PROTECTING THE CHILDREN OF GUYANA Our collective responsibility Help & Shelter Inc. Roxane George, J November 27, 2010 Disclaimer: This presentation is not to be used as a substitute for the Protection of Children Act 2009 or for legal advice. It is to be used as a guide only.

Constitutional Principles on the Rights of the Child Article 38B of the Constitution provides for a very important principle regarding children - the best interest of the child is to be the primary consideration in relation to all matters involving children. So your best interests are what is to be the guide for your upbringing and development. Article 38C of the Constitution also provides that where a child is to be adopted, the best interest of the child must be taken into consideration before the adoption is allowed. Article 38D is another very important provision in relation to the welfare of children as it provides that every child has the right to maintenance and accommodation or housing from his or her parents and guardians. Article 38E highlights how important education is and states that formal education is compulsory or a must for children up to the age of 15 years. These constitutional principles must guide Parliament, the government, the courts and all other public agencies and officials regarding how they carry out their functions and duties in relation to ensuring that children have the best environment in which to grow and develop.

Children’s basic right Children have the right to lead a productive life free from physical and emotional or mental harm. However, some children are in difficult circumstances that threaten their health, safety and well-being, so the law provides for the protection of these children.

Childcare & Protection Agency The Childcare and Protection Agency (CPA) has been established by the Childcare and Protection Agency Act, 2009 which came into force on May 20, 2010. The CPA is to be proactive in the protection of children who are abused in any way or in vulnerable or unsafe or unhealthy situations or who are neglected or abandoned. The CPA has overall responsibility in relation to the implementation of all laws regarding children i.e. child care and development, foster homes, voluntary organisations, status of children, adoption of children, protection of children and custody, contact, guardianship and maintenance of children. The CPA has to make sure that the Protection of Children Act 2009 which was passed by the Parliament of Guyana is enforced. The Protection of Children Act came into force on May 30, 2010.

Protection of Children Act 2009 The Protection of Children Act was passed to ensure that children are protected from threatening situations and allows for children in vulnerable and harmful circumstances to be assisted and or cared for by the Childcare and Protection Agency. This Act came into force from May 20, 2010.

Protection of Children Act 2009 What does the Protection of Children Act have to say?

What does the Protection of Children Act, 2009 have to say? The Protection of Children Act states that the most important consideration in relation to children is their best interests. This means that the Court and any other body or entity has to make sure that the best interests of the child are considered when they make any decisions regarding a child’s safety, health and well-being.

The best interests of the child (s 3 & s 2 CPA Act) Who is a child? - A child is a person under the age of 18 yrs and includes a person over 18 yrs who has special needs, who is under care or protection by virtue of any law, has a disability or is certified by the Director as being in need of care and protection.

The best interests of the child (s 3) The family of a child as well as the community that he or she lives and goes to school in has a responsibility to ensure the safety, health and well-being of the child. Preserving family ties and respect for cultural heritage are also matters that must be considered in deciding what is in the best interests of the child. In deciding what is best for a child, the Court or other agency dealing with a child must seek to prevent harm coming to or continuing in relation to the child ensure that family ties are maintained where there is a healthy family environment for the child to grow in remove the child from their home but only where it is necessary in the best interests of the child consider the need for the continuous care and stability in the child’s life, the age of the child and his or her needs along with the need to have a normal family environment.

What really does the bests interests of the child mean? (s 5) When considering what is in the best interests of the child the following are matters which must be taken into consideration the child’s safety and health the child’s educational and developmental needs where possible, the child’s views and wishes the importance of stability and continuity in the child’s care, that is, ensuring that there is no unnecessary disruption in the child’s life.

What really does the bests interests of the child mean? (s 5) When considering what is in the best interests of the child the following are matters which must be taken into consideration the continuity of a child’s relationship with his or her family, with whom the child has a meaningful relationship, including his or her brothers and sisters where the child lives, and his or her social environment the effects of any delay in court proceedings in relation to the child any other issues that may be considered where a child is HIV positive or has special needs.

Can a child have a say in what is best for them? Children over twelve years of age are to be allowed to express their opinions or views regarding their care and custody, unless they are unable to do so The opinions and views of children under twelve years old shall be heard and considered in coming to any decisions once the child is sufficiently mature and can understand the proceedings.

Maintaining the family unit and helping families (s 4) In order to ensure that a child grows up in the nurturing environment of his or her family, the State, the Child Protection Board or any other body which deals with the welfare of children families are to be provided families with services which will allow them to support the safety, health, education and well-being of their children. Wherever possible, having regard to the age of the child, the views and wishes of the child shall be considered when providing these services. The Child Protection Board is established by s 57 of the Protection of Children Act and is to exercise its powers under the Act. It is to consist of five members including a social worker and a lawyer. The CPA has supervision and control over the Board. (s 64) The role of the Child Protection Board under the Act is not clearly defined or set out. The Board is mentioned only once in ss 4 & 55. Its powers as stated in these sections seem to be very limited. It is unclear how this Board relates to the CPA though the Agency is said to have supervision and control over any administrative authority exercising functions under the P of C Act. The Board has not been established.

Protective intervention (s 6) When does a child need protection?

Protective intervention: When does a child need protection? A child would need social services to intervene for his or her protection where a child is or is at risk of being physically or emotionally harmed by the action or inaction by a parent, guardian or other person who has care of the child or by a person who lives in or visits the household where the child is is at risk of being sexually or emotionally abused or exploited whether by a parent, guardian or other person who has care of the child or by a person who lives in or visits the household where the child is is or is at risk of being physically harmed or sexually abused or exploited by a person and the parent, guardian or other person who has care of the child does not protect or seek protection for the child - is in the custody of a person who refused or fails to obtain or allow the child to have necessary medical, psychiatric, surgical or remedial care or treatment when recommended by a qualified health practitioner.

When does a child need protection? A child would need social services to intervene for his or her protection where a child - is being emotionally harmed is abandoned has no living parent or a parent who cannot adequately care for him or her - is living in a situation where there is violence

When does a child need protection? A child would need social services to intervene for his or her protection where a child - has been left without adequate supervision - has allegedly killed or seriously injured another person - caused damage to property or has caused injury to another person or other living thing or threatened to cause injury to another person or other living thing and the parent has encouraged or does not respond to the child’s behaviour or - is exposed to drugs or obscene material and objects.

Who has the duty to report when a child is at risk or in harmful circumstances? (s 7) Any person who knows that a child is at risk or in harmful circumstances so that the child would need protection, must report what they know to the Director of the Childcare and Protection Agency, a probation officer or a police officer. Information about who are and where to find these persons would be necessary.

Who has the responsibility to report about a child that they know is at risk? Each of us has a responsibility to make a report so that a child who we know is at risk can be helped and taken to safety in their best interests. In particular these persons have a duty to report head teachers, teachers social workers, family counselors, coaches

Who has the responsibility to report about a child that they know is at risk? Religious leaders

Who has the responsibility to report about a child that they know is at risk? and persons who have child care services health care professionals like doctors, medexes nurses police officers, lawyers

Who has the responsibility to report about a child that they know is at risk? members of non-governmental organizations (NGOs) persons who care for children mediators and coroners (who investigate the circumstances surrounding the death of someone)

What are the consequences of not reporting? If a person has information that a child is at risk or in harmful circumstances and they do not make a report, that person can be charged with a criminal offence and would have to go to court, before a magistrate.

What happens when a report is made? (s 8 & 9) The Director of the Childcare and Protection Agency or a social worker will be assigned to investigate the child’s circumstances and decide whether and what kind of protection should be provided to the child. The Director or social worker can offer support services to the child and his or her family or refer the child and family to other services that they may need. The Director or social worker must be allowed to interview the child in private and unless it is not in the best interests of the child, the parent of the child may be allowed to be present during this interview.

What happens if the Director or social worker is not allowed to speak with the child? (s10) The Director or social worker can go to a Judge of the High Court and apply for an order or orders which would allow the Director or social worker to carry out their duty and responsibility to protect the child. The Court can order that - the location of a child be disclosed - that the child be removed by the Director or social worker from where he or she is so that he/she could be interviewed or be examined by a doctor. If a person does not obey the Judge’s orders then they may be arrested and imprisoned for such disobedience, unless they give a valid reason for not obeying the Judge’s order.

What other protection orders can the Director or social worker obtain What other protection orders can the Director or social worker obtain? (s12) The Director or social worker can obtain other orders from a Judge or the Court to assist them in protecting a child. These orders include - an order to produce information relating to the child - an order that for 12 months a person be prohibited or stopped from being in contact with or interfering with or trying to contact or interfere with a child for whatever period the High Court considers appropriate - an order that a person be prohibited or stopped from residing with a child or entering premises where a child resides. This order can be made even if the person owns or has a right to occupy that home or premises.

What other protection orders can the Director or social worker obtain What other protection orders can the Director or social worker obtain? (ss 13, 14, 17, 18, 22) The Director or social worker can obtain other orders from a Judge or the Court to assist them in protecting a child. These orders include an order to remove the child from a location because the child is at risk and in need of protection. In urgent cases, the Director or social worker can remove the child and then apply to the High Court for an order. Where a child is removed by the Director or social worker, the Director is responsible for the care of the child until the child is returned to the parent or guardian or the Court makes any other order. Because the child is under the care of the Director, any issues in relation to medical attention that the child may need are to be addressed by the Director and an application can be made to the High Court for an order regarding any medical attention or treatment a child may need that the parent is to continue to maintain the child while he or she is in the care of the Director that for her/his protection the child be cared for in an organization or by a person other than the parent or guardian.

What other protection orders can the Director or social worker obtain What other protection orders can the Director or social worker obtain? (ss 27,28,33) The Court will decide for how long its orders will be in force and can vary or change any of its orders including permitting the return of the child to his or her parents or guardians where the Court is of the view that the child does not need or no longer needs protection. Protection intervention proceedings in Court are to be done in the shortest possible time. The Court must hear the child and can order that he/she have legal representation with the assistance of the State. The Director can discontinue protective intervention proceedings.

When a child is removed, where will he or she be placed? (s 41)

When a child is removed, where will he or she be placed? (ss 41, 44) When a child is removed from the care of his or her parent or guardian because they are in need of protection, the first persons to be considered for the care of the child should be the other parent where that parent does not usually have care of the child, brothers, sisters or other relatives, godparents, or close family friends. This is done so that there is as little as possible disruption to the child’s life and so that they would be with people with whom they are familiar. Sometimes, however, a child may have to be placed with a caregiver voluntary home, foster home or other organization. The Director or social worker would then make arrangements for the financial support or maintenance of the child while in they are in the care of these other persons or organizations. A child may be removed from the care of these other persons or organizations where the Director considers that this would be in the best interests of the child. I would think that where the Director seeks to move a child from the care of other persons or organisations into which they have been placed because of an order of Court, the Director should return to the Court for an order to move the child.

It is an offence to remove or attempt to remove a child from the care/custody of the Director of the CPA A person would commit an offence if that person removes or attempts to remove a child or encourages a child to leave the care and custody of the Director or harbours or keeps a child who has left the care or custody of the Director. This person may be charged and taken before a magistrate.

What other proceedings can be held in relation to the protection of a child? (s 24) The Protection of Children Act allows for pre-trial conferences, family conferences, mediation or other means of resolving the issues that are affecting a child in an effort to ensure that everything is done in the best interests of the child.

What assistance can be given to help a child cope with being removed from home? Where a child is removed from the care of a parent or other person, the child must receive counseling in order to help the child to deal with her/his problems and assist her/him. (s 45)

Would anyone know about Court proceedings in relation to a child? Court proceedings in relation to the protection of children are to be held in camera. This means that members of the public and persons who are not connected to the case, or who are not needed, cannot be present when the Court hears matters involving the protection of children. (s 60 and see s 10 CPA Act.) Court proceedings for the protection of a child are confidential, that is, no one is to publish or produce any information about the court hearings or any family conferences or mediation or other meetings that may have been held in relation to ensuring the protection of a child unless there is permission to do so by everyone who participated in a family conference, unless it is necessary for any agreements that have to be entered into in relation to the child or for the child’s safety or where the Director or social worker has to make any disclosure in the best interests of the child. (s 37 and see s 10 CPA Act.)

Can a parent consent to orders for the protection and care of their child? (s 38) A parent can consent to orders to be made by the Court in relation to their child. Before a consent order is allowed, the parent must be informed that they should get the advice of a lawyer and the parent must understand what he or she is consenting about. The wishes of the child also have to be considered. Note: Where a parent consents to an order, this does not mean that the parent has admitted any of the conduct alleged by the Director or the social worker.

Can a child or anyone obtain information about him or herself about any proceedings in relation to his or her protection? (ss 46, 47) A child over the age of twelve years and a person who has care of a child can request information relating to the child regarding his or her birth family, the reasons why he or she was removed, the reasons for the continuation of the Court order and the identity of former caregivers. This information can be obtained so long as it is not prohibited by any other law, or the information would not result in physical or emotional harm to the child or any other person or it would not lead to the identity of a person who made a report that led to the protection of the child.

Can the Director disclose information? (s 48) The Director may also disclose information in relation to a child without the consent of another person - where it is necessary for the safety, health and well-being of the child - where the information is given to persons who are caring for the child - where it is necessary so that the Protection of Children Act can be enforced - where the information is needed for research and evaluation.

Does the Protection of Children Act provide for offences against children? A person may be charged and placed before a magistrate - Where a person willfully contributes to a child being in need of protective intervention this person - Where for the purpose of trafficking - - a person sells, gives or causes a child to have possession of or ingest or take any drug or substance that would be harmful to the child or intoxicating liquor or tobacco products, or - or a person sells, gives or causes a child to have possession of an obscene book or other written matter, obscene pictures, photographs, or pornographic material or models through electronic means e.g. through the use of a computer, or any other obscene object.

Other criminal offences A person may be charged and taken before a magistrate if - a person employs a child in a place that sells intoxicating liquor - a person employs a child to engage in acts of prostitution.

Other provisions The Minister is to establish an advisory committee for the purposes of the Protection of Children Act. (s 52) The Director is to compile a list and the Minister is to keep a list of persons who are considered unsuitable to work with children upon receipt of confirmation of that person’s conviction for an offence against a child. (s 53) The Ministers of Health, Education and Home Affairs and any child care organisation can refer the name of an individual who was employed in a child care position for inclusion on the list. (s 54) The person is to be notified that their name is to be placed on the list. He/she may appeal to the Child Protection Board. (s 55) Before a person is employed in a child care position it shall be ascertained if their name is on the list, and if so then the person cannot be so employed. (s 56)

Protecting our children Our collective responsibility Help & Shelter Inc. Roxane George, J November 27, 2010 Disclaimer: This presentation is not to be used as a substitute for the Protection of Children Act 2009 or for legal advice. It is to be used as a guide only.