advancing children's rights in jamaica report on - unicef

ADVANCING CHILDREN’S RIGHTS IN JAMAICA

REPORT ON LEGISLATIVEREFORM INITIATIVE

For every childHealth, Education, Equality, ProtectionADVANCE HUMANITY

ADVANCING CHILDREN’S RIGHTS IN JAMAICA

REPORT ON LEGISLATIVEREFORM INITIATIVE

AUGUST 2004

CONTENTSPage

1. Part I: Executive Summary 1

2. Part II: Presentation of the state party 3

2.1 Legal system and political organization 32.2 Status of the CRC in domestic law 92.3 Budget 10

3. Part III: Law review and law reform 13

3.1 Law review 133.2 Types of legislative reform undertaken 143.3 Rationale for undertaking legislative reform initiative 153.4 Institutional changes put in place to support laws 15

4. Part IV: Process of legislative reform 18

4.1 Strategy and actors 184.2 Implementation of law and follow up actions 194.3 The use of law in court disputes and by judges in court

decisions 194.4 Social policy documents accompanying law reform 21

5. Part V: Conclusion 22Lessons learnt and recommendations 22

Annex A: The Convention on the Rights of the Child and the Child Care and Protection Act 26

Annex B:The Government of Jamaica Budget Process 31

Annex C:Documents and publications used 32

FOREWORD

Jamaica was among three countries with a Common Law system selected by UNICEF headquarters

to participate in a Legislative Reform Initiative aimed at reviewing existing national legislation and

mechanisms with a child rights lens. Under the LRI, a national study was conducted by UNICEF in

Jamaica to assess the impact of the Convention on the Rights of the Child on legislative reform.

Particular attention was paid to the linkages between legislative reform and social policies.

The UNICEF Jamaica office would like to thank Attorney-at-Law Candis Hamilton for her

comprehensive analysis of the laws of Jamaica and how they support the Jamaican commitment

to the progressive realization of children’s rights. We are also very grateful to all our partners who

contributed to this report by sharing their time and expertise.

We hope that legislators and policymakers will find the study a useful tool as they continue the

process of legislative reform and the aligning of legislation with the Convention on the Rights of

the Child and the Child Care and Protection Act.

Bertrand BainvelRepresentativeUNICEF Jamaica

According to the “The Economic and SocialSurvey for 2003”, published by the PlanningInstitute of Jamaica, children (0-18 years)accounted for 39% (approximately 1,027, 325)of Jamaica’s total population. Jamaica’spopulation is very young, yet it is this sectorthat is the most vulnerable. In Jamaica over45% of households are headed by females.1

Jamaica has ratified the main internationaltreaties that have an impact on the rights ofchildren in Jamaica. These are theConvention on the Rights of the Child (CRC),the Convention on the Elimination of AllForms of Discrimination against Women(CEDAW), and the Convention on theElimination of All Forms of RacialDiscrimination (CERD). These threeconventions are complementary as theyregulate both public and private realities ofindividuals. All three seek to eliminatediscrimination and promote equality for allpersons, regardless of age, gender, race orcolour. They provide the framework for thedevelopment of policies and strategies to“promote and protect the rights of childrenand women, to eradicate inequality anddiscrimination, and to create a healthyenvironment in which all children mayflourish”.2

Under Jamaica’s current political and legalorganization international treaties are notrecognised as a source of law for domesticpurposes until there has been a separate actof Parliament enacting legislation on thatsubject matter. There are several pieces oflegislation that address the issue of equalitybetween men and women, such as theEmployment (Equal Pay for Men and Women)Act, Domestic Violence Act, Maintenance Act,among others, but there is no single piece oflegislation that is the definitive response toCEDAW. Similarly there is no domesticlegislation for Jamaica in response to theCERD. However, the Child Care andProtection Act (CCPA) has officially beendeclared as Jamaica’s response to its

international obligations under the CRC.Chapter III of the Constitution of Jamaicaaddresses several of the principles underthese three treaties and can be examined forgaps that are not addressed in specificdomestic legislation to satisfy Jamaica’sinternational obligations under these treaties.

Jamaica ratified the Convention on the Rightsof the Child in May 1991. After many years ofdebate on children’s issues, Jamaica’sParliament finally passed the Child Care andProtection Act on the 16th March, 2004. In thewords of the Honourable Minister of Health,John Junor, this Act “will bring nationallegislation in line with the provisions of theConvention on the Rights of the Child”.3

It is significant that the CCPA has beenenacted and seeks through this process oflegislative reform to institute a majoroverhaul in the area of children services inJamaica for the continued promotion andprotection of Jamaica’s children. Theantiquated Juvenile Act has been repealedand a new executive agency – ChildDevelopment Agency – has been establishedto amalgamate the Children’s ServicesDivision, the Adoption Board and the ChildSupport Unit of the Ministry of Health withthe objective to coordinate and regulate child-care bodies and services within a singleentity.

There is a general feeling of optimism that theCCPA will bring Jamaica in line with theprovisions of the CRC, and the hope that ifthere are gaps the judges will look to the CRCfor clarification. However, there are gaps inthe CCPA, the most glaring being theapproach as it is not fully rights-based as theCRC encourages. While the CCPA adequatelyaddresses issues of child care and protectionin places of safety, children’s homes and inthe care of fit persons, children in otherinstances particularly in the access ofeconomic, social and cultural rights are notadequately addressed.

ADVANCING CHILDREN’S RIGHTS IN JAMAICA 1

Part I:Executive Summary

1 Jamaica National Report, End of Decade Assessment of the World Summit for Children, Year 2000 Goals, p. 56.2 Supra, Jamaican Children and Their Families, p. 15.3 The Honourable House of Representatives, Item No. 7 under Public Business, March 2, 2004.

In Jamaica’s courts the practice has been touse the Constitution of Jamaica, statute andcase precedents from Jamaica, the JudicialCommittee of the Privy Council and otherCommonwealth jurisdictions to resolvedisputes. This practice by local judges to datehas been slow in incorporating internationaltreaty obligations as an additional binding orpersuasive source of law.

There are several points of entry for furtheractivities in advocacy and projects that canstrengthen efforts for the continuedprotection of children in Jamaica. There isample evidence to suggest that the Judiciarycould be a potential partner in utilising child-related treaties for judicial decisions in child-related matters. Additionally, the ChildDevelopment Agency as an umbrella entityfor the protection of children in Jamaica willrequire assistance to coordinate with therelevant agencies, ministries and non-governmental entities to ensure children’saccess to rights is efficient and effective. It is

essential that future plans are proposed in thecontext of the socio-economic climate andtaking into consideration the cultural nuancesof Jamaican society.

This study will address whether thelegislative reform initiated and conducted byJamaica is an adequate response forchildren’s access to rights in Jamaica’s legalsystem. The study will present an overviewof Jamaica’s legal and political organization,the status of the CRC in domestic law, and anoverview of the national budget process. Thestudy will also set out a summary of thehistory and processes of legislative reform,outlining the rationale for such a reform, theinstitutional changes proposed and therequired resources for such reform. It willconclude with the lessons learned by thestakeholders, the State and non-governmental organizations together withspecific recommendations aimed atreinforcing a rights-based approach towardschildren.

2 ADVANCING CHILDREN’S RIGHTS IN JAMAICA

2.1 Legal system and politicalorganization

Origins of law in Jamaica

The three main sources of law in Jamaica arecommon law, statutory law and theConstitution of Jamaica. Hierarchically, theConstitution of Jamaica is the supreme law ofthe land, followed by statutory law and finallycommon law.

Statutory law is created by the enactment oflegislatures and comprises the body of thoseprinciples and rules of action, relating to thegovernment and security of persons andproperty.

Common law derives its authority solely fromusages and customs of immemorial antiquity,or from judgments and decrees of the courtsrecognizing, affirming and enforcing suchusages and customs, particularly the ancientunwritten law of England. Hence, the ancientunwritten law of England was applicable ascommon law in Jamaica except “where localjudicature dictate to the contrary”.4 However,it should be noted that the abolition of acommon law rule in England does not affectexisting legislation in Jamaica; to alterJamaica’s legislation requires a separate actof Jamaica’s Parliament.5

Part II:Presentation of the state party

Judicial Committee of thePrivy Council 6

United Kingdom (usually before five(5) judges)

Court of Appeal(three (3) judges) with 10+ yeasexperience

Supreme Court/HighCourt/Circuit Court(one (1) judge)

Gun Court (hybrid of ResidentMagistrate Court(one (1) judge)

All Members of the House of Lordscomprise a pool of approximatelythirteen (13) Members. Selected orappointed mainly from senior levels ofCourt system in England andoccasionally from other Commonwealthcountries. They advise the Queen onthe disposition of matters, and arereferred to as Her Majesty’s Council.

Appointed on the recommendation ofthe Judicial Services Commission. ThePresident is appointed by the GovernorGeneral on the recommendation of thePrime Minister after consultation withthe Leader of the Opposition.

Appointed on the recommendation ofthe Judicial Services Commission. TheChief Justice is appointed by theGovernor General on therecommendation of the Prime Ministerafter consultation with the Leader of theOpposition.

Appointed in the manner of High Courtjudge

Established to try cases concerninggun related offences

Highest Court of JamaicaHears three types of appeals fromthe Court of Appeal: (1) as of right,i.e., automatically (2) with leave,or permission of the Court, or (3)by special leave, or permission, byHer Majesty.

Hears Appeals from all the lowerCourts

Determine issues of law & fact

4 Ibid, p.17.5 Interpretation Act, Section 41, “All such laws and Statutes of England as were, prior to the commencement of 1 George 11 Cap. l, esteemed, introduced,used, accepted, or received, as laws in the Island shall continue to be laws in the Island save in so far as any such laws or statutes have been, or may be,repealed or amended by any Act of the Island”.6 The Judicial Committee of the Privy Council, the Court of Appeal and the Supreme Court/High Court/Circuit Court are all Superior Courtsor Courts of record.

Jamaica’s Judicial System

Currently the legal system of Jamaica is comprised of the following courts:


Caribbean Court of Justice

The Caribbean Court of Justice (CCJ) willshortly be replacing the Judicial Committeeof the Privy Council as the highest court ofresort. On February 14, 2001, ten Heads ofGovernment of the Caribbean Community7

signed the Agreement Establishing theCaribbean Court of Justice in Bridgetown,Barbados. The Government of Jamaica isparty to the Agreement establishing theCaribbean Court of Justice. The CCJ willhave original jurisdiction with respect toissues arising under the Revised Treaty ofChaguaramas and appellate jurisdiction withrespect to matters arising from the JamaicanCourt of Appeal.

The original jurisdiction will be concernedprimarily with questions of regional

integration, trade, freedom of movement andmacroeconomic matters. This jurisdiction isnot likely; therefore, to have direct bearing onthe rights of children within Jamaica,although, to be sure, some originaljurisdiction matters will touch and concernchildren.

The appellate jurisdiction of the CCJ willinvolve all matters currently within thejurisdiction of the Judicial Committee of thePrivy Council. Thus, it is intended that the CCJwill replace the Judicial Committee of the PrivyCouncil as Jamaica’s final court of appeal.Article XXV (2) of the Agreement establishingthe CCJ indicates that the CCJ will have finalappellate jurisdiction for the following matters:

Juvenile and Family Court(one (1) judge)

Resident Magistrate Courts(one (1) judge)

Petty Sessions (Justices of the Peace)

Appointed by the Governor General onthe recommendation of the JudicialServices Commission

Appointed by the Governor General onthe recommendation of the JudicialServices Commission

Hears a wide range of criminaland civil matters with prescribedlimitations on sentencing anddamages awards

Appointed by the Governor General onthe recommendation of the Custos ofone of Jamaica’s fourteen (14) parishes

Hears minor offences

Family Courts exist in four (4)parishes - social workers,probation officers, counsellors andcourt staff in the same building toamalgamate the interest of thechild. Once a child is detained bythe police, the child is brought toan intake counsellor at the FamilyCourt, who determines whetherarrest or counselling isappropriate. If Court is requiredthe child is placed in a place ofsafety or remand centre, no thepolice lock-up. In the remainingparishes the Juvenile Courtmaintains. Same staff fromCriminal Court presides over theJuvenile court.

7 The Heads of Government came from Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St. Kitts and Nevis, Saint Lucia, Suriname andTrinidad and Tobago.

(a) final decisions in civil proceedings where the matter in dispute on appeal to theCourt is of the value of not less than twenty-five thousand dollars Eastern Caribbeancurrency or where the appeal involves directly or indirectly a claim or a questionrespecting property or a rights of the aforesaid value; (b) final decisions inproceedings for dissolution or nullity of marriage; (c) final decisions in any civil orother proceedings which involve a question as to the interpretation of theConstitution of the Contracting Party; (d) final decisions given in the exercise of thejurisdiction conferred upon a superior court of a Contracting Party relating toredress for contravention of the provisions of the Constitution of a Contracting Party


for the protection of fundamental rights; (e) final decisions given in the exercise ofthe jurisdiction conferred on a superior court of a Contracting Party relating to thedetermination of any question for which a right of access to the superior court of aContracting Party is expressly provided by its Constitution; and (f) such other casesas may be prescribed by any law of the Contracting Party.

These provisions cover the entire range ofrights and duties that concern Jamaicancitizens (including children).

The Agreement establishing the CCJ providesno specific rules as to the relationshipbetween existing decisions of the JudicialCommittee of the Privy Council and the CCJ.It is clear, however, that decisions of theJudicial Committee of the Privy Council willnot be binding on the CCJ. Based oncommon law tradition, Privy Councildecisions are likely to carry persuasiveauthority before the CCJ. However, the CCJwill be free to disregard Privy Councilprecedents. Given that the CCJ is yet to beestablished, it is difficult to identify the futurepattern of that court’s jurisprudence. The CCJwill undoubtedly operate within the commonlaw tradition; it is expected that the new courtwill follow accepted canons of legislativeinterpretation that are part of this tradition.On issues concerning children, this suggeststhat the CCJ, as the final appellate court for

Jamaica, will not embark upon “judiciallegislation”; rather, it will interpretconstitutional and statutory instruments inkeeping with common law tradition, it isunlikely that, the establishment of the CCJwill, in itself, lead to changes in the laws ofJamaica pertaining to children.

A related question concerns the possibleapproach of the CCJ to Jamaica’s treatyobligations on children and children’s rights.Treaty obligations do not automatically forma part of Jamaican law [see discussion infra];the rules set out in specific treaties need to beincorporated into local law before they havedomestic effect. This approach is derivedfrom Jamaica’s constitutional structure, andis unlikely to change with the introduction ofthe CCJ. It should be noted in this context,however, that the Privy Council has reliedupon treaty obligations in interpreting localstatutes on ambiguous points; this approachis part of the common law, and it is expectedthat it will be retained by the CCJ.

Political Organization

The structure of Jamaica’s government is outlined in the Jamaican Constitution.

Head of StateQueen

Represented by the Governor General(These functions include: ceremonial duties, prerogative of mercy and converting Bills to Acts of

Parliament by final signature)

Executive Legislature Judiciary

Chapter VII of the Jamaica Constitutionestablished the independence of theJudiciary. A judge of the Supreme Court canonly be removed from office by the GovernorGeneral for inability to discharge thefunctions of the office or misbehaviour, andonly upon the recommendation of a tribunalappointed to investigate the inability ormisbehaviour. Given the security of tenure inthe offices of judges they are theoretically

able to objectively adjudicate claims thatcome before the courts.

Resident Magistrates, however, do not enjoythe same security of tenure as High Court andCourt of Appeal judges. Judicial appointmentsare made by the Judicial Service Commission,chaired by the Chief Justice. The Commissionincludes the President of the Court of Appeal,the Chairman of the Public Service


Commission and three others. Judicialdecisions form part of the common law ofJamaica; accordingly, the integrity of the legalsystem and the competence of judges are bothof utmost importance.

This independence does not exist betweenthe Executive and the Legislature as outlinedin Chapters V and VI of the JamaicaConstitution, where the Cabinet or Executiveis comprised of Ministers or Members ofParliament as appointed by the PrimeMinister. The Legislature or Parliamentconsists of Her Majesty, a Senate and a Houseof Representatives. The Prime Minister isappointed by the Governor General, “who, inhis judgment, is best able to command theconfidence of a majority of the members ofthe House of Representatives”.8 The Senateconsists of twenty-one (21) persons and theHouse of Representatives consists of sixty(60) Members of Parliament. All the Senatorsare appointed by the Governor General,thirteen (13) Senators, however, are soappointed on the recommendation of thePrime Minister and the remaining eight (8) onthe recommendation of the Leader of theOpposition. The Leader of the Opposition issimilarly appointed by the Governor Generalas the person who in his judgment is bestable to command the confidence of a majorityof the Members of the Parliament who do notsupport the Prime Minister.

“The division of 13 to 8 in the Senate issignificant because some entrenchedprovisions of the Constitution may only bechanged if they receive the endorsement of atleast a two-thirds majority in each House ofParliament.”9 The Members of the House ofRepresentatives are elected by UniversalSuffrage (all persons over the age of 18 years)for a five-year term at a General Election or, asoccasion may arise, at by-elections. The five-year terms of the 60 MP’s may be shortened ifthe Prime Minister calls a General Electionduring the term. The Senate is alsoreconstituted after a General Election.

Any Member of either the Senate or theHouse of Representatives may introduce aBill or propose a motion for debate in theHouse, which shall be debated and disposedof according to the Standing Orders of that

House.10 The Bill will be debated and votedon in both Houses, and become law once finalapproval is assented to by the GovernorGeneral. This law making facility ofParliament establishes the legislation orstatutory law of Jamaica. Once the laws aremade by Parliament it is the Judiciary thatwill interpret these laws in a court of law,these judicial decisions form part ofJamaica’s common law and give furthersignificance to the application of the law inpractical terms.

There are thirteen Parish Councils (Kingstonand St. Andrew are combined into a singlearea for local government purposes) whosepower is determined by CentralGovernment.11 Each of the Parish Councils isa corporation with the right to enter contracts,sue, and be sued. They have generalresponsibility for roads and works, watersupplies, public health, poor relief, firebrigades, and other social developmentmandates. Despite a recent local governmentreform project the Parish Councils are stillheavily dependent on Central Government asthe principal source for policies, financingand administration. However, ParishCouncils are statutorily empowered to makeby-laws and regulations as it relates to thefunctions of the Parish Council.12 Many of theareas referred to in the Parish Council Act arerelevant to promoting and protecting the bestinterest of the child, however, given thecurrent organizational structure it may befutile at this time for Parish Councils tointroduce regulations regarding children thatwill be difficult to implement.

The Ministry with direct responsibility forchildren is the Ministry of Health as indicatedby the CCPA which places the ChildDevelopment Agency under this Ministry.Other ministries that have an impact on achild’s development and access torights/justice are the Ministry of Justice,Ministry of Education, Youth and Culture,Ministry of Health, Ministry of NationalSecurity, Ministry of Labour and SocialSecurity and Ministry of Local Government.

In practice, the Executive (through theCabinet) proposes legislation for theconsideration of the legislature, which is

8 The Jamaica Constitution, Order in Council, 1962, Article 70.9 Raphael Codlin, Historical Foundations of Jamaican Law, 2003, pp.16-17.10 The Jamaica Constitution, Order in Council, 1962, Article 55. A Money Bill is the only exception to this rule, as it can only be introduced in the House.11 Jamaican Children and Their Families, A Situation Assessment and Analysis 1999-2000, UNICEF and PIOJ, p. 21.12 Parish Councils Act, sections 120-126. Similarly the Kinston and St. Andrew Corporation Act, sections 225 & 228.


typically voted on according to party lines.Any op position to proposed legislation islikely to come only from the Oppositionbenches in Parliament.

However, given the independence of theJudiciary the interpretation of these laws asdeveloped by Parliament is subject to theinterpretation of the judges, influenced in partby case precedents. As such, the Judiciary isa significant point of entry for advocacy in theuse of international treaties as a persuasivebasis for their decisions.

Standard English is the official language usedin Jamaica’s courts, and administrativeagencies. However, the majority of Jamaica’spopulation speak a Jamaican dialect knownas patois which is often used in courtproceedings and administrative agencies tofacilitate communication.

Sources of law in Jamaica’s legalsystem

a) Treaty law

“Treaties represent attempts by States toreduce the measure of uncertainty inherent inthe conduct of international affairs.”13

However, universal or regional treaties,including human rights treaties have adifferent character. They are not set up toregulate State relations but rather areestablished in the interest of creating a betterworld for all human beings. They containboth the commitment of States and the rightsand freedoms of individuals. The childrelated human rights treaties to whichJamaica is party are:

• the Convention on the Rights of the Child, • the Convention on the Elimination of All

Forms of Discrimination Against Women,and;

• the Convention on the Elimination of AllForms of Racial Discrimination.

Jamaica has also ratified:

• the Optional Protocol to the CRC oninvolvement of children in armed conflict,

• the Convention relating to the Status ofRefugees and;

• the International Labour OrganizationConventions 138 and 182 relating toMinimum Age and the Worst Forms ofChild Labour respectively.

Jamaica has signed, but not ratified:

• the Optional Protocol to the CRC on the saleof Children, Child Prostitution and ChildPornography and;

• the Protocol to the Convention onTransnational Organized Crime to Prevent,Suppress and Punish Trafficking in Persons,especially women and children

The principal regional treaties ratified by Jamaicaare the American Convention on Human Rightsand the Charter of Civil Society for CaribbeanCommunity. Jamaica has signed the Inter-American Convention on the Elimination of AllForms of Discrimination Against Persons withDisabilities but has yet to ratify.

Informal reports suggest that the Governmentof Jamaica may be moving towards theratification of the Optional Protocol to CEDAWas well as the Inter-American Convention onthe Prevention, Punishment and Eradicationof Violence Against Women “Convention ofBelém do Pará”.

In Jamaica’s legal system, internationaltreaties have no binding domestic effect untiland unless they are incorporated intoJamaican law by domestic legislation.14

Accordingly, the CRC would have bindingdomestic effect in Jamaica only after it isincorporated into Jamaican law byparliamentary legislation. The enforcement oftreaty provisions is outside the competence ofthe Jamaican courts, unless those provisionsare given (domestic) statutory expression.Customary international law (as opposed tointernational treaties) also represents a sourceof law. Theoretically, Jamaican courts maytake judicial notice of this source. However, nojudicial precedent has been identified in whicha rule of customary international law has beenapplied by the Jamaican courts. The generalapproach of judges is to review Jamaicanlegislation and earlier (domestic) caseprecedents in formulating their decisions.

13 Commonwealth Secretariat, Compilation of International and Regional Instruments for the Protection of Human Rights Defenders,14 Vasciannie, Stephen. International Law and Selected Human Rights in Jamaica, West Indian Law Journal 2002, p.1.


Another issue of note is the interface betweeninternational law and common law. There aretwo prevailing views regarding thisrelationship. The first view is thatinternational law is a part of common law,and as such would fall within the hierarchy ofsources of law used by domestic courts. Theprincipal source of authority for this view isRegina v. Keyn, where it was held thatinternational law is incorporated as part ofthe law of the land only so far as is notinconsistent with Acts of Parliament or priorjudicial decisions.15 The second view is thatinternational law forms a part of common lawonly if the law forms part of domestic law bylegislation, judicial decision, or establishedusage, in other words, transformed intodomestic legislation.

The practice in Jamaica is that international lawdoes not form part of the common law. TheConstitution of Jamaica is silent on this issue.Thus, international law may only become partof domestic law if recognized by judicialdecision or legislation. To date, Jamaicanjudges have been reluctant to do so.

The need for local legislation to give credenceto international law in Jamaican courts wasrecently reiterated by the House of Lords in thePrivy Council decision of Lambert Watson v.Regina. Lord Hope of Craighead, speaking forthe majority, indicated that, “if existing lawsare found to be inconsistent with obligationsbinding on Jamaica in international law, it willbe – as it always has been – for Parliament toprovide the remedy”.16

b) Constitution of Jamaica

The Jamaican Constitution, in particularChapter III, “Fundamental rights andfreedoms”, provides for the fundamental rightsand freedoms of individuals without distinctionas to race, place of origin, political opinion,colour, creed or sex and is compatible with theprovisions of CERD, CEDAW and the CRC.

The rights provided for in chapter III form partof the entrenched, as distinct from the ordinaryprovisions of the Constitution and cantherefore only be amended by a two-thirdsmajority of both Houses. Constitutionallitigation is predominantly about rights, to a

fair trial, legal representation, a fair hearing,freedom of expression and association,among others. There is little evidence ofconstitutional challenges launched withrespect to children or women’s rights.

In adjudicating these constitutionalchallenges, Jamaican judges have beenreluctant to explore or utilize internationaltreaties in arriving at their decisions. Theygenerally remain faithful to statutoryinterpretation and precedents from Jamaicanand other Commonwealth jurisdictions.17

The case of Regina v Director of PublicProsecutions and Director of CorrectionalServices (1996) illustrates this approach. Inarriving at its decision the Full Bench of theSupreme Court examined the ExtraditionTreaty to which Jamaica is a party butultimately relied heavily on the localExtradition Act, in rendering its decision.18

The Jamaican court’s approach to this treatymight be due in part to the fact that the treatygoverns State commitments to the issue ofextradition, rather than a human rights treatywhich contains corresponding individualrights and freedoms.

However, in another constitutional case19 , Mr.Justice Downer of the Court of Appeal writingfor the majority referred to an interpretationof the European Court of Human Rights onfreedom of expression. He noted that sinceChapter III of the Constitution of Jamaica ismodelled on the convention that governs thejurisdiction of that court he was able toborrow from the European Court’sinterpretation of this right.20 This is a positivestep for Jamaican practitioners who seek toexpand the source of persuasive law in theircases in Jamaican courts.

c) Statutory law

There are over three thousand pieces ofprimary and secondary legislation currentlyin existence in Jamaica. Some of thislegislation is outdated or in need of reform,while other statutes are innovative andcomprehensive in supporting the rule of lawnecessary in maintaining a safe and civilsociety. Appendix A includes acomprehensive discussion on some of these

15 (1876) 2 Ex D. 63, 202, 203. See Brownlie, Principles of Public International Law, Fifth Edition, (2002), pp.42-43.14

16 Lambert Watson v. Regina, Privy Council Appeal No 36 of 2003, Delivered 7th July, 2004.17 Athlee Swaby & Another v. Regina Ct. App. (1982) 19 JLR 413 (freedom of conscience); Regina v. Cleveland Maragh Ct.App. (1985) 22 JLR 383 (right to a fairand impartial hearing); Donald Panton v. The Attorney General of Jamaica Ct.App. (1991) 28 JLR 156 (freedom of person and freedom of movement).18 33 JLR 299.19 The Gleaner Company Limited and Dudley Stokes v Eric Anthony Abrahams (1996) 33 JLR 217.20 Ibid.


pieces of legislation as it relates to womenand children, and recommendations foraddressing the gaps in the legislation.

d) Common law

Statutory provisions apply until they arerepealed or amended. Similarly, commonlaw principles apply until superseded by anew statute enacted on that specific area oflaw. The common law functions in theJamaica legal system to supplement areasnot addressed or partially addressed byexisting legislation. For example, in the areaof tort law, the doctrine of attractive nuisancestill applies in Jamaica’s courts. If, forexample, a property owner could reasonablyforesee that a broken tractor on his propertycould attract a child onto the property andinjury results to the child, such an ownermight be liable for any injury sustained bythe child as a result of being lured onto theproperty. Similarly common law contractprinciples would apply if not specificallyaddressed or modified by legislation.

2.2 Status of the CRC in domesticlaw

Jamaica, ratified the CRC on May 14th 1991and did not submit any reservations ordeclarations to this treaty. Likewise Jamaicaratified the CEDAW on November 18th 1984and declared itself not bound by Article 29,paragraph 1.21 CERD was ratified by Jamaicaon July 14th 1971 with one reservation.22

In Jamaica, international treaties arejusticiable instruments in internationaltribunals. However, in domestic courtsinternational treaties are recognised onlyinsofar as they are given legal status by an actof Parliament. Since Jamaica ratified the CRCin 1991 various laws impacting on women’sand children’s rights have been passed by theJamaican government. These include:

• the Inheritance (Provision for Family andDependents) Act 1993,

• the Domestic Violence Act (1994), theFamily Property Act 1995,

• the Mental Health Act 1997,

• the Caribbean Community (Free Movementof Skill Persons) Act 1997,

• the Legal Aid Act 1997, • the Maintenance Orders (Facilities for

Enforcement) (Amendment) Act 1999, • Citizenship (Constitutional Amendment) Act

1999, • the Property (Rights of Spouses) Act 2004.

The passage of the Child Care and ProtectionAct (CCPA) in 2004 represents the latest effortby the Government of Jamaica to bring alllegislation pertaining to children in line withinthe standards of the CRC. This Act constitutesJamaica’s response to its internationalobligations to the CRC. In the event of aconflict between the CCPA and the CRC, thecourts have the option to look to the actualCRC as a part of international customary lawfor clarity in interpretation.

There is no set rule or policy regarding thedomestic mechanisms to ensure compliancewith international treaty obligations,however, certain government agencies andministries bear the responsibility of ensuringgovernment compliance with internationalobligations. The recently established ChildDevelopment Agency under the Ministry ofHealth bears the primary responsibility forensuring implementation of the CRC, and theBureau of Women’s Affairs under the CabinetOffice is responsible for ensuringimplementation of the CEDAW. The LegalUnit of the Ministry of Foreign Affairs andForeign Trade liaises with the necessaryagencies, ministries and non governmentalorganizations to encourage implementationof the CERD.

Public education is an integral component ofthe objectives of these agencies, as well astraining workshops. Human rights principlesreflected in the CRC are currently included inthe primary and secondary schoolscurriculum. The media (particularly the radio)are heavily relied on as a method ofpromoting greater awareness in theJamaican population of their rights.

Additionally ministries and departmentsresponsible for children are required tosubmit an annual report to the HumanResources Council, a subcommittee of

21 UN Convention on the Elimination of All Forms of Discrimination Against Women, Article 29, para. 1. “Any dispute between two or more States Parties concerning the interpretation orapplication of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree

on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.”22 Jamaica’s reservation on CERD indicated that ratification of CERD did not imply the acceptance of obligations that go beyond the constitutional limits nor theacceptance of any obligation to introduce judicial processes beyond those of the Constitution of Jamaica.


Cabinet, regarding the status anddevelopment of the children. These agenciesalso collaborate extensively with civil societyorganizations for the dissemination ofpublications and to facilitate access to thewider society on the rights and standardsestablished in these international treaties.There is significant evidence of the impact ofthe CRC in the Jamaican population, which isdue to the collaborative efforts of bothgovernment and civil society entities.

2.3 Budget

The Constitution of Jamaica gives theMinister of Finance the responsibility for thepreparation of Estimates of Revenue andExpenditure before the close of a financialyear and tabling them in Parliament as soonas is convenient in the new Financial Year.

The Government’s Financial Year runs from1st April of one year to 31st March of thefollowing year. A budget call is distributed toall the ministries, executive agencies, andrelevant government departments betweenSeptember and October. This budget callcommunicates the government’s fundingpriorities for the next financial year andbudgetary limits.

Draft budgets are received and examined bythe Ministry of Finance, following which theyare approved by Cabinet before beingsubmitted to Parliament. The national budget debate takes place inParliament in April and closes with a

parliamentary vote by early May. Membersof the public can attend the debate. Only thePrime Minister, the Leader of the Opposition,the Minister of Finance and the Spokespersonfor Finance of the Opposition are permitted toaddress the Parliament during the actualdebate. After the national budget has beenapproved the sectoral budget debate begins.During this debate, Ministers and back-benchers can participate in the debate.Members of the public cannot participate inany of these debate discussions.

The Public Expenditure Division of theMinistry of Finance monitors all ministries,executive agencies and governmentdepartments to ensure they are in compliancewith their budgetary allocations andexpenditures. All budgetary requests,supporting figures and project narratives arerecorded in a computerised monitoringsystem known as Jamaica BudgetInformation System (JABIS).

Under the current system there is no specificrule, regulation, or policy that defines theportion of the budget that will be dedicated tosocial expenditure for children. However, it isthe representation of the Ministry of Financethat social expenditure for children is apriority of the government. Given the latitudein preparing the national budget another pointof entry for advocacy is to monitor the budgetcalls by the Minister of Finance, and advocatefor inclusion of specific line items for projectson children and women, as it relates to thespecific ministry, executive agency orgovernment department.


Annual budgetary allocations for the period FY 1999/00 to FY 2002/03 reflected functionalclassification of expenditure as follows:

During this period primary education was a priority and was allocated a significant percentage ofthe total education allocation.

Functional Classification of Expenditure 1999/00 – 2002/03

J$ BillionActual Expenditure Actual Expenditure Actual Expenditure Revised Expenditure

1999/2000 2000/2001 2001/2002 2002/2003

General Services 118.65 121.57 174.58 172.89

- Public Debt

Management 97.34 97.51 147.75 139.83

Social & Community

Services 29.29 30.45 35.05 41.75

- Education 17.47 18.50 21.21 22.62

- Health 7.05 7.18 8.22 11.30

- Social Security &

General Welfare 1.18 1.23 1.29 1.91

- Water Supplies 0.4 0.66 0.37 0.33

Economic Services 9.96 12.78 11.18 8.92

Miscellaneous Services 0.03 3.03 0 0.03

GROSS TOTAL 157.92 167.83 220.82 226.23

Less Appropriation in

Aid 0.33 0.44 1.04 1.19

NET TOTAL 157.6 167.39 219.78 225.04

Source: The Jamaica National Budget: Budget Review. Renee Anne Shirley 2004; Economic and Social Survey Jamaica 2003, PIOJ.

Ministry of Health – Other Services/Programmes Specific to/Impacting Children

Estimates of Expenditure FY 1999/00 – FY 2003/04

J$ MillionEstimates Revised

Estimates

Actual

Expenditure

Actual

Expenditure

Actual

Expenditure

2003/04 2003/03 2001/02 2000/01 1999/01

Capital B (Financed with

External Funds)

Family Services Schemes 10.0 5.0 12.0 10.9 15.9

- Policy Advocacy Special Care &

Protection (UNICEF) 10.0 5.0 12.0 10.9 15.9

Prevention & Control of Drug

Abuse 3.1 3.0 5.0 - -

- Integrated Drug Abuse

Prevention Project (EDF) 3.1 3.0 5.0 - -

Surveillance, Prevention &

Control of Diseases 108.0 63.1 39,6 22.6 21.5

- AIDS/STD (USAID) 7.0 6.0 7.0 7.1 8.3 - HIV/STD Control Project in

Jamaica (Germany) 2.0 9.3 12.1 11.4 13.2

- Improved Reproductive Health

of Youth (USAID) 7.0 6.5 7.0 4.1 -

- AIDS Prevention &

Management (IDB) 2.0 1.0 3.0 - -

- Jamaica HIV/AIDS Prevention

& Control (IBRD) 90.0 40.2 10.5 - -

Common Health Services 3.1 2.0 1.5 - -

- Public Health Laboratory

(EEC/EDF) (IBRD) 3.1 2.0 1.5 - -

Maintenance & Upgrading of

Facilities 10.0 3.5 107.5 163.2 -

- Health Services Rationalization

Project (IDB) 10.0 1.0 102.0 151.4 -

- Redevelopment of the

Bustamante Children’s Hospital

(Italy) - - - - -


The budgetary allocation under the Ministry of Health for the Family Services Programme wastransferred in FY 2003/04 to the Child Development Agency, and has received an allocation of$550 million to cover recurrent expenditures in the 2003/04 financial year.

Adequacy of resources:

While the Child Development Agency isconfident there is sufficient funding for thefirst year of operations, there are otherfinancial implications that result from theChild Care & Protection Act and which falloutside the scope of the CDA and can militateagainst the success of the implementation ofthe CCPA. Some of these include:

• Transportation costs for police,investigation officers, Investigations byofficers

• Monitoring of trafficking• Capacity to search for a child that is being

abused, ill-treated, etc.• Transportation for police bringing

children to court by police from places ofsafety or remand centres

• Taking child to medical examiner, findinga medical examiner

• Monitoring of employment of children innightclubs, bars, hazardous or dangerousplaces

• Monitoring sale of intoxicating liquor andtobacco products

j ( )

- Redevelopment of the

Bustamante Children’s Hospital

(Italy) - - - - -

- Kingston Urban Health Dev.

Project (Netherlands) - - 0.5 0.1

-GOJ/Netherlands Rural Health

Project (Netherlands) - - 4.0 9.3 -

Building Construction - 0.3 1.0 - -

- Social Sector Development

Project (IBRD/UNDP) - 0.0 0.0 - -

- Support to Local Health Systems

(Italy) - 0.3 1.0 - -

Total 131.1 76.9 166.6 196.7 139.5

Source: The Jamaica National Budget: Budget Review. Renee Anne Shirley 2004

Ministry of Health – Family Services Programmes

Estimates of Expenditure FY 1999/00 – 2003/04

Estimates Revised

Estimates

Actual

Expenditure

Actual

Expenditure

Actual

Expenditure

2003/04 2002/03 2001/02 2000/01 1999/01

Recurrent Budget

Direction &

Administration of the

Children’s Services

Division 187.9 157.2 133.2 93.6 67.0

Children’s Homes

204.0 193.0 180.1 137.1 135.8

Places of Safety 101.1 87.3 66.2 68.4 59.3

Foster Care 56.9 42.0 42.0 22.6 21.4

Other Family Services - 14.7 11.5 11.2 10.9

TOTAL 550.0 494.3 433.0 332.9 294.8

Source: The Jamaica National Budget: Budget Review. Renee Anne Shirley 2004


3.1 Law review

No Parliamentary debate has taken place todate on the reservations to the CRC, CEDAW,nor CERD, however, civil societyorganizations and individual advocates havebeen diligent in ensuring that the discussionon child-related issues remains on theforefront of the government agenda. Threekey analytical reviews on legislation relatedto children and women have been preparedin the last decade. These reviews are,“Review of Legislation in Jamaica” by JusticeO.D. Marsh in 1994; “Meeting AdolescentDevelopment and Participation Rights”(ADPR) by UNICEF and UNFPA in 2002, and“Review of Jamaican Legislation AffectingWomen in Jamaica” by Macaulay, Bassie andDodd in 2000.

The main findings of the reviews are as follows:

Marsh Report

This report identified the need for newlegislative provisions to bring Constitutionaland CRC provisions realistically to theattention of the public and administrators.Marsh recommended the enactment of a“Child Care and Protection Act” to reinforceexisting legal and constitutional provisionswhere necessary to comply with the CRC.The report highlighted the specific articles ofthe CRC that required further reinforcementin proposed legislation.23

Adolescent development andparticipation rights report

Recommended the elaboration of a policydocument on adolescents in Jamaica andspecifically, • The development of policy on issues such

as care and protection, prevention andrehabilitation, participation, and buildinglinkages/integrating services

• The Establishment of a national entity tocoordinate the formulation of relevant policy

for the development of adolescents• The national entity should collaborate with

relevant and specific agencies

The policy document should include thefollowing goals:

1. Improvement of access to health care foradolescents

2. Improvement of environment whereadolescents live

3. Increase in role of schools in improvingadolescent development

4. Implementation of a legal reformprogramme

5. Development of Public Education andAwareness programme

6. Development of networking andcollaborative relationships

7. Promotion of the development of data baseand research facilities and capabilities

8. Promotion of the participation ofadolescents in the decision-making process

Review of Jamaican legislationaffecting women in Jamaica

The review covered an analysis of over thirtypieces of legislation and found that the lawsof Jamaica relating to women weresubstantially defective and recommendedlegal reform to ensure that Jamaican law ismore consistent with principles of non-discrimination and equality. For example, theoffence of incest is a misdemeanour with amaximum penalty of five years at hardlabour. The current legislation lacksprovisions to address the social,psychological and physical trauma associatedwith incest, given the extent of incest inJamaica. The Act also provides that in thetrial for incest the jury may acquit of incestand find the accused guilty of an offence ofunlawful carnal knowledge of a female idiotor imbecile (emphasis added), the penalty forthat offence being three years. It is essentialthat discriminatory legislation pertaining towomen and children are reviewed with the

23 Convention on the Rights of the Child, Articles 2, 4, 8, 12, 13, 18, 19, 22, 23, 25, 28, 31, 32, 33, 32, 35, 36, 37, 38, 39, 40.

Part III: Law review and law reform


aim to establish equality of access to rights. Ifwomen are treated differently in the legalsystem the resulting consequences in theirpublic and private lives will impact on children.How? These reviews have facilitated significantpublic policy advances. The Child Care andProtection Act was passed as recommended byJustice Marsh, and the Child DevelopmentAgency was established in keeping with theprincipal recommendations of the ADPR review.However, a proposal (by Macaulay et al) toeradicate discriminatory language andprocedures from existing legislation remains tobe implemented. The review by Macaulay, et alis a significant step in initiating that necessaryprocess to ensure that Jamaica’s legalframework promotes the principles of non-discrimination and equality as established byJamaica’s international commitments.

3.2 Types of legislative reformundertaken

The Child Care and Protection Act repeals theJuvenile Act, (a 45 year old Act), and providesa more comprehensive piece of legislationaimed at protecting the child in all spheres oflife and promoting a caring environment togive each child an equal footing in society.

The main objective of the legislative reformfor the protection of children was thefulfilment of Jamaica’s obligation to enactlegislation to implement the provisions of theUnited Nations Convention on the Rights ofthe Child. According to the Report of the JointSelect Committee on the Bill the overridingprinciple of the new legislation is to ensurethe best interests, safety and well being of thechild.24 It recognizes that services for childrenshould be provided in a manner that respectschildren’s need for continuity of care andstability, taking into account the physical,mental and emotional needs and thedifferences that may exist among children.The new legislation should ensure support forthe autonomy and integrity of the family unitand in cases where the child has to beseparated from that unit, ensure that the leastdisruptive and restrictive course of action istaken to assist the child.

The CCPA came into effect on 26th March2004, representing the culmination of many

years of work by both government and nongovernmental entities in Jamaica. Thereform itself has been described bygovernment and non governmental entitiesas positive and a significant effort for thelegal protection of Jamaica’s children. Itaimed to incorporate the inter-relationshipbetween civil rights and freedoms, education,health, culture, personal safety and securityof the child, the family and communityenvironment as a basis for the proposed lawreform, enforcement and implementation.

The focus of the reform is best described asproviding a legal framework for the protectionof the best interests of the child, and toestablish mechanisms and institutions tomonitor investigate and supervise this process,utilising an integrated holistic approach toachieve this protection for children.

The general perception by government andnon-government entities of the CCPA ispositive, however, there remain someconcerns. Some of these are as follows:

• The Child Care & Protection Act could bedescribed as having a discriminatory effecton the poor as the instances andcircumstances under which children may bedetained could disproportionately apply tochildren from poor backgrounds. Forexample, section 8, outlines the circum-stances in which a child is in need of care ofprotection, and 8(2)(c) establishes that onesuch definition of a child in need of care andprotection is, “if a child is found begging orreceiving alms or loitering for thatpurpose”. The objective of the Act is toprotect this vulnerable sector of society, notdiscriminate. As such, the challenge is toensure that the police, probation officers,teachers, nurses, employees in children’shomes and all persons who come in contactwith children are properly trained to providethe best care for all children regardless ofsocial status, or economic background.

• Another possible discriminatory effect ofthe legislation is the seeming bias towardsfemales in sexual offences and abuse andthus exclusion of males as victims of theseoffences, abuse and exploitation.

24 The Joint Select Committee on the Bill Entitled an Act to Provide for the Care and Protection of Children and Young Persons and for Connected Matters.Submitted to the House of Parliament February 8th, 2004.


In addition there is a general concernregarding funding to sustain and implementthe provisions of the new Act. Some specificobstacles for implementation of the ChildCare & Protection Act include:• Comprehensive training for practitioners

across the island, particularly in the ruralareas, including police, judges, socialworkers, probation officers, staff ingovernment and non government places ofsafety, among others;

• Sufficient funding to sustain the trainingand educational programme to ensure achange in the mind-set of all persons thatprotecting children is a priority;

• Sufficient funding to ensure themechanisms and institutions function asproposed

• Sufficient funding for day-to-day logistics,such as vehicles, gasoline to transportchildren from centres to court.

3.3 Rationale for undertakinglegislative reform initiative

There is much debate about who initiated thereform process but there is generalconsensus that the movement for legislativereform began even before Jamaica ratifiedthe Convention on the Rights of the Child in1991. Some claim the public debates beganas far back as in the late eighties coming fromthe pressing need to revamp the datedJuvenile Act. Several key individuals fromthe government and private organizationswere instrumental in initiating and sustainingthe dialogue for legislative reform in Jamaica.Children and inter-governmentalorganizations also played an integral role inensuring that this reform process wasparticipatory, comprehensive and responsiveto the needs of Jamaica’s children.

During the period between 1991 and 2004there were specific recommendations fromthe UN Committee on the Rights of the Child.While these were not the impetus forlegislative reform they provided the neededcatalyst to keep the fire burning in theprocess. Some of the recommendations bythe UN Committee included legislative reformin the area of children, the establishment of acomprehensive data system on children in

Jamaica, public education campaigns onrights, improvements early childhoodeducation, overhauling the education systemand minimising child labour, among others.These recommendations have beenimplemented in various degrees with theobvious passage of the CCPA and particularmention of early childhood education whichhas been significantly revamped during thistime period. Legislative reform was a specificrecommendation from the 1995 National Planof Action for Children and the need for anational policy for children was identified as apriority. There is no indication that this reformwas triggered by a regional agreement orregional cooperation mechanism.

During this same time frame the UNICEFJamaica Office was instrumental inmaintaining the issue of legislative reform onthe political agenda of the government. AfterJamaica’s ratification of the CRC, UNICEFJamaica funded the legislative reviewconducted by Justice O.D. Marsh in 1994.This review formed the backbone of thegovernment debates on the new Child Careand Protection Act. In 2000, UNICEF Jamaicaalso funded a Roundtable of Jurists thatconvened various legal experts from theregion particularly in the area of family lawand children’s rights to discuss the proposeddraft of Jamaica’s CCPA. The report from thisRoundtable was also referred to by the Chairof the Joint Select Committee, Mr. JohnJunor, in his presentation before Parliament,as being helpful in developing the final draftof the legislation. Additionally, for each draftof the Bill that was prepared UNICEF Jamaicaprovided comments. In providing thesecomments UNICEF Jamaica collaborated withthe civil society organizations andgovernment agencies to ensure that thesubmissions were not duplicated, allowingthe Joint Select Committee the opportunity toreceive a wide range of information for theirdeliberations on the Bill.

3.4 Institutional changes put inplace to support laws

Two significant reports were published thatled to recommended changes in theinstitutional framework for children in


Jamaica. These reports were the UNICEF-funded Assessment of Children’s Homes andPlaces of Safety (1999) and the Review ofChildren’s Homes 2003 (Keating Report).Today, to support the new child carelegislation the government has sought toconsolidate the management of child careand protection under the umbrella of anExecutive Agency known as the ChildDevelopment Agency. The ChildDevelopment Agency (CDA) is a merger ofthe Children Services Division, the AdoptionBoard, and the Child Support Unit.

The reform provides for the establishment ofa system of mandatory reporting of childabuse and establishment of a central registryfor the reporting of abuse of children. It alsoprovides for the establishment of an office ofChildren’s Advocate to act in legal matters onbehalf of children. The advocate will not onlyact on behalf of children in conflict with thelaw, but will, for example, provide assistanceto children making complaints about acts ofGovernment or the State that infringes ontheir rights and adversely affect children’sinterests. The reform also calls for theestablishment of a Central Registry whereincidents where a child is being abused, or inneed of protection can be lodged.

The role of the Child Development Agency(CDA) is to implement the Child Care andProtection Act, working with the CentralRegistry and the Children’s Advocate. Thecentral focus of the agency is to safeguardand promote the welfare of the child, takinginto consideration the child’s developmentalneeds, parenting capacity and family andenvironmental factors.

As an executive agency the CDA will be ableto act independently regarding its operationand organization. Currently staff from theprevious institutions and agencies has beenabsorbed under the CDA. However, under itsnew status as an executive agency the ChildDevelopment Agency aims to open all itspositions to the public, allowing the agency toattract qualified and committed personnel.Hence there are no guarantees that personswho were employed under the previoussystems will continue with the new CDA. Thisis a crucial point, as non governmental

organizations in particular have voiced theirconcern that despite the good intentions ofthe legislation if the same individuals areresponsible for implementing the law asunder the previous system there may be littleactual change.

This concern while valid is addressed in theAct itself which imposes liability on theregistrar and the CDA for failure toinvestigate, ensuring accountability from theinstitutions.25 However, this point remains aconcern for civil society entities that claimthat the Act only imposes the duty toinvestigate, not a duty to act upon thatinformation for the protection of the child.

The final regulations for the Child Care andProtection Act have not been approved butare in the final process of deliberation, as arethe Child Development Agency Guidance andStandards of Care for Residential ChildcareFacilities. There is a concern that the variousdocuments, that is, the Act, the Regulationsand the Guidelines will make it cumbersomefor practitioners to adhere to all the standardsestablished.

Currently, in compliance with Ministry ofFinance procedures, executive agenciessubmit their budgetary requirements directlyto the Ministry of Finance, with copies to theMinistry of Health which covers a three-yearcorporate and operational plan with costs.The establishment of the CDA, the Office ofthe Children’s Advocate and the Children’sRegistry will incur considerable financialimplications. According to the ChildDevelopment Agency funding for the CDA isadequate. Funding has also been allocatedfor the Office of the Children’s Advocate andthe Children’s Registry for its first year ofoperation despite the fact that neither iscurrently operational. Given the proposedactivities the Child Development Agencyaffirms that funding for these two additionaloffices is also adequate. There is a concernamong practitioners, however, that theprevious system could have beenstrengthened, using the same funding ratherthan institute an entirely new system.

This concern is particularly striking in the areaof access to justice for children in the courts.

25 Child Care and Protection Act, section 7(5)


As indicated there are four family courts inJamaica that incorporate the functions andprovide access support for children fromthree government ministries. Theseministries are Ministry of Health, Ministry ofJustice and Ministry of National Security.

At the Family Courts children and adults alikeare able to access services of familycounselling, probation officers, childrenservices (including counselling, placement inplaces of safety, etc.) and the court. Havingthese varied services housed in one centrallocation has, according to practitioners at theFamily Court in Kingston, significantlyincreased the access to government servicesand protection to children and families.

However, there is considerable discussion tochange the profile of the Family Court. Thisproposal is of great concern as parents andchildren will not be able to access all theservices in one area, and will run the risk ofreducing access to services and facilities forfamilies and children. The concept ofhousing several essential services in one areais recognised as the method to increase thenumbers of persons that will access theservices. This holds true for the services ofthe Family Court and every effort should bemade to maintain the status quo of the FamilyCourt and expand the Family Court model tothe remaining parishes.

Aside from that possibility of fragmentation,the system of the Family Court is mosteffective. Children and adults alike are

registered upon arrival, and seen by an intakecounsellor/social worker. Their problem isthen assessed and they are directed to theappropriate division, whether familycounselling, probation, children’s services orthe court. Children’s Services would maketheir own assessment and provide thenecessary assistance for the problem. In theCourts, there is still the general fear of courtsand judges by adults and children alike. TheFamily Court while less imposing than theResident Magistrate or Supreme Court, stillmaintains an aura of justice “looking down”on the parties in a matter, whether victim orperpetrator, and efforts could be made toaddress this issue in the Family and proposedChildren Courts. Children are allowed tovoice their concerns and speak freely with thejudges in chambers, and the reports of socialworkers and officers from the Children’sServices are heavily relied upon before a finaldetermination in the matter affecting a child.

The proposed institutional changes withregard to the establishment of the CDA, theChildren’s Advocate and the Children’sRegistry can reasonably be attributed toJamaica’s ratification of the CRC as the JointSelect Committee as well as the Minister ofHealth have mentioned on several occasionsthe CCPA is Jamaica’s response to the CRC.The proposed in-house policy changesregarding the administration of justice in theFamily Courts will have to be explored todetermine whether these are indeed in thebest interests of the child.


4.1Strategy and actors

The Jamaica Coalition on the Rights of theChild (JCRC) is a coalition comprised ofseveral non-governmental organizationsestablished to encourage ratification of theCRC. After Jamaica ratified the Conventionthe JCRC began several strategies toencourage Jamaica to begin the process oflegislative reform for children. Theysubmitted a report to the UN Committee onthe Rights of the Child as the civil societyresponse to the Government’s submission.

With the support of UNICEF the JCRC hired alegal draftsman to conduct a review ofJamaica’s legislation regarding children andthe recommendation was for onecomprehensive act on child care andprotection. The year 2002 also saw a newphenomenon, the targeting of children in gangfeuds. Twelve children were killed in Octoberincluding one at a birthday party and anotherwhile having his hair cut in a barbershop. TheJCRC issued a press release and the mediabecame involved in the agitation process toencourage legislative reform.

From then the JCRC utilized the media and otherpublic arena to call for “legal protection for ourchildren”. Various strategies were employed,lobbying, letter-writing, press-releases, radioprogrammes, education workshops as well ascollaboration between various non-governmental organizations who shared thesame objective of provided urgent legalprotection for children in Jamaica. Childrenwere also an integral part of the process as theirinvolvement was helpful in preparing thesecond civil society report submitted to the UNCommittee on the Rights of the Child. Island-wide workshops prior to the preparation of thereport facilitated their involvement.

UNICEF was integral to the process. Theorganization provided much of the necessarytechnical assistance required by civil societyorganizations, supported government efforts

and made specific recommendations on howto keep the issue of legislative reform on thegovernment’s agenda. Contributions byUNICEF to programmes in early childhooddevelopment, children at-risk, HIV/AIDS,health and nutrition through communitydevelopment, adolescents, policy andmonitoring, assisted in providing the holisticapproach to the legislative reform forchildren’s issues. UNICEF provided technicalassistance to both government and nongovernmental actors in the process throughtheir staff in-house, consultants, regional andheadquarters staff.

Government agencies which wereinstrumental in ensuring that the issue ofchildren was a priority included the Bureau ofWomen’s Affairs, Children’s ServicesDivision, Office of the Special Envoy forChildren, the Planning Institute of Jamaica,the Ministry of Health, Ministry of Educationand Culture, Ministry of Local Governmentand Community Development, Ministry ofNational Security and Justice, Ministry ofLabour and Social Security, and the Office ofthe Prime Minister.

There were many obstacles that prolongedthe legislative reform. The process wasparticipatory, and while this is one of the verypositive aspects of the legislative reform, thevery nature of the participation delayed thepassage of the Bill. During this time frameJamaica held national and local governmentelections and this may have temporarilydiverted the attention of policy makers fromthe reform process.

The main concerns by civil society regardingthe CCPA were resolved in the debate.However, there remain some outstandingconcerns which child advocates maintain arein direct conflict with the principlesestablished in the CRC. For example,

• section 20, provides that evidence of a childof tender years must be corroborated;

Part IV: Process of legislative reform


• section 62(d) establishes that children inplaces of safety, children’s homes and in thecare of a fit person (i.e., the Minister andany person or body whether corporate orincorporate designated by the Minister)have the right to be free from corporalpunishment. However, the CCPA is silentregarding this right for children in otherinstances and spheres of society;

• section 68 establishes instances when achild may be placed in adult correctionalfacilities;

• section 7 imposes an affirmative duty on theRegistrar to assess and investigate reportsreferred to the Registrar. Failure to do somecarries an offence. There is concern that theoffence is not defined, whether a summary orindictable offence and neither is a finespecified for this failure. Additionally, there isa concern that the Registrar could stop at theinvestigation stage and not carry a case to itsfull completion, as the offence lies in thefailure to assess and investigate. Lastly,under this section, there is no penaltyimposed on the Children’s Advocate forfailure to act upon a report.

4.2 Implementation of law andfollow-up actions

The CCPA has created new institutions andprocedures which will incur additionalfinancial obligations. These, to the extent ofthe needs for the Child Development Agencyand the Office of the Children’s Advocate,have been adequately satisfied for the firstyear. However, there is no administrative ruleor policy that guarantees the same or similardisbursements each year. The Ministry ofFinance has indicated that children are apriority for government spending, however,similar disbursements in coming years mustbe subject to the government’s financialstatus and capacities at that time. UNICEFalong with non-governmental organizationsand the Child Development Agency havedevised various strategies for thedissemination of the new Child Care andProtection Act. Some of these activitiesinclude:

• A Handbook for practitioners (lawenforcement officials, judges, lawyers,police, etc.) on the practical application for

the implementation of the Act• Training for same target group as mentioned

above on implementation of the Act• Public service announcements on the radio

on provisions of the Act, e.g. outlining theresponsibilities of the Children’s Advocate

• Child friendly versions of the Act• Child friendly radio or printed media

messages of the Act

4.3 The use of law in court disputesand by judges in court decisions

In the Privy Council case Chung Chi Cheung vs.The King, Lord Atkin in giving the opinion ofthe majority was unequivocal when he stated:

“International law has no validity save in sofar as its principles are accepted and adoptedby our own domestic law. There is no externalpower that imposes its rules upon our owncode of substantive law or procedure” 26

This principle has been firmly applied by theJamaican courts. Hence, as statedpreviously,27 there is no indication from theJamaican law reports that the Jamaicancourts have utilised the CRC or other treatiesin its deliberations. Treaties form part ofJamaican law only if an Act of Parliament hasbeen passed on the issue. As such, thesources of law used by Jamaican courts whenanalysing and deliberating matters beforethem are the Jamaican statutes, theConstitution of Jamaica, common law andcase precedents.

Current Jamaican legislation is quitecomprehensive in its coverage with regard toissues of custody, protection from violenceand child participation. The DomesticViolence Act of 1995 has the discretion togrant a protection or occupation orderwhenever the alleged conduct is used orthreatened against a child or dependent.Section 3(2) of the Domestic Violence Actidentifies the persons who can apply for aprotection order for a child and section 4outlines the respondent’s prohibited fromentering or remaining in the householdresidence of any prescribed person or fromwatching or besetting the householdresidence or place of education of aprescribed person.28

26 (1939) AC 160, 167-8. Quoted: Principles of Public International Law, Fifth Edition, Ian Brownlie, p.46.27 Sources of law in Jamaica’s legal system, supra, p.10.28 Section 4(1)(a) and 4(1)(e)(i), Domestic Violence Act of 1995


The limitation with the statute however, isthat only adults are permitted to make anapplication before the court for a protectionor occupation order for a child therebylimiting the child’s right to participate directlyin this legal process or directly advocate forhis/her rights in this example.

Occupation orders are another vital tool underthis act that have been utilised particularly bywomen in domestic violence situations to protectthemselves and their children. This order grantsthe prescribed person the right to occupy thehousehold residence for a period of time as thecourt deems fit. In practice the threat of beingexpelled from the household residence hascompelled persons to remain in violent situation.This occupation order permits persons who havebeen abused to seek this occupation order.Through the order they are granted the right toremain in the home until the court has had anopportunity to hear the matter. Prior to grantingthe orders the Court ensures that it is in the bestinterest of the child and it is necessary for theprotection of the prescribed person.29

Similarly, under the Matrimonial Causes Actthe Court has the power to grant injunctiverelief for the personal protection of a party tothe marriage or of any relevant child.30 Thisis in addition to the Supreme Court’sunlimited jurisdiction to grant injunctions inequity in cases of assault, battery or othersimilar torts and instances it deemsappropriate. Likewise under this act the courthas the power restrain a party to marriagefrom entering or remaining in thematrimonial home which can have an indirectbearing on protection of a relevant child.31

Also, as in the case of protection orders underthe Domestic Violence Act an injunction begranted “restraining a party to the marriagefrom entering the place of work or educationof any relevant child.32 (emphasis added)Furthermore, the court has the power to makeorders as it thinks just for the custody,maintenance and education of any relevantchild likewise in exceptional instances of childneglect, the custody of the child may begiven by a welfare officer. Breaches of anyinjunction order can lead to a fine orimprisonment which the courts have notbeen hesitant to impose.

The Constitution of Jamaica establishes inSections 22 and 23 the right of every personto freely hold opinions, receive and impartinformation without interference and topeacefully assemble and associate withothers without hindrance. As such this rightis established for all children. TheConstitution of Jamaica does not however,specifically guarantee the right to participatein all proceedings relating to a child, and assuch the domestic statutes do not addressthis issue. While it can be argued that thisright is established in the aforementionedsections of the Constitution, it remains to betested in the courts. However, the practicereveals that judges in the family courts areopen and receptive in allowing children toexpress their opinions and speak freely inmatters that relate to their well-being andtheir participation is considered an integralpart of the process before final decisions arereached in their interest.

The Family Court and Juvenile Circuit Court arethe courts responsible for hearing mattersrelated to children on Jamaica’s legal system.Judges in this division are aware of theConvention on the Rights of the Child andJamaica’s ratification of this treaty. However,since the Jamaican legal system requires anAct of Parliament for an international treaty tobe used in court disputes, the courts’ decisionsin family courts will not include reference tothis treaty or other relevant treaties. As such,they incorporate the principal sources of law asmentioned above in their reported decision anduse relevant treaties to informally assist theirdeliberation. The approach adopted by thesecourts in decisions has been and remains todaya holistic approach. The voice of the child is aparamount in the Family Court and as a result,judges often find themselves wearing severalhats as counsellor, social worker and – judge.They make every attempt to include theparticipation of family members, teachers,parents and the report from the probationofficer is an essential element. In deliberationsof sentencing the rehabilitation of the child istaken into consideration and alternativeoptions to detention are given seriousconsideration.

Case precedents reveal that Jamaican courtshave always ruled that the welfare of the child

29 Section 7(3)(a)(b), ibid.,30 Section 10(1)(a), Matrimonial Causes Act.31 Section 10(1)(b), ibid.32 Section 10(1)(c), ibid.


is paramount and overrides all otherconsiderations. In Thompson v Thompson,Justice Carey maintained the principle of thewelfare of the child being paramount andwhile he gave weight to an order from aforeign court he placed the interest andwelfare of the child over the order in arriving athis final decision33. This principle has beenfurther expanded under the Child Care andProtection Act, where the overriding principleis the best interest of the child. Since this pieceof legislation has been passed to give effect tothe CRC, there is a presumption that theJamaican Parliament intended this Act to fulfilits international obligation. As such “in thecase of a conflict between the statute and thetreaty, the text of the Convention may be usedan aid to interpretation even if the statute doesnot in terms incorporate the Convention noreven refer to it.”34 In this light, with referenceto future cases before the Jamaican courtsthere may now be a greater willingness toformally rely on the CRC.

4.4 Social policy documentsaccompanying law reform

During the period of the law reform thegovernment has placed children’s issues at theforefront of their agenda and sought toimplement social policies to reflect this focusfor the continued improvement of the state ofchildren in Jamaica. Regulations toaccompany the Child Care and Protection Actregulations are currently being developed asare the Child Development Agency Guidanceand Standards of Care for ResidentialChildcare Facilities. Various stakeholders werealso allowed to comment on these policydocuments. There is some concern that theregulations and guidelines are not specificenough - for example, a concern was raisedregarding the lack of specific evacuationprocedures for children in places of safety,particularly children with physical disabilities.

Social policy documents were developed inother areas during this period of legislativereform in the area of child protection anddevelopment. According to the Economic andSocial Survey 2003, the priority issue in thearea of education for the government is earlychildhood education and the improvement ofbasic schools.

The National Council on Education (NCE), anagency of the Ministry of Education, Youth andCulture has also placed the monitoring ofstudent performance in the CaribbeanExaminations Council Secondary EducationCertificate as an additional area of focus.

Further policy recommendations in educationhighlight the need to emphasize licensing ofteachers and improving quality, training andremuneration of teachers in the system. Aconsensus in education was signed betweenthe Government and the Oppositionestablishing a five-year plan to increaseexpenditure in education, improvement ofteacher quality and a shifting of resources tothe lower tiers in the education system.

In the area of health, the governmentcontinues to place emphasis on HIV/AIDS andlaunched the “Live Positive” campaign during2003 in response to the prevailing attitudetowards Persons Living with HIV/AIDS. ANational Plan of Action was launched forOrphans and other Children made Vulnerableby HIV/AIDS in that same year.

The Ministry of Labour in collaboration withthe Jamaica offices of the International LabourOrganization and the United NationsChildren’s Fund (ILO/UNICEF) conducted acomprehensive National Programme on thePrevention and Elimination of Child Labour(2001-2004). One of the key components of theprogramme was a survey conducted by theStatistical Institute of Jamaica (STATIN). Thesurvey revealed that while more boys areengaged in child labour than girls, girls weremore involved in the worst forms of childlabour such as pornography and prostitution.

Other programmes instituted during thisperiod that have a significant impact onchildren are the Possibility Programme tosupport street children, and the social safetynet programme (PATH) which replaced theFood Stamp, Kerosene Stamp, Outdoor PoorRelief and Old Age Incapacity Allowanceprogrammes and incorporates the EducationMinistry’s Cost Sharing Programme.

33 1993 30 JLR 41434 Brownlie Ian, Principles of the Public International Law, fifth Edition, pp. 47-48


The PIOJ/UNICEF Situation Assessment onJamaican Children and Their Families takes arights-based approach to explore childrendevelopment issues. Children are viewed as“claim-holders” and adults as “duty-bearers,”subjects of their destiny with correspondingresponsibilities, rather than objects with needsto be met at the whim of charity.35 States, localgovernments, institutions, communities,families and individuals bear the collectiveresponsibility and duty to ensure that therights and standards established in the CRCare implemented. As such, any analysis,policy proposals or legislative reformpertaining to children should incorporate thisapproach.

The legislative reform process whileattempting to bring Jamaica in line with itsinternational obligations of the principaltreaties related to children, namely, CRC,CEDAW and CERD, has not fully complied withthis rights-based approach. In addition, thecurrent socio-economic reality has aconsiderable impact on the survival,development, protection and participation ofchildren in society.

Crime and escalating violence particularly ininner-city communities is a real concern. Therapid spread of technology brings newinfluences into the Jamaican home throughthe television, the radio and the internet,posing additional challenges. Jamaica iscaught in the position of trying to keep abreastwith the technology while attempting tomonitor its influence in keeping with thesocietal norms of Jamaica. Greatermonitoring of information available on theradio and television suitable for children needsto be instituted.

The rising cost of servicing Jamaica’s externaldebt and its resulting limitations for domesticspending gives rise to problems of poorinfrastructure and services in predominantlypoor and deep rural areas of Jamaica. Giventhis economic reality, limited resources are

often used to address these shortfalls and verylimited funding towards expanding arts,culture, and recreational facilities for children isavailable. Employment opportunities are scarce.Families and individuals alike are turning toalternative sources for income and theresulting exploitation of women and childrenis alarming, whether in the growing sexindustry or drug trafficking. The rapid increasein sexually transmitted infections such asHIV/AIDS among persons of childbearing ageincluding young people is an area of concern.

The psychological impact of violence, poverty,and limited opportunities for self-actualizationare evident in Jamaicans’ perceptions of self.The health and welfare needs of children due tothe degradation of Jamaica’s naturalenvironment must to be addressed. Greateropportunities for children to accessinformation on protecting and preservingJamaica’s environment, heritage, culture andtheir ability express their opinions is also inneed of attention.

Lessons learnt and recommendations

The road to Jamaica’s legislative reform sinceits ratification of the Convention on the Rightsof the Child has been a long one. There is ageneral air of optimism that the new ChildCare and Protection Act will indeed bringtogether all the relevant actors for theprotection of children in Jamaica. Further it isthe view that this piece of legislation is therequired response by the government toensure that the welfare of children is given thepriority it merits. It is the hope that under thevision of the Child Development Agency andthe Children’s Advocates all persons inJamaica will see the protection and welfare ofall children as their individual responsibilityand priority number one.

The Government of Jamaica has madesignificant strides in incorporating the principles

Part V:Conclusion

35 UNICEF and PIOJ, Jamaican Children and Their Families: A Situation Assessment and Analysis, 1999-2000. p. 15.


of the CRC into its policies; but these initiativesneed to be sustained to generate the necessarychange of consciousness and attitude at thepersonal level in all sectors of society.

Both government and civil society actors agreethat the lessons learned from this process aremyriad. The main lesson is that a collaborativeand participatory approach to legislativereform is the most effective way of ensuringlaw that is accessible to the people of Jamaica.The role of the various stakeholders in theprocess for policy and law reform for childrenhas been fundamental - key among these arethe international donor agencies, government,non governmental organizations,communities and individual advocates.

Additionally, children are traditionally viewed asobjects in Jamaican society and while thisperception has changed and continues tochange due to the various efforts of children’sadvocates, both government and nongovernmental, efforts to ensure an integratedrights-based approach must be maintained. Theparticipation of children, in particular in thelegislative reform process, has been ofconsiderable value as their insight into theprocess and into the impact new legislation willhave on their lives, has been extremely valuable.

Ratification of international legislation and thepassage of subsequent domestic law related tochildren do not guarantee implementation.Efforts for implementation must beincorporated as standard procedures andpractices of government. The legal andpolitical structure of Jamaica lends itself tovarious entry points for additional advocacy toensure implementation of these domestic andinternational laws related to children.

There are serious concerns that the lessonslearned and best practices of the past shouldnot be set aside but incorporated into the newmechanisms for the continued advancementand improvement of child care services inJamaica. There is a wealth of information tobe gained from the persons in the field, in thecourts, places of safety, correctional facilities,police stations, on the day-to day challengesfaced and their best practices to “tun theirhand and make fashion” i.e., using scarceresources effectively. While consultations for

the legislation have been comprehensive andinclusive of government ministries, agenciesand non governmental organizations, thisimportant sector, busy on the frontline, mayhave been excluded from the debate. There are several recommendations to begleaned from these lessons that can beintegrated into future proposals for theimproved welfare of children in Jamaica.Some of these include:

1. Target members of the Judiciary toincorporate principles of international lawinto their judicial decisions. Increasetraining on the interplay of internationallaw and domestic legislation recognisingthe supremacy of domestic legislation butintroducing international law as a strongpersuasive secondary source of law.Efforts should be made to include the threemain international treaties that provide thestandards to ensure the comprehensiveapproach for the welfare of children;

2. Sustain and improve participation ofchildren and persons in the field in thedevelopment of future proposals;

3. Make every attempt to incorporate theJamaican culture and reality whenproposing recommendations. Bestpractices from other states whileextremely helpful may need modificationto the Jamaican reality.

4. Increase lobbying efforts for a specificpercentage allocation of the nationalbudget for children’s issues. In the interim,advocate for inclusion within each ministry,agency, and government department, aline item for children in their budgetsubmission. These efforts by variousministries could alleviate the currentlimitations faced by the system inaddressing issues such as insufficienttransportation to take children frominstitutions to court, insufficient gasoline,insufficient personnel, particularly in ruralJamaica, as well as the need for improvingthe physical facilities and accommodationfor children in courts, places of safety andother facilities for the improved care ofchildren throughout the island;


5. Increase training efforts with lawenforcement officials. Sustained long-term national training programme forthese practitioners on the CCPA, CRC,CERD, and CEDAW;

6. Make every effort to coordinate activitieswith various ministries that impact on thesurvival and development of children. Forexample, Ministry of Health, Ministry ofJustice, Ministry of Local Government,Ministry of Tourism, among others;

7. Increase lobbying efforts for acomprehensive review of legislation toeliminate existing discriminatorylegislation, against women, children, thedisabled, or any other vulnerable group.At the same time, review other pieces oflegislation that do not include women andchildren but should, and lobby to makeamendments for such relevant inclusion;

8. Ensure there is an integrated approach towomen and children’s issues. Policy, rulesand regulations should not only have aseparate report on its impact on womenand children, rather this impact should befully integrated into all such activities, e.g.,building permits, television licenses, roadconstruction. It needs to be recognisedthat every policy has an impact on womenand children and as such this must bereflected in an integrated way. Identifyentry points in legal and political structurefor further advocacy;

9. Encourage the incorporation of the CCPAin the curriculum at the police academyand educational institutions that trainsocial workers, probation officers, etc.;

10. Fast-track recommendations from theAssessment of Children’s Homes andPlaces of Safety and the Keating Report;

11. Increase efforts to expand the concept ofthe Family Court to other parishes.Strengthen the institutional structure ofthe Family Court and the concept ofproviding various services to children andfamilies in one location. This could beexpanded to include a law enforcementcomponent as well;

12. Increase efforts to include practitioners in areal and sustained way in the future forpolicy and advocacy development strategies

13. Accelerate the passage of the proposed anti-discrimination legislation aimed at theeradication of discriminatory practices.


List of Contributors

This study; undertaken and reviewed by the UNICEF office in Jamaica, would not have beenpossible without the critical contributions from the following persons: Engelbert Davis, JamaicaFoundation for Children; Alison Anderson, Winston Bowen, Child Development Agency; SusanGoffe, Carolyn Gomes, Ron Good, Jamaicans for Justice; Youth Advocacy Movement; CarolSamuels, Jamaica Coalition on the Rights of the Child; Michelle Walker, Ministry of Foreign Affairs;Ruth Jankee, National AIDS Committee; Honourable Minister Deika Morrison, Rose Henry, Ms.Lewars, Miguel Walker, Ministry of Finance; Inez Morrison, National Street Children Initiative; ClaireMiller, Crafton Miller & Co; Maragaret Macaulay; Stephen Vasciannie, Attorney General’sChambers; Sharon McDonald, Collette Robinson, Planning Institute of Jamaica; Jennifer Williams,Denise Francis, Bureau of Women’s Affairs; Paula Blake Powell, Resident Magistrate; BerylMarshall, Coordinator, and Lorice Henry, Senior Counsellor, Family Court, Kingston and HilaireSobers, Attorney, Inter-American Commission on Human Rights.


Annex A

The Convention on the Rights of the Child and the Child Care Protection Act

Article 1 – Definition

Every human being

under the age of 18

years

s.2 person under the

age of 18 years

s. 2 Bail Act; s.2 Crime

Prevention Act; s.2

Deportation

(Commonwealth Citizens)

Act; s. 10 Flogging

Regulation Act; Education

Act; Offences Against the

Person Act - Definition of

child in these laws

conflict with CCPA &

CRC

Article 2 – Non-

discrimination

Chapter III Constitution

of Jamaica

Legitimation Act

s.3 Status of Children Act

Issue of equality and non

discrimination sufficiently

addressed in these laws

s.3 Crime Prevention Act

Corporal punishment for

males only; Offences

Against the Persons Act

Incest Act

Make sexual offences

gender neutral; eliminate

discriminatory language

Insufficiently addressed in

CCPA

Article 3 – Best

Interests of the Child

ss. 2-3 interpretation

& objects of Act

s.68 Children placed

in Adult Correctional

Facilities

Children (Guardianship &

Custody) Act

Matrimonial Causes Act

Affiliation Act

Maintenance Act

Places priority on welfare

of child

Conflicts with CRC

Article 4 –

Implementation of

Rights

ss.33-35 conditional

employment

s.62 refers to children

in place of safety,

children’s home or in

care

Economic rights protected

Social and cultural rights

insufficiently addressed in

CCPA

Article 5 – Parental

Guidance & Child’s

Evolving Capacity

ss. 2-3 respect for

parents, family unit

and continuity of care

Children (Guardianship &

Custody) Act Respect for

parents rights equally and

CRC

Article 1 - DefinitionEvery human beingunder the age of 18years

Article 2 - Non-discrimination

Article 3 - BestInterests of the Child

Article 4 -Implementation ofRights

Article 5 - ParentalGuidance & Child’sEvolving Capacity

Children (Guardianship &Custody) Act Respect forparents rights equally andwelfare of ChildEducation Act s44 Wishesof parents to be consideredin education of students

ss. 2-3 respect forparents, family unitand continuity of carefor child.

CCPA Existing Legislationwhere right recognised

Gaps in ExistingLegislation &Recommendations


Article 6 – Survival and

Development

s.78(1) death penalty

inapplicable if

offence committed as

a child

Constitution of Jamaica

Offences Against the

Persons Act

Not addressed in CCPA

Article 7 – Name and

Nationality

Registration of Births and

Deaths Act - s11 duty of

parents to register child


Article 8 – Preservation

of Identity


Article 9 – Separation

from Parents

s. 11 warrant to

search and remove

child

s. 60 emigration of

child

Matrimonial Causes Act

Children (Adoption) Act

Registration of Births and

Deaths Act

Article 10 – Family

Reunification

s.60 emigration of

child


Immigration Restriction

(Commonwealth

Citizens) Act


CCPA

Aliens Act does not

address family

reunification

Article 11- Illicit

Transfer and Non-return

Offences Against the

Person Act


Article 12 – The Child’s

Opinion

s.20 evidence of a

child of tender years

Constitution of Jamaica s.3 Domestic Violence

Act

Child cannot make

application for

protection/occupation

order

Corroboration

requirement conflicts with

CRC

Article 13 – Freedom of

Expression

First Schedule, Part

II, s. 13(5) child can

make complaint to

Children’s Advocate

s.62(b) express views

freely

s.8 Law Reform (Age of

Majority) Act – child has

power to consent to

surgical, medical or

dental treatment


Thought, Conscience

and Religion

s. 62 (h) receive

religious instruction

of choice


Education Act s18 –

freedom of

conscience/religion

permitted


CCPA


Association


Public Order Act –

children free to

meet/march if for

cultural, educational,

sports, religious activities


Article 16 – Protection

of Privacy

First Schedule, Part

IV, s. 22 – upon

payment of fees may

Constitution of Jamaica Conflicts with CRC

Article 6 - Survivaland Development

Article 7 - Name andNationality

Article 8 - Preservationof Identity

Article 9 - Separationfrom Parents

Article 10 - FamilyReunification

Article 11 - IllicitTransfer and Non-returnArticle 12 - The Child’sOpinion

Article 13 - Freedom ofExpression

Article 14 - Freedom ofThought, Conscienceand Religion

Article 15 - Freedom ofAssociation

Article 16 - Protectionof Privacy

First Schedule, PartIV, s. 22 - uponpayment of fees mayinspect registerss. 43-45 child courtmatters private


p

Article 17 – Access to

Appropriate

Information

s. 62(k) (l) informed

of rights and

Children’s Advocate

Education Act

Public Broadcasting

Corporation of Jamaica

Act – s.4(2) established to

provide access to

appropriate information


CCPA

Article 18 – Parental

Responsibilities

Education Act s44 wishes

of parents considered,

children have a right to an

education


CCPA


from Abuse & Neglect

s. 8 circumstances

when child in need of

care and protection

s. 27 duty to provide

care for a child

Sufficiently addressed in

CCPA


of a Child without a

Family

s.8(1)(a)

circumstances when

child is in need of

care

Children (Guardianship

and Custody) Act


CCPA

Article 21 – Adoption Children (Adoption) Act Not addressed in CCPA

Article 22 – Refugee

Children

Children not mentioned in

Alien Act


Article 23 – Disabled

Children

s.2(b) child’s physical

and emotional needs


CCPA

Article 24 – Health and

Health Services

s.21-22 order to

submit to medical

exam

s.27 duty to provide

adequate health

Public Health Act –

regulates public spaces

and private premises to

ensure public health

Article 25 – Periodic

Review of Placement

ss.54-57 power to

visit, inspect, control

licensed homes


CCPA

Article 26 – Social

Security

NIS Act

Pensions Act


Article 27 – Standard of

Living

s.2(2) best interests of

child


CCPA

Article 28 – Education s.28 between 4-16

years

Education Act Insufficiently addressed in

CCPA

Article 29 – Aims of

Education

Proposed Amendment to

Constitution of Jamaica –

right to a healthy

environment

Public Broadcasting Act


Article 30 – Children of

minorities or indigenous

populations

Constitution of Jamaica Not addressed in CCPA

Article 31 – Leisure,

recreation and Cultural

activities

s.62 refers to children

in place of safety,

children’s home or in

care


CCPA

Article 17 - Access toAppropriateInformation

Article 18 - ParentalResponsibilities

Article 19 - Protectionfrom Abuse & Neglect

Article 20 - Protectionof a Child without aFamily

Article 21 - AdoptionArticle 22 - RefugeeChildren

Article 23 - DisabledChildren

Article 24 - Health andHealth Services

Article 25 - PeriodicReview of Placement

Article 26 - SocialSecurityArticle 27 - Standard ofLiving Article 28 - Education

Article 29 - Aims ofEducation

Article 30 - Children ofminorities or indigenouspopulations

Article 31 - Leisure,recreation and Culturalactivities


Article 32 – ChildLabour

s.25 interpretation ofemploymentss33-36 permissible and impermissibleemployments.39 offence ifemploy a child in a nightclub

Labour Officers (Powers)Act – power to enter premises to ensurecompliance with several labour laws36

Sufficiently addressed in CCPA

Article 33 – DrugAbuse

s. 40 prohibition ofsale of intoxicating liquor or tobaccoproducts to a child

Dangerous Drugs Act - Children not specifically mentioned Insufficiently addressed inCCPA

Article 34 – Sexual Exploitation

s.8 circumstanceswhen child is in need of care & protection

Offences Against thePerson Act ss28, 45, 47. Incest (Punishment) Act

Insufficiently addressed inCCPA

Article 35 – Sale, Trafficking andAbduction

s. 10 sale ortrafficking prohibited

Offences Against thePerson Act s.69

Insufficiently addressed inCCPA

Article 36 – Other Forms of Exploitation

Offences Against thePerson Act


Article 37 – Torture and Deprivation of Liberty

s. 4 Children’s Advocate s. 9 cruelty tochildrens. 66 separation ofchildren from adults

Constitution of Jamaica Contact with familyinsufficiently addressed in CCPA

Article 38 – ArmedConflicts

Defence Act s18 personsunder 18 not permitted toenlist w/o adult consent


Article 39 –Rehabilitative Care

s.62 rights of child inplace of safety


Article 40 –Administration ofJuvenile Justice

ss. 42-45 privacy incourt matters ss. 63-84 court proceedings fromdetention

Family Court Act Corrections Act


Gaps and Recommendations:

While the Child Care and Protection Act seeksto consolidate the welfare of children inJamaica, and does meet that objective in themain, the fact that the Act does notsufficiently incorporate the rights-basedapproach is of concern.

In addition to the pieces of legislationmentioned in the above chart, there are othergaps in existing legislation that deservemention. In the Education Act, it does notspecifically address the aims of education asindicated in section 29 of the CRC. The PublicBroadcasting Corporation Act outlines in

section 4(2) the specific aims of broadcasting,which include, to “promote positive valuesand attitudes, respect for fundamental rights,protection of the environment, developmentof education and training, development ofculture, human resources and sports, literaryand artistic expression”. This specific detailis commendable in the broadcastingregulation but is lacking in the Education Act.Recently there have been affirmative effortson the part of the Broadcasting Commissionto regulate television programmes to ensurethat children are unable to accessprogrammes that may not be appropriate fortheir age of development. The ObscenePublications (Suppression of) Act however

36 Shops & Offices Act; Minimum Wage Act; Factories Act; Women (Employment of) Act; Holidays with Pay Act; Apprenticeship Act; Employment AgenciesRegulation Act; Employment (Equal Pay for Men & Women); Employment (Termination & Redundancy Payments); Foreign Nationals & Commonwealth CitizensAct; Recruiting of Workers Act; Maternity Leave Act.

Article 32 - ChildLabour

Article 33 - DrugAbuse

Article 34 - SexualExploitation

Article 35 - Sale,Trafficking andAbductionArticle 36 - OtherForms of Exploitation

Article 37 - Torture andDeprivation of Liberty

Article 38 - ArmedConflicts

Article 39 -Rehabilitative CareArticle 40 -Administration ofJuvenile Justice


imposes a summary offence on persons whopublish, possess, import, advertise or takepart in any obscene business. This legislationrequires revision as there is no definition tothe term “obscene”.

There is no specific right to health underJamaican legislation. The Public Health Actaddresses the issue of public health and thereare several government policies related tohealth which include the mandates of Article24 of the CRC. Likewise there is insufficientattention placed on ensuring that childrenhave the right to leisure, recreation andcultural activities as established in Article 31of the CRC. This right is referred to in section62 of the CCPA but only includes children inplaces of safety.

Children and women are not mentioned inthe Aliens Act, Betting, Gaming & LotteriesAct, Dangerous Drugs Act, Fingerprints Act,Interception of Communications Act, LarcenyAct, Noise Abatement Act, OffensiveWeapons Act, and Terrorism Prevention Act.These laws need to be reviewed with the aimto include amendments recognising thestatus of children. While Article 2 recognisesthe equality of children and the right not to bediscriminated against, it is the responsibilityof the State to ensure that children areprotected and it should establish laws,regulations or policies to ensure thisprotection specifically in the areas that thepreceding laws govern.

Neither children nor women mentioned in thefollowing laws: the Local Improvements Act,Main Roads Act, Natural Resources

Conservation Authority Act, Road Traffic Act,Towns and Community Act, Towns & CountryPlanning Act. While it is not immediatelyapparent what consideration is given to theimpact on women and children when issuingpermits for the construction of roads,buildings and development projects, bothwomen and children will continue to bemarginalized and not fully integrated intogovernment policy plans and proposals if thelaws remain as they are.

Special mention should be made of proposedpieces of legislation that should addresssome of the above-mentioned gaps. There isa proposal to draft an anti-discriminationlegislation. While it originated from thesector working specifically with persons withHIV/AIDS, it proposes to address all areas ofdiscrimination to ensure that all persons areable to live freely and not be discriminatedagainst for any reason or status. Anotherpiece of legislation being developed is aMaintenance Reciprocal Enforcementagreement. Currently Jamaica has anarrangement with the UK, where delinquentparents can be forced to make maintenancepayments for children they have in Jamaica.A similar arrangement exists with somestates and provinces in the USA and Canada,and discussions are underway with the US tohave one piece of federal legislation so thatthe law can be applied uniformly throughoutthe US.


The main steps in the process of preparingthe annual budget are outlined below:

n Between August and September theMinistry of Finance prepares a submission forCabinet’s approval outlining the profile of theBudget for the next fiscal year, based on themacro-economic targets developed and thepriority polices for the next budget year.

n Between September and October theMinistry of Finance issues the “Budget Call”to all ministries, executive agencies anddepartments requesting them to send in tothe Ministry of Finance draft proposals oftheir requirements for the next year’s budget.The Budget Call informsministries/departments of the programmes towhich Government intends to give priorityfunding in the next financial year as well asexpenditure ceilings within which ministriesand departments are expected to operate.Ministries and departments are given two tothree months to submit draft budgets.Associated with the Budget Call is a requestfor Ministries to submit their Corporate Plansoutlining their programmes for the nextfinancial year.

n Ministries submit draft budgets andCorporate plans to the Ministry of Finance byDecember.

nThe Ministry of Finance examines the draftbudgets. The examination process takesplace between December and February

n Cabinet’s approval is sought for theproposed budget in March.

n After receiving Cabinet’s approval, theBudget is then submitted to Parliament. Thistakes place in March to April..

n The draft Estimates are referred to theStanding Finance Committee of the House ofRepresentatives for examination.

n The Minister of Finance submits the

Appropriation Bill setting out the allocationsfor each ministry and department ofGovernment for the financial year to theHouse of Representatives at the opening ofthe Budget debate in April.

n On the same day that the Budget debateopens, the Revenue Estimates, which dealwith the financing of the Budget, is tabled inthe House of Representatives.

n The Budget Debate closes with the approvalby Parliament of the Appropriation Bill – byearly May.

The Budget process does not end with theapproval of the budget by Parliament. Thereare four important phases in the overall cycle,which follow the passage of budget, namely:

(i) Ministry of Finance releases funds(ii) Departments record expenditure(iii) The Auditor General audits these records,and(iv) Parliamentary Review

Re (i) release of funds by Ministry of Finance,the Constitution and the FAA Act provide thatnothing can be spent until the Minister ofFinance gives approval by issuing a warrant.A warrant is a document signed by theMinister of Finance and Financial Secretaryauthorizing withdrawals of specified sumsfrom the Consolidated Fund to fund theaccounts of ministries and departments. Thewarrant thus has a control function - toensure that there is a relationship betweenthe inflow of revenue and outflow ofexpenditure.

By virtue of the Financial Administration andAudit Act, all revenues are paid into theConsolidated Fund. Re the processes (ii) and(iii) above, the Permanent Secretary, as headof a Ministry is held responsible for theoperation of his/her ministry as well asaccounting for its expenditure. He/she isrequired by law to submit his/her final(Appropriation) Accounts to the Ministry of

Annex BTHE GOVERNMENT OF JAMAICA BUDGET PROCESS


Finance and the Auditor General by July ofthe year after the expenditure takes place.

Re item (iv), Parliamentary Review, theAuditor General’s Department is concernedwith auditing the accounts of all governmentdepartments – i.e. External Audit. TheAuditor General is answerable to Parliament.The Auditor under the FinancialAdministration and Audit Act is required tosubmit to Parliament each year a report onthe Appropriation Accounts of ministries and

departments. The Public AccountsCommittee (P.A.C.) is a select committee ofParliament consisting of all members ofParliament from both sides of the House andchaired by the Shadow Minister of Finance. Itis the function of this committee to examinethe Appropriation Accounts and the AuditorGeneral’s report, and based on the AuditorGeneral’s comments, question accountingofficers on how they have discharged theirresponsibilities during the year under review.


Annex CDocuments and Publications Used

• The Jamaican National Budget: What’s in it for the Children? Budget Review, FY 1999/00 to FY2003/04 – Renee Shirley, February 2004.

• The Caribbean Court of Justice, Closing the Circle of Independence – Duke E. Pollard, (Kingston2004)

• A World Fit for Children – UNICEF • Economic and Social Survey Jamaica 2003 – Planning Institute of Jamaica• Report of the Joint Select Committee on the Bill Entitled an Act to Provide for the Care and

Protection of Children and Young Persons and for Connected Matters, September 2003• Child Development Agency Guidance and Standards of Care for Residential Childcare Facilities,

2003• The Jamaican Child, Planning Institute of Jamaica 2002• Jamaican Children and Their Families – A Situation Assessment and Analysis 1999-2000,

UNICEF/PIOJ• The Jamaican National Budget: What’s in it for the Children? Budget Review FY1999/00 to FY

2003/04 by Renee Anne Shirley, February 2004• Children in Especially Difficult Circumstances Programme – Review of Legislation in Jamaica by

Justice O.D. Marsh, August 1994• Meeting Adolescent Development and Participation Rights UNICEF/UNFPA July 2002• Report to the United Nations on the Convention on the Rights of the Child – by the Ministry of

Health, Jamaica. Prepared by Inez Morrison 1998• End Decade Assessment of the World Summit for Children Year 2000 Goals – National Report

Jamaica

United Nations Children’s FundFirst Life Building60 Knutsford BoulevardKingston 5Jamaica, West Indies

© The United Nations Children’s Fund (UNICEF), Jamaica

Cover photograph by Headley “Dellmar” Samuels

First published November 2004