts are held on separate days or at separate times, from the adult courts.

Probation officers are generally present in the court to prepare pre- sentencing reports to assist the magistrate or juvenile panel in the disposition of the case. A number of jurisdictions have panels which include participants of both sexes to hear juvenile cases. Juveniles are generally transported to court in vehicles separate from those used to transport adult prisoners and are detained in separate facilities. More and more, jurisdictions are considering diversion measures, such as police caution, mediation, restorative justice and alternative methods of sentencing such as parole, community service and suspended sentences. One challenge is to ensure that there is no discrimination in the selection of cases for soft penalties, to ensure that the affluent child does not get a slap on the wrist, while the poor and disadvantaged child feels the full weight of the law.

The best interest principle illustrates the inter-relatedness of the articles of the CRC as it underpins all the other articles. It is truly an umbrella provision, covering as it does, the principle of non- discrimination, maximum survival and development and the child’s right to be heard in all relevant administrative or judicial proceedings. It continues to present a challenge of interpretation and implementation to us in the 21st century.



3. THE RIGHT TO LIFE, SURVIVAL AND DEVELOPMENT

Gabriella Mistral, a Chilean poet, wrote: Many things can wait; the child cannot. Now is the time his bones are being formed, his blood being made, his body being developed. To him, we cannot say, tomorrow. His name is today.

Article 6 of the CRC provides: States Parties recognize that every child has the inherent right to life. States Parties shall ensure to the maximum extent possible the survival and development of the child.

This right of the child is considered a fundamental right.

The child’s right to survival and development involves not only basic health and welfare issues and the right to life, but issues of protection of childhood. It does not only outlaw the imposition of the death penalty on children, but charges the State with positive action on behalf of the child’s survival and development.

The challenge to ensure immunization of all children, to provide them with proper nutrition, clean drinking water, reduce infant mortality and morbidity remains a perennial concern of the Committee on the Rights of the Child..

Child abuse, child abandonment, abduction, sale of, or trafficking in children, sexual exploitation, early marriage, child labour, the right to maintenance, to be cared for by parents, to maintain contact with them, the right to education, including early childhood education, the right to the development of his or her personality, talents and mental and physical abilities, the right to rest and leisure, to be protected and insulated from the illicit use of narcotic drugs, to be protected from involvement in armed conflict and to receive rehabilitative care when necessary, are all threads interwoven in the tapestry of this fundamental principle of the child’s right to life, survival an development. This must mean for the child the right, not to mere existence, but must speak to his or her quality of life.

States Parties continue to rise to the challenge to protect the children under its care and consequently, have enacted legislation or amendments to their existing legislation to provide severe penalties for drug trafficking, sexual, physical and psychological abuse of children, sexual exploitation of children, including involving them in pornography and prostitution. Increasingly, States are ratifying the Hague Convention on the Civil Aspects of Child Abduction and putting the necessary machinery in place to ensure its effectiveness. There is legislation for treciprocal enforcement of maintenance across numerous jurisdictions regionally and internationally.

There are still challenges which face our Caribbean regional States. One of these is the challenge to review adoption laws to enact with safeguards, provision for international adoption. This would go a long way to protect children from abuses which occur because of dishonest practices which have arisen to avoid the laws which forbid adoptions across States Borders and which may result in exploitation and denial of rights to children and parents involved and the enrichment of procurers.

Lest one believes that the sale of or trafficking in children is something that occurs in places far removed from us here in the Caribbean, I will tell you that as recently as 1995, I had good reason to believe that some suspicious activities of that nature were taking place in Trinidad and Tobago. Unfortunately, for some persons, a social worker sent one of the parents to me. In representing her interests, I found out that there was quite a lucrative business going on, where poor children were being handed over to local and foreign persons, for a price. I subsequently exposed the practice at a lecture that I gave at the Centre for Gender Studies at St. Augustine and thereby incurred the wrath of several respectable members of society.

Another challenge in this area is the frequency of child abandonment in the Caribbean. Just last week a new born baby was found abandoned in the bushes in one area of Trinidad and Tobago. A few weeks ago another new born baby was found abandoned under some galvanized sheeting in another part of Trinidad and Tobago. In spite of the existence of non-governmental organizations which care for mothers- to -be and their new born babies, young women are still concealing their pregnancies and then abandoning their new- born babies. Perhaps the challenge lies in making these helping organizations more widely known to potential users.



4. RESPECT FOR THE VIEWS OF THE CHILD Article 12 of the CRC enjoins States Parties to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

States Parties are also charged with the responsibility to provide to the child the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This article presents a challenge to some long-standing beliefs of many adults that children should be seen and not heard; that children, because they have not had the experiences of adults can make no meaningful contribution to any discussion on their welfare. This article, more than any other, seems potentially to give credence to the belief held by many parents that to give children rights would undermine the authority of the parents and would provide children with an autonomy that they were not yet equipped to handle. A careful reading of the article , however , would reveal that this article fully pays cognizance to the evolving capacity of the child, containing as it does the important proviso,” the views of the child being given due weight in accordance with the age and maturity of the child.”

There have always been occasions for the voice of the child to be heard. In custody and access cases and adoption cases, magistrates and judges seek the views of children either directly or through the probation officer or guardians ad litem. Although the child’s legal representative, which is a feature of the judicial system in the Ontario, Australian and other court systems is not a feature of Caribbean justice, it is to be hoped that with the advent of Family Courts in the region, the child’s voice will be taken to that higher level of participation. But the tide has begun to flow, schools are allowing children to sit on the councils, to discuss curricula, prescribe disciplinary measures for their peers and to act as peer counselors. The mass media have handed over microphones and have opened up pages in the press to the views of children. Our own homes are beginning to listen to the voices of children. Children are participating and expressing their views on the governing of their world, the environment, their educational and other needs. We are challenged to let them have a say in matters of their health, and reproductive rights. These are areas fraught with controversy. Surely, our children cannot do worse than the adults to destroy a world that is more theirs than ours. The challenge remains for us adults to put aside our fears and guide these voices in an appropriate manner that respects the dignity and the evolving capacity of the child as the child prepares to enter the adult world.

CONCLUSION

During the course of my discourse, I have pointed to a number of challenges that yet face us in the 21st century. Another one of those challenges is, as stated in Article 42, to make the principles and provisions widely known, by appropriate and active means, to adults and children alike. There are still too many persons who perform administrative, legislative and judicial functions and who should be operating within the policies, principles and practices outlined in the CRC, who are not aware of its provisions of the CRC.

Finally, I must pay tribute to Unicef, the organization that has risen to the challenge of promoting the implementation of the CRC. This organization has performed above and beyond its mandate given in Article 45 of the CRC to provide technical advice or assistance. Unicef in the Caribbean region, no less than in other parts of the globe, perhaps, even more than in other parts of the globe, has done outstanding work in promoting the implementation of the CRC. They have mounted seminars, conferences, workshop, symposia, provided financial assistance for training, commissioned and funded numerous country reports and studies and have supported legislative reform activities all in the name of child rights. These duties they have performed all with willing hearts, cheerful voices and smiling faces.

They have been firm and decisive, encouraging and persuasive, diplomatic and strategic, but always getting the job done. They have cooperated with NGOs and governments, international and regional organizations and individuals, but worked they always have, tirelessly and always in furtherance of the goal of promoting the rights of the child in the Caribbean. Members of Unicef, on behalf of our children in the Caribbean, I salute you.

At the beginning of my speech, I quoted Lord Funny and asked: Fifteen years now have passed, how you feel? Now that I have reached the end, I respond to the question in the words of another calypsonian: “The journey now start, the journey now start”.

Thank you for your kind attention.

HAZEL THOMPSON- AHYE 17- 11- 04



----------------------- [1]“ Belize Commitment to Action on the Rights of the Child” in Report of the Caribbean Conference on the Rights of the child: Meeting the Post Ratification Challenge. Belize city. Belize 1996Unicef. Bridgetown: 1996 [2] Cantwell, Nigel. Introduction – United Nations Convention on the Rights of the Child. Defence for Children International. International Secretariat. Geneva, Switzerland 1995 [3] section 3(1) (b) Status of Children Act Ch 46: 07 of the Laws of the Republic of Trinidad and Tobago. [4] Section 21A Births and Deaths Registration Act. Ch. 44:01 Laws of the Republic of Trinidad and Tobago [5] The Bermuda Immigration and Protection Act, 1956, section 18;Turks and Caicos Immigration Ordinance section 3 [6] Welling, Bobbie& Mather, Susan eds. Gender and Justice; Implementing Gender Fairness in the Courts- Implementation Report of the Judicial Council of California Advisory Committee on Gender Bias in the Courts 1996