Open Letter to the Jamaican Parliament from civil society organisations regarding the Child Care and Protection Act proposed amendments

Here is the Open Letter referred to in my previous post, in full:

CIVIL SOCIETY URGES CAREFUL REVIEW OF THE PROPOSED AMENDMENT TO THE CHILDCARE AND PROTECTION ACT

TO: MEMBERS OF PARLIAMENT

63 Members of the Lower House

Holness, Andrew, ON, PC

Chang, Horace, CD

Bartlett, Edmund, CD

Brown-Burke, Angela

Brown, David Hume

Dr. Charles, Michelle

Charles Jr., Pearnel

Chin, Robert

Chuck, Delroy, QC

Clarke, Heroy

Clarke, Dr. Nigel

Crawford, Rhoda Moy

Cuthbert Flynn, Juliet

Daley, Denise

Dalrymple-Philibert, Marissa

Davis, Homer

Davis, Tamika

Dr. Dunn, Norman

Golding, Mark

Graham, Hugh

Grange, Olivia, CD

Green, Floyd

Guy, Morais

Hamilton, Tova

Hanna, Lisa

Henry, Lester Michael, OJ

Henriques, Phillip

Holness, Juliet

Hylton, Anthony

Hutchinson, JC

Jackson, Fitz

Lawrence, Daniel

Lee, Krystal

Lothan, Cousins

Malahoo Forte, Marlene, QC

Mayne, Zavia

McKenzie, Desmond, CD

Miller, Robert

Montague, Robert

Morgan, Robert Nesta

Morrison, Kerensia

Neita, Natalie

Paulwell, Phillip

Phillips, Mikael

Phillips, Peter

Robertson, James

Robinson, Julian

Samuda, Karl, CD

Shaw, Audley, CD

Sibblies, Dwight

Slowley, Delroy

Smith, Marsha

Terrelonge, Alando

Dr. Tufton, Christopher

Vaz, Ann-Marie

Vaz, Daryl

Warmington, Everald

Wheatley, Andrew

Williams, Donovan

Williams, Fayval

Wilson, Morland

Witter, Franklin

Wright, George

21 Members of the Senate

Senator the Hon. Thomas Tavares-Finson, CD, QC – President

Senator Charles Sinclair, Jnr – Deputy President

Senator the Hon. Kamina Johnson-Smith – Leader of Government Business

Senator the Hon. Aubyn Hill

Senator the Hon. Matthew Samuda

Senator Dr. Dana Morri Dixon

Senator Kavan Gayle

Senator Ransford Braham, QC

Senator Don Wehby

Senator Dr. Saphire Longmore

Senator Delroy Williams

Senator Sherene Golding Campbell

Senator Abka Fitz-Henley

Senator Peter Bunting – Leader of Opposition Business

Senator Dr. Floyd Morris

Senator Damion Crawford

Senator Sophia Frazer-Binns

Senator Lambert Brown

Senator Donna Scott-Mottley

Senator Janice Allen

Senator Gabriela Morris

Dear Member of the House,

Civil society organizations have taken note of the government’s indication to repeal Section 24 of the Child Care and Protection Act (CCPA). For years, the undersigned have vocalized concerns regarding the gaps in the legislation that allow for children, without crime, who are deemed ‘uncontrollable’, to be ‘jailed’ at juvenile correctional centres. For those with criminal convictions, the punitive measures, in most instances, are far too harsh, and are not proportional to the offence committed, the child’s age and the ability for reform.

While we collectively find the announcements by the government to repeal the section and establish residential and non-residential therapeutic centres as a step in the right direction, there are serious concerns regarding the proposed amendments. Our main challenge is that there seems to be a substitution of language where the proposed amendments have sought to define the circumstances within which a child is currently deemed as “uncontrollable” and “beyond parental control”. While removal of the language may reduce stigma and harm, by seeking to define “behavioural challenges”, the proposed amendments maintain deprivation of liberty as the way to respond to children who are experiencing normal reactions to child and adolescent development, mental health challenges and traumatic stress. Further, the amendments will likely disproportionately affect children from low-income families and place them in an institution for a broad range of reasons.

The collective is mindful of both history and current practice where children were subjected to abuse in state care. It is on that basis that we have called for a prioritizing of deinstitutionalisation efforts and focusing on psychosocial interventions as the way forward to ensure the well-being and rights of all children.

Our specific areas of concerns and recommendations are noted below:

NARROW THE DEFINITION OF BEHAVIOURAL CHALLENGES AND PROVIDE GREATER LEGISLATIVE GUIDANCE REGARDING THE USE OF VARIOUS ORDERS

While section 24 is being proposed for repeal, the law is seemingly now setting parameters for determining the behaviour that satisfy how an ‘uncontrollable child’ was deemed. In reviewing the objects and reasons for the amendment, it signals a mindset and approach that will channel children with a range of normal developmental behaviour and/or behaviour resulting from trauma and/or behaviour resulting from medical conditions and/or behaviour that is normal but disapproved of by adults in their lives into the justice system.

In furtherance of the point, the proposed definition of “behavioural challenges” is far too wide and varies in seriousness. For example, some of the behaviours are clear criminal offences like stealing, some are indicative of mental or developmental illness such as suicidal ideation, while others are normal behaviours that may be exhibited at any stage in a child’s development such having a ‘low frustration threshold’. Furthermore, the list is open to interpretation with the catch all clause leaving room for judicial discretion to interpret other activities as ‘behavioural challenges.’ With such an extensive list, the proposed amendments provide insufficient guidelines as to how the various orders ought to be applied. For example, in the event that the behavioural challenge is also an offence, on what grounds should the child be brought before the Court and which order would be applied? Clarity is needed as this determination will not only affect the orders the Court is able to make, but even whether the child will receive a social enquiry report versus a psychological/psychiatric assessment.

The recommendation is for the law or its regulations to indicate the circumstances in which each order may be used; the terms and conditions that may be attached to each order; mechanisms that may be utilized to supervise these orders; and greater clarity on the steps to be taken and penalties applied if the parent or guardian fails to ensure the orders are adhered to.

The group questions the real mischief that the proposed amendments is trying to solve and whether it is necessary for a child protection act to define ‘behavioural challenges’ rather than focus on whether or not neglect and abuse is being meted out to a child. We submit that should the proposal go forward, there cannot be a conflation of behavioural challenges and criminal activity. The list must be narrowed to reflect those behaviours that will require psychological intervention versus that will need an assessment of the home environment. The proposal should also allow for greater synergy with the Child Diversion Act, including alternative orders that a court may impose should a child not be accepted in the child diversion programme.

COURTS SHOULD NOT BE FIRST POINT OF CONTACT FOR CHILDREN WITH MENTAL HEALTH ISSUES OR BEHAVIOURAL CHALLENGES

The proposal to bring the child before the Court for “behavioural challenges” in the first instance does little to address the issue of institutionalizing children for non-criminal activity, and even those who are low level offenders whose behaviour may be as a result of unresolved trauma.

The very principle of child diversion is being undermined with the proposed amendment, where a child ought to be diverted from the criminal justice system and judicial proceedings unless it is the best interest of the child. Critically, this is where the Child Protection and Family Services Agency (CPFSA) would become instrumental. That agency should be the first point of contact for children with behavioural challenges where the interaction with the court is only based on recommendation from the CPFSA, its relevant units and the children’s officers where if a parent is found to be in breach of the CCPA and that child requires removal from the home then the child is brought before the courts for the appropriate orders to be issued. If a child commits an offence, then the provisions of the Child Diversion Act come into effect, or other alternative means that address children with particular behavioural challenges.

DEFINE ‘SUPERVISED PLACEMENT ORDER’ AND CLARIFY THE PROVISION FOR THE INSTITUTIONALIZATION OF CHILDREN

It is unclear what interpretation is to be given to the term “supervised placement order” as it seems to be a term new to the legislative landscape. Generally, in the legal landscape, there is a definition of supervised order, which usually entails state supervision for a defined period of a child who may remain with their parents or guardians and there are placement orders where the child is placed with prospective adopters. There must be clarity as to the effect of a ‘supervised placement order’ as proposed. This has implications for how section 14(2)(c) is applied, specifically where a child who is under the supervision of a probation and after-care officer or a children’s officer may be placed for up to three years.

If one is to be guided by the remit of the probation and after-care officer, then a child who is alleged to have committed an offence may be placed in a juvenile detention facility, and the child who has behavioural challenges may be placed in a place of safety or children’s home – both of which may be up to three years. If one is also to be guided by section 80 of the principal act, there are provisions for a child who has been placed under the supervision of a probation and after-care officer or any other person, which includes the possibility for an order for the child to be sent to a juvenile correctional centre. There is no similar expressed reference for a child under the supervision of a children’s officer, and it is unclear whether section 80 is so applicable. If this section is not applicable, then provisions must clearly outline the expectations and limitations of the children’s officer supervision.

LEGISLATIVE GUIDANCE TO PARENTS

One of the gaps in the amendment is the lack of instructions for the parents of children who have behavioural challenges. There must be priority placed on the maintenance of the family home in the best interest of the child. To do so, rehabilitation and therapeutic efforts cannot be solely focused on addressing the behaviours of the child but also the home environment and parental capacity of a child in need of care and protection. Resources to assist parents in dealing with maladaptive behaviours as well as psychosocial support for those parents is necessary to any long-term response to this issue and will have the added benefit of mitigating stress on state resources and facilities. Further, there must be clear parental commitments and the ability of the court to impose parental training, including referrals to the National Parenting Commission, or any such state agency.

Further, there ought to be provisions for the parents to be able to vary an order imposed in keeping with the best interest of the child.

REMOVE PROPOSED AMENDMENTS OF SECTION 5 THAT INTRODUCES ‘VIOLENT BEHAVIOUR’

The proposed section 5A allows for a child to placed in a ‘place of safety’ on an interim order for up to sixty days for ‘violent behaviour’. This is not defined in the amendment or the principal act, which raises the issue once more of open interpretation and uniformity in application. It is the recommendation that these orders only apply to those children who have been professionally assessed to be at risk of causing harm to themselves or others rather than a generalisation of violent behaviour.

SETTING REGULATORY MINIMUM STANDARDS OF CARE IN RESIDENTIAL OR NON-RESIDENTAL THERAPEUTIC CENTRES

While the designation of therapeutic facilities is welcomed, there is concern around the lack of guidelines for their creation and development. Neither the amendment or principal act contain any guidance as to the infrastructure of the facility, the staffing of the facility or even how the facility will interact with the Court where the child was placed there in a Court order. Will the facility be obligated to provide patient information to the Court regarding their treatment and what does this mean for doctor patient confidentiality? It is further concerning as many of the ‘behavioural challenges’ are not criminal which is usually the justification for this disclosure.

Given there are only two such facilities, the group also questions the provisions for capacity and distant concerns, and the relationship with private and community-based institutions offering such services. We are therefore recommending that clear and comprehensive guidelines are developed to speak to these alarming gaps.

WE THEREFORE call upon the Minister of Education and Youth, and all the legislators, to urgently consider our recommendations to prioritize the strengthening of oversight mechanisms to ensure accountability within the childcare and protection system, as well as promoting the principle of institutionalization as a measure of last resort. This includes the promotion of community-based alternatives to institutional care, focusing on the well-being and development of children and recognizing their unique capability for rehabilitation.

We also ask that the government places on its legislative agenda the comprehensive amendment of the childcare and protection act based on recommendations that the government has accepted over the years.

Finally, we respectfully ask that a clear order be made that all correctional orders currently issued under section 24 be revoked. It is crucial to ensure that these children receive appropriate care, support, and alternative placements that prioritize their well-being, safety, and future prospects.

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