By Emmanuel Joseph
A prominent human rights activist is urging the Government to go back to the drawing board with its Child Protection Bill and provide clarity on its “ambiguous” contents.
Felicia Dujon, who is a lecturer in philosophy at the Cave Hill Campus of the University of the West Indies (UWI), is adamant that the bill, which is at the discussion stage of Parliament, leaves the interpretation of several provisions too wide open.
Among those about which she expressed concern was the reference to “the best interest of the child” without any indication of who would make such a determination.
“Is it the state, is it the child protection authorities, or is it the parent? Who has the final say? It is not clarified, it is not clear who has the final say. So that becomes very problematic,” she contended in an interview with Barbados TODAY on Tuesday.
“If you have a child that requires certain types of medical intervention, who makes that decision? Is it the state, is it the authority or is it the parent? So, in that interpretation, it is not clear when it speaks of care responsibility.”
In this regard, the reference to “treatment” in the legislation was also an issue of concern for Dujon. She said the nature of the treatment is unclear.
Using the COVID-19 vaccine as an example, she questioned if the Government mandated immunisation, where the parent would factor in, as she reiterated that parental rights cannot be overridden by the State.
Dujon also cited Part I (7) (5) of the bill which states that “where the views of the child differ from the position of the Director [of the Child Protection Authority], the child may, within 30 days of the notification of the position, appeal to a judge in chambers”.
“This section is intended to recognise the agency of the child. This is good at a certain point, and such agency will certainly depend on the age and maturity of the child – a circumstance that is not mentioned in the bill. The problem with this wording is that it leaves the parents, guardians or close relatives entirely out of the discussion and out of the judicial process and determinations,” she argued.
Dujon also identified the part of the bill that defines “neglect of a child” as actions, omissions or any failure of a parent with respect to the child, but expressly excludes from the definition of “parent”, a person acting as a caregiver on behalf of the Director, or the Director.
“This is pernicious, not just because it concludes that only parents could be neglectful of children, but because it preemptively exonerates any responsibility of bureaucrats – the Director or anyone on behalf of the Director – from any child neglect,” the human rights activist said.
“This is bizarre, considering that neglect, not only abuse, can happen anywhere – also in child care centres as defined by the bill.”
Additionally, the university lecturer pointed out that the stated purpose of the bill is to assure compliance with certain international human rights treaties, such as the UN Convention on the Rights of the Child (UNCRC) and the UN Declaration of Human Rights (UNDHR). However, she said the legislation does not mention other treaties that are also relevant.
In the same section to which Dujon referred, the bill spoke to compliance with “all other international instruments to which Barbados is a party with special regards to those which afford a child the necessary protection and assistance so that he can assume his eventual responsibilities within the community and for the full and harmonious development of his personality and to grow up in a family environment imbued with happiness, love and understanding”.
However, she took issue with the fact that treaties such as the UN Convention on Civil and Political Rights (UNCPR) were not specifically identified.
“This is relevant because the UNCPR is the treaty that best covers parental rights, but also privacy rights (for the child) and other civil rights that also favour the child,” Dujon said.
She is also concerned about the aspect of the bill which states that “the removal of a child from his parents shall only occur where it is necessary to protect the child from the risk of serious harm or danger”.
Dujon argued that while this wording does not seem to be problematic on its own, it becomes an issue in the context of the rest of the law.
“The reason for this is that the interpretation of ‘serious harm or danger’ can be anything that opposes whatever the Government might determine as ‘safety or wellbeing of the child’, or even the failure to give responsible care; for example, when a parent rejects a medical intervention sought by the child or recommended by a medical professional,” she contended.
The Child Protection Bill 2023 covers, among other things, the establishment of a Child Protection Authority, mandatory reporting of child abuse, protection of persons who make reports, and court orders where a child is in need of care and protection.