Dominica

Summary and Analysis

Following the ratification of the Convention on the Rights of the Child [CRC] in March of 1991, Dominica amended the Children and Young Persons Act and the Maintenance Act to better incorporate the Convention in domestic legislation.  Parliament also passed a new law, the Sexual Offenses Act, which includes provisions about the age of consent, abduction, and the procedure of obtaining a deposition from a minor.  Child protection in Dominica is governed by the Children and Young Persons Act, the Infants Protection Act, and the Guardianship of Infants Act.  Though the Children and Young Persons Act was amended, none of the provisions regarding child protection were altered in its amendment.  So, the legislation regarding child protection remains as it was before the CRC.

Dominica’s child protection system is controlled by the Social Welfare Division of the Ministry of Community Development and Gender Affairs.  The Welfare Division’s officers are responsible for investigating child abuse reports, and the Division also runs the Foster Care Programme and the Child Abuse Prevention Programme.  Child protective proceedings take place before the Juvenile Court.  The Ministry of Community Development and Gender Affairs, along with Dominica’s Committee for the Rights of the Child, is also responsible for the implementation of the CRC.  In addition to State-provided child welfare resources, several non-governmental organizations offer various services to children in Dominica.

There are no provisions in Dominica’s legislation relating to the child’s right to voice an opinion in child protective proceedings.  However, it is mandated that children in need of protection are, “brought before a juvenile court,”[2] and procedural rules for the Magistrate to receive a child’s testimony are provided.  It is unclear if the child testifies about offences against him or about his own views as to the proceedings.  Furthermore, by law, the Magistrate’s decision to hear the child is entirely discretionary; it is explicitly stated that the hearing of cases may proceed without the attendance of the child.  Still, in practice, the views of the child are heard, though they may not be a deciding factor in the case.[3]  It should be noted that the legislation that governs child protection also governs delinquency proceedings and that both types of proceedings take place in the Juvenile Courts.  However, there is no evidence that children involved in protective proceedings can receive the same treatment as the subjects of delinquency proceedings or that the two types of proceedings operate in the same manner.

Several factors impede the full implementation of the CRC in Dominica.  The island is vulnerable to hurricanes, and its economy is reliant on a single product, bananas, crops of which may be wiped out by the hurricanes.  The government is attempting to diversify the economy but is still experiencing financial difficulties, and an estimated 27.6% of the population is living in poverty.[4]  Still, the government was quite self-critical in its report to the U.N. Committee on the Rights of the Child in 2003, and officials in Dominica have been utilizing the help of non-governmental organizations, including UNICEF, where available.  Despite our best efforts, we were unable to find a local contact to confirm our research on Dominica.

Sources of Law (In Order of Authority)

International Law

Convention on the Rights of the Child, [5] ratified Mar. 31, 1991.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Statutes

Children and Young Persons Act[6]

4. Every court, in dealing with a juvenile who is brought before it as being in need of care or protection or as an offender or otherwise, shall have regard to the welfare of the juvenile and shall, if it deems it necessary, take steps for removing the juvenile from undesirable surroundings.

7.(1) If it appears to a Magistrate on information on oath laid by any person who, in the opinion of the Magistrate is acting in the interests of a juvenile that there is reasonable cause to suspect—

(a) that a juvenile has been or is being assaulted, ill-treated or neglected in a manner likely to cause the juvenile unnecessary suffering; or

   (b) that any offence mentioned in the First Section has been or is being committed in respect of the juvenile;

the Magistrate may issue a warrant authorizing any police officer—

                                      (i)     to search for the juvenile, and (if it is found that the juvenile has been or is being assaulted, ill-treated or neglected in any such manner, or that any such offence has been or is being committed in respect of him) to take him to and detain him in a place of safety; or

                                    (ii)     to remove the juvenile with or without search to a place of safety and to detain him there,

until, in either such case, the juvenile can be brought before a juvenile court…

8.(1) Any police officer or authorised person may bring before a juvenile court a juvenile in need of care or protection.

   (2) For the purposes of this section—

           (a) “authorised person” means

                      (i) any probation officer; or

(ii) any person appointed by the Minister as such on the recommendation of a social welfare officer;

(b) “Minister” means the Minister responsible for Community Development and Social Affairs;

(c) “care or protection” includes control and guidance, as well as discipline.

9.(1) A Juvenile court before which any juvenile is brought by virtue of sections 7, 8 or 10, or any court before which is brought any juvenile in respect of whom any of the offences mentioned in the First Section has been committed, may, if satisfied that the welfare of the juvenile so requires, make an order—

                   (a)    committing him to the care of any fit person, whether a relative or not, who is willing to undertake the care of him; or

                   (b)    requiring his parent or guardian to enter into a recognizance to exercise proper care and guardianship; or

                    (c)    placing him, either in addition to, or without making, any order under paragraph (a) or (b) for a specified period, not exceeding three years, under the supervision of a probation officer; or

                   (d)    committing him to be detained in a government training school for a period not exceeding three years.

        (2) Any order made under subsection (1), may from time to time be renewed, varied and revoked by the Court on its own motion or on the application of any person.

        (3) If a juvenile court before which any juvenile is brought is not in a position to decide whether any or what order ought to be made under this section, it may make such interim order as it thinks fit for the juvenile’s detention or continued detention in a place of safety, or for his committal to the care of a fit person, whether a relative or not, who is willing to undertake the care of him…

       (5) If the juvenile court by which an interim order is made is satisfied on any occasion that, by reason of illness or accident, the juvenile is unable to appear personally before the court, any further interim order which the court has power to make on that occasion may be made in the absence of the juvenile.

10. (1) Where a person having the custody, charge or care of a juvenile has been—

(a) convicted, in respect of that juvenile, of any of the offences mentioned in the First Schedule; or

(b) committed for trial for any such offence; or

(c) bound over to keep the peace towards that juvenile, by any court, that court may order that juvenile to be brought before a juvenile court with a view to the juvenile court making an order under section 9, and shall direct that the probation officer be informed as soon as practicable of the order made.

      (2) Where any court has under this section made an order directing that a juvenile be brought before a juvenile court, it shall be the duty—

(a) of the complainant, if he is a police officer, in the proceedings against the person having the custody charge or care of the juvenile; or

(b) if that complainant is not a police officer, of the senior police officer present in court at the time that the order was made,

to bring the juvenile before the juvenile court.

25. Where, in any proceedings with relation to any of the offences mentioned in the First Schedule the court is satisfied that the attendance before it of any juvenile in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of the juvenile.

29. (1) Where, in any proceedings in relation to an offence against, or any conduct contrary to decency or morality a person who, in the opinion of the court, is a juvenile, is called as a witness, the court may direct that all or any persons, not being members or officers of the court or parties to the case, their counsel or solicitors, or persons otherwise directly concerned in the case be excluded from the court during the taking of the evidence of that witness; but nothing in this section shall authorise the exclusion of bona fide representatives of a newspaper or news agency.

(2) The powers conferred on a court by this section shall be in addition and without prejudice to any other powers of the court to hear proceedings in camera.

30. (1) Where a Magistrate is satisfied by the evidence of a duly qualified medical practitioner that the attendance before a Magistrate’s Court of any juvenile, in respect of whom any of the offences mentioned in the First Schedule is alleged to have been committed, would involve serious danger to his life or health, the Magistrate may take in writing the deposition and add thereto a statement of his reason for taking it and of the day when and place where it was taken and of the names of the persons (if any) present at the taking thereof.

      (2) The Magistrate taking any such deposition shall transmit it with his statement—

(a) if the deposition relates to an offence for which any accused person is already committed for trial, to the proper officer of the Court for trial at which the accused person has been committed;

(b) in any other case, to the Magistrate before whom proceedings are pending in respect of the offence.

31. Where, in any proceedings in respect of any of the offences mentioned in the First Schedule, the court is satisfied by the evidence of a duly qualified medical practitioner that the attendance before the court of any juvenile in respect of whom the offence is alleged to have been committed, would involve serious danger to his life or health, any deposition of the juvenile taken under section 30 shall be admissible in evidence either for or against the accused person without further proof thereof, if it purports to be signed by the Magistrate by or before whom it purports to be taken; but the deposition is not admissible in evidence against the accused person unless it is proved that reasonable notice of the intention to take the deposition has been served upon him and that he or his counsel or solicitor had, or might have had if he had chosen to be present, an opportunity of cross-examining the juvenile making the deposition.

Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Children and Young Persons Act, CAP 37:50, Act No. 17 of 1970, § 10 (1991) available as .pdf Document, at 48-76.

[3] Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Initial reports of States parties due in 1993: Dominica, Committee on the Rights of the Child, Oct. 15, 2003, ¶104, U.N. Doc. CRC/C/Add.48 [hereinafter Initial report of Dominica] available at http://www.unhchr.ch/tbs/doc.nsf and also here, and also as .pdf Document, and also as Word Document.

[4] Initial report of Dominica, ¶7-12.

[5] G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989).