This is the third instalment in a series of posts covering the National Family Law Conference 2018 (Brisbane) by Sherika Ponniah, Deputy Head of Legal Content, Wolters Kluwer.
The Jamaican experience
Children were once viewed as an extension of the parent or as ‘property’ often used to work to pay a parent’s debts. As time moved on, there was a seismic shift toward the best interests principle.
Diahann Gordon Harrison, Children’s Advocate of Jamaica, shared the Jamaican experience in making way for the principles espoused in the United Nations Convention on the Rights of the Child (1989) (UNCRC).
Diahann Gordon Harrison was appointed to the role of Children’s Advocate of Jamaica in 2012. Her role is to advance the rights of the child in Jamaica and make recommendations to parliament. Prior to this, Ms Harrison was the Senior Deputy Director of Public Prosecutions and at the Bar.
Parental authority and the UNCRC
Parental responsibility must trump parental authority. Children have the right to know and be cared for by their parents unless it is not in the child’s best interests. Children should not be separated from parents except by competent authorities in accordance with applicable law and procedure, for the promotion of the child’s best interest. Parents have a joint and primary responsibility for securing the best interests of their child which must be achieved within the confines of the rights of the child. If parents are not able to do this, the state must step in to secure the child’s rights and needs.
The Children’s Advocate has the same standing as a Judge of the Supreme Court and has an important role in training the judiciary to be able to implement the guidelines to promote the rights of the child. The Children’s Advocate has a legal, advisory and judicial role.
Parental right versus legal authority of the Child Advocate
Case study 1: A child was in hospital and the child’s mother wanted to take the child out of hospital to a rural area to be treated by witch doctor. The hospital, via the Child Advocate, was successful in obtaining an order to prevent this. This allowed the child’s right to healthcare and the child’s right to life.
Case study 2: A 3 month old baby with severe gastro issues, allergies and dehydration needed close monitoring in hospital and intravenous feeding. The father wanted to remove the child from the hospital. The Office of the Child’s Advocate was contacted, sought and was given an injunction. The father was very unhappy with this and put pressure on the hospital. Without advising the Office of the Child’s Advocate, the hospital discharged the child and changed their medical advice such that the Child Advocate was unable to seek further injunctions from the Court. Sadly, the hospital discharged the child and the child died in the care of the parents.
Once rights are identifiable, these create a justifiable point of entry for the Child Advocate and Courts. The primacy of the best interests principle augment this ability to intervene even at the expense of parental rights. Parental rights still exist but only in so far as these rights function in accordance with the children’s rights.