Mohammed v Ayers-caesar (her Worship) and Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Kokaram, J. |
| Judgment Date | 20 August 2015 |
| Neutral Citation | TT 2015 HC 264 |
| Docket Number | CV 2015-02799 |
| Court | High Court (Trinidad and Tobago) |
| Date | 20 August 2015 |
High Court
Kokaram, J.
CV 2015-02799
Mr. Anand Ramlogan SC leads Mr. Gerald Ramdeen instructed by Mr. Varun Debideen for the Intended applicant
Mr. K. Douglas and Ms. C. Seenath for the First and Second Intended respondents
In person representative of the Children's Authority and the Commissioner of Prisons
Judicial Review - Leave to apply for judicial review — Minor — Next friend — Whether application was arguable and had realistic prospect of success — Whether court ought to make a conservatory order.
Kokaram, J. It is commonly said that it takes a village to raise a child. Such a notion recognizes the inherent vulnerability of children [See Roper v. Simmons 543 U.S. 551 (2005)], their need for guidance, their easy prey to negative influences but equally their potential for positive growth through the collective wisdom of parents, family units and social structures or institutions. On 15th May 2015 with the proclamation of the Children's Act 2012, the Children's Community Residences, Foster Home and Nurseries Act 65 of 2000, together with the establishment of the Children's Authority under the Children's Authority Act 2012 Chap 46:01, a valuable legislative scheme was created for the protection, monitoring and evaluation of children and “at risk” youth effectively buttressing the social needs of children which would have been obtained in a stable family environment. The Children's Authority is an important institution which provides for the care, protection and rehabilitation of children. It monitors and safeguards the well being of children in the care of community residences. It has powers to provide to children advice, guidance counseling and home help. Consistent with this country's international obligations under the United Nations Convention on the Rights of the Child the Children's Authority plays an important role to promote the well-being of the child and act as an advocate to promote the rights of all children in Trinidad and Tobago.
This case will bring under sharp focus the arrangements, accommodations and safeguards that have been statutorily provided for under this suite of children legislation in this jurisdiction for “at risk” youth who have been charged with serious crimes. It will articulate the fundamental human rights of children under these pieces of legislation to be treated in a humane manner even where they are charged with such offences. It would hopefully illuminate an area of the law which balances retribution with rehabilitation and principles of restorative justice for young offenders or vulnerable or “at risk” youth such as B.
B is a minor 14 years of age charged with murder and has been remanded by the presiding magistrate, the First respondent, to the Youth Training Centre (YTC). The YTC [An Industrial Institution proclaimed by GN 85 of 1999 under the Young Offenders Act Chapter 13:05] is an Industrial Institution established for the detention of young offenders under the direction and control of the Commissioner of Prisons. It is however a facility for young offenders who have already been convicted of offences. B has not been convicted of any offence. It is apparent from the Young Offenders Detention Act Chap 13:05 that the YTC, as such Industrial Institution accommodates those young persons between the ages of 16 to 18 and who are the subject of a sentence or order of detention having been convicted of any offence other than murder. B is neither. Further with the advent of the proclamation of the suite of legislation (the Children's Act, the Children's Authority Act and the Children's Community Residences Act) it is argued by Senior Counsel for the applicant that B is entitled to be remanded in a “community residence” as defined and as contemplated by those pieces of legislations and not at YTC.
There is no doubt that the juvenile offenders and those “at risk” youth deserve special treatment for a variety of reasons. Notably and judicially considered are the notions of the juveniles' vulnerability and susceptibility to negative influences and social pressure. They lack the freedom that adults have to extricate themselves for a “criminogenic setting” and where personality traits are transitory. They are a vulnerable group still struggling to assert an identity and in need of guidance, counsel, and care. In Roper v. Simmons 543 U.S. 551 (2005) Justice Kennedy of the Supreme Court opined :
“The susceptibility of juveniles to immature and irresponsible behaviour means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, 492 U. S., at 395 (Brennan, J., dissenting). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Johnson, supra, at 368; see also Steinberg & Scott 1014 (“For most teens, [risky or antisocial] behaviours are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behaviour that persist into adulthood”).”
Against this backdrop of the treatment of juveniles and vulnerable or “at risk” youth the present application before the Court is B's rolled up application for administrative orders under CPR Part 56 for leave to apply for judicial review and for constitutional relief challenging the order of detention made by the First Intended respondent, the latest being on 29th July 2015, remanding B to YTC.
As against the First Intended respondent, B claims the following declaratory relief:
-
(i) That the First Intended respondent had no jurisdiction power or authority in law to order that the Claimant be detained at the YTC.
-
(ii) That the decision of the First Intended respondent made on or about the 29th day of July 2015 ordering that the Intended Claimant be remanded to the YTC until the 16th September 2015 (hereinafter referred to as “the decision”) is unlawful and illegal.
-
(iii) An order of certiorari to remove to this Court and quash the said decision and quash the remand warrant issued by and/or under the hand of the First Intended respondent dated the 29th July 2015 remanding the Claimant to the YTC, Golden Grove, Arouca.
As Against the Second Intended respondent, the Attorney General, B claims the following relief under the Constitution
-
(i) A declaration that the detention of the Claimant from the 29th January 2014 to present, which detention is continuing at the YTC, Golden Grove, Arouca is in breach of the Claimant's constitutional rights and freedoms guaranteed under section 4(a), 4(b), 5(2)(b) and 5(2)(f)(i) of the Constitution of the Republic of Trinidad and Tobago.
-
(ii) A declaration that the failure of the State to provide a licensed Community Residence upon the coming into force of the Children's Act 2012 and the Children's Community Residences, Foster Homes and Nurseries Act 2000 to which the Claimant could be detained pending the hearing and determination of the preliminary inquiry into a criminal offence of which he is accused is in breach do the Intended Claimant's rights guaranteed under section 4(a), 4(b) and 5(2)(b) of the Constitution of the Republic of Trinidad and Tobago.
-
(iii) An order that monetary compensation including vindicatory damages be paid to the Claimants by the Defendants for breach of their constitutional rights.
The following conservatory orders are also being sought:
-
i. A conservatory order directing the Attorney General to undertake that the Commissioner of Prisons being a servant and/or agent of the State of Trinidad and Tobago will no longer detain the Claimant at the Youth Training Centre.
-
ii. A conservatory order that the Commissioner of Prisons do forthwith release the Intended Claimant into the custody of his mother and next friend Karen Mohammed.
The application was made by B's mother, Karen Mohammed as next friend and served on the respondents, as well as the Children's Authority and the Commissioner of Prisons.
At the date of the alleged offence B was 12 years of age. He is to date 14 years old. He has been jointly charged with four other persons one of whom is his sister. Since his first appearance at the preliminary enquiry on 29th January 2014 to the last appearance on 29th July 2015, it was ordered by the First Intended respondent that he be remanded at YTC. The notation shown to me on the information by counsel for the respondents is “St. Michael's YTC”. No doubt in the affidavits to be filed by the respondents an explanation of this order will be forthcoming.
It was only on May 2015 that portions of the Children's Act were proclaimed. Notably Section 54 which is the subject of this application provide as follows:
“54. (1) A Court, on remanding or committing for trial a child who is not released on bail, shall order that the child be placed in the custody of a Community Residence named in the Order for the period for which he is remanded or until he is brought before the...
To continue reading
Request your trial