Current State of Legislation in the

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1 Current State of Legislation in the British Overseas Territories from a Children s Rights Perspective Montserrat Anguilla Turk and Caicos Islands Virgin Islands and Current State of Legislation in Montserrat & Anguilla from a Women s Rights Perspective

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3 Current State of Legislation in the British Overseas Territories from a Children s Rights Perspective and Current State of Legislation in Montserrat & Anguilla from a Women s Rights Perspective 3

4 UNICEF Office for the Eastern Caribbean 2015 United Nations Children s Fund Office for the Eastern Caribbean Area First Floor, UN House Marine Gardens, Hastings Christ Church, Barbados This assessment was commissioned by the UNICEF Office for the Eastern Caribbean Area, under the UNICEF/DFID Safeguarding of Children Project. The contents do not necessarily reflect the policies or views of the organizations. Any part of this brief may be freely reproduced with the appropriate acknowledgement. Author: Alejandro Morlachetti Legal Consultant, Argentina 4

5 CONTENTS Montserrat... 6 Anguilla Turk and Caicos Islands Virgin Islands Current State of Legislation In Montserrat And Anguilla From A Women s Rights Perspective

6 Montserrat NATIONAL LEGISLATION RELEVANT TO CHILDREN RIGHTS 6

7 Montserrat Montserrat is one of the Leeward Islands in the Eastern Caribbean, occupying an area of 102 sq. km that is entirely volcanic and very mountainous. The Soufriere Hills volcano has been active since 1995, with a fluctuating level of activity. The capital, Plymouth, and several other villages were destroyed in An area around the volcano, approximately two thirds of the island, has been designated a Special Vulnerable Area, and three areas around the coastline have been designated as Maritime Exclusion Zones (Human Rights Committee 2013). Montserrat aims to grow its declining and ageing population (4,922 in 2011, compared with 11,314 in 1991). Currently around 25 per cent of the population are immigrants, largely from other Caribbean countries (ibid.). Government is executed through a governor appointed by the Crown, a Cabinet, which has the general control and direction of government, and a Legislative Assembly. The governor retains responsibility for external affairs, defence, internal security including the police, aspects of the public service and regulation of offshore finance. The Cabinet is chaired by the governor and consists of the premier and three other ministers as well as the Cabinet secretary, financial secretary, attorney general and deputy governor. The Legislative Assembly consists of nine elected members and the same ex-officio members as Cabinet. The deputy governor may attend but has no voting rights in the Legislative Assembly (Government of the United Kingdom 2013). The Montserrat Constitution Order 2010 recognizes the fundamental rights and freedoms of those living in the country, reflecting the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Part I of the Constitution, under the title Fundamental Rights and Freedoms of the Individual, provides that every person in Montserrat is entitled to these without distinction of any kind, regardless of sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Part I specifically addresses a number of rights and freedoms including: right to life, liberty and security; freedoms of conscience, expression, assembly and association; protection of private property and from deprivation of property; and protection for private and family life and for privacy of home. Relevant legislation to children s rights 19 Adoption of Children Act (2002) Child Abduction and Custody Act (2002) Guardianship of Infants Act (2002) Family (Protection against Domestic Violence) Act (2002) Juvenile Act (2008) Education Act (2008) Labour Code (2012) Legitimacy Act (2002) Maintenance of Children Act (amended 2003) Marriage Act (2002) Penal Code (2008) Penal Code (Amendment) Act (2010) 19 The year of the legislation may indicate the year it was enacted and/or the year of the last revision and/or the year that a consolidation of legislation and amendments was done and/or latest amendment. 7

8 Penal Code (Amendment) Act (2014) Probation of Offenders Act (2002) Status of Children Act (2012) Welfare Act (1999) 1. Legislation and the Convention on the Rights of the Child a) Age There are several definitions of a child, juvenile and young person in the legislation of Montserrat. The Juvenile Act defines a child as a person below the age of 14 and a juvenile as below 16, but the Labour Code defines a child as a person below the age of 16 and young person as below the age of 18. The Penal Code establishes that a person under the age of 10 is not criminally responsible for any act or omission. In addition, a person under the age of 14 is not criminally responsible for an act or omission unless it is proven that, at the time of doing the act or making the omission, s/he had the capacity to know that s/he ought not to do the act or make the omission. The minimum age of sexual consent is 16. The Penal Code (Amendment) Act states that a person who has sexual intercourse with a boy or girl who is over 13 and under 16 years, and not the person s husband or wife, commits an offence and is liable to 10 years imprisonment. However, a person who has sexual intercourse with a boy or girl under 16 years old is not guilty of an offence if s/he is under 24 years, has not previously been convicted of a similar offence and believes the boy or girl to be 16 years of age or over and has reasonable cause for the belief. The minimum age of marriage without parental consent is 18 according to the Marriage Act, and a marriage is void if either of the parties, at the time of marriage, was under the age of 16. There is an exception provided in the Act, whereby the governor may grant a licence to marry to any person under the age of 16 but over the age of 15 if he considers it to be in the interest of the intending spouses. Montserrat Age of marriage Marriage Act Minimum age of sexual consent Minimum age to access medical services/ consent to treatment 16 Penal Code (Amendment) Act, Information provided by health authorities is that the age of sexual consent is used (16 years); Montserrat has not statutorily defined the age at which young people can obtain access to reproductive or other health care without the consent of their parents Minimum age for employment Labour Code section 90 (1) Criminal age of responsibility 10 Penal Code section 12 8 Age of compulsory education From 5 to 16 Education Act section 26

9 b) CRC principles CRC Principles Compliance Legislation Yes/No/ Art. 2 Non-discrimination Montserrat Constitution Order 2010 Part I sections 2 and 16 Art. 3 Best interest of the child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration No There is limited recognition of the principle of best interest of the child in some laws There is no specific policy/ procedure for the determination of best interest of the child Art. 6 Survival and development Montserrat Constitution Order 2010 Part I section 3 Art. 12 Right to be heard and participate General comment No 12 (2009) on the right of the child to be heard. No There is no legislation in place that recognizes the concept of development according to art. 6 CRC There is no legislation in place that recognizes the right to participate and the right to be heard in all matters that may affect children s rights; there is no policy/ procedure providing for the participation and/or hearing of children The Constitution Order provides that no law shall make any provision that is discriminatory either of itself or in its effect and no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. There is some level of exclusion with respect to those persons who are not Montserratians related to entrance to the country, employment, profession or engaging in any business (section 16.5 (b)). There is a mention of the best interest of the child in the Guardianship of Infants Act, and it is also a consideration of the court when granting tenancy and occupation orders under the Family (Protection against Domestic Violence) Act. The right to be heard is not granted in judicial and administrative proceedings affecting the child. The right to participate in decision-making processes is completely absent in the education system (see Box 1 in the section on Anguilla). 9

10 c) Civil and political rights CRC Compliance Legislation Art. 7 Registration after birth and acquire nationality Art. 8 Child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference Art. 13 Freedom of expression Art. 14 Freedom of thought, conscience and religion Yes Yes Very restrictive access to nationality, including for children born in Montserrat Very restrictive access to nationality, including for children born in Montserrat Constitution Order Part I section 13 Constitution Order Part I section 11 Art. 15 Freedom of assembly Yes Constitution Order Part I section 14 Art. 16 Illegal interference with privacy Constitution Order Part I section 9 The distinction between belongers and nonbelongers poses a significant problem that in particular affects the protection of migrant children and children born in Montserrat of nonbelonger parents (see Box 2 in the section on Anguilla). The Immigration Act establishes that a person under the age of 18 years shall be deemed to belong to Montserrat if they are the child, stepchild or adopted child (having been adopted in a manner recognized by the law of Montserrat) of a person who belongs or is deemed to belong to Montserrat. In common with the other Overseas Territories, British overseas territories citizenship (BOTC) is conferred by the British Nationality Act 1981 and the full range of rights and entitlements is reserved for those who have belonger status. According to the Immigration Act, a person shall be deemed to belong to Montserrat if they are a citizen of a British Dependent Territory and acquired that status by birth in Montserrat after the 1 January 1983, to a parent who at the time of the birth was a citizen of a British Dependent Territory under the provisions of the British Nationality Act

11 d) Family life and right to family CRC Compliance Legislation Art. 5 Parental rights autonomy evolving capacity Art. 9 Right to family relations and be with both parents No The legislation and standards related to age of consent and the need of parental authorization are confusing and lack clarity There is a lack of recognition in the legislation of the evolving capacities of children/ adolescents Status of Children Act Art. 10 Family reunification No Migration laws do not explicitly recognize the principle of family reunification Art. 11 Combat the illicit transfer and non-return of children abroad and enter international agreement to prevent it Art. 18 Both parents have common responsibilities for the upbringing and development of the child; the best interests of the child will be their basic concern. Art State parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State party and from abroad Yes Child Abduction and Custody Act Penal Code section 199 and 200 (child stealing definition is limited and only refers to children below 14 year of age) Hague Convention on the Civil Aspects of International Child Abduction has been ratified/extended Status of Children Act Maintenance of Children Act Guardianship of Infants Act 11

12 The approval of the Status of Children Act 2012 has positive implications for the rights of children as it abolishes the distinction between legitimate and illegitimate children, provides for the equal status of children and empowers courts to make declarations of parentage where this is alleged and founded. There is a need to modernize and adopt a new legal framework related to maintenance of and access to children to reinforce common responsibilities of both parents in bringing up children and also to assure that children have the right to stay in regular contact with both parents even when they are not living together. On a positive note, the Child Abduction and Custody Act brings into force the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children. Finally, migration legislation and regulations are very restricted and do not explicitly recognize the right to family reunification as mandated by the CRC in article 10. e) Social and economic rights CRC Compliance Legislation Art. 24 Right to health General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) General comment No. 4 (2003) on adolescent health and development in the context of the CRC Art. 26 Right to social security and social protection Art. 27 Right to a adequate standard of living, including material assistance and support programmes, particularly with regard to nutrition, clothing and housing Access to health services is limited for children and adolescents (They need parental/guardian consent even though no legislation can be identified as restricting accessibility) Restricted accessibility (financial) for migrant children of non-belonger parents There is a Social Welfare Act and regulation where one of the criteria to qualify for support is to have dependent children and no other means of support; it also includes the right to appeal in case of a refusal of the application to the benefit Social Welfare Act Art. 28 Right to education Yes Constitution Order Part I section Education Act

13 The Public Health Act and Regulations govern the promotion and preservation of the health of the inhabitants of Montserrat and the accessibility of medical services. The Public Health Regulations dictate the fees that should be paid for health services. It appears that children are exempt from paying for most services, with a child defined as a person from birth until the end of full-time attendance at an institution offering primary, secondary or technical education and who is normally domiciled in Montserrat. This raises the question of what happens to children who are not attending school. According to the Public Health Regulations, there are different fees for non-belongers, aliens and Caribbean residents. Non-belonger and aliens pay double the rate set out for residents. A similar situation is imposed by the Community Health Services Regulations, which establish that no fee shall be charged for community health services provided to any resident, while aliens and Caribbean residents, pay fees for community services at the rates specified in the Public Hospital Regulations. With regards to the right to education, the Constitution Order provides that every child of the appropriate age, as provided by law, shall be entitled to receive primary and secondary education, which shall be free. The Education Act states that compulsory school attendance is from the age of 5 (order by the governor) until the age of 16. No student can be refused admission on any discriminatory grounds including race, place of origin, political opinions, colour, creed, sex or mental or physical disability (section 28). Corporal punishment is lawful in schools under article 49 of the Education Act where no other punishment is considered suitable or effective, and only by the principal, deputy principal or any teacher appointed by the principal for that purpose, in a manner which is in conformity with the guidelines issued in writing by the Director. Instances of corporal punishment have to be recorded in a punishment book. Anyone other than those mentioned in the Act who administers corporal punishment to a student on school premises commits an offence and shall be liable on summary conviction to a fine not exceeding $1,000. This provision should be immediately repealed as it is a clear violation of the CRC. In General comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (para.11), the Committee on the Rights of the Child has defined corporal or physical punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. In the view of the Committee, corporal punishment is invariably degrading. 13

14 f) Child protection CRC Compliance Legislation Art. 19 Protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse General comment No. 13 (2011) on the right of the child to freedom from all forms of violence. Juvenile Act Penal Code Art. 20 Special protection and care (foster care, etc.) Juvenile Act provides limited protection restricted to some magistrate s orders Art. 21 Adoption Adoption of Children Act Art. 34 Prohibition of all forms of sexual exploitation and sexual abuse Art. 35 Prevent abduction/ sale of or traffic in children Yes Penal Code and Penal Code (Amendment) Act, 2014 Child Abduction and Custody Act Penal Code (Amendment) Act, 2010 section 202 Penal Code sections 199 and 200 (child stealing definition is limited and only refers to children below 14 years of age) Lack of legislation/protocol providing for treatment and rights of victims of trafficking/ abduction and sale 14 Lack of ratification of Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime

15 Art. 36 Protection against all other forms of exploitation prejudicial to any aspects of the child's welfare Lack of ratification of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography Penal Code and Penal Code (Amendment) Act, 2014 The Penal Code in section 193 states that any person aged 16 or over who has the custody, charge or care of any child or young person under that age and who wilfully assaults, illtreats, neglects, abandons or exposes them or causes or procures them to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause them unnecessary suffering or injury to health is guilty of an offence and shall be liable, on conviction before the High Court, to imprisonment for five years and/or a fine of $5,000; or on summary conviction, to a fine of $500 and/or imprisonment for six months. The Penal Code also provides for sanctions in several cases of neglect, in particular when a parent or other person legally liable to maintain a child or young person is deemed to have neglected them in a manner likely to cause injury to their health if the person has failed to provide her/him with adequate food, clothing, medical aid or lodging. The Juvenile Act is the main piece of legislation that provides protection to children. Section 3 provides that any 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, must give regard to his/her welfare and shall, if it deems it necessary, take steps for removing him/her from undesirable surroundings. Section 26 (1) states that if there is reasonable cause to suspect that a juvenile has been or is being assaulted, ill-treated or neglected in a manner likely to cause unnecessary suffering or that any offence has been or is being committed in respect of her/him, the magistrate may issue a warrant authorizing any police office (i) to search for the juvenile and, if it is found that any of these are indeed the case, to take them to and detain them in a place of safety; or (ii) to remove the juvenile with or without search to a place of safety and to detain them there. If satisfied that the welfare of the juvenile so requires, the magistrate may make an order to commit her/him to the care of any fit person, whether a relative or not, who is willing to undertake her/his care; require her/his parent or guardian to enter into a recognisance to exercise proper care and guardianship; or order her/him to be placed, for a specified period not exceeding three years, under the supervision of a probation officer. Clearly, the Juvenile Act is not appropriate and fails to include the most essential safeguards and principles for the protection of the rights of the child. The same magistrate, police officers and probation officers and similar procedures are used to deal with both the situation of children in need of protection and those who are offenders. The same Act also provides for substantive and procedural measures for children and young persons when they are either perpetrators or victims of crime. The language is confusing and, even in case of protection of a child victim, uses terminology that corresponds to criminal proceedings. For instance, a child victim can be placed by the magistrate under the supervision of a probation officer. In addition, the Juvenile Act defines juvenile as those below the age of 16, failing to provide legal protection for those 15

16 between the ages of 16 and 18, as requested by the CRC. Montserrat needs to prioritize the adoption of appropriate legislation (there is currently a draft pending approval that follows the OECS Children (Care and Adoption) model). A bill dealing with the protection of children from abuse and neglect has certain minimum requirements (see Box 3 in the section on Anguilla). The Family (Protection against Domestic Violence) Act covers and protects, with some limitations, children from domestic violence. Protection orders can be issued in cases of violence affecting (a) a child of both parties to a marriage; (b) a child (whether or not a child of either party to a marriage) who is or has been living in the household residence as a member of the family; (c) a child of a man and a woman who, although not married to each other, are or have lived together in the same household; (d) a child (whether or not a child of the man and woman referred to in paragraph (c) or either of them) (i) who is or has been a member of their household; or (ii) who resides in that household on a regular basis; or (iii) of whom either the man or woman is a guardian; (e) a child who resides in a household on a regular basis, irrespective of whether there exists some relationship between the child and another occupant of that household. G) Child labour and prevention of exploitation CRC Compliance Legislation Art. 32 Protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education/ minimum ages and sanctions in case of violation Labour Code Education Act Lack of ratification of ILO Convention No. 182 on the worst forms of child labour and ILO Convention No. 138 on the minimum age for admission to employment and work 16 The Labour Code 2012 repealed the Employment of Young Children Prohibition Act (Cap 15.03) and Employment of Women, Young Persons and Children Act (Cap 15.03). It prohibits the employment of children below 16 years of age. Children below that age are permitted to engage in light work, artistic performances and work that is not dangerous and in which only members of the same family are employed. A person who contravenes this prohibition commits an offence and is liable, on summary conviction, to a fine of $3,000 and to a fine of $5,000 for a second or subsequent offence. Section 93 of the Labour Code restricts the employment at night of young persons, but it gives some flexibility in case the young person undergoes a medical examination that certifies that s/he is fit for the work s/he is expected to perform. The Labour Code defines worst forms of child labour as follows:

17 All forms of slavery or practices similar to slavery, such as the sale and trafficking of children and young persons, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict The use, procuring or offering of a child or young person for prostitution, for the production of pornography or for pornographic performances The use, procuring or offering of a child or young person for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, or for activities that involve the unlawful carrying or use of firearms or other weapons Young persons (a person who is under the age of 18) should not perform work that has been declared hazardous work by an order of the governor. The Labour Code allows, in some cases, young persons to be employed on dangerous machines if s/he has been fully instructed as to the dangers arising in connection with its operation, and the precautions to be observed, and has either received sufficient training or is under adequate supervision by a person who has special knowledge and experience in the operation of the machine. The Education Act complements the labour legislation, establishing that a person who employs a child of compulsory school age during the school year commits an offence and is liable on summary conviction to a fine not exceeding $2,

18 h) Children in conflict with the law CRC art. 37 General comment No. 10 (2007) on children s rights in juvenile justice (A) Prohibition of torture/ inhuman/ degrading treatment (B) Lawful deprivation of liberty/ last resort/ shortest time Compliance No Legislation Constitution Order Part I section 4 (protection from inhuman treatment) Corporal punishment is allowed in schools, which is considered degrading treatment There are some limited alternatives but the principle of last resort and shortest time is not explicitly included and recognized in the legislation (C) Separation from adults Juvenile Act section 12 Limited provision related to separating adults from juveniles in police stations (D) Right to legal assistance / right to challenge the legality of the deprivation of liberty before a court or other competent, independent and impartial authority Constitution Order Part I section 7.2 (d) The right to appoint a legal practitioner is partially recognized in the Constitution but legal representation in most cases is only available to those that can afford it 18

19 CRC art 40 General comment No 10 (2007) on children s rights in juvenile justice Compliance Legislation 40.2 (a) Principle of legality Constitution Order Part I section 6: No person shall be deprived of his or her personal liberty in accordance with a procedure prescribed by law Breach of the principle of legality: Section 6.1 (f) in the case of a minor, under the order of a court or with the consent of his or her parent or guardian, for the purpose of his or her education or welfare 40.2.b (i) Presumption of innocence 40.2.b (ii) Legal assistance to prepare defence Yes Constitution Order Part I section 7.2 (a) Constitution Order Part I section 7.2 (d) The right to appoint a legal practitioner is partially recognized in the Constitution, but legal representation in most cases is only available to those that can afford it 40.2.b (iii) Brought before competent, independent and impartial authority or judicial body Yes Constitution Order Part I section 7 (8) 40.2.b (iv) Not to be compelled to confess guilt/ to examine or have examined adverse witnesses 40.2.b (v) Right to appeal, with decision reviewed by a higher competent, independent and impartial authority or judicial body 40.2.b (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language Yes Yes Yes Constitution Order Part I section 7.2 (c, h) Constitution Order Part I section 7.2 (i) Constitution Order Part I section 7.2 (f) Establishment of laws, authorities and institutions specifically applicable to children in conflict with penal law Juvenile Courts Act section 4 Even when the legislation provides for the establishment of Juvenile Courts, it is not a specialized court; the same magistrate that deals with adults sits, on specific days, as a Juvenile Court 19

20 40.3 (a) Minimum age Penal Code section 12 There is an age fixed by the law, but it is low according to universally accepted standards 40.3 (b) Alternative measures for children in conflict with penal law without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected There are limited alternatives for children, and in most cases, children are brought before the Magistrate s Court (same magistrate who deals with adults) The Probation Offenders Act, together with the Juvenile Act, provide for some alternatives 20 According to the Criminal Code, the minimum age of criminal responsibility is 10. In addition, it states that a person 10 years of age, or above 10 but under 14 years, is not criminally responsible for an act or omission unless it is proven that at the time of doing the act or making the omission, the child had the capacity to know that s/he ought not to do the act or make the omission. There is no juvenile criminal system in place. Children can be tried for offences from the very early age of 10 and they are tried in the same court that deals with adults, even when it is called the Juvenile Court. Those of 16 years of age are basically tried as adults. Additionally, under the Juvenile Act, if a minor under 16 years jointly commits an offence with an adult, that minor is also tried as an adult. The CRC and its principles related to juvenile justice (articles 37 and 40) must be fully applicable to children up to 18 years of age without exception. The Juvenile Act allows the governor to appoint a board of assessors from among the public, from which two members are supposed to sit with the magistrate in specialized hearings that deal with juveniles. However, this is optional and the court can function, in practice, with only the magistrate. In some cases, the system can deprive of liberty children and juveniles who have not committed any crimes. The Constitution allows this, under the order of a court or with the consent of their parent or guardian, for their education or welfare during any period ending no later than the date when they attain the age of 18. This is a clear violation of the principle of legality (see Box 4 in the section on Anguilla) and constitutes the arbitrary use of criminal law to solve social problems. Finally, another very serious gap in the criminal system for children and juveniles is that the availability of legal defence is based on the financial means of the family and legal aid is rather exceptional. As most children and juveniles are from families who cannot afford a private lawyer, the great majority of them face criminal charges and are brought before the police, the prosecutor and the magistrate without legal representation This constitutes a serious breach of the due process of law and compromises the possibility of a fair trial and the right to have a remedy or recourse. A document from the Office of Director of Public Prosecutions (ODPP) has some relevant instructions to the prosecutors to improve and

21 correct the lack of appropriate legal framework and system dealing with children and juveniles: The ODPP recognizes that prosecutors should acknowledge their obligations, arising from the European Convention of Human Rights, the United Nations 1989 Convention on the Rights of the Child and the United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). A prosecution is less likely to be required if the seriousness and the consequences of the offence can be appropriately dealt with by an outof-court disposal, which the suspect accepts and with which s/he complies. Prosecution should only be only brought in circumstances where this is a proper and proportionate response. A common sense approach to less serious cases has direct application to a number of youth matters. Alternative options, including restorative interventions, acceptable behaviour contracts and internal sanctions, such as school disciplinary measures, may be available, and sufficient to satisfy the public interest without a prosecution and the statutory duty to prevent offending. Youth cautions are intended to provide a proportionate and effective response to offending behaviour. The youth conditional caution is no longer restricted to youths with no previous convictions and there is no statutory restriction on the number of youth conditional cautions that a youth can receive. A record of previous offending does not automatically rule out the possibility of a youth conditional caution. Proceedings should not be taken against a youth offender solely to secure access to the welfare powers of the court. If school bullying incidents are regularly referred for prosecution (particularly if they are appropriate for youth caution or youth conditional caution), it may well be necessary for the local ODPP to contact the local police department and the probation responsible for youth offender cases with a view to them examining the policies of the local schools and the police. All schools should have internal procedures and strategies for dealing with these incidents; it may be necessary to explore, with the police and the probation, whether certain schools are in fact accepting their responsibility in this area fully. These guidelines/instructions are relevant as they try to give priority to out-of-court solutions. They recognize that previous offences do not automatically rule out the possibility of using alternative measures to the use of the criminal system. In addition, they call for schools to internally solve incidents instead of criminalizing internal problems. 21

22 2. Main areas of concern and recommendations Main Achievements Main Issue Pending Compulsory education from 5 to 16 (Education Act) Status of Children Act, 2012 Abduction and Custody Act Prevent statelessness of children Abolish all discrimination in legislation regarding migrant children/children born in Montserrat of migrant parents Abolish corporal punishment Combat all discrimination in the health system Adopt specific child protection legislation Adopt legislation providing a proper juvenile justice system and legislation Raise age of criminal responsiblity Approve pending bills (including OECS Family Model Bills) Ratify (extended) pending human rights treaties relevant to children rights Main gaps Discrimination against migrant children Recommendations and priority actions Clarify the rights of non-belongers and eliminate barriers to ensure equal access to government agencies and public services by migrant children Stateless children Reform the British Nationality Act of 1981 to automatically provide citizenship to children born in the territory regardless of their parents status 22 Discrimination against children born of migrant parents (This recommendation requires action by the United Kingdom, which is responsible for the reform of the British Nationality Act) Amend national legislation to automatically provide children born in Montserrat with a birth certificate and residence status, granting them full access to rights on equal terms with national children

23 Lack of procedure to determine the best interest of the child Adopt legislation and/or include in current draft bills the explicit recognition of the principle of best interest of the child Adopt procedures granting the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere in accordance with General comment No. 14 (2013) Lack of participation and enforcement of the right to be heard Lack of child care and protection legislative framework Lack of independent monitoring and investigation of children rights Lack of appropriate juvenile justice legislation and system Adopt legislation and/or include in current draft bills the recognition of the right to participate and the right to be heard in all matters that may affect children s rights. Revise and approve child protection/care bill (OECS Children (Care and Adoption) model Bill) Establish a Human Rights Commission/ children s ombudsperson or commissioner with a broad children s rights mandate Raises the minimum age of criminal responsibility Reform legislation to achieve full application of CRC principles and juvenile justice rules to all persons under the age of 18 years Focus on prevention rather than punishment of children and adolescents (rehabilitation and restorative justice) and adoption of legislation and regulations to establish a diversion system that deals with children committing minor offences without resorting to judicial proceedings Abolish legislative provisions and practices allowing the criminal system to deal with children with problems of conduct but not committing crimes (e.g., children breaking school rules, parents bringing children to the courts to correct their conduct); these issues should be dealt with through social and protective measures, rather than the criminal system 23

24 Main gaps Recommendations and priority actions Limit magistrates /courts broad sentencing powers and explicitly uphold the principle that deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate period of time Fully recognize due process of law in the legislation and, in particular, ensure the availability of legal representation to all children subjected to criminal proceedings without exception Establish specialized units within the judiciary, the court system and the prosecutor s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to the child. Fully integrate into juvenile justice legislation and policy the United Nations Guidelines for the Prevention of Juvenile Delinquency (1990 Lack of ratification of fundamental human rights treaties Ratify (extension) of the following fundamental treaties: Convention on the Elimination of All Forms of Discrimination against Women Convention on the Rights of Persons with Disabilities Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography ILO Convention No. 182 on the worst forms of child labour ILO Convention No. 138 on the minimum age for admission to employment and work Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children 24

25 25

26 Anguilla NATIONAL LEGISLATION RELEVANT TO CHILDREN RIGHTS 26

27 country is entitled to the fundamental rights and freedoms of the individual, whatever his/her race, place of origin, political opinions, colour, creed or sex: life, liberty, security of the person, the enjoyment of property and the protection of the law, freedom of conscience, of expression and of peaceful assembly and association, and respect for private and family life. Anguilla Anguilla is a British Overseas Territory that consists of the main island of Anguilla itself together with a number of much smaller islands and cays with no permanent population. Its total population is 13,572 (Government of Anguilla 2011). Government is exercised through a governor, appointed by the sovereign, and an executive council. The governor has reserved powers in respect of legislation and is responsible for external affairs, offshore finance, defence, internal security (including the police force) and aspects of the public service. The executive council consists of the chief minister, not more than three other ministers, the attorney general and the deputy governor. The House of Assembly has 12 members and elections are held every five years. The judiciary consists of the Eastern Caribbean Supreme Court (ECSC), comprising the Court of Appeal, the High Court and the Magistrates Court. Final appeals are heard at the Judicial Committee of the Privy Council (JCPC) in London (Government of the United Kingdom 2014). The Anguilla Constitution Order 1982 (as amended in 1990) in chapter I Protection of Fundamental Rights and Freedoms contains specific provisions to protect human rights, and to combat discrimination. Every person in the 1. Legislation and the Convention on the Rights of the Child Relevant legislation to children s rights 3 Adoption of Children Act (2000) Age of Majority Act (2000) Anguilla Belonger Commission Act (2006) Child Abduction and Custody Act (Revised Regulations under Child Abduction and Custody Act R.S.A. C. C32) (2008) Criminal Code (2010) Employment of Women, Young Persons and Children Act (2000) Fair Labour Standards Act (2000) Health Authority of Anguilla Act (R.S.A. C. H3) and Health Services Fees and Charges Regulations (2010) Immigration and Passport Act (2006) Juvenile Act (2000) Juvenile Courts Act (2000) Labour Department Act (2000) Maintenance of Children Act (2000) Marriage Act (2010) Probation Act (2011) Probation Regulations (2012) 3 The year of the legislation may indicate the year it was enacted and/or the year of the last revision and/or the year that a consolidation of the legislation and amendments was done and/or latest amendment. 27

28 a) Age The age of majority is 18 years according to the Age of Majority Act. A person under the age of 10 is not criminally responsible for any act or omission. The minimum age of sexual consent is 16, but the Criminal Code (section 145 (3)) makes an exception in those cases where a marriage is void under the Marriage Act because the wife is under the age of 16. The invalidity of the marriage does not make the husband guilty of an offence under this section because he had sexual intercourse with his wife, if at the time he believed her to be his wife and had reasonable cause for that belief. In addition, it states that a man shall not be convicted of an offence because he has unlawful sexual intercourse with a girl under the age of 16 if he is under the age of 21, has not previously been charged with a similar offence and believes her to be 16 years or over and has reasonable cause for the belief. The minimum age of marriage without parental consent is 18, according to the Marriage Act, and a marriage is void if either of the parties was, at the time of marriage, under the age of 16. There is an exception provided in section 25 (3) that the Registrar-General may, in his discretion, grant a licence to marry to any person under the age of 16 but over the age of 15 if he considers this to be in the interest of the intending spouses. The Employment of Women, Young Persons and Children Act prohibits child labour (under 14 years of age), but children may be employed by their parents in domestic or agricultural work for no more than two hours on days when they should be attending school. Anguilla Age of marriage 18 Marriage Act Minimum age of sexual consent 16 Criminal Code section 145 (1) Minimum age to access medical services/ consent to treatment 18 According health authorities in Anguilla, the practice is that children under 18 need parental consent to access medical services but no legislation can be identified regulating age of consent to medical services Minimum age for employment 14 Employment of Women, Young Persons and 12 Children Act Criminal age of responsibility 10 Criminal Code section 17 Age of compulsory education 5 17 Education Act section

29 b) CRC principles CRC Principles Compliance Yes/No/ Legislation Art. 2 Non-discrimination Anguilla Constitution Order chapter I sections 1 and 13 The definition of discrimination does not cover all aspects required by the CRC (i.e., status of parents as nonbelongers limiting his/her rights Art. 3 Best interest of the child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration Art 6. Survival and development Art 12. Right to be heard and participate General comment No. 12 (2009) on the right of the child to be heard No No There is no legislation in place that recognizes the best interest principle or policy/procedure for the determination of best interest of the child Anguilla Constitution Order chapter I section 2 Right to life There is no legislation that recognizes the concept of development according to art. 6 of the CRC There is no legislation that recognizes the right to participate and the right to be heard in all matters that may affect children s rights; there is no policy/procedure providing for the participation and/or hearing of children Non-discrimination and equality before the law are enshrined in the Constitution. Section 13 provides that no law shall make any provision that is discriminatory either of itself or in its effect and no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. At the same time, however, the Constitution Order allows for different treatment with respect to any person who does not belong to Anguilla. This provision is discriminatory and, in particular, seriously affects children rights. There are no references to the best interest of the child principle in the legislation and there are no specific laws and/or policies and/or procedures that recognize the right to participation or the right of every child to express her/his views in all matters affecting her/him (see Box 1). 29

30 1Box 1: Article 12: Right to be heard and participate It should be noted that article 12 of the CRC implies a two-fold obligation: the right of an individual child to be heard and the right to be heard as applied to a group of children (e.g., a class of schoolchildren, the children in a neighbourhood, the children of a country, children with disabilities, or girls). Both aspects of article 12 should be fully implemented. For instance: Individually the right to be heard may apply to proceedings such as complaints and appeals against school decisions (e.g., warnings, suspensions, exclusion). Collectively it means the right to participate in designing school rules, adopting decisions such as student councils, committees, etc. The right to be heard is not granted in judicial and administrative proceedings in Anguilla affecting the child. The right to participate in decisionmaking processes is completely absent. There are no class councils, student councils or student representation on school boards and committees where students can freely express their views on the development and implementation of school policies and codes of behaviour. c) Civil and political rights CRC Compliance Legislation Art. 7 Registration after birth and acquire nationality Art. 8 Child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference Art. 13 Freedom of expression Art. 14 Freedom of thought, conscience and religion Yes Yes Very restrictive access to nationality, including access for children born in Anguilla Anguilla Constitution Order chapter VII section 80 2 (c) Very restrictive access to nationality including access for children born in Anguilla Anguilla Constitution Order chapter VII section 80 2 (c) Anguilla Constitution Order chapter I section 11 Anguilla Constitution Order chapter I section 10 Art. 15 Freedom of assembly Yes Anguilla Constitution Order chapter I section Art. 16 Illegal interference with privacy Anguilla Constitution Order chapter I section 1 (c)

31 The Constitution Order (chapter VII section 80) called for the establishment of an Anguilla Belonger Commission, which was created by the Anguilla Belonger Commission Act of This sets the function of the Commission and the procedure to grant belonger status to any person who is domiciled in Anguilla and has been ordinarily resident in the territory for not less than 15 years or is the spouse of a belonger and has been married to this person for not less than three years (see Box 2). 2Box 2: Belongers and non-belongers The terms belonger and non-belonger are commonly used in all British Overseas Territories to denote those who are deemed to belong and those not deemed to belong to the respective territory. Citizenship in these territories is conferred by the British Nationality Act 1981, and the full range of rights and entitlements including the rights to vote and to work is reserved for those who have belonger status. Non-belongers need a work permit and are under the control of migration authorities. Belongers include those born in the territory whose father or mother at the time of her/his birth was a British Overseas Territories citizen, UK citizen or British subject by virtue of birth, registration or naturalization or descent from a father or mother who was born in the territory. Belonger status may also be claimed by those adopted by a belonger or born outside the territory to a father or mother as described above. The British Nationality Act of 1981 (and its amendments) in section 15 (3) states that a person born in a British Overseas Territory shall be entitled to be registered as a citizen if, while he is a minor (a) his father or mother becomes such a citizen or becomes settled in a British Overseas Territory; and (b) an application is made for his registration as such a citizen. In addition, such a person shall be entitled, on an application for his registration as a British Overseas Territories citizen made at any time after he has attained the age of 10 years, to be registered as such a citizen if he was not absent from the territory for more than 90 days during each of the first The distinction between belongers and nonbelongers poses a significant problem that in particular affects the protection of migrant children and children born in Anguilla of non-belonger parents. The latter are considered as temporary migrants and therefore face restrictions in the enjoyment of their rights. Subsequently, they can be stateless for a significant period of time if they cannot get the citizenship of the country of origin of their parents. 31

32 d) Family life and right to family CRC Compliance Legislation Art. 5 Parental rights autonomy evolving capacity Art. 9 Right to family relations and be with both parents No The legislation and standards related to age of consent and the need of parental authorization are confusing and lack clarity There is a lack of recognition in the legislation of the evolving capacities of children/ adolescents The legal framework discriminates between children born within and outside marriage Art. 10 Family reunification No Migration laws do not explicitly recognize the principle of family reunification Art 11. Combat the illicit transfer and non-return of children abroad and enter international agreement to prevent it Art. 18 Both parents have common responsibilities for the upbringing and development of the child. The best interests of the child will be their basic concern Art States parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State party and from abroad Yes Child Abduction and Custody Act Criminal Code section 143 Hague Convention on the Civil Aspects of International Child Abduction (1980) has been ratified/extended Maintenance of Children Act provides very limited legal protection There is still a legal distinction in the status of children born within and outside marriage 32

33 While the Legitimacy Act allows for the legitimization of children whose parents subsequently marry, there is still some discrimination against children born outside marriage. For instance, according to information provided by the Government s official website, applications for registration made for children who are born out of wedlock in Anguilla to belonger fathers, with mothers who are neither belongers nor permanent residents, will not be considered unless either the father s name is on the child s birth certificate or there is an affidavit/ declaration of paternity by the father and an indication from the mother that this person is the father of her child. There are some provisions in the Maintenance of Children Act that require both parents to support, care for and educate the child regardless of marital status. However, the language used is not appropriate as it refers to bastard child. Likewise, in relation to child support, the Magistrate s Code of Procedure Act still refers to children born out of wedlock as bastards. Additionally, while the father of a child born in wedlock can be obliged by the court to support her/his education at college, under the Magistrate s Code of Procedure Act he is not obliged to support his illegitimate children beyond the age of 18. Anguilla must prioritize the adoption of the Status of Children model draft from OECS and abolish all legal distinction in the status, rights, privileges and obligations of children born within and outside marriage. There is also a clear need to adopt a new and modern legal framework related to the maintenance of and access to children to reinforce the common responsibilities of both parents in bringing up children and also to assure that children have the right to stay in regular contact with both parents, even when they are not living together. On a positive note, the Child Abduction and Custody Act brings into force the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children. Finally, migration legislation and regulations are very restricted and do not explicitly recognize the right to family reunification, as mandated by the CRC in article 10. In addition, since the economic crisis there have been some restrictions imposed on work permits for unskilled workers in terms of bringing their families with them. 33

34 e) Social and economic rights CRC Compliance Legislation Art. 24 Right to health General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) General comment No. 4 (2003) on adolescent health and development Art 26 Right to social security and social protection Art. 27 Right to an adequate standard of living, including material assistance and support programmes, particularly with regard to nutrition, clothing and housing No No Access (financial) to health services is limited for children and adolescents (there are some exemptions and benefits for children of residents) Restricted accessibility (financial) for migrant children of non-resident parents There are no legislative provisions providing for social protection as a entitlement There is a social protection bill pending approval (includes child assistance, education and medical assistance) There are no legislative provisions providing for social assistance as an entitlement There is a social protection bill pending approval (includes child assistance, food vouchers and housing assistance) Art. 28 Right to education Yes Education Act 34 There are some limitations in the accessibility of health services and, therefore, to the full enjoyment of the right to health as some services require payment. The Health Services Fees and Charges Regulations (Revised Regulations of Anguilla) regulate fees and accessibility to medical services. With regards to fee-payers, there are three different categories: uninsured residents; insured residents; and regional residents 4 and all others. Resident children under 16 years of age are exempt from payment for dental health services and pay 50 per cent of other prescribed health services fees and charges. In addition, a resident who is under 16 years or is a school student who receives health services at the Princess Alexandra Hospital during school hours and/or who is accompanied to the hospital by a teacher is exempt from payment of health services fees, hospital out-patients fees and charges and the cost of some laboratory tests. 4 Regional residents are citizens or belong to regional jurisdictions as indicated in Schedule 1 of the Health Services Fees and Charges Regulations: Antigua and Barbuda, The Bahamas, Barbados, Belize, Bermuda, BVI, Cayman Islands, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Montserrat, St. Kitts and Nevis, Saint Lucia, Saint Martin, St. Vincent and the Grenadines, Saint Maarten, Suriname, Trinidad and Tobago and TCI.

35 Children of non-residents, however, face fees to access health services, leaving migrant children (or children born in Anguilla but of irregular migrant parents) unprotected by the law, particularly if they cannot afford the fees charged at the Hospital. Moreover, the regulations apply significantly different fees to residents and nonresidents. In relation to the right to education, the Education Act, 2012, establishes compulsory school attendance for 5 17-year-olds (section 117). Discrimination is forbidden on account of race, place of origin, political opinion, colour, creed, sex, mental or physical disability (section 120). Notwithstanding this non-discrimination clause, the Education Act does discriminate as it provides that tuition fees may be payable by non-belongers by a decision of the Minister. It should be highlighted that the Education Act explicitly abolishes corporal punishment in schools. Section 143 states: (1) No person who (a) is employed at or in respect of a school; or (b) owns, manages or controls an assisted private school, a private educational institution or an early childhood education facility, shall administer corporal punishment to any student or child enrolled at or attending the school, institution or facility. (2) No person who, on behalf of a school, is supervising or controlling any student or child enrolled at or attending such school shall administer corporal punishment to the student or child. (3) Any person referred to in subsection (1) or (2) who administers corporal punishment to any student or child in contravention of this section commits an offence and is liable on summary conviction to a fine of $5,

36 f) Child protection CRC Art. 19 Protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse General comment No. 13 (2011) on the right of the child to freedom from all forms of violence Art. 20 Special protection and care (foster care, etc.) Compliance Legislation Criminal Code Juvenile Act Interagency Child Protection Protocol Education Act Juvenile Act provides limited protection restricted to some magistrate s orders Adoption of Children Act Art. 34 Prohibition of all forms of sexual exploitation and sexual abuse Yes Criminal Code part 14 Art. 35 Prevent abduction/ sale of or traffic in children Child Abduction and Custody Act Criminal Code sections 248 to 249 Lack of legislation/protocol providing for treatment and rights of victims of trafficking/abduction and sale Lack of ratification of Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime Lack of ratification of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography Art. 36 Protection against all other forms of exploitation prejudicial to any aspects of the child's welfare Criminal Code section 244 to

37 The Criminal Code makes it an offence to have the custody or care of a child or a young person and neglect, abandon, expose or procure him/ her to be ill treated, neglected or exposed. It is also an offence if a person liable to maintain a juvenile fails to provide food, clothing, lodging and medical aid. The Juvenile Act empowers the magistrate to authorize any police officer to search for and remove a juvenile to a place of safety if it is found that her/his welfare is in jeopardy. A police officer, probation officer or social worker may bring a child in need of care and protection before the court for assistance in cases where it reasonably appears to the magistrate that a child is being assaulted, ill-treated or neglected in a manner likely to cause the child unnecessary suffering and/or that specified offences have been or are being committed against him/her. In addition, a Juvenile Court may make an order: a) Committing the juvenile to the care of any fit person, whether a relative or not, who is willing to undertake the care of them; b) Requiring their parent or guardian to enter into a recognisance to exercise proper care and guardianship; or c) Placing them for a specified period, not exceeding three years, under the supervision of a probation officer. An Interagency Child Protection Protocol has been approved, aiming to offer guidance and support on good practices for the identification, reporting, investigation, case management and prosecution of child abuse cases. The Protocol establishes guidelines and procedures related to who is mandated to report (Department of Social Development), how to report and to which competent agencies such reports should be made as well as to ensure that reports are investigated, prosecuted and managed. It also provides guidelines for reporting suspected child abuse, maltreatment or neglect; case management of child abuse, including removal to places of safety, treatment, counselling and follow-up; the role of the school and teachers; information sharing between stakeholders; interviews (child, parents, etc.); medical Intervention; and roles and responsibilities of various proximate agencies. The Criminal Code (section 162) and the Protocol call for mandatory reporting by parents, guardians, teachers, medical practitioners and any person who has reasonable grounds for believing that a sexual offence has been committed towards a minor. The reporter must bring the grounds for their belief to a police officer as soon as reasonably practicable. Although the Protocol represents a step forward, the current legislation is not sufficient and fails to cover some essential aspects required in child protection legislation (see Box 3). The Government should consider the adoption of the OECS draft Children (Care and Adoption) model. Additionally, the Juvenile Act does not sufficiently differentiate between children in need of protection and juvenile offenders as they will be dealt with by the same magistrate and potentially receive similar court orders. 37

38 3Box 3: Updating child protection legislation Explicit recognition of the best interests of the child principle interest of the child A bill dealing with the protection of children from abuse and neglect must ensure at least the following: Explicit recognition of the right to family, except in those cases against the best Explicit recognition of the right to the child to be heard and need for participation of children and young people in care decisions and care settings Identification of the leading and coordinating agency in dealing with child care and protection Clarification of the role of the police and the magistrate and the different orders available for the care and protection of children Identification and/or provision of available places in case of a need to place children in foster care and/or other institutional arrangements Regulation of alternatives for care of children, taking into consideration the United Nations Guidelines for the Alternative Care of Children 38 The Criminal Code covers most forms of child abuse, identifying criminal offences with varying levels of penalties imposed. Part 14, sexual offences against minors, covers sexual intercourse with a person under 14 years of age, sexual intercourse with a person between 14 and 16 years of age, sexual intercourse with a minor suffering from a mental disorder, sexual intercourse with a dependent child, indecent assault on a minor, procuration of a minor, living on the earnings of prostitution of a minor and incest. In some of these offences, there is legal defence where despite such a marriage being invalid under the Marriage Act because the wife is under the age of 16 a husband is not guilty by reason of her incapacity to consent while under that age if he believes her to be his wife and has reasonable cause for the belief. In the case of sexual intercourse with a girl under the age of 16, the Criminal Code provides another exception: a man will not be convicted of an offence if he is under the age of 21, has not previously been charged with a similar offence and believes her to be 16 years or over and has reasonable cause for the belief. Currently there is no specific law that criminalizes domestic violence. A Domestic Violence Bill has been drafted and has had wide stakeholder consultation. This bill defines domestic violence in part as any controlling or abusive behaviour that harms (or may harm) the health, safety or well-being of a person or any child regardless of gender or sexuality It also makes provisions for protective orders and maintenance orders for children. Some level of violence against the child is still allowed at home, administered by parents or guardians, as section 234 of the Criminal Code allows parents, or other persons with lawful custody of a child or young person to administer reasonable punishment. The Criminal Code makes trafficking an offence and provides some level of protection, increasing the sanctions in cases of trafficking with the purpose of sexual exploitation and/or in cases of persons below 18 years of age, but there is no specific law addressing trafficking of women and girls and the protection of victims. All initiatives to draft and amend criminal laws must be coupled with protection measures and services for victims and those who are at risk of being subjected to harmful practices (UN CEDAW Committee and UN Committee on the Rights of the Child 2014).

39 g) Child labour and prevention of exploitation CRC Compliance Legislation Art. 32 Protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education/ minimum ages and sanctions in case of violation Employment of Women, Young Persons and Children Act Education Act Lack of ratification of ILO Convention No. 182 on the worst forms of child labour and ILO Convention No. 138 on the minimum age for admission to employment and work Section 3 of the Employment of Women, Young Persons and Children Act prohibits children under the age of 14 from work such as mining, manufacturing and construction. However, the law does not prohibit young persons between the ages of 14 and 18 from engaging in industrial undertakings, which may leave them vulnerable to dangerous work. There are restrictions to employing young people at night in such work, but the Act allows the employment of young persons over 16 years of age, including during the night, in the manufacturing of raw sugar. In the Employment of Children (Restriction) Act, the employment of children under 14 years is also prohibited, but the Act states that 12-year-old children, and those even younger, can be employed by their parents in domestic or agricultural work, limited to no more than two hours on the days that they attend school. The Education Act 2012 prohibits the employment of children of compulsory school age (5 17 years) during the academic year. Section 137 provides that a person who employs a child of compulsory school age during the academic year commits an offence and is liable on conviction to a fine of $2,000. An exception is made for children 14 years and older who can be employed on weekends and during vacation periods. There is no definition of the worst forms of child labour. It appears that Government has not developed a list of hazardous occupations prohibited to children. Anguilla should improve the protection and prevention of child labour by ratifying ILO Convention No. 182 on the worst forms of child labour and ILO Convention No. 138 on the minimum age for admission to employment and work. There is a Labour Code Draft Bill under discussion that may raise the minimum age of employment to 16, the usual age at which children leave school. 39

40 h) Children in conflict with the law CRC art. 37 General comment No 10 (2007) on children s rights in juvenile justice (A) Prohibition of torture/ inhuman/ degrading treatment Compliance Legislation Anguilla Constitution Order chapter I section 6 (protection from inhuman treatment) (B) Lawful deprivation of liberty/ last resort/ shortest time No There are some limited alternatives, but the principle of last resort and shortest time is not explicitly included and recognized in the legislation (C) Separation from adults Juvenile Act section 11 Limited provision related to separating adults from juveniles in police stations (D) Right to legal assistance/ right to challenge the legality of the deprivation of liberty before a court or other competent, independent and impartial authority Anguilla Constitution Order chapter I section 9.6 (c) The right to appoint a legal practitioner is recognized in the Constitution, but legal aid is not available and so practitioners are limited to those that can afford them 40

41 CRC art. 40 General comment No 10 (2007) on children s rights in juvenile justice Compliance Legislation 40.2 (a) Principle of legality Anguilla Constitution Order chapter I section 3: No person shall be deprived of his personal liberty save as may be authorized by law Section 9 (7) No person shall be held to be guilty of a criminal offence on account of any act or omission which did not, at the time it took place, constitute such an offence Restriction of principle of legality: Under section 3.1 (g), a child or juvenile, under the order of a court or with the consent of his parent or guardian, may be deprived of liberty for his education or welfare during any period until the age of 18 The possibility that a child can be deprived of liberty for his/her welfare and/or because it has been requested by his/her parents constitutes a breach of the CRC 40.2.b (i) Presumption of innocence Yes Anguilla Constitution Order chapter I section 9 (5) 40.2.b (ii) Legal assistance to prepare defence Anguilla Constitution Order chapter I section 9.6 (c) The right to appoint a legal practitioner is recognized in the Constitution, but legal aid is not available and so practitioners are limited to those who can afford them 41

42 40.2.b (iii) Brought before competent, independent and impartial authority or judicial body 40.2.b (iv) Not to be compelled to confess guilt/ to examine or have examined adverse witnesses Yes Yes Anguilla Constitution Order chapter I sections 9.6 (d) and 9.10 Anguilla Constitution Order chapter I section 9.6 (c) 40.2.b (v) Right to appeal to a higher competent, independent and impartial authority or judicial body Juvenile Act section 8 (3) 40.2.b (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language Establishment of laws, authorities and institutions specifically applicable to children in conflict with penal law Yes Anguilla Constitution Order chapter I section 9.6 (e) Juvenile Courts Act Even when the legislation provides for the establishment of Juvenile Courts, it is not an specialized court as the same magistrate that deals with adults presides over a Juvenile Court on specific days 40.3 (a) Minimum age Criminal Code section (b) Alternative measures for children in conflict with penal law without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected There is a age fixed by the law but it is low according to universally accepted standards There are limited alternatives for children, and in most cases they are brought before the same Magistrate s Court that deals with adults The Probation Act provides for alternatives once the court makes a probation order (e.g., attendance order and residence order in the Juvenile Rehabilitation Centre 42

43 According to the Criminal Code, the minimum age of criminal responsibility is 10 years of age. In addition, it states that a person aged 10, or over 10 but under 14, is not criminally responsible for an act or omission unless it is proven that s/he had the capacity to know at the time that s/he ought not to do the act or make the omission. The criminal system related to children and young people remains basically a punitive one, not dissimilar to that for adults. Children are tried in a Magistrate s Court (the same court that deals with adults, though it is called a Juvenile Court on specific days). Those aged 16+ are basically tried as adults. Additionally, under the Juvenile Act, if a child under 16 years jointly commits an offence with an adult, that child is also tried as an adult. Section 15 of the same Act provides that a person under 16 years charged with an indictable offence is tried in an adult court. The CRC must be fully applicable with all the special procedures and measures to children up to 18 years of age without exception. There is no diversion system, and even small children committing minor offences can be brought before the court. The Probation Act, 2011 provides for alternatives once the court makes a probation order, but the magistrate has very broad discretionary power on granting this. According to section 12 of the Probation Act, the court may consider the contents of the pre-sentence report, the victim impact statement if any, and some of the following: a plea of guilty and any assistance the offender gave to the police; the presence of mitigating circumstances relating to the offence and the offender; any diminished responsibility of the offender; the nature of the offence; the potential need for the community to be protected from the offender; and any other matter the court thinks is appropriate. The Probation Act is equally applied for adults and young persons. However, in relation to a juvenile offender, s/he shall not be ordered to do more than 200 hours of community service or a period of community service longer than 12 months. It also provides that, in probation orders relating to a juvenile offender, the court shall include a condition that the offender abides by a curfew for any period determined by the court, not exceeding three months. Probation orders may include the following: Attendance orders to a place with a programme of activities Supervision orders that have a specified number of contact hours per week with the Department of Probation Residence orders where the juvenile offender resides in a specified place, including a designated institution, for a specified period, not exceeding the duration of the order the Act does not discuss the nature of the institution (closed doors or open institution) Parenting orders when it is the view of the magistrate that the parents of the juvenile offender should play an active role in rehabilitation. Moreover, the order can include making the parent attend counselling sessions with the juvenile offender and/or parenting classes at such times as agreed with the Department and pay compensation. The passage of the Probation Act 2011 provides the legal framework for the operation of Zenaida Haven Juvenile Rehabilitation Centre. Children and juveniles can be sentenced to a Probation Order of one to three years and also have a residence order added to the sentence. The court may request an assessment from the Juvenile Centre director, or the probation officer may make a recommendation in the presentence report to place the youth in the centre as an additional sentencing option. The length of stay for a residence order can range from six months to three years. After six months, based on the youth s good progress, the programme supervisor can recommend the probation officer take the matter back to court and recommend removing the remainder of the residence order from the probation order (Juvenile Rehabilitation Centre 2009). Zenaida Haven began operations in May The Inclusion criteria are that an individual has been accused of a criminal offence between the ages of 12 and 17, is a chronic and persistent 43

44 offender and will plead guilty or be found guilty of the offence at the time of sentencing. According the operations manual of the centre, this is a closed institution, exclusively for residents from 12 to 17 (it has places for seven residents). However, it appears that there is some level of flexibility regarding its closed nature, such as allowances for attending school, and in some cases, having a pass to leave for the day. Even though the Probation Act and the establishment of a residence centre may mean a step forward as providing alternatives to prison, the system in general still focuses on punishment rather than prevention and rehabilitation. Very young children are brought to court for minor offences. The application of the law and procedure depends on the magistrate and the prosecutors, who have extensive unsupervised powers. There is no legal aid for anyone, save in the case of murder. The children of poor parents cannot afford legal representation in the Juvenile Court or on appeal, which constitutes a serious breach of the due process of law and compromises the possibility of a fair trial and the right to have a remedy or recourse. As a former Magistrate stated: No juvenile has appealed any sentence or treatment in the Juvenile Court of Anguilla, with the result that it is quite possible the children of poor parents are treated unjustly and have no remedy or recourse. 5 Another matter of concern is that the Juvenile Courts Act provides for the governor to appoint a board of assessors, made up of members of the public, from which two members are supposed to sit with the magistrate in specialized hearings to deal with juveniles. But no governor has appointed the required board and no magistrate has required that they be appointed to assist him or her. In the view of the Magistrate, the result has been that all hearings of the Juvenile Court have been illegal for at least the past two decades. 6 The principle of legality is seriously compromised as a result of the broad powers of the magistrate and the ambiguity of the legislation dealing with offences committed by children and juveniles (see Box 4). Moreover, the Constitution states that under the order of a court or with the consent of a parent or guardian children and juveniles can be deprived of liberty for their education or welfare for any period, ending no later than the date on which they attain the age of 18. This means that a court can deprive a child of liberty regardless of whether or not a crime has been committed. 4Box 4: The principle of legality In criminal law, the principle of legality is designed to guarantee the primacy of the law in criminal procedure, so that neither state prosecution nor defendants are exposed to arbitrary bias. It is a fundamental rule of criminal law that nothing is a crime unless it is clearly forbidden in law; only the law can define a crime and prescribe a penalty, and crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offence. Under this principle, no person shall be deprived of his/her personal liberty, save as may be authorized by law Information provided by Mr Don Mitchell retired Barristerat-Law, Magistrate and Judge of the Eastern Caribbean Supreme Court. 6 Ibid.

45 2. Main areas of concern and recommendations Main Achievements Compulsory education from ages 5 to 17 (Education Act) Abolition of corporal punishment (Education Act) Abduction and Custody Act Altenatives to prison in the Probation Act, 2011 Main Issue Pending Prevent statelessness of children Abolish all discrimination in legislation regarding migrant children/children born in Anguilla of migrant parents Combat all discrimination in the education system Adopt legislation providing a proper juvenile justice system Raise age of criminal responsiblity Abolish unequal status of children born within and outside marriage Approve pending bills (including OECS Family Model Bills) Ratify (have extended) pending human rights treaties relevant to children rights In Anguilla, there is an absence of pertinent legislation for the protection of children s rights. Most related legislation is old and inappropriate. It is recommended that the Government consider adopting new legislation, including several OECS model bills some of which have already been drafted and are pending approval by the Cabinet and House of Assembly: 1. Child Justice Bill 2. Children (Care and Adoption) Bill 3. Domestic Violence Bill 4. Family Law (Guardianship, Custody and Access To Children) 5. Status of Children Bill 6. Reproductive Health Care Services and Protection Bill 7. Social Protection Bill 45

46 Main gaps Discrimination against migrant children Stateless children Recommendations and priority actions Clarify the rights of non-belongers and eliminate barriers to ensure equal access to government agencies and public services by migrant children Reform the British Nationality Act of 1981 and the Anguilla Constitution to automatically provide citizenship to children born in the territory regardless of their parents status (This recommendation requires action by the United Kingdom, which is responsible for the reform of the British Nationality Act) Discrimination against children born in Anguilla of migrant parents Lack of procedure to determine the best interest of the child Amend national legislation to automatically provide children born in Anguilla with a birth certificate and residence status, granting them full access to rights on equal terms with national children Adopt legislation and/or include in current draft bills the explicit recognition of the principle of best interest of the child Adopt procedures granting the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, in both the public and private sphere, in accordance with General comment No. 14 (2013) Lack of participation and enforcement of the right to be heard Lack of child care and protection legislative framework Status of children Adopt legislation and/or include in current draft bills the recognition of the right to participate and the right to be heard in all matter that may affect children s rights. Revise and approve a Child Care Bill (OECS Children (Care and Adoption) model Bill) Repeal any references to bastards and any other reference discriminating against children born out of wedlock Adopt a Status of Children Bill abolishing all legal distinction in the status, rights, privileges and obligations of children born within and outside marriage Lack of independent monitoring and investigation of children rights Establish a Human Rights Commission/ children s ombudsperson or commissioners with a broad children s rights mandate 46

47 Main gaps Lack of appropriate juvenile justice legislation and system Recommendations and priority actions Raise the minimum age of criminal responsibility Reform legislation to achieve full application of CRC principles and juvenile justice rules to all persons under the age of 18 Focus on prevention rather than punishment of children and adolescents (rehabilitation and restorative justice) and adopt legislation and regulations to establish a diversion system that deals with children committing minor offences, without resorting to judicial proceedings Abolish legislative provisions and practices allowing the criminal system to deal with children with problems of conduct but not committing crimes (e.g., children breaking school rules, parents bringing children to the courts to correct their conduct); these issues should be dealt with through social and protective measures rather than the criminal system Limit magistrates /courts broad sentencing powers and explicitly uphold the principle that deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate period of time Fully recognize due process of law in the legislation and, in particular, ensure the availability of legal representation for all children subjected to criminal proceedings without exception Recognize and grant the right to appeal or recourse to any measure imposed as a consequence of a guilty verdict; recourses should be decided by a higher, competent, independent and impartial authority or judicial body Establish specialized units within the judiciary, the court system and the prosecutor s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to children Fully integrate into juvenile justice legislation and policy the United Nations Guidelines for the Prevention of Juvenile Delinquency (1990) 47

48 Main gaps Recommendations and priority actions Lack of ratification of fundamental human rights treaties Ratify (extension) of the following fundamental treaties: International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Elimination of All Forms of Discrimination against Women Convention on the Rights of Persons with Disabilities ILO Convention No. 182 on the worst forms of child labour ILO Convention No. 138 on the minimum age for admission to employment and work Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children 48

49 Kiesha Gumbbs-Bibby November

50 Turks and Caicos Islands NATIONAL LEGISLATION RELEVANT TO CHILDREN RIGHTS 50

51 Turks and Caicos Islands Turks and Caicos Islands (TCI) comprises some 40 islands and cays with a total area of 948 sq km. Six islands are permanently inhabited: Grand Turk the capital, Salt Cay, South Caicos, Middle Caicos, North Caicos and Providenciales. The population was estimated by the 2012 Census to be 31,618 (Department of Planning and Statistics undated). TCI Islanders account for about one third of the total population; there are many immigrants from other Caribbean Islands and North America. English is the main language, with Creole and Spanish predominant among the Haitian and Dominican communities (Human Rights Committee 2013). TCI is a British Overseas Territory, with a governor and a ministerial system of government. The new Constitution came into force in July 2011 through The Turks and Caicos Islands Constitution Order The governor, appointed by the Sovereign (the Head of State), is Her Majesty s representative in the Islands and the executive authority. There is also a deputy governor, who must be a belonger, is appointed by the governor. The executive is based on the Cabinet, which consists of the premier (appointed by the governor), six ministers, the deputy governor and the attorney general. The governor is the chair of the Cabinet (Government of the United Kingdom 2014). The governor is responsible for external affairs, defence, internal security (including the police force) and some public service matters, including the regulation of international financial services, consulting Cabinet as necessary. The House of Assembly consists of a Speaker, 15 elected members, four appointed members and the attorney general. The legislature is responsible for enacting laws for the peace, order and good government of TCI. It should be noted that the attorney general does not have the right to vote in the House. The legal system, based on English common law, includes a Supreme Court and a Court of Appeal, and has provision for appeal to the Privy Council in London (Government of the United Kingdom 2014). The legal framework for the protection of human rights is based on the TCI Constitution Order 2011, Schedule 2, Part 1 ( Fundamental Rights and Freedoms of the Individual ), which specifically addresses a number of rights and freedoms including: right to life; freedoms of conscience, expression, assembly and association; peaceful enjoyment of property and protection from deprivation of property; and protection for private and family life and for privacy of home. Under the Constitution, Turks and Caicos Islander replaces all references to belonger (Government of the United Kingdom 2014). Section 97 of the 2011 Constitution identifies the Human Rights Commission as an institution protecting good governance in TCI. The Commission was established by the Human Rights Commission ordinance of It is composed of five members and has a broad mandate to protect human rights within the territory. The Commission submits an annual report to the House of Assembly of all its activities, including main matters and actions taken, along with its recommendations in respect of each matter (section 12). Some limitations to the function of the Commission are imposed by the Constitution Order Part VII section 101: It has no power to (a) represent or provide representation to parties to litigation, but this shall not prevent a member of the Commission appearing as amicus curiae when requested to do so by the court; (b) act in a judicial capacity or make binding recommendations as to whether any right or freedom contained in Part I of this Constitution or in any international human rights treaty has been breached or infringed. 51

52 1. Legislation and the Convention on the Rights of the Child Relevant legislation to children s rights 27 Adoption Ordinance (2009) Custody of Infants Ordinance (2009) Divorce Law (2009) Education Ordinance (2009) Employment Ordinance (2009) Human Rights Commission Ordinance (2009) Juvenile Ordinance (2009) Juvenile Court Ordinance (2009) Legitimation Ordinance (2009) Matrimonial Causes Ordinance (2012) Marriage Ordinance (2009) Medical Ordinance (Chapter 8.01) Offence Against the Person Ordinance (2009) Young Offenders Punishment Ordinance (2009) a) Age The ages at which children and young people are considered to be responsible or in need of protection vary widely and include the extremely low age of 8 years, at which a child is considered responsible for crimes and 16 years regarding sexual consent, compulsory education and prohibition of child labour. The minimum age of marriage without parental consent is 21, and a marriage is void if either of the parties was, at the time of marriage, under the age of 16. Turks and Caicos Islands Age of marriage 21/ 16 Marriage Ordinance section 4 (a) Below 21 needs parental consent Below 16 is void Minimum age of sexual consent Minimum age to access medical services/ consent to treatment 16 Offences Against the Person Ordinance sections 31 and According to health authorities in TCI, the practice is that children under 18 need parental consent to access medical services but no legislation has been identified regulating age of consent to medical services Minimum age for employment 16 Section 9 of Employment Ordinance; a person under the age of 16 may enter into employment contract with permission of parent/guardian Criminal age of responsibility 8 Juveniles Ordinance 3.07 section 3 Age of compulsory education From 4 to 16 Education ordinance Act section Most legislation indicates the year 2009 because in that year there was a revision of the legislation by the Law Revision Commissioner consolidating laws and amendments.

53 b) CRC principles CRC Principles Compliance Legislation Yes/No/ Art. 2 Non-discrimination Constitution Order, Part I sections 7 and 16 It should be noted that definition of discrimination does not cover all aspects required by the CRC (i.e., status of parents transmitted to the child limiting his/her rights. See comments about belongership/ islander s status). Art. 3 Best interest of the child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration Art. 6 Survival and development Art. 12 Right to be heard and participate General comment No. 12 (2009) on the right of the child to be heard No No There is no legislation in place that recognizes the best interest principle and/or policy/procedure for the determination of best interest of the child Right to life Constitution Order Part I section 2 There is no legislation in place that recognizes the concept of development according to Art 6 CRC There is no legislation in place that recognizes the right to participate and the right to be heard in all matters that may affect children s rights; there is no policy/procedure providing for the participation and/or hearing of children Non-discrimination and equality before the law are enshrined in the 2011 Constitution. Section 7 provides that everyone is equal before the law and has a right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. The definition of discrimination has been expanded and now covers race, national or social origin, political or other opinion, colour, religion, language, creed, association with a national minority, property, sex, sexual orientation, birth or other status (e.g., disability/ transgendered status). However, the Constitution also allows for different treatment to respect to those persons who are not Turks and Caicos Islanders. This distinction between TCI islanders and those who 53

54 are not is widely applied and seriously affects children s rights (see the sub-section on civil and political rights below). There are no references to the best interest of the child principle in the legislation and there are no specific laws and/or policies and/or procedures that recognize the right to participation and the right of every child is able to express her/ his views in all matters affecting her/him. The right to be heard is not granted in judicial and administrative proceedings affecting the child (see Box 1 in the section on Anguilla). c) Civil and political rights CRC Compliance Legislation Art. 7 Registration after birth and acquire nationality Art. 8 Child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference Art. 13 Freedom of expression Art. 14 Freedom of thought, conscience and religion Art. 15 Freedom of Assembly Art. 16 Illegal interference with privacy Yes Yes Yes Yes Very restrictive access to nationality including for children born in TCI (Constitution Order 2011 Part X section 132) Restrictions to have access to birth certificates Very restrictive access to nationality, even for children born in TCI (Constitution Order 2011 Part X section 132) Constitution Order 2011 Part I section 13 Constitution Order 2011 Part I section 11 Constitution Order 2011 Part I section 14 Constitution Order 2011 Part I section 9 54 One of the most significant gaps in the protection of human rights is a pattern of discrimination against TCI-born children of non-islanders parents and migrant children. The rules of citizenship and belonger status are complex and difficult to understand, and there is a high degree of discretion in deciding whether or not to grant the status of Islander. As noted above, TCI now uses the term Islanders and non- Islanders, which have the same meaning as the terms belonger and non-belonger, which are commonly used in all British Overseas Territories to denote those who are deemed to belong and not deemed to belong to a respective territory

55 (see Box 2 in the section on Anguilla). Islander/ belonger status is important as it confers all the rights, including the right to vote and to work. Non-belongers need a work permit and are under the control of migration authorities. The Constitution Order Part X section 132 provides that a person is regarded as an Islander if s/he had, immediately before the commencement of the Constitution, the status of belonger or Islander by virtue of any law then in force in the Islands. The conditions under which a person may be granted the status of Islander (except in the case of a person who has a family connection with an Islander) include, (a) an applicant is a British overseas territories citizen by virtue of a connection with the Islands or a British citizen who has either held a permanent residence certificate at least five years or been legally resident in the Islands for at least 10 years. In sum, migrant children and children born in the TCI of non-islander parents face serious restrictions in the enjoyment of their rights and can be stateless for a significant period of time if they cannot get the citizenship of the country of origin of their parents. Moreover, according to reports from the Commission of Human Rights, there are several cases and complaints from migrant mothers who had been denied their request for a birth certificate from the Registrar General Office. One reason is a practice of denying the birth certificate to people who have an outstanding bill at the hospital as a result of non-payment for the birth of a child. The Human Rights Commission has also raised concerns about a practice by which unskilled workers on work permits may not be joined by their spouses and dependent children. The rationale for the policy was that such workers were expected to be in the Territory for no longer than three years in total, and then to return home. As a result, they are not allowed to bring their family to TCI. This may also constitute discrimination between skilled workers (who are permitted to be joined by their spouses and dependent children under 18, provided they can support them) and unskilled workers. 55

56 d) Family life and right to family CRC Compliance Legislation Art. 5 Parental rights autonomy evolving capacity Art. 9 Right to family relations and be with both parents No The legislation and standards related to the age of consent and the need of parental authorization are confusing and unclear There is a lack of recognition in the legislation of the evolving capacities of children/ adolescents Matrimonial Causes Ordinance There is still a legal distinction in the status of children born within and outside marriage There is a Family Law (Guardianship, Custody and Access To Children) Bill pending approval There is a Status of Children Bill pending approval Art. 10 Family reunification No The legislation, including the Migration Ordinance, does not recognize the principle of family reunification Art. 11 Combat the illicit transfer and non-return of children abroad and enter international agreement to prevent it No The Hague Convention on the Civil Aspects of International Child Abduction has not been ratified/extended 56 Art. 18 Both parents have common responsibilities for the upbringing and development of the child. The best interests of the child will be their basic concern Art State parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State party and from abroad Matrimonial Causes Ordinance There is still a legal distinction in the status of children born within and outside marriage There is a Family Law (Guardianship, Custody and Access To Children) Bill pending approval

57 TCI should prioritize the adoption of the current draft of the Status of Children Bill 2014 (after the OECS model bill) abolishing all legal distinction in the status, rights, privileges and obligations of children born within and outside marriage. It is necessary to adopt a new and modern legal framework related to maintenance and access to children to reinforce common responsibilities of both parents in bringing up children and also to ensure that children have the right to be in regular contact with both parents when they are not living together. e) Social and economic rights CRC Compliance Legislation Art. 24 Right to health General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) General comment No. 4 (2003) on adolescent health and development in the context of the CRC Medical Ordinance (chapter 8.01) Access to health services is limited for those persons below the age of 18 (they need parental/guardian consent even though no legislation can be identified as restricting accessibility) Restricted accessibility (financial) for migrant children of non- Islanders/ non-resident parents Art. 26 Right to social security and social protection Art. 27 Right to an adequate standard of living, including material assistance and support programmes, particularly with regard to nutrition, clothing and housing No No No legislative provisions provide for social protection as an entitlement No legislative provisions provide for social assistance as an entitlement Art. 28 Right to education Yes Constitution Order 2011 Part I section 12 Education Ordinance (chapter 12.01) The Medical Ordinance (chapter 8.01) regulates the accessibility of medical services by inhabitants of TCI. It provides in section 8 that any poor person requiring medical or dental treatment, who is not in a position to pay the prescribed fees, may apply to a ticket distributor for the grant of a ticket entitling such person to free treatment or to reduced fees for treatment. 57

58 58 The Medical Fees Regulations dictate the fees that should be paid by uninsured belongers and all others. It is of particular concern that the provision states that only school children of belongers are exempt from paying fees. This means that children of non-belongers or non-residents will face fees when accessing health services, leaving migrant children or even children born in TCI but of migrant parents unprotected by the law regarding access, particularly if they cannot afford the fees charged at the hospital. Moreover, the Medical Fees Regulations apply significantly different fees for belongers and non-belongers (e.g., an X-ray costs $4 for belongers and $25 for non-belongers or a visit to a medical officer is $2 for belongers and $25 for non-belongers). It appears that non-belongers are also barred from applying for financial assistance under indigent status as, according to the Regulations, tickets are reserved only for uninsured belongers. It should be noted that there seems to be a informal practice by the Ministry of Health to provide support and assistance to enable migrant children to access medical services, regardless of their belongership status, but they need to find the financial means to continue doing so. Amendment of the Medical Ordinance and Fees Regulation is urgently required to make all children exempt from paying fess and given them full access to medical services without discrimination in accordance with article 2 of the CRC. 28 With regards to accessibility, there is an issue related to the absence of specific provisions regulating access to health for children and adolescents. In practice, those below the age of 18 are required to provide parental consent to access medical services. The legislation and regulations should be clear about at which age children have access to confidential medical counselling and advice without parental consent. 28 Information provided during the interview with the Deputy Permanent Secretary and Chief Medical Officer, Health and Human Services, Ministry of Health. Children and adolescents may need this when, for example, they are experiencing violence or abuse at home or in need of reproductive health education or services, or in case of conflicts between parents and the child over access to health services. In relation to the right to education, the Constitution Order Part I section 12 establishes that every child of the appropriate age, as provided by law, shall be entitled to receive free primary education. The Education Ordinance establishes the age of compulsory attendance as between 4 and 16 years (section 40). In section 41 it states no person shall be refused admission to any public school on account of the religious persuasion, race, social status or language of such person or of his parents. The list of discriminatory grounds is rather limited and should be extended to other causes of discrimination, such as on any discriminatory grounds including place of origin, political opinions, colour, sex, mental or physical disability, among others. The provision whereby children can be refused admission to school if their primary language is not English, or if the Director is of the view that the child s knowledge of the English language is insufficient for general purposes, is of significant concern. In particular, there are a significant number of children from the Dominican Republic and Haiti that can be excluded from school for this reason. The Human Rights Commission has reported problems of accessibility due to the lack of space in schools. There are some reports that, in practice, children of belongers have tended to receive preferential treatment, and children whose status is unclear or who are in TCI irregularly have not been given an easy route to education, if at all. The Education Authorities ask for parents work permits as part of the documentation that should be submitted before the beginning of the school year. The education system should not be a place where migration controls are exercised. This practice is not statutorily based and represents an additional obstacle compromising the right of education for migrant children.

59 It should be noted that section 33 of the Education Ordinance still allows for corporal punishment in schools. There are reports from the Human Rights Commission that corporal punishment is, in practice, inflicted on students in some schools. This provision should be immediately repealed as it is a clear violation of the CRC. In General comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (para.11), the Committee on the Rights of the Child has defined corporal or physical punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. In the view of the Committee, corporal punishment is invariably degrading. Finally, as has been repeatedly reported by the Human Rights Commission, the practice of removing pregnant teens from schools is widely followed. It appears that there are no plans in place in the education sector to prevent pregnant girls from quitting school and that because of social taboos and stigmatization associated with sex and sexual activity, especially that of young females pregnant girls and adolescents mothers prefer to stay out of school and/or receive some kind of alternate education. This contravenes accepted universal standards and recommendations from the CRC and CEDAW Committees (UN CEDAW Committee and UN Committee on the Rights of the Child 2014). 59

60 f) Child protection CRC Compliance Legislation Art. 19 protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse General comment No. 13 (2011) on the right of the child to freedom from all forms of violence Juvenile Ordinance provides very limited protection There is a draft Children (Care And Adoption) Bill pending approval Art. 20 Special protection and care (foster care, etc.) Juvenile Ordinance provides very limited protection restricted to some magistrate s orders There is a draft Children (Care And Adoption) Bill pending approval Art. 21 Adoption Adoption Ordinance There is a draft Children (Care And Adoption) Bill pending approval Art. 34 Prohibition of all forms of sexual exploitation and sexual abuse Art. 35 Prevent abduction/ sale of or traffic in children Art. 36 Protection against all other forms of exploitation prejudicial to any aspects of the child's welfare No Offences Against the Persons Ordinance Offences Against the Persons Ordinance provides some indirect protection to offences related to the procurement and abduction of girls Offences Against the Persons Ordinance 60

61 The Juvenile Ordinance makes a provision for the prevention of cruelty to and protection of juveniles and makes it an offence for a person who, having the custody or care of a juvenile, neglects, abandons, exposes or procures him or her to be ill treated, neglected or exposed. It is also an offence if a person liable to maintain a juvenile fails to provide food, clothing, lodging and medical aid. This Ordinance is utilized by the Magistrate s Court to place children under care and protection from a Supervision Order, remove them from their home and/or place them in foster care. However, the Juvenile Ordinance fails to cover almost all the aspects that child protection legislation should cover. It should be replaced by appropriate legislation exclusively dealing with the protection of children from abuse and neglect and ensure that the best interests of the children and their rights are given paramount consideration in all matters relating to them (see Box 5). 5 Box 5: Legislation required on child protection to comply with the CRC Legislation on child protection should clearly define all aspects of abuse and neglect, the options of child services available, the leading agency in dealing with and coordinating child care and protection, the role of the police and the magistrate, the different orders for care and protection and available places in case of need to place a children in foster care and/or other institutional arrangements. Most of all, it should clearly separate the procedures to protect children as victims and the procedures for prosecuting alleged offenders in child abuse cases and include guiding principles of all intervention in child protection cases, in accordance with the CRC, including the right to be heard and participate in all proceedings and ensuring the best interest of the child. It should be noted that there is a draft but still no approved protocol in place for the prevention, reporting, investigation and management of child abuse and neglect cases. Child protection issues are handled primarily by the Department of Social Development and Gender Affairs, which is in charge of children found abandoned or neglected, victims of abuse and child labourers who are taken before the courts as being in need of care and protection. At this stage, the order of the court is the single most important factor determining the child s fate. Once there is a case of child abuse, a social worker is assigned to the case and follows this for its entirety. Referrals are received from various sources including police, education, health or concerned persons. If there is any inclination of suspected child abuse of any form, the information should be reported to the Department for further investigation. There are no specialized courts to deal with children in need of protection by the law or children in conflict with the law. The same courts deal with all children and juvenile matters (Kelly-Daye and Thomas-Browne 2014). Currently there is no specific law that criminalizes domestic violence. The Offences Against the Persons Ordinance is used under the charge of assault occasioning bodily harm. However, there is a Domestic Violence Bill pending approval that defines domestic violence as any controlling or abusive behaviour that harms or may harm the health, safety or well-being of a person or any child and includes: physical abuse or threats of physical abuse; sexual abuse or threats of sexual abuse; emotional, verbal or psychological abuse; economic abuse; intimidation; harassment; stalking; damage to or destruction of property; and entry into the applicant s residence without consent, where the parties do not share the 61

62 same residence. It also includes the definitions of and protections from economic, emotional, verbal and psychological abuse. The Offences Against the Person Ordinance covers some gender-based crimes: rape, procuration, indecent assault and abduction of women. This ordinance does not clearly define rape and so the courts interpretation of the crime may be restricted. It is a crime to carnally know girls under 13, regardless of whether they consent, and it is also crime with a lesser sentence to carnally know girls between the ages of 13 and 16. Carnal knowledge shall be deemed complete upon proof of penetration only. This may seriously limit prosecution in cases of rape of girls. The use of the term carnally know and the requirement of penetration should both be revised under CRCand CEDAW-agreed standards of protection and include a statutory definition of rape that includes other acts (oral sex, etc.). There is no law addressing the trafficking of women and girls. The Offences against the Persons Ordinance provides some level of protection in cases where a person procures a girl under 21 years old to have sexual intercourse in any part of the world with a third person and in cases of abduction of women for financial gain. g) Child labour and prevention of exploitation CRC Compliance Legislation Art. 32 Protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education/ minimum ages and sanctions in case of violation Employment Ordinance section 9 Education Ordinance section 40 (4) Lack of ratification of ILO Convention No. 182 on the worst forms of child labour and ILO Convention No. 138 on the minimum age for admission to employment and work 62 The Employment Ordinance, section 9 provides that every person aged 16 or over can enter into an employment contract. A person under that age can only enter into contract with the written consent of a parent or guardian. There are exceptions for employment for a specified period not exceeding four weeks, for a student attending secondary school on work experience performing tasks for a period of six weeks, for a person who is a family member of the employer or in cases where the contract of employment is regulated by a collective agreement. These exceptions may constitute a transgression of article 32 of the CRC and of ILO Conventions 138 and 182. The Education Ordinance states that a person who employs a child of compulsory school age during the school year commits an offence. There is no definition of the worst forms of child labour and there is no special provision about protecting persons below the age of 18 from heavy and dangerous work. Moreover,

63 the Government has not developed a list of hazardous occupations prohibited to children. In order to improve the protection and prevention of child labour, it is recommended that TCI ratifies (or is extended by the UK) ILO Convention No. 182 on the worst forms of child labour and ILO Convention No. 138 on the minimum age for admission to employment and work. h) Children in conflict with the law CRC art. 37 General comment No. 10 (2007) on children s rights in juvenile justice (A) Prohibition of torture/ inhuman/ degrading treatment (B) Lawful deprivation of liberty/ last resort/ shortest time Compliance Legislation Constitution Order 2011 Part I section 3 (protection from inhuman treatment) Corporal punishment is allowed in schools, which is considered degrading treatment Young Offenders Punishment Ordinance section 7 (children not to be imprisoned) Even when this ordinance provides for the general rule that children should not be imprisoned, it does not provide for any alternatives to prison (C) Separation from adults Constitution Order 2011 Part I section 8 (3) There is a section reserved for children and young people in the general prison; there are no specialized personnel dealing with children and young people (D) Right to legal assistance/ right to challenge the legality of the deprivation of liberty before a court or other competent, independent and impartial authority Constitution Order 2011 Part I section 6.2 (d) Limited recognition of the right to legal representation and aid The right to appoint a legal practitioner is recognized in the Constitution, but legal aid is very limited and a process before the juvenile court may usually take place without any legal representation and defence 63

64 CRC art. 40 General comment No. 10 (2007) on children s rights in juvenile justice Compliance Legislation 40.2 (a) Principle of legality Constitution Order 2011 Part I section 5 (1) - Protection from arbitrary arrest or detention Breach of principle of legality: No person shall be deprived of his or her personal liberty, save as may be authorized by law (d) in the case of a minor, under the order of a court or in order to bring that person before a court or with the consent of his or her parent or legal guardian, for his or her education or welfare 40.2.b (i) Presumption of innocence 40.2.b (ii) Legal assistance to prepare defence 40.2.b (iii) Brought before competent, independent and impartial authority or judicial body 40.2.b (iv) Not to be compelled to confess guilt/ to examine or have examined adverse witnesses Yes Yes Yes Constitution Order 2011 Part I section 6.2 (a) Constitution Order 2011 Part I section 6.2 (d) and 6 (4) Limited recognition of the right to legal representation and aid The right to appoint a legal practitioner is recognized in the Constitution, but legal aid is very limited and a process before the juvenile court may usually take place without any legal representation and defence Constitution Order 2011 Part I section 6 (8) Constitution Order 2011 Part I section 6.2 (e) 40.2.b (v) Right to appeal to a higher competent, independent and impartial authority or judicial body Constitution Order Part I section 6 (12) There is a limitation to the right to appeal regarding offences of a minor character b (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language Yes Constitution Order 2011 Part I section 6.2 (f)

65 65

66 According to the Juvenile Ordinance, the minimum age of criminal responsibility is 8 years, which is extremely low according to CRC standards. The draft version of the Child Justice Bill raises the age to 12 years. In addition, it states that a child who is 12 years or older but under 14 years and who commits an offence is presumed to lack criminal capacity unless it is proven otherwise. This amendment, if approved, would constitute an important step forward to bring the legislation into compliance with the CRC. The existing legislation is completely out-dated as it does not address the establishment of alternative, non-custodial sentencing options such as community service, diversion and combination orders. There are no specialized institutions and courts dealing with offences committed by children and juveniles. In practice, the magistrate is the same one who deals with adult cases but acts as a kind of juvenile court on designated days. The criminal system related to children remains, basically, a punitive one not dissimilar to that for adults. According to the Juvenile Ordinance, if a child under 16 years jointly commits an offence with an adult, the child can be also tried as an adult. In practice, depending on the nature the offence, an option is available regarding in which court they would prefer their matter to be heard (Resident Magistrate or Supreme Court). In any case, courts have extensive power to make decisions from discharging a child to making an order of imprisonment based not only on the nature of the offence but also in the character of the offender and family circumstances. There is no diversion system and even very small children (8 years old age of criminal responsibility) committing small offences can be brought before the court. Indeed, if the offence is indictable, the case goes to the Supreme Court and children cannot benefit from bail from the magistrate. This means that they have to wait in prison until a hearing before the Supreme Court. 29 The Constitution (Part I section 8 (3)) provides for the segregation of juveniles from adult prisoners. The principle of legality (see Box 4 in the section on Anguilla) is seriously compromised as a result of the broad powers of the magistrate and the ambiguity of the legislation dealing with offences committed by children and young persons. The Constitution provides for an exception of this principle for children and juveniles, stating that they can be deprived of liberty under the order of a court or with the consent of their parent or legal guardian for their education or welfare. This means that a court can deprive a child or liberty in order to educate or correct him or her with the consent of the parents, regardless of whether or not a crime has been committed and notwithstanding the seriousness of the offence. Finally, another very serious gap in the criminal system for children and young persons is that the availability of legal defence is based on the financial means of the family, with legal aid being exceptional. As most children and juveniles are from families who cannot afford a private lawyer, the great majority of them face criminal charges and are brought before the police, the prosecutor and the magistrate without a lawyer. The lack of legal representation in a criminal proceeding constitutes a serious breach of the due process of law and compromises the possibility of a fair trial and the right to have a remedy or recourse Information provided by Honourable Magistrate Kally Cheema (Grand Turk).

67 2. Main areas of concern and recommendations Main Achievements Compulsory education from ages 4 to 16 (Education Ordinance) Establishement of the Human Rights Commission Main Issue Pending Prevent statelessness of children Abolish all discrimination in legislation regarding migrant children/children born in TCI of migrant parents Combat all discrimination in the education system Abolish corporal punishment Adopt legislation providing a child protection framework and system Adopt legislation providing a proper juvenile justice system and alternatives measures to prison Raise age of criminal responsiblity Abolish unequal status of children born within and outside marriage Approve pending bills (including OECS Family Model Bills) Ratify (extended) pending human rights treaties relevant to children's rights TCI has a significant lack of legislation for the protection of children s rights, with most legislation old and inappropriate in this regard. This is also acknowledged by the Government, considering the amount of draft bills including several OECS model bills- pending approval by the Cabinet and House of Assembly: The approval of these bills, some of which have been under discussion for several years, would mean an important move towards compliance with the CRC. 2. Equality Bill 3. Child Justice Bill 4. Children (Care and Adoption) Bill 5. Domestic Violence Bill 6. Trafficking Persons Bill 7. Family Law (Guardianship, Custody and Access To Children) 8. Status of Children Bill 67

68 Main Gaps Corporal punishment Discrimination against migrant children Recommendations and priority actions Repeal section 33 of the Education Ordinance that allows for corporal punishment in schools, which is a clear violation of the CRC as stated by the Committee on the Right of the Child in General comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and General comment No. 13 (2011) on the right of the child to freedom from all forms of violence Clarify the rights of non-islanders and eliminate barriers to ensure equal access to government agencies and public services for migrant children Repeal legislative provisions and regulations discriminating against migrant children and preventing them from having access to public services and programmes (e.g., Medical Ordinance and Fees Regulations) Facilitate regularization of migrant parents with children and fully recognize the right to family reunification in the case of parents and children living separately in accordance with art. 10 CRC Remove barriers to education (e.g., Education Ordinance says that children can be refused admission to school if their primary language is not English) and facilitate and promote integration of migrant children in the education system (e.g., support to overcome language barriers) Stateless children Reform the British Nationality Act of 1981 and the TCI constitution to automatically provide citizenship to children born in the TCI regardless of their parents status (This recommendation requires action by the United Kingdom, which is responsible for the reform of the British Nationality Act) Discrimination against children born in TCI of migrant parents Amend national legislation to automatically provide children born in TCI with a birth certificate and residence status to grant full access to rights on equal terms with national children Remove any practice that acts as a barrier to obtaining birth certificates (e.g., denial of certificates due to pending hospital bills) 68

69 Main Gaps Discrimination against girls Recommendations and priority actions Address and prevent gender discrimination in legislation and practice Lack of procedure to determine the best interest of the child Address discrimination against pregnant girls and teenage mothers in general and in the education system in particular Adopt legislation and/or include in current draft bills the explicit recognition of the principle of best interest of the child Adopt procedures granting the child the right to have his/her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him/her, in both the public and private sphere in accordance with General comment No. 14 (2013) Lack of participation and enforcement of the right to be heard Adopt legislation and/or include in current draft bills the recognition of the right to participate and the right to be heard in all matters that may affect children s rights Lack of child care and protection legislative framework Revise and approve existing Child Care Bill (OECS Children (Care and Adoption) model Bill) The new legislation should clearly define all aspects of abuse and neglect, the kind of child services available, the leading agency in dealing with and coordinating child care and protection, the role of the police and the magistrate, the different orders available for care and protection and available places in case of the need to place a child in foster care and/or other institutional arrangements. It should explicitly include guiding principles of all intervention in child protection cases, in accordance with the CRC: the right to be heard and participate in all proceedings, the right to the family, best interest of the child, among others. Status of children Adopt the Status of Children Bill abolishing all legal distinction in the status, rights, privileges and obligations of children born within and outside marriage 69

70 Main Gaps Lack of appropriate juvenile justice legislation and system Recommendations and priority actions Revise and approve the existing Child Justice Bill, which raises the minimum age of criminal responsibility from 8 to 12 and presumption of immaturity until 14 Reform legislation to achieve full application of CRC principles and juvenile justice rules to all persons under the age of 18 without exception Focus on prevention rather than punishment of children and adolescents (rehabilitation and restorative justice) and adopt legislation and regulations to establish a diversion system that deals with children committing minor offences without resorting to judicial proceedings Repeal existing legislative provisions that call for a tougher approach, mandatory sentences, remand to prison and other primarily punitive measures in cases of children who are recidivists or in breach of probation orders, etc. Abolish legislative provisions and practices allowing the criminal system to deal with children with problems of conduct but not committing crimes (e.g., children breaking school rules, parents bringing children to the courts to correct their conduct); these issues should be dealt with through social and protective measures rather than the criminal system Limit magistrates /courts broad sentencing powers and uphold the principle that deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate period of time Fully recognize due process of law in the legislation and, in particular, ensure the availability of legal representation for all children subjected to criminal proceedings without exception 70 Recognize and grant the right to appeal or recourse to any measure imposed as a consequence of a guilty verdict; recourses should be decided by a higher, competent, independent and impartial authority or judicial body

71 Establish specialized units within the judiciary, the court system and the prosecutor s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to children Lack of appropriate juvenile justice legislation and system Establish separate facilities for children deprived of their liberty, which include distinct, specialized staff, personnel, policies and practices Establish measures, alternatives and centres (in particular attendance centres, day treatment centres, community services, etc.) and a diversion system Fully integrate into the juvenile justice legislation and policy, the United Nations Guidelines for the Prevention of Juvenile Delinquency (1990) Lack of sufficient protection to victims of trafficking Revise and approve the existing draft of the Trafficking in Person Bill Lack of ratification of fundamental human rights treaties Repeal the current denomination of carnally knowledge and the limited definition that this is only deemed to be completed on proof of penetration, which may seriously limit prosecution in cases of rape of girls. The use of the term carnal knowledge and the requirement of penetration should both be revised under CRC and CEDAW agreed standards of protection and include a statutory definition of rape that includes other acts (oral sex, etc.) Ratify (extension) of the following fundamental treaties: Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Convention on the Rights of Persons with Disabilities ILO Convention No. 182 on the worst forms of child labour LO Convention No. 138 on the minimum age for admission to employment and work 71

72 Virgin Islands NATIONAL LEGISLATION RELEVANT TO CHILDREN RIGHTS 72

73 Virgin Islands The British Virgin Islands (BVI) comprises over 40 islands, islets and cays. Of these, 16 are inhabited, the largest being Tortola, Anegada, Virgin Gorda and Jost van Dyke. The population is 28,280, approximately half of whom are migrants from the Dominican Republic, St. Kitts and Nevis, St. Vincent and the Grenadines and other Caribbean islands. Several thousand native BV Islanders live outside the territory, mostly in the United States Virgin Islands (USVI) and mainland United States (Human Rights Committee 2013). BVI is a British Overseas Territory, with the Sovereign as the head of state and Her Majesty s representative, the governor, responsible for external affairs, defence and internal security (including the police), the civil service and administration of the courts. Since 1967, BVI has been responsible for its own internal affairs. The Virgin Islands Constitution Order 2007 provides for the people to be represented by a ministerial system of government, led by an elected premier, a Cabinet of ministers and the House of Assembly. The House of Assembly has 15 members; 13 elected for a four-year term (nine in single-seat constituencies and four at large), one ex-officio member and a Speaker chosen from outside the council. The law of BVI is the common law of England and locally enacted legislation, which is administered by the Magistrates Courts and the Eastern Caribbean Supreme Court (Government of the United Kingdom 2014). Human rights are protected by chapter 2 Fundamental Rights and Freedoms of the Individual of the Constitution Order: right to life; equality before the law; protection from inhuman treatment, slavery and forced labour; protection of the right to personal liberty; provisions to secure protection of law; protection of the right of prisoners to humane treatment; protection of freedom of movement, private and family life and privacy of home and other property; protection of the right to marry and found a family; protection of freedom of conscience; the right to education; and protection of freedom of expression, assembly and association. In addition, section 34 of the Constitution Order provides for the establishment of a Human Rights Commission. However, this has not been put in place and the appropriate legislation should be passed by the House of Assembly (Government of the United Kingdom 2014). 73

74 1. Legislation and the Convention on the Rights of the Child Relevant legislation to children s rights 30 Adoption of Children (1947) Age of Majority Act (1994) Children and Young Persons Act (2005) Criminal Code (1997) Criminal Code (Amendment) Act (2007) Criminal Justice (Alternative Sentencing) Act (2005) Domestic Violence Act (2011) Education Act (2004) Education (Amendment) Act (2014) Guardianship of Infants Act (1887) Health Ordinance (1977) BVI Health Services Authority Act (2004) Hospital Regulations (2014) Labour Code Act (2010) Magistrate Code of Procedure (1892) Magistrate s Code of Procedure (Amendment) Act (2014) Marriage (Amendment) Act (1994) Probation of Offenders (Amendment) Act (2005) Status of Children Act (2014) Youth Courts Order (2005) Youth Courts (Amendment) Act (2013) Youth Courts Act (2005) a) Age According to the Children and Young Persons Act, a child is a person under the age of 16 and a young person is a person who has attained the age of 16 and is under the age of 18. Different ages are given in the legislation regarding different aspects of a child s life, including the very early age of 10 to be considered responsible for crimes and 16 years as a mark for sexual consent, minimum age of marriage and prohibition of child labour. According to the Ministry of Health and Social Development, the practice is that children under 18 need parental consent to access medical services. However, the Age of Majority Act states in section 13 that a minor aged16 years can consent to surgical, medical or dental treatment and it is not necessary to obtain any consent for it from her/ his parent or guardian. Virgin Islands Minimum age of marriage 16 Marriage (Amendment) Act Minimum age of sexual consent 16 Criminal Code Minimum age to access medical services/ consent to treatment Age of Majority Act Practice from the BVI Health Services Authority Minimum age for employment 16 Labour Code 14 Criminal age of responsibility 10 Criminal Code Maximum age of compulsory education 17 Education (Amendment) Act, The year of the legislation may indicate the year it was enacted and/or the year of the last revision and/or the year that a consolidation of legislation and amendments was done and/or latest amendment.

75 b) CRC principles CRC principles Compliance Legislation Yes/No/ Art. 2 Non-discrimination Constitution Order, chapter 2, section (9), and section (10) Fundamental Rights and Freedoms of the Individual Equality before the law Constitution Order, chapter 2, section (11) It should be noted that the definition of discrimination does not cover all aspects required by the CRC (i.e., status of parents transmitted to the child limiting his/her rights see comments about belongership status) Art. 3 Best interest of the child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration Art. 6 Survival and development Art. 12 Right to be heard and participate General comment No. 12 (2009) on the right of the child to be heard No No There is no legislation in place that recognizes the best interest principle and/or policy/procedure for the determination of the best interest of the child Right to life Constitution Order, chapter 2, section (11). There is no law in place that recognizes the concept of development according to art. 6 CRC There is no legislation in place that recognizes the right to participate and the right to be heard in all matters that may affect children s rights; there is no policy/procedure providing for the participation and/or hearing of children The Constitution Order, chapter 2, section (9), states that every person in BVI is entitled to enjoy fundamental rights and freedoms without distinction of any kind such as sex, age, race, colour, language, religion, political or other opinion, national, ethnic or social origin association with a national minority, property, family relations, economic status, disability, age, birth, sexual orientation, marital or other status. In addition, chapter 2, section 26 (1) (a) defines discriminatory as meaning affording different treatment to different persons on any ground (such as those above). 75

76 The Constitution is in thus in compliance with the non-discrimination clause of the CRC with the exception of the treatment of non-nationals. Chapter 2, section 26 (2) and 4 (b) allows for different treatment to those persons who do not belong to the Virgin Islands. This distinction between belongers and non-belongers is widely applied and seriously affects children rights. (See more on this issue in the sub-section below on civil and political rights.) There are scattered references to the best interest of the child principle in the legislation. One can be found in the Guardianship of Infants Act section 3, which states that: where in any proceeding before the Court the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the father. In the recent Status of Children Act, 2014, the best interest of the child principle is used in relation to parentage testing procedure. With regards to the right to participation and to be heard, it should be noted that article 12 of the CRC establishes this not only as a right in itself but also as a general principle (see Box 1 in the section on Anguilla). State parties should strive to ensure that the interpretation and implementation of all other rights incorporated in the Convention are guided by it (UN Committee on the Rights of the Children 2009). There are no specific laws, policies and/or procedures that recognize explicitly the right to participation and provide that every child is able to express her or his views in all matters affecting her/him. The right to be heard is not granted in judicial and administrative proceedings affecting the child. The right to participate in decision-making processes is in general absent. In addition, there are no independent mechanisms, such as an ombudsperson or a person of a comparable role in all children s institutions, inter alia, in schools and day-care centres, in order for children to voice their complaints. 76

77 c) Civil and political rights CRC Compliance Legislation Art. 7 Registration after birth and acquire nationality Constitution Order, chapter 1, section 2 (2) Very restrictive access to nationality, even for children born in BVI Art. 8 Child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference Constitution Order, chapter 1, section 2 (2) Very restrictive access to nationality, even for children born in BVI Art. 10 Family reunification (right to leave and enter a country) No Migration laws do not explicitly recognize the principle of family reunification Art. 11 Combat the illicit transfer and non-return of children abroad and enter international agreement to prevent it No Hague Convention on the Civil Aspects of International Child Abduction has not been ratified/extended Art. 13 Freedom of expression Art. 14 Freedom of thought, conscience and religion Yes Constitution Order, chapter 2, section 23 Yes Constitution Order, chapter 2, section 21 Art. 15 Freedom of assembly Yes Constitution Order, chapter 2, section 24 Art. 16 Illegal interference with privacy Yes Constitution Order, chapter 2, section 19 One of the most significant gaps in the protection of human rights affects migrant children and those born in BVI of non-bvi parents. The rules of citizenship and belonger status are complex and difficult to understand, and there is some level of discretion in the decision of granting or not the status of belongership. The terms belonger and non-belonger are commonly used to denote those who are deemed to belong and not deemed to belong to BVI, respectively (see Box 2 in the section on Anguilla). As clearly stated on the BVI Immigration Department website, if a child is born in the BVI and the parents are not citizens or belongers they are required to apply in writing to the 77

78 Immigration Department for permission for the child to reside. 31 The immigration laws do not automatically grant any rights to such persons born in the territory. Citizenship status is governed by the British Nationality Act of 1981, the Constitution Order, chapter 1, section 2 (2) and the Immigration and Passport Ordinance. According to the United Kingdom Government report to the CEDAW Committee, the Immigration and Passport Ordinance has been amended so that belonger and residence status is now gender neutral and can be passed to children by either their mothers or fathers (UN CEDAW Committee 2011). However, children born in BVI of non-bvi parents are mainly considered as temporary migrants, face restrictions in the enjoyment of their rights and can be stateless if they cannot obtain the citizenship of the country of origin of their parents. d) Family life and right to family CRC Compliance Legislation Art. 5 Parental rights autonomy evolving capacity No The legislation and standards related to age of consent and the need of parental authorization are confusing and unclear Art. 9 Right to family relations and be with both parents Art. 18 Both parents have common responsibilities for the upbringing and development of the child; best interests of the child Art. 27 Measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility Status of Children Act Status of Children Act Magistrate s Code of Procedure (Amendment) Act (Maintenance and custody orders) Guardianship of Infants Act 78 BVI has adopted the Status of Children Act, 2014 (after the OECS model bill) where all legal distinction in the status, rights, privileges and obligations of children born within and outside 31 < marriage is abolished and all children shall be of equal status. The same Act also provides that the status, rights, privileges and obligations of the parents and all kindred of a child born out of wedlock are the same as if the child were born in wedlock, and there are several provision dealing with the presumption of paternity.

79 It is necessary to adopt a new legal framework related to maintenance and access to children to reinforce the common responsibilities of both parents in bringing up children and ensure that children have the right to be in regular contact with both parents when they are not living together. The Government has already drafted a Child Maintenance and Access Bill regulating maintenance orders and access orders. According to information provided by the Ministry of Health and Social Development, the Bill may be approved some time at the end of e) Social and economic rights CRC Compliance Legislation Art. 24 Right to health General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health General comment No. 4 (2003) on adolescent health and development in the context of the CRC Access to health services is limited for those persons below the age of 18 There are contradictions between the Age of Majority Act and the practice from the BVI Health Services Authority with regards to the age of consent to have access to medical services Restricted accessibility (financial) for migrant children of nonbelonger/ non-resident parents Art. 26 Right to social security and social protection Art. 27 Right to a adequate standard of living, including material assistance and support programmes, particularly with regard to nutrition, clothing and housing No No There are no legislative provisions providing for social protection as a entitlement There are no legislative provisions providing for social assistance as a entitlement Art. 28 Right to education Yes Constitution Order, section 22 Education Act Education (Amendment) Act,

80 80 The Public Health Ordinance of 1977 regulates the promotion and preservation of the health of inhabitants. The Hospital Regulations, 2014, provide that in cases of dependent children, the Ministry of Health and Social Development is liable for the hospital charges. Therefore, in most cases children will have free access to health services. However, the definition of dependent children in the Regulations does not include the children of non-belongers or non-residents, who thus face fees to access health services. Moreover, the Regulations apply different fees to residents and non-residents. Non-belonger or non-resident children are also barred from applying for financial assistance under indigent status as the definition of indigent and the criteria to provide help is reserved for belongers and residents (section 4). Another problem regarding accessibility is that there are no specific provisions related to access to health by children and adolescents. The legislation and regulations should clarify at what age children have access to confidential medical counselling and advice without parental consent. Children and adolescents may need such access, for example, when they are experiencing violence or abuse at home, in need of reproductive health education or services or in case of conflicts between parents and the child over access to health services. It appears from the Age of Majority Act that those aged 16+ can give consent to medical treatment, but in practice those below the age of 18 are required to provide parental consent. With regards to the right to education, chapter 2, section 22 of the Constitution Order provides that: every child of the appropriate age, as provided by law, shall be entitled to receive primary education. The Education Act, 2004 (section 15) states that subject to available resources, all persons are entitled to receive an educational programme appropriate to their needs. In addition, the Education (Amendment) Act, 2014 recently increased the compulsory school attendance age from 16 to 17. Section 30 of the Education Act 2004 makes clear that a person who is eligible for admission to a public school or an assisted private school as a student shall not be refused admission on any discriminatory grounds including race, place of origin, political opinions, colour, creed, sex, mental or physical handicap. It should be highlighted that section 55 of the Education Act, which allowed for corporal punishment, has been repealed and replaced by an amendment adopted in 2014 that now reads: In the enforcement of discipline in public schools, assisted private schools and private schools degrading or injurious punishment shall not be administered. This new provision has not explicitly prohibited all kind of punishment but it may be interpreted as saying that corporal punishment is not allowed. Even when education is compulsory and children are protected from any discrimination, there are still obstacles for some children to have access and/or remain in the educational system. Children of irregular migrants (work permit overstayers and persons who entered the country irregularly) may find obstacles to enjoying the right to education, in particular because of the documentation that must be produced at the time of registration. Another problem commonly faced by migrant children, in particular migrants from the Dominican Republic and Haiti, is the language. There are no specific programmes in place to support these children. The education system requires a focus on children with disabilities. The lack of special educational provisions and programmes should be of special concern for the Government. Finally, teenage pregnancy and drop-out rates of young mothers should be addressed (Institute for Gender and Development Studies 2011). Compulsory education until the age of 17 should be enforced for all children, including pregnant teenagers and young mothers. They should only be allowed to leave school for medical reasons and during the time necessary to give birth. During that time, they should receive alternative schooling so as not to fall behind. The societal norms of engaging the issue of teenage pregnancy need to be repositioned; responsibility of the pregnancy needs to be

81 understood in the context that both female and male involvement (ibid.). The UN Committees have consistently encouraged States parties to undertake measures to boost enrolment and retention in secondary education and make secondary education mandatory while also providing economic incentives for pregnant girls and adolescent mothers to complete secondary school. Adolescent girls, during and after pregnancy, have the right to continue their studies, which can be guaranteed through non-discriminatory return policies (UN CEDAW Committee and UN Committee on the Rights of the Child 2014). 81

82 f) Child protection CRC Compliance Legislation Art. 19 Protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse General comment No. 13 (2011) on the right of the child to freedom from all forms of violence Constitution Order, chapter 2, section 30 Children and Young Persons Act Domestic Violence Act Protocol for the prevention, reporting, investigation and management of child abuse and neglect Art. 20 Special protection and care (foster care, etc.) Children and Young Persons Act Protocol for the prevention, reporting, investigation and management of child abuse and neglect Art. 21 Adoption Adoption Act (1947) needs to be changed and updated There is a Adoption Bill pending approval Art. 34 Prohibition of all forms of sexual exploitation and sexual abuse Art. 35 Prevent abduction/ sale of or traffic in children Children and Young Persons Act Criminal Code, 1997 and Criminal Code (Amendment) Act of 2007 Protocol for the prevention, reporting, investigation and management of child abuse and neglect Criminal Code (Amendment) Act of 2007 section 201(a) Lack of legislation/ protocol providing for treatment and rights of victims of trafficking/ abduction and sale Lack of ratification of Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime Lack of ratification of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography Art. 36 Protection against all Criminal Code (Amendment) Act of Lack of ratification of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography

83 The Constitution Order, chapter 2, section 30 provides that the Legislature may, in addition to any rights and freedoms provided in this chapter which afford protection to children, enact such laws as it considers fit to promote the wellbeing and welfare of children and to afford them protection from any harm, exploitation, neglect, abuse, maltreatment or degradation and to provide them with such facilities as would aid their growth and development. The Children and Young Persons Act is the main piece of legislation that aims to provide for the protection of children. It makes provisions for the prevention of cruelty to and protection of children and young persons. Section 4 of the Act places an obligation on various persons who come into contact with children in the course of carrying out their profession or duties to report any case of abuse, or suspected abuse to the police. Similarly, section 6 empowers a police officer or an authorized person to bring before a youth court a child or young person who is in need of care, supervision or protection. The main problem with this Act is that it provides for substantive and procedural measures for children and young persons whether they are perpetrators or victims of crime. It mainly deals with the power of and proceedings in the Youth Court, the methods of dealing with a young offender and provisions relating to the committal of him/her to the care of a fit and proper person. The language is confusing and, even in cases of protection of a child victim, uses terminology more appropriate for young offenders. For instance, a child victim can be placed by the magistrate for a specified period, not exceeding three years, under the supervision of a probation officer or, if a child or young person has been or is being assaulted, ill-treated or neglected in any such manner, or any such offence has been or is being committed in respect of them, to take her/ him to and detain her/him in a place of safety. It should be noted that there is in place a Child Protection Protocol for the prevention, reporting, investigation and management of child abuse and neglect that complements and improves the Children and Young Persons Act. This Protocol has been designed to provide government agencies with a systematic guideline for coordinated actions in child abuse/ neglect prevention, reporting, investigation and management. In the Protocol there is separation of criminal and protection procedures. All reports of child abuse should be referred to the Social Development Department within 24 hours of the initial report. This includes reports from the police, schools, medical professionals, counsellors or any other source. All teachers and caregivers are to immediately report all cases of suspected child abuse to the principal or, in his/her absence, the guidance counsellor or centre manager. Where the principal may be the suspected abuser, a teacher or caregiver should report the case directly to the Social Development Department. Teachers, principals, guidance counsellors and other school personnel should not attempt to investigate allegations of abuse or take any steps to contact parents/family members, which is the role of the police and Social Development Department. The initial report may be orally communicated but should be followed up with a completed referral form. A copy of the form submitted to the Department is to be kept on record by the school. Additionally, all health professionals must report all actual or suspected cases of child abuse to the Department. According to the Protocol, the Social Development Department is responsible for all investigations of child abuse that are of a child protection nature. A child protection investigation is conducted to establish whether the victim is in need of care and protection. The police are responsible for all investigations of child abuse that are of a criminal nature. A criminal investigation is conducted with a view to establishing criminal liability on the part of the alleged abuser. Where there is evidence in cases of sexual or physical abuse, the police will initiate an investigation and refer the matter to the Office of the Director of Public Prosecutions. In the event that the child must be removed from her/his home and relocated to a place of safety, the Social Development Department should immediately make an application to the magistrate for the necessary orders. 83

84 84 The Protocol defines that the Social Development Department is responsible for all child protective services, which include rehabilitative measures. Follow-up care and supervision should be guided by certain key principles that will instruct child protection officers in the execution of their duties, for example: If it becomes necessary to separate the child from the abuser, consideration should always be given first to whether the adult can be removed or will cooperate in leaving the home. A child s reunification with his/her family and community should ordinarily be the ultimate objective of the plan of care. The first option shall be the placement of the child with a relative or friend before considering placement in a non-kinship foster home or institutional setting, following an assessment in relation to adequate safety, support and supervision for the child Children who are in care have the right to on-going access to their parents and other family members to the extent that this is in their best interests. Accordingly, efforts to facilitate access between children and family members are to be vigorously encouraged. A child s views and preferences in relation to their follow-up care should always be ascertained and attributed value. Although the Protocol has improved the regulation and procedures in place to dealt with child cases abuses by incorporating some of the CRC principles and rights, the Children and Young Persons Act should be replaced by appropriate legislation exclusively dealing with the protection of children from abuse and neglect to ensure that the best interests of children and their rights are given paramount consideration in all matters relating to them (see Box 5 in the section on TCI). According to information provided by the Ministry of Health and Social Development there are two bills already drafted and in the process of approval (some time in 2015). These have been drafted following the OECS Children (Care and Adoption) Bill, but the Ministry has decided to draft and adopt two separate bills: The Child Care and Custody Bill and the Adoption Bill. In BVI, the primary legislation that reflects sanctions against domestic and genderbased violence, including against children, is the Domestic Violence Act, This Act was patterned after the OECS Model Family Legislation. Under the Act domestic violence is defined as, any controlling or abusive behaviour that harms or may harm the health, safety or well-being of a person or any child [under the age of 18] and includes: a) physical abuse or threats of physical abuse b) sexual abuse or threats of sexual abuse c) emotional, verbal or psychological abuse d) economic abuse e) intimidation f) harassment g) stalking h) damage to or destruction of property i) entry into the applicant s residence without consent, where the parties do not share the same residence An application for a protection order may be made by a member of a shared household on his/her own behalf or on behalf of any other member of the shared household, by the child or by a person who has a child in common with the respondent. In addition, an application may be brought on behalf of the applicant by any other person who has a material interest in the well-being of the applicant, including a police officer, the Chief Social Development Officer or an approved social worker, except when the application shall be brought with the consent of the applicant, but such consent shall be dispensed with in circumstances where the

85 applicant is a child (Domestic Violence Act, section 4). The Criminal Code (Amendment) Act, 2007 (No. 3 of 2007) amended the Criminal Code in two respects. First, child pornography has been expressly made an offence. By section 284A (2), any person who intentionally publishes or is concerned in the publication of, produces or is concerned in the production of child pornography, or has child pornography in his possession, commits an offence and is liable to conviction on indictment for a term of imprisonment not exceeding 14 years. Second, it creates the offence of human trafficking of children. Any person who is concerned with trafficking of minors is liable on indictment to the maximum penalty of imprisonment for life. According to the National Policy for Gender Equity and Equality there is a concern about the treatment of irregular immigrants whether or not they were trafficked as defined under the legislation. Their detention in prison prior to repatriation and lack of access to support services, as reported, were deemed to be in violation of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Transnational Organized Crime (2000) (Institute for Gender and Development Studies 2011). The Criminal Code is intended to protect women and men alike from acts of violence. Notably, however, section 187 creates a specific offence that offers some form of protection specifically to females and children. It reads: Any person who is guilty of an aggravated assault on any female, or on any male child whose age appears to the court not to exceed fourteen years, if the assault is not committed in circumstances for which a greater punishment is provided by this Code, is liable on conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding five hundred dollars. The Criminal Code also covers a multitude of sexual offences. According to the BVI periodic report to CEDAW (UN CEDAW Committee 2011), these include: (a) Sexual intercourse with a girl aged 13 or under (maximum sentence of 14 years) (b) Rape (maximum sentence of life imprisonment) (c) Unlawful sexual intercourse with a girl under the age of 16 years (maximum sentence of seven years) (d) Unlawful sexual intercourse with a defective (maximum sentence of seven years) (e) Sexual assault by husband (maximum sentence of 10 years) (f) Incest by a man (maximum sentence of 10 years) (g) Indecent assault on a woman (maximum sentence of 7 years if she is aged 13 or under or five years for other cases) (h) Indecency with a child (maximum sentence of five years) (i) Administering drugs to facilitate intercourse (maximum sentence of seven years) Section 121 of the Criminal Code purports to recognize marital rape as an offence under the heading Sexual assault by a husband. However, such rape only extends to instances of judicial separation or where there is a pending divorce or nullity. The penalty on conviction is imprisonment for a term not exceeding 10 years. The view of the majority of people in BVI is that a husband cannot rape his wife, and this has somewhat been reflected in the acquittal of cases of rape between married couples. To dispel this view, promote equality and equity among women and men and eradicate discrimination against women, a specific provision for marital rape ought to be listed. In BVI, in accordance with section 2 (1) of the Age of Majority Act, 1994, a person attains full age on attaining the age of eighteen. However, the Criminal Code, 1997, provides that the age of consent for sexual intercourse for females is 16 years old, under which age consent is immaterial and a man can be charged with unlawful intercourse. Section 125 of the Criminal Code speaks of the general sexual offence of indecency with a child of any gender. 85

86 g) Child labour and prevention of exploitation CRC Compliance Legislation Art. 32 Protection from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education/ minimum ages and sanctions in case of violation Labour Code sections 128 to 133 Education Act, 2004 and Amendment 2014 Lack of ratification of ILO Convention No. 182 on the worst forms of child labour and ILO Convention No. 138 on the minimum age for admission to employment and work The Labour Code 2010, section 128 provides that a person shall not employ or permit to be employed a child (under 16 years) or s/he is liable on summary conviction to a fine not exceeding $8,000, and in the case of a second or subsequent offence to a fine not exceeding $10,000. In spite of this provision, however, children between 14 and 16 can perform light work approved by the minister. Likewise, the Education Act, 2004, states that a person who employs a child of compulsory school age during the school year commits an offence and is liable on summary conviction to a fine. In the case of young persons (over 16 and under 18), section 130 of the Labour Code states that a person shall not employ: a young person who is of compulsory school age during school hours without the prior written consent of the minister responsible for education a young person on night work (defined as work performed between the hours of 8:00 p.m. and 5:00 a.m. the following day) a young person in any form of work that the minister may declare to be hazardous The Labour Code provides for the removal and rehabilitation of children subjected to the worst forms of child labour and makes the offence punishable with a fine, holding both the employer and the child s parent or guardian liable. Where the Commissioner is aware of the involvement of a child or young person in a worst form of child labour, s/he shall communicate and collaborate with other agencies of the Crown to ensure that the child or young person is removed from that kind of labour and rehabilitated. A person who employs or induces another to employ or procures the employment of a child or young person in the worst form of child labour commits an offence and is liable on summary conviction to a fine not exceeding $25,000 (section 130 (8)). 86

87 The Labour Code defines worst forms of child labour as: All forms of slavery or practices similar to slavery, such as the sale and trafficking of children and young persons, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict The use, procuring or offering of a child and young persons for prostitution, for the production of pornography or for pornographic performances The use, procuring or offering of a child and young persons for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, or for activities that involve the unlawful carrying or use of firearms or other weapons Work deemed by the minister to be hazardous to young persons Section 146 of the Labour Code establishes that a young person shall not work at a dangerous machine in an industrial establishment unless s/ he is fully instructed as to the dangers arising in connection with its operation and the precautions to be observed, has received sufficient training in work at the machine or is under adequate supervision by a person who has special knowledge and experience in its operation. This flexibility may be in contradiction with article 32 of the CRC and the standards set up by the ILO Convention No. 182 on the worst forms of child labour. The Government has not developed a list of hazardous occupations prohibited to children. In order to improve protection from and prevention of child labour, it is recommended that BVI ratify (or is extended by the UK) ILO Convention No. 182 as well as No. 138 on the minimum age for admission to employment and work. 87

88 h) Children in conflict with the law CRC art. 37 General comment No 10 (2007) on children s rights in juvenile justice Compliance Legislation (A) Prohibition of torture/ inhuman treatment Yes Constitution Order, chapter 2, sections 13 and 17 (B) Lawful deprivation of liberty/ last resort/ shortest time Criminal Justice (Alternative Sentencing) Act This Act provides for alternatives to prison, but the principle of last resort and shorter time of deprivation of liberty is not explicitly included The centres included in the Alternative Sentencing Act have not been created, in practice limiting the options available when sentencing (C) Separation from adults Constitution Order, chapter 2, section 17 (3) There is a section reserved for children and young people in the general prison There are no specialized personnel dealing with children and young persons (D) Right to legal assistance/ right to challenge the legality of the deprivation of liberty before a court or other competent, independent and impartial authority Constitution Order, chapter 2, section 15 (4) The right to appoint a legal practitioner is recognized in the Constitution, but legal aid is very limited and a process before the juvenile court usually takes place without any legal representation and defence 88

89 CRC art. 40 General comment No. 10 (2007) on children s rights in juvenile justice Compliance Legislation 40.2 (a) Principle of legality Constitution Order, chapter 2, sections 15 (2) and 16 (3) Restriction of principle of legality: No person shall be deprived of his or her personal liberty, save as may be authorized by law (d) in the case of a minor, under the order of a court or in order to bring that person before a court or with the consent of his or her parent or legal guardian, for his or her education or welfare Children should not be deprived of their liberty because it has been requested by their parents or just to be educated 40.2.b (i) Presumption of innocence 40.2.b (ii) Legal assistance to prepare defence Yes Constitution Order, chapter 2, section 16.2 (a) Constitution Order, chapter 2, section 15 (4) & section 16.2 (d) The right to appoint a legal practitioner is recognized in the Constitution, but legal aid is very limited and a process before the juvenile court usually takes place without any legal assistance and defence 40.2.b (iii) Brought before competent, independent and impartial authority or judicial body 40.2.b (iv) Not to be compelled to confess guilt/ to examine or have examined adverse witnesses 40.2.b (v) Right to appeal to a higher competent, independent and impartial authority or judicial body 40.2.b (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language Yes Constitution Order, chapter 2, section 15 (5) Yes Constitution Order, chapter 2, section 16.2 (e) Yes Constitution Order, chapter 2, section 16.7 (b) Yes Constitution Order, chapter 2, section 16.2 (f) 89

90 40. 3 Establishment of laws, authorities and institutions specifically applicable to children in conflict with penal law Youth Courts Order Youth Courts (Amendment) Act, 2013 Youth Courts Act Even when the legislation provides for the establishment of a Youth Court, it is not a specialized court; rather, the same Magistrate s Court that deals with adults sits as a Youth Court on specific days 40.3 (a) Minimum age Criminal Code 40.3 (b) Alternative measures for children in conflict with penal law without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected There is a age fixed by the Criminal Code but it is too low according CRC standards Criminal Justice (Alternative Sentencing) Act This Act provides for alternatives to prison, but the principle of last resort and shorter time of deprivation of liberty is not explicitly included The centres included in the Act have not been created, in practice limiting the options when sentencing 90 According to the Criminal Code, the minimum age of criminal responsibility is 10 years, which is too low according to CRC standards. However, the law provides that a person under the age of 14 is not criminally responsible for an act or omission unless it is proved that at the time s/ he had the capacity to know that s/he ought not to do the act or make the omission. The Criminal Justice (Alternative Sentencing) Act 2005 widens the sentencing options available to the courts in dealing with children and young persons. Part II of the Act deals with the various sentencing options available to the courts in respect of children and young offenders: short sentences, fines, probation, curfew orders, community service orders and combination orders. A court may, for example, impose a penalty without recording a conviction, reduce a prescribed minimum penalty or substitute a penalty. Furthermore, a court may suspend a sentence of youth custody and training or imprisonment and impose a bond requirement in appropriate circumstances. Section 15 of the Act provides for the establishment by the Executive Council of relevant centres, such as attendance centres,

91 youth custody and training centres and drug rehabilitation and after-care centres. However, these have not yet been established, limiting the enforcement of this Act and the options available for young offenders. The Youth Courts Act 2005 and amendments are designed to complement the Criminal Justice (Alternative Sentencing) Act This provides for a child or young person who is charged with a summary offence to be tried in a youth court (unless he is charged jointly with a person aged 18 years or over), and section 5 provides for the general public to be excluded from the sittings of a youth court. Section 6 provides for restrictions on the publication and disclosure of the identity of children and young persons who are involved in proceedings before a youth court. The magistrate can select at least one assessor to sit with him and to advise him on the appropriateness of any sentence that may be imposed on a child or young person. Assessors are to be chosen from a panel, nominated by Executive Council, that may include social workers, members of the religious community, education psychologists, school guidance counsellors or teachers. Alternatively, the magistrate can decide to sit alone where he considers it would be impracticable for the court to be constituted in that way or inexpedient in the interests of justice to adjourn the business of the court. In practice, the magistrate sits alone, regularly presiding over adult cases with the Youth Court only in session on designated days. The Act also makes provision for the parents of the child or young person arrested to be notified of the charge and the time and place when s/he is to be brought before the court. The parents are required to attend the court and remain in attendance during the proceedings unless the court excuses them. Parents in breach of this provision are liable to being arrested. The criminal system related to children remains a basically punitive one, not altogether dissimilar to the criminal system for adults. Children can be tried for offences from the very early age of 10 and they are tried in the same Magistrate s Court dealing with adults, even though it is called a Youth Court. There is no diversion system, with even small children committing small offences being brought before the court. Although the Criminal Justice (Alternative Sentencing) Act 2005 may mean a step forward from previous legislation, it still focuses on punishment rather than prevention and rehabilitation. Even when dealing with youth custody and training centres, the Act uses the term detention, which implies the deprivation of liberty. There are some relative differences between the attendance centres and the youth custody and training centres. The former seem to be open places and the latter ones closed centres. Although section 12 of the Act states that where a child or young person is found guilty of an offence that is punishable with a sentence of imprisonment, the court may instead order him to be detained in a youth custody and training centre for a term not exceeding five years, there is no clear difference between the prison and the youth custody and training centres; both are places of detention. The difference may be that one is a specialized centre only for children and young people rather than the current prison where they all in the same place (physically separated in the same building). In any case, all these differences are purely theoretical as there has been limited political will to implement the Act, with none of the centres and institutions that it provides for having so far been created. Another aspect of the criminal system for young people and children is that the magistrate retains broad and discretionary sentencing powers, ranging from discharging a child or young person, subject to the condition that s/ he commits no offence during a period not exceeding three years from the date of the order (section 3), to making an order of imprisonment based not only on the nature of the offence but also on the character of the offender and family circumstances. The principle of legality (see Box 4 in the section on Anguilla) is seriously compromised as a result of the broad powers of the magistrate and ambiguity of the legislation dealing with offences committed by children and young persons. The Constitution provides for an exception of this 91

92 principle for children and young persons in chapter 2, section 15 (2) that states the main reason that a person can be deprived of her/his personal liberty is in execution of a sentence or order of a court in respect of a criminal offence of which that person has been convicted or in respect of any other order of the court. However, in the case of a minor, s/he can be deprived of liberty under the order of a court or with the consent of her/his parent or legal guardian for the purpose of her/his education or welfare. This means that a Court can deprive a child of liberty to educate or correct him/her with the consent of the parents, regardless of whether or not a crime has been committed or the seriousness of the offence. Finally, another very serious gap in the criminal system for children and young persons is that the availability of a legal defence is based on the financial means of the family, with legal aid being exceptional. As most children and young persons are from families who cannot afford a private lawyer, the great majority of them face criminal charges and are brought before the police, the prosecutor and the magistrate without a lawyer. The lack of legal representation in a criminal proceeding constitutes a serious breach of the due process of law and compromises the possibility of a fair trial and the right to have a remedy or recourse. 2. Main areas of concern and recommendations Main Achievements Main Issue Pending Status of Children Act, 2014 Repeal of degrading punishment and raising of the compulsory age of education (Education Amendment Act, 2014) Domestic Violence, 2011 Labour Code 2010 (prohibition of child labour and definition of worst forms of child labour) Protocol for the prevention, reporting, investigation and management of child abuse and neglect Prevent statelessness of children Abolish all discrimination in legislation regarding migrant children/children born in BVI of migrant parents Combat all discrimination in the education system Adopt legislation providing a proper juvenile justice system Implement existing legislation and adopt alternatives measures to prison Approve pending bills (child protection/adoption and care) Ratify (extend) pending human rights treaties relevant to children rights 92

93 Main gaps Recommendations and priority actions Discrimination against migrant children Clarify the rights of non-belongers and eliminate barriers to ensure equal access to government agencies and public services by migrant children Repeal legislative provisions and regulations discriminating against migrant children and preventing them from accessing public services and programmes (e.g., the Hospital Regulations, 2014) Facilitate regularization of migrant parents with children and fully recognize the right to family reunification in case of parents and children living separately in accordance with art.10 CRC Facilitate and promote integration of migrant children in the education system (e.g., support to overcome language barriers) Stateless children Reform the British Nationality Act of 1981 and the Constitution Order to automatically provide citizenship to children born in BVI regardless of their parents status (This recommendation requires action by the United Kingdom, which is responsible for the reform of the British Nationality Act) Discrimination against children born in BVI of migrant parents Amend national legislation to automatically provide children born in BVI with residence status to grant full access to rights on equal terms with national children Discrimination against girls Address and prevent gender discrimination in legislation and practice by enforcing The Virgin Islands National Policy for Gender Equity and Equality (Institute for Gender and Development Studies 2011) Lack of procedure to determine the best interest of the child Adopt legislation and/or include in current draft bills the explicit recognition of the principle of best interest of the child Adopt procedures granting the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, in both the public and private sphere, in accordance with General comment no

94 Lack of participation and enforcement of the right to be heard Adopt legislation and/or include in current draft bills the recognition of the right to participate and the right to be heard in all matter that may affect children s rights. Insufficient child care and protection legislative framework Revise and approve the existing Child Care Bill (OECS Children (Care and Adoption) model Bill) The new legislation should clearly define all aspects of abuse and neglect, the kind of child services available, the leading agency in dealing with and coordinating child care and protection, the role of the police and the magistrate, the different orders available for care and protection and available places in case of need to place a children in foster care and/or other institutional arrangements. It should explicitly include guiding principles of all intervention in child protection cases, in accordance with the CRC, namely, the right to be heard and participate in all proceedings, the right to family and the best interest of the child, among others. 94

95 Lack of appropriate juvenile justice legislation and system Consider raising the minimum age of criminal responsibility (not less than 12 and possibly above) Focus on prevention rather than punishment of crimes by children and adolescents (rehabilitation and restorative justice) and adopt legislation and regulations to establish a diversion system that deals with children committing minor offences, without resorting to judicial proceedings Repeal existing legislative provisions that call for a tougher approach and mandatory sentences and remand to prison and other primarily punitive measures in cases of children who are recidivists or break probation orders, etc. Abolish legislative provisions and practices allowing the criminal system to deal with children withproblems of conduct but who are not committing crimes (e.g., children breaking school rules, parents bringing children to the courts to correct their conduct); these issues should be dealt with through social and protective measures rather than the criminal system Limit magistrates /courts broad sentencing powers and uphold the principle that deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate period of time Fully recognize due process of law in the legislation and, in particular, ensure the availability of legal representation for all children subjected to criminal proceedings without exception Recognize and grant the right to appeal or recourse to any measure imposed as a consequence of a guiltyverdict; recourses should be decided by a higher, competent, independent and impartial authority or judicial body Establish specialized units within the judiciary, the court system and the prosecutor s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to children 95

96 Lack of appropriate juvenile justice legislation and system Establish separate facilities for children deprived of their liberty, which include distinct, specialized staff, personnel, policies and practices Establish measures, alternatives and centres (in particular attendance centres, day treatment centres, community services, etc.) in compliance with the Criminal Justice (Alternative Sentencing) Act, 2005 Fully integrate into juvenile justice legislation and policy the United Nations Guidelines for the Prevention of Juvenile Delinquency (1990) Lack of sufficient protection to victims of trafficking Trafficking has been included in the Criminal Code by recent amendments, but legislation/procedures need to be adopted to regulate the protection of the victims and separate prosecution procedures against traffickers and those for victims of trafficking Lack of independent monitoring and investigation of children rights Establish a Human Rights Commission with powers and functions according to section 34 of the Constitution that include a children s ombudsperson or commissioners with a broad children s rights mandate Approve the existing Human Rights Commission Bill Ratify (extend) the following fundamental treaties: Convention on the Rights of Persons with Disabilities ILO Convention No. 182 on the worst forms of child labour ILO Convention No. 138 on the minimum age for admission to employment and work Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 96

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99 CURRENT STATE OF LEGISLATION IN MONTSERRAT AND ANGUILLA FROM A WOMEN S RIGHTS PERSPECTIVE 99

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