Ss v Ayers-caesar et Al

JurisdictionTrinidad & Tobago
CourtCourt of Appeal
JudgeJamadar, J.A.
Judgment Date28 April 2016
Neutral CitationTT 2016 CA 23
Date28 April 2016
Docket NumberCivil Appeal No. S 244 of 2015

Court of Appeal

Mendonça, J.A.; Jamadar, J.A.; Bereaux, J.A.

Civil Appeal No. S 244 of 2015

Ss
and
Ayers-caesar et al
Appearances:

Mr. A. Ramlogan, S.C., Mr. G. Ramdeen, Ms. J. Lutchmedial, Mr. K. Samlal, instructed by Mr. V. Debideen for the appellant.

Mrs. D. Peake, S.C., Mrs. J. Baptiste-Mohammed, Ms. E. De Silva, instructed by Ms. J. Gajadhar for the 2nd and 3rd respondents.

Ms. N. Ali instructed by Ms. N. Watson for the Children's Authority.

Constitutional Law - Procedural appeal — Whether the judge erred in refusing an application for interim relief — Whether the trial judge was correct to conclude that the only form of interim order that can be granted in constitutional proceedings is a conservatory order — Whether on a proper construction of section 14 of the Constitution and section 22 of the State Liability and Proceedings Act the restriction on the granting of injunctions in constitutional proceedings was to be limited to civil proceedings as defined by the State Liability and Proceedings Act and to constitutional actions that are in species civil proceedings akin to proceedings between subjects — Whether by virtue of section 14 of the Constitution and/or of section 8 of the Judicial Review Act the appropriate interim order in the circumstances of this case was an order releasing the child forthwith into the custody of the mother — Whether in the circumstances of the case the judge ought to have made an interim order compelling the State to provide a suitable Community Residence without further delay and to relocate the child to that Community Residence immediately upon its establishment.

I have read the Judgment of Jamadar, J.A. and I agree.

A. Mendonça,

Justice of Appeal

I have read the Judgment of Jamadar, J.A. and I also agree.

N. Bereaux

Justice of Appeal

Jamadar, J.A.
INTRODUCTION
1

This procedural appeal concerns the refusal by the trial judge of an application for interim relief on behalf of a minor in the context of a public law action, alleging breaches of the fundamental rights provisions of the Constitution, as well as infringements of administrative law principles.

2

Section 3(1) of the Children Act establishes that a child is a person under the age of 18 years. The claimant is a child, she having been born on the 24th January, 1998.

3

The trial judge's summary of the background facts [Paragraphs 2-4 of the trial judge's judgment.] is impeccable and was as follows:

  • “2. The Child was born on January 24th 1998. On January 29th 2014, at the age of 16 years, she was charged with murder and remanded to the Adult Prison. In accordance with s. 5(1) of the Bail Act Chap. 4:60 of the laws of the Trinidad and Tobago she was not eligible for bail and continues to be remanded in the Adult Prison. She is at present, however, kept isolated from the general prison population.

  • 3. On May 18th 2015 the President of Trinidad and Tobago proclaimed various sections of the Children Act and declared that they were to have effect as of that date. S. 54(1) of the Children Act, which was proclaimed by the President, specifies that 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 for the period for which he is remanded or until he is brought before the court. Further, s. 60 of that Act stipulates that a court shall not order a child to be detained in an adult prison.

  • 4. At present there are no suitable Community Residences in Trinidad and Tobago to house the Child. Despite this reality, counsel for the intended claimant wishes to challenge the decision of the Magistrate to order that the Child be remanded to the Adult Prison and the Adult Prison's authority to keep her incarcerated. The conservatory order petitions for her release from the Adult Prison as it is a violation of her constitution rights.”

4

The actual interim relief claimed was as follows: [Application filed on 1st September, 2015. See also, paragraph 5 of the trial judge's judgment.]

  • “1. A conservatory order against the third named intended respondent directing the Attorney General to undertake that the second named intended respondent do forthwith release the claimant from custody into the custody of her mother Karen Mohammed.

  • 2. In the alternative a conservatory order against the third named intended respondent to undertake that a suitable community residence approved by the Children's Authority be established immediately in order to provide a place of safety for the claimant.”

5

Both before the trial judge and this court, counsel for the appellant insisted that the only appropriate interim relief that should be granted, was the release of the child into the custody of her mother.

6

On the 2nd September, 2015 the court granted leave to proceed on the judicial review claim and as well made the following orders:

  • “1. That the Legal Aid and Advisory Authority issue an emergency certificate for the appointment of an attorney at law with no less than seven years experience as a family law practitioner to represent and safeguard the interest of the Child in these proceedings;

  • 2. That the Children's Authority conduct an evaluation and report in respect of St. Jude's School for girls or such other facility which may qualify as a Community Residence under the provisions of the Children's Community Residences, Foster Care and Nurseries Act No. 65 of 2000 (hereinafter referred to as a “Community Residence”) with a view to providing to the Court the name and location of a suitable Community Residence capable of complying with the terms and provisions of the Children Act and the Children's Community Residences, Foster care and Nurseries Act – such evaluation and report to be filed and served by Wednesday 9 September 2015.”

7

On the 9th September, 2015 and pursuant to the court's direction, the Children's Authority indicated, by way of affidavit, that “there was no available facility which may qualify as a Community Residence capable of complying with the terms and provisions of the Children Act and the Children's Community Residences, Foster Care and Nurseries Act”. [Paragraph 11 of the trial judge's judgment]

8

Against this background the trial judge identified the issues before him as follows: [Paragraph 12 of the trial judge's judgment.]

“The application for a conservatory order raises two main issues:

  • 1. Whether the Children Act is applicable to this case.

  • 2. If the Court finds that there is an arguable case that the Act is applicable, whether the Court can grant the conservatory order (1) on the terms requested or (2) any form of interim relief which would prevent any further violation to the applicant's constitutional right to due process.”

9

The trial judge resolved the first issue affirmatively: “There is a prima facie case, therefore, that the Children Act is applicable to the Child's case and legally, she should not be detained in an adult prison.” [Paragraph 15 of the trial judge's judgment.] The respondent accepts this finding and agrees further that as long as the child is a minor (and not entitled to bail), she ought to be detained on remand in the custody of a Community Residence (section 54 of the Children Act) and not detained in an adult prison (section 60 of the Children Act).

10

This appeal therefore concerns the judge's analysis and conclusions on the second issue. In particular, the issues before this court were as follows:

  • (i) Whether the trial judge was correct to conclude, that the only form of interim order that can be granted in constitutional proceedings is a ‘conservatory order’ – per the Court of Appeal in Attorney General v. Sumair Bansraj. [ (1985) 38 W.I.R. 286.]

  • (ii) Whether on a proper construction of section 14 of the Constitution and section 22 of the State Liability and Proceedings Act (SLPA), the restriction on the granting of injunctions in constitutional proceedings is to be limited to civil proceedings as defined by the SLPA and to constitutional actions that are in species ‘civil proceedings’ akin to ‘proceedings between subjects’.

  • (iii) Whether by virtue of section 14 of the Constitution and/or of section 8 of the Judicial Review Act, the appropriate interim order in the circumstances of this case is an order releasing the child forthwith into the custody of the mother.

  • (iv) Whether in the circumstances of this case the trial judge ought to have made an interim order compelling the State to provide a suitable Community Residence without further delay and to relocate the child to that Community Residence immediately upon its establishment.

DISPOSITION
11

On the 12th November, 2015 this court [Mendonça, J.A., Jamadar, J.A. and Bereaux J.A.] heard and determined this appeal. We decided unanimously that pursuant to both section 14(2) of the Constitution and section 8 of the Judicial Review Act, the appellant was entitled to interim relief. And, that the most appropriate interim relief in the circumstances of this case, at this stage, was that the third respondent provide a suitable Community Residence as provided for in the Children Act and the Children's Community Residences, Foster Care and Nurseries Act for placement of the child on or before the 8th December, 2015. That, upon the provision of the suitable Community Residence, the second respondent shall forthwith transfer the child from his custody into the custody of the said Community Residence. That there be liberty to apply. And, that each party is to bear their own costs. We also agreed to give full reasons in the event of an appeal to the Privy Council. Our reasons are set out below.

ANALYSIS
THE CONSTITUTION: BANSRAJ AND SECTION 22 OF THE SLPA
12

Is the only interim order available in constitutional proceedings a ‘conservatory order’ as explained in Attorney General v. Bansraj? In our opinion it is not.

13

Section...

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