The Attorney General of Trinidad and Tobago v JM

• Jurisdiction: Trinidad & Tobago
• Judge: Peter A. Rajkumar JA
• Judgment Date: 11 August 2021
• Neutral Citation: TT 2021 CA 38
• Docket Number: Civ. App No. S-302 of 2019
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

Panel:

P. Rajkumar JA

C. Pemberton JA

M. Dean-Armorer JA

Civ. App No. S-302 of 2019

Claim No: CV 2017-03522

Between

The Attorney General of Trinidad and Tobago

Appellant/Defendant

and

JM

(A minor by his kin and next friend NM)

Respondent/Claimant

and

The Children's Authority of Trinidad and Tobago

and

The North West Regional Health Authority and

and

St. Michael's Home for Boys

Interested Parties

Appearances:

Mr. Fyard Hosein SC leading Ms. Rachel Theophilus and Ms. Tinuke Gibbons-Glen instructed by Ms. Svetlana Dass and Ms. Diane Katwaroo for the Appellant/Defendant

Mr. Anand Ramlogan SC leading Ms. Jayanti R. Lutchmedial and Mr. Ganesh Saroop instructed by Mr. Jared Jagroo for the Respondent/Claimant

Mr. Justin Phelps, Mr. Charles Law, Ms. Salisha Baksh for the NWRHA

Mr. Damali Nicholls, Ms. Sharlene Jaggernauth instructed by Ms. Denelle Singh for the Children Authority

Ms. Kofi McIntyre instructed by Ms. Karen E. Piper for the St. Michael's Home for Boys

I have read the judgment of the Honourable Rajkumar JA. I agree with it and have nothing to add.

Charmaine Pemberton

Justice of Appeal

I have read the judgment of the Honourable Rajkumar JA. I also agree and have nothing to add.

Mira Dean-Armorer

Justice of Appeal

Delivered by Peter A. Rajkumar JA

Background

1 On September 27, 2012, JM 1 was removed from the custody of his mother when she was charged with child abandonment under the old Children Act 2. On May 19, 2014, his mother was convicted of that offence. She now represents him as his next friend in this action.

2 JM suffers from Prader-Willi (PW) syndrome 3 caused by a chromosomal abnormality. His PW syndrome had not been diagnosed at the time of his removal. Its symptoms include inter alia, insatiable appetite, behavioural problems, and learning difficulties 4.

3 When JM's mother was brought before the court in September 18, 2012 the magistrate attempted to place JM in alternative accommodation. His initial placement was at Ferndean's Children's Home in Point Fortin. The management requested that he be removed as a result of behaviours that were affecting the other children in the home 5. Similar complaints were raised by the management of St. Dominic's Home, another attempted placement. The result was his placement at St. Michael's School for Boys (St. Michael's). After an initial attempt by the management of that school to decline his admission on November 29, 2012, his admission there was continued. His placement there was confirmed when his mother was eventually convicted on May 19, 2014. (The record therefore clearly reveals that despite several attempts nowhere else could be

identified that was equipped or prepared to accept the responsibility to manage the custody of a child with the behaviours that accompanied a child with PW syndrome)

4 JM remained at St. Michael s from September 26, 2012 to October 5, 2016 during which various incidents and attacks on him allegedly occurred. The complaint is that his placement at St. Michael's was unlawful and unconstitutional, and his detention there was a deprivation of his right not to be deprived of liberty without due process of law 6, (St. Michael's not being an orphanage or a legally designated place of safety). It was also contended that it was in breach of his right not to be detained arbitrarily 7 and to the protection of the law 8. It was further contended that his treatment at St. Michael's was also unlawful to such a degree as to render it also unconstitutional, in breach of his right to security of the person 9 and the right not to be subjected to cruel and unusual treatment or punishment 10 (See paragraph 76 of the judgment 11)

5 In 2016 the environment at St. Michael's had become even more unsuitable as the dormitories were under repair, and the entire inmate population had to sleep in the dining hall during the renovations, resulting in increasing triggers and opportunities for attacks on JM. After yet another incident at St. Michael's, in an effort to remove him from therefrom, the psychiatrist who had first diagnosed JM as having PW Syndrome communicated with doctors at St. Ann's Psychiatric Hospital (the hospital or St. Ann's). Her request was to secure a temporary placement at the hospital. His admission thereafter was pursuant to a psychiatric evaluation. The complaint is that the admission to the hospital was unlawful and unconstitutional, amounting to arbitrary

detention, and deprivation of liberty without due process of law, and that his detention there was equally so, in breach of the right to protection of the law and the right to security of the person. It was alleged also that his treatment there amounted to cruel and unusual treatment or punishment

6 On an application for interim relief, the trial judge ordered the removal of JM from the hospital into the custody of the Children's Authority, (the Authority). He was removed on October 12, 2017 to the Child Support Centre (CSC) of the Authority. There he, exclusively, occupied the ground floor of the building, and had 12 nurses retained by the Authority involved in his care and supervision, at a cost of $108,000.00 per month 12. JM has since attained the age of 18 and has been removed to another facility. Despite that, the hearing of this appeal was deemed urgent because of the nature of the allegations made, the fact that a child's rights were in issue, and the fact that constitutional breaches were alleged, with the potential for implications for others 13.

7 The trial judge found (at paragraph 215) that the following constitutional rights of JM had been breached.

“Based on the court's findings the claimant is entitled to the following declarations and the court now Declares:

• i. That the detention of (JM) at the St. Michael's Home for Boys;—St Michael's Home not being an Orphanage, a Community Residence or a place of safety, has breached his constitutional rights and freedoms guaranteed under section 4(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law, section 4(b) the right of the individual to equality before the law and the protection of the law, section 5 (2) (a) freedom from arbitrary detention, imprisonment or exile of any person, and Section 5(b) freedom from cruel and unusual treatment or punishment; and

• ii. That the detention of JM at the St. Ann's Psychiatric Hospital; (sic) St. Ann's Psychiatric Hospital not being an Orphanage, a Community Residence or a place of safety, has breached his constitutional rights and freedoms guaranteed under section 4(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law, section 4(b) the right of the individual to equality before the law and the protection of the law, section 5 (2) (a) freedom from arbitrary detention, imprisonment or exile of any person, and Section 5(b) freedom from cruel and unusual treatment or punishment”. (All emphasis added)

8 The trial judge awarded damages in respect of the entire period of detention 1470 days, at St. Michael's from September 27, 2012 to October 5, 2016 and St. Ann's from October 6, 2016 to October 12, 2017, (371 days, see paragraph 225). In respect of detention at St. Michael's the sum of $450 per day was awarded, (totalling 661, 500. In respect of detention at St. Ann's the sum of $750 per day was awarded, totalling $278, 250, (paragraph 232, and 233). She found that the State (the appellant) was a proper party to the action. She further awarded vindicatory damages in the sum of $1 million (paragraph 236), and further ordered the creation of a trust with input from a Child Advocate appointed by the Children's Authority and his mother NM, JM's next friend, (paragraph 242).

9 The appellant appeals the findings of constitutional breach and the awards of damages.

Issues

St. Michael's

• A. Whether the admission of JM to St. Michael's was unlawful.

  If so whether:

  • (i) it was in breach of his constitutional right not to be deprived of liberty without due process of law under section 4(a), and

  • (ii) it was in breach of his constitutional right not to be subject to arbitrary detention under s. 5(2)(a).

• B. Whether the detention of JM at St. Michael's was in breach of his constitutional right to the protection of the law.

• C. Whether the treatment of JM at St. Michael's was:

  • (i) in breach of his constitutional right to security of the person.

  • (ii) in breach of his constitutional right to protection against cruel and unusual treatment or punishment.

  St. Ann's.

• D. Whether the admission of JM to St. Ann's was unlawful. If so whether:

  • (i) it was in breach of his constitutional right not to be deprived of liberty without due process of law under section 4 (a),

  • (ii) it was in breach of his constitutional right not to be subject to arbitrary detention under s. 5 (2) (a).

• E. Whether the detention of JM at St. Ann's was in breach of his constitutional right to the protection of the law.

• F. Whether the treatment of JM at St. Ann's was

  • (i) In breach of his constitutional right to security of the person.

  • (ii) in breach of his constitutional right to protection against cruel and unusual treatment or punishment.

• G. (i) Whether the award of compensatory damages by the trial judge was supportable.

  • (ii) Whether the award of vindicatory damages was justified in law.

  • (iii) Whether the order regarding the establishment of a trust was justified in law.

Conclusion

St. Michael's

• A. The initial admission of JM to St. Michael's in 2012 was within the jurisdiction of the magistrate. After the conviction of his mother NM the Order on June 30, 2014 continuing his placement there was unlawful, as St. Michael's was not an...