Carol V. Samuels , Contributor
Samuels
RECENTLY THERE has emerged in Jamaica some confusion with the definition of a child as a result of the passage of the new Child Care are Protection Act (CCPA) 2004. The old Juvenile Act (1951) defined a child as any person under 14 years and a juvenile as a person under the age of 17 years. The new legislation has repealed many of the measures that were previously embedded in the Juvenile Act and as a result, a child is now defined as any person under the age of 18 years. The new act no longer recognises such a person as a juvenile and as a result, you are a child from birth until the day of your 18th birthday when you legally become an adult. As a matter of fact, section 94 of the act makes amendments to other acts so that the word 'child' replaces the word 'juvenile' wherever it appeared previously.
The enactment of the CCPA is intended to strengthen the legislative framework for the care and protection of children and assist in reducing the fragmentation that existed previously. It has, however, brought with it some amount of confusion primarily because there has not been enough education and sensitisation focusing on all the important components.
Much of the confusion lies in the fact that there are still several different ages of majority in force in Jamaica. For example, the age of sexual consent is 16 years. Sixteen is also the age of consent in respect of surgical, medical or dental treatment and the age at which a parent's obligation to provide a child with education ends. A child may work after age 15 and the age of criminal responsibility is 12 years.
The confusion deepens all around when the data presented to us show that many of these very same children are among those giving birth to babies at an alarming rate while others are victims as well as perpetrators of very serious crimes. The majority of children found in these situations, however, can be traced to a deprivation of the vital nurturing support of family, schools and communities. In the absence of such support, these children slip into high-risk behaviours, which can produce disastrous results. Many of them live and work on the streets and among them there are those who end up on the 'wrong side of the law'. These are children who might have been driven into these situations as a result of high levels of abuse in the home, unrest in the community or just the desire to find something or somewhere better.'
DETAINED BY THE POLICE
On three occasions in the last five months, the Jamaica Coalition on the Rights of the Child (JCRC) has had to intervene on behalf of children in this category (age group 14-17) who were detained by the police. These children were each detained for several days in police lock-ups. What is of more concern is the fact that the police, who are charged with the protection of all persons in our society including our children, tell us they are unaware of the new legislation. This lack of knowledge about the act is certainly affecting its usefulness and is resulting in a lack of enforcement at all the various levels. Consequently, many issues related to children continue to get only minimal attention. We have met police officers over the last five months who continue to hold on to the ages outlined in the old Juvenile Act and as a result continue to detain children particularly those who are just over age 17 in lock-ups with adults. This is in direct contravention of section 66 of the Child Care and Protection Act, which states that children who are detained at police stations, being conveyed to court and attending court must be separated from adults. We are finding that despite the advances intended by this new legislation, the reality as we are seeing it in practice, lags way behind.
The police will have to play a very crucial role if the act is to be effectively implemented. In many cases, they are the point of first contact for the child, parents/guardians or other members of the public when a child is in danger or comes in conflict with the law. It is therefore critical for police officers to:
Know the offences created by the act so that when violations occur they can move swiftly to apprehend suspected offenders and ensure the safety of children.
Be aware of the proper
procedures to follow in dealing with child offenders and respond to the special needs of these children.
Be aware of the various support services available to assist these children
Be sensitive to the difference between a child who has committed a crime and a child who is in need of care and protection
INDIVIDUAL INTERVENTIONS
We have in fact raised some of these concerns with the Public Defender, the Child Development Agency, the Minister of Health and the Commissioner of Police with only fair responses. The JCRC's ultimate objective, however, is not to be making individual interventions on behalf of specific children, but rather to ensure that the police and other professionals who deal with children make significant changes in their operations to bring the new law fully into effect. This emphasises the need for a major public education effort that includes training police officers about the new standards for the treatment of children who are suspected of breaking the law. Professionals and others in the justice system must begin to realise that fair treatment begins with the recognition that children like adults must be presumed innocent until proven guilty and must be treated with some measure of dignity. For example, until there is a children's advocate in place, these children must be provided with access to legal representation and should have opportunities to be visited by parents or guardians.
FAILURE OF THE SYSTEM
A justice system that is built on fear of children and attempts to beat them into submission only serves to create major criminals out of children whose waywardness could otherwise be corrected. The increasing trend of child delinquency and the growing number of underage repeat offenders must be seen as a failure of the system and the wider society to instil discipline and a respect for law in the children whose lives we influence.
How children are treated when they come in contact with the criminal justice system is critical in determining their ability to overcome the experience and take from it a respect for law and order. In the most recent case brought to our attention, the young person was cleared of suspicion and was quickly able to resume his schooling and other aspects of his everyday life. This was primarily because of how he was treated by the law enforcement officers who responded to our visits and our pleas to treat him with some dignity. We are not able to say the same for all the cases that have come to our attention.
The Child Care and Protection Act has placed before all Jamaicans a challenge a challenge to put in place social support systems and mechanisms to protect our children and reduce the risk factors that affect them in an effort to prevent further degradation. Most importantly, we must step up the public education so that those who work with and for children and whose duty it is to protect them, can do so in an informed manner. As long as all persons under 18 are legally categorised as children by the various laws of the land, we must respect their rights as defined by the existing laws.
Carol Samuels is executive director, Jamaica Coalition on the Rights of the Child.
