The Court of Appeal
Date: 1 September 2016 CRC
Article 3 (Best interests of the child)
Article 37 (Detention and punishment)
Article 2 (Non-discrimination)
Article 6 (Survival and development)
Article 12 (Respect for the views of the child)
Child Protection Act Bail Act
In 2014, the complainant, a 16-year-old minor, was charged with armed robbery and possession of a firearm with intent to endanger life and remanded to the adult remand centre. The complainant had been injured during the commission of his crimes, but he was refused the right to see the prison doctor and did not receive adequate medical treatment for his injuries. The complainant was also denied bail by a lower court.
Issue and resolution:
Juvenile justice, detention without bail. The Court considered whether detention without bail of a juvenile was permissible under the Child Protection Act and the CRC, and whether such treatment was in the best interests of the child. The Court concluded that detention without bail was not in the best interests of the complainant, and set aside the decision of the lower court.
The Child Protection Act explicitly incorporates the rights contained in the CRC into Bahamian law, subject to any reservations and modifications to suit local circumstances. The Court found that, in determining whether to deny the complainant bail, the lower court had not adequately considered his best interests, as required by Article 3 of the CRC, and had abdicated its responsibilities under the law in failing to summon and examine his mother and grandmother. The Court noted that when considering a minor’s best interest, courts should have regard to, among others: the ascertainable wishes of the minor in light of the minor’s age and understanding; the child’s physical, emotional and educational needs; the effects of any changes in the child’s circumstances; and, where relevant, the capacity of the child’s guardian in meeting the child’s needs. Bahamian law allows minors to be denied bail in certain instances, such as when the minor is charged with homicide, when it is deemed necessary to remove the minor from association with any reputed criminal or prostitute, or when the officer has reason to believe the minor’s release would defeat the ends of justice. The Court found that none of these factors were applicable to this case, and so the complainant should not have been denied bail. The Court also drew attention to Article 37(b) of the CRC, which imposes an obligation on state parties to ensure that no child is deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child must be in conformity with the law and should only be used as a measure of last resort for the shortest appropriate period of time. The Court emphasised that the use of other alternatives must be carefully considered first.
Excerpt citing CRC and other relevant human rights
“In her written Ruling, it is evident that while the learned Judge recognized and accepted that the Appellant had legal rights under Article 37(b) of the Child Rights Convention and under sections 3 and 4 of the Child Protection Act, she nonetheless proceeded to deal with his bail application paying regard only to section 4 of the Bail Act and to such of the factors identified in Part A of the First Schedule as she considered relevant to him. By following this path the learned Judge clearly failed to recognize that quite apart from the Bail Act, she also had obligations under subsections 3(2) and 4 of the Child Protection Act consistent with Article 37(b) and (c) of the Child Rights Convention.”
“It is clear on a reading of the above, that subsections (1), (2) and (3) relate to a determination regarding the upbringing of a child; and the administration of a child’s property or the application of any income arising therefrom. In my view the purpose of subsection two is to clearly state that in deciding these types of matters whether before a court of law or before any person the child’s welfare shall be of paramount consideration.
The above interpretation of section 3 does not mean that in matters outside of the purview of the section the guiding principle mentioned therein does not maintain. Section 4(c) of the Child Protection Act incorporated into Bahamian law the United Nations Convention on the Right of the Child (“the Convention”), subject to any reservations that apply to The Bahamas and with the appropriate modifications to suit the circumstances that exist in The Bahamas with due regard to its laws.
Article 3 of the Convention states, “that the best interests of children must be the primary concern in making decisions that may affect them…”. Notwithstanding the side note to section 3 describing the section The Guiding Principle, it is, in my view, through Article 3 by way of section 4(c) that the guiding principle is incorporated into Bahamian law for all matters outside of those described in Section 3(1) of the Child Protection Act.”
“Section 4 [of the Child Rights Act] provides that … a child shall have the right … to exercise, in addition to all the rights stated in this Act, all the rights set out in the United Nations Convention on the Rights of the Child (the Convention) subject to any reservations that apply to The Bahamas and with appropriate modifications to suit the circumstances that exist in the Bahamas with due regard to its laws.”
“Furthermore, the learned Judge gave no consideration whatsoever to the fact that whilst on remand at the Fox Hill adult remand centre, the Appellant had already been held at an adult remand centre for some 10 months and would, if further remanded, be again held in a facility where he would once again not be separated from adults. This is in direct contravention of section 113 of the Child Protection Act and Article 37(c) of the Child Rights Convention which provides:
“(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; …” [emphasis added]
“By signing, ratifying and incorporating the Child Rights Convention, the government of the Bahamas has demonstrated a commitment to the four main principles expounded therein; namely that all the rights guaranteed by the Convention must be available to all children without discrimination of any kind ( Article 2); that the best interests of the child must be a primary consideration in all actions concerning children ( Article 3); that every child has the right to life, survival and development ( Article 6); and that the child’s views must be considered and taken into account in all matters affecting him or her ( Article 12).”
CRIN believes that this decision is consistent with the CRC. The best interests of the child should be the primary consideration in all decisions concerning them, including the decision of a court on whether to grant bail. A minor generally should not be denied bail: detention should only be considered as an exceptional measure in the last resort, for the shortest period necessary, and in separation from adults.
In the Court of Appeal SCCrimApp No. 205 of 2015
Link to Full Judgment: