THE RIGHTS OF THE CHILD AND THE CARIBBEAN :

PROSPECTS AND CHALLENGES FOR THE 21 ST CENTURY.

“I believe the children are our future,

Teach them well and let them lead the way,

Show them all the beauty they possess inside,

Give them a sense of pride to make it easier,

Let the children’s laughter remind us how it used to be.”

Protocol having already been established, I say to you all, Good Evening. I am very honoured, privileged and extremely happy to be here this evening to address you on the occasion of your celebration of the 15th anniversary of the adoption of the United Nations Convention on the Rights of The Child.

On the 25th anniversary of independence of the Republic of Trinidad and Tobago, a calypsonian named Lord Funny, known for his wit and humour, asked a very serious question of that nation, my nation: “Twenty-five years have passed, how you feel”? With apologies to Lord Funny, I ask you today, since the adoption of the CRC, fifteen years now have passed, how do you feel? Do you feel happy, proud and pleased that the children of the Caribbean are now recognized as having rights? Do you feel a sense of confidence that children’s issues are at the forefront of the human rights agendas of Caribbean states? Do you feel satisfied that we are now doing for children the best that we can do? Do you feel truly sure that we have evolved from a paternalistic or welfare approach to children to one of recognition of child rights in all issues involving children, whether these issues be by nature, civil, political, economic, social or cultural? How do you feel?

As a Caribbean people we have come together and formulated the Belize Commitment to Action for the Rights of the Child, the Kingston Accord, the Lima Accord. Commitment, accord, all very positive words, a prelude, no doubt to positive actions to fulfil our covenant to “ review and revise our laws, policies and programmes to fully comply with the letter and spirit of the CRC.”[1] How have we done these past fifteen years? What do we still need to do? In the context of Child Rights and the Caribbean, what are the prospects and challenges for the 21st century?

The Committee on the Rights of the Child has identified four articles as being basic to the implementation of all rights contained in the Convention, namely:

1. .Article 2- non discrimination;

2. Article 3- best interests of the child;

3. Article 6 - the right to life, survival and development;

4. Article 12- respect for the views of the child.[2]

I propose to situate my discussion within the four corners of these foundation principles.

1. NON- DISCRIMINATION

Article 1 of the CRC specifies: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability or other status.

This article impacts on other articles of the CRC as it enjoins States Parties to respect and ensure the rights in the CRC to every child.

As we look around the Caribbean we see that we have made some significant strides in the area of eliminating discrimination against children.

1. Birth status – the out of wedlock child

(a) Inheritance rights

Even before the advent of the CRC, Caribbean nations showed evidence of commitment to the cause of non-discrimination. Status of Children legislation has been enacted in several jurisdictions such as Jamaica, Barbados, Trinidad and Tobago, St. Kitts and Nevis, St. Vincent and the Grenadines, Antigua and Barbuda, Guyana, Saint Lucia and now happily, in the country where I now temporarily reside, The Bahamas. Belize has included similar status of children provisions in its comprehensive Families and Children Act. It is to be hoped that other jurisdictions such as the British Virgin Islands, which has a draft bill, Dominica and Montserrat will soon have such a law on their statute books. Status of Children legislation generally proclaim that: “the status and the rights and obligations of the parents and all kindred of a child born out of wedlock are the same as if the child were born in wedlock.” [3]

Perhaps the most important aspect of this type of legislation is its abolition of the old rule of construction whereby in any will, deed or other instrument words of relationship in the absence of a contrary expression of intention signify rela tionship derived only from wedlock. This has had the most important impact in the area of the law of Succession. Before this legislation was passed , once the word “ children” was used in a will or other instrument, it was taken to mean legitimate children, unless the children born out of wedlock were specifically referred to by name in the will or other instrument or the circumstances were such, for example, if there were no legitimate children in existence, only the illegitimate children could have been meant. After Status of Children legislation, the position now is that once paternity is admitted or established, the child born out of wedlock can get his or her fair share of the father’s estate either on intestacy, that is, where there is no will, or on testacy, where the will uses the word: “children” and the testator has both legitimate and illegitimate children.

Before we go patting ourselves on our collective backs about this great advancement in the law, to wipe out discrimination against children born out of wedlock, I must alert you to the challenges that yet face us for the twenty-first century in the area of that innovative piece of legislation. Unfortunately, discrimination has not been abolished in its entirety. In varying degrees, in the different pieces of legislation, aspects of discrimination are retained, making of the legislation a flirtatious maiden, promising much more than she intends to deliver.

An example of one such vexed provision is the one which limits the time for bringing the application to “within the lifetime of the father” or “the lifetime of the parties”. In Saint Kitts and Nevis it is a blanket provision – paternity must be established within the lifetime of the father. In Barbados and the Bahamas, the law sets out various situations where paternity may be presumed, then states that where two presumptions exist they cancel out each other, so there is no presumption. It further provides that where no presumption exists, the application can only be brought within the lifetime of the father. The Jamaican statute provides that for any purpose related to succession paternity must have been admitted by or established during the lifetime of the father.

To illustrate the injustice that may result from such provisions, allow me to share with you two cases in which I was personally involved. A young girl eighteen years old was sent to me with an Emergency Certificate from the Legal Aid and Advisory Authority. Her father, with whom she had lived all of her life had recently died. Her uncles had come to the home, shortly after the funeral, had removed her passport, the statutory declaration in which her father had admitted paternity of her and which had been attached to her birth certificate, and had forcibly removed her from the only home she had ever known. They had installed my client’s cousin, the son of one of her uncles, and had told her the lawyer said she had to leave until everything was fixed up.

I immediately moved to gather evidence to prepare affidavits to prove paternity. I got statements from her, her mother and the principals of all the schools she attended. At each of her schools, the father was well-known. He had been the person who had registered her and attended PTA meetings. The application was granted by the Court. We then filed an application for the estate and, since the father had no other children and had never been married, my client got the entire estate.

The other case was one in which another young lady was involved. She had been engaged to be married to a young man, was pregnant and wedding plans were well in train, when unhappily, the intended groom and father- to- be, drowned. At the time she came to me, she had just given birth to the child of her deceased fiance. She shared that she had come because the mother- in- law to be, who never was, and who had promised to give her a share when she got the estate, was now distancing herself.

My investigations revealed that the estate had been applied for and had been granted to the mother of the deceased. We then set about to prove paternity as a preliminary step to having the grant of representation set aside. In addition to the young lady herself who gave affidavit evidence of her relationship with the deceased, I got the pastor who had been counseling the couple to go on affidavit. A colleague of the young man who used to drive the girl to the doctor for medical checks, and who had been asked by the deceased to buy baby clothes when he went on holiday abroad, also swore an affidavit. I exhibited photographs of the proud grandmother, who had now turned enemy number one, holding the baby at the christening. In cross- examination she sought to explain that she was only showing sympathy for a girl in trouble. She denied the child was her grandchild. She could not satisfactorily explain why she used to take the child for weekends. The estate was quite a sizeable cash estate with insurance policies and death benefits from the young man’s workplace. The reluctant grandmother had already begun to spend the money to buy parcels of land for her remaining children. Ultimately, the judge found in favour of my client.

In the first scenario my client’s mother had been married, but separated from her husband when my client had been conceived and born, and there would, therefore, have been two presumptions operating, one that my client was the child of her mother’s husband and two, since the natural father had admitted paternity, that she was his child. In the Bahamas and Barbados this child’s case could not have been taken to court after the father’s death. In the second case, the case could not go to court in Saint Kitts and Nevis or in Jamaica.

Other areas of discrimination being perpetuated in some Status of Children legislation are the provisions in some jurisdictions which state that the Act does not affect or limit in any way the rule of law relating to domicile, citizenship, provisions of the Adoption of Children Act which determine relations of any person who has been adopted, and the construction of the word ‘heir’ or of any expression used to create an entailed interest in real or personal property. The Jamaica and Bahamas Status of Children legislation are two cases on point. The most significant of these limitations in terms of consequences, is the one dealing with citizenship.

A number of jurisdictions provide in their law that citizenship cannot be derived from the father, if the child is born out of wedlock and outside the jurisdiction, e.g the Constitution of Barbados and The Bahamas and in some cases, even if the child is born within the jurisdiction.

The Bermuda Immigration and Protection Act denies Bermudian status to be derived through the father of a child born out of wedlock, whereas a child born in wedlock or one subsequently legitimated can derive status through either of his parents.

Let me illustrate a practical consequence of this limitation on nationality and citizenship. An out of wedlock child of a Bahamian or Jamaican father and a non- West Indian mother who wishes to study at any one of the Council of Legal Education Law Schools, will have to pay the economic cost of tuition. His brother, however, born in wedlock to the same father will have eighty per cent of his fees paid by the government. This discrimination should be addressed by expunging those provisions from the legislation.

In this age of modern medical technology, is it really justifiable to deny a child his or her rights in this way? I recommend that we adopt the position as in Argentina where every effort is made to determine paternity. Professors Cecilia Grosman and Ana Maria Checile, in their article entitled Recent Judicial Decisions Giving Effect to The Convention On The Rights of the Child in the International Survey of Family Law, 2004 edition, cites a decision of the Argentina courts which found in favour of the filiation claimed on the basis of blood tests carried out on the brother of a deceased putative father. The test indicated a 98.53 % probability that he was the clamant’s uncle. Other brothers of the decease d had refused to be tested to reconstruct the genetic make-up of the dead brother.

Another limitation in some legislation is one making the legislation applicable only to instruments made after the commencement of the legislation. This is the case in Jamaica, Saint Christopher and Nevis, St. Vincent and the Grenadines and Barbados. The Trinidad and Tobago and Antigua legislation, make the Act applicable to instruments executed before, as well as after, its commencement.

A challenge for us in the 21st century is to expunge all these limitations from the Act, which make the removal of discrimination more illusory, than real.

b). Maintenance rights

Article 27 of the CRC enjoins States Parties to recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

Thus, States are urged to “ take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having responsibility for the child…”