Wed | Aug 23, 2017

Laws of Eve | Answers to questions arising from Ellie's case

Published:Monday | July 4, 2016 | 7:00 AM

At the end of last week's article, I posed some questions the possible answers to which I will set out below:

 

Should children be returned to parents who have known violent tendencies?

 

Bearing in mind that the welfare of the child is the paramount consideration for the court in child custody cases, a parent who is known to have abused a child is unlikely to be awarded custody of that child. However, where one parent's violent behaviour is directed towards the other parent, and not the child, it will be one of the several factors that will be taken into account in a custody case, but it will not necessarily mean that the violent parent will be denied custody of that child.

 

Should grandparents have the right to apply for custody of their grandchildren?

 

At present, the Children (Guardianship and Custody) Act only makes provision for parents to make applications for custody of children. Grandparents do not have that right. However, it is possible for a parent to make an application for custody to be awarded to a grandparent. The irony is that, while grandparents are not entitled to apply for custody, they could be ordered to maintain their grandchildren in some circumstances.

 

In what circumstances should judges interview children and consider their wishes in custody case?

 

In Jamaica, this issue is left to the discretion of the judge, who will consider the circumstances of the case, the age and maturity of the child in determining whether that child's wishes should be among the factors for consideration in the case. Even if the child was allowed to express a preference as to the parent with whom he or she wants to reside, those wishes do not replace the need for the court to make a decision based on the best interests of the child.

 

How thorough are the reports prepared by children's services or probation officers in child custody cases?

 

Probation officers in Jamaica have a very difficult task, because there are too few of them to satisfy the needs for their services in the several courts across the island. Most reports are detailed and provide good guidance for the court in determining what orders to make in the best interests of a child.

 

Should domestic violence and child custody cases be reported so that greater attention is paid to them before tragedies occur?

 

At present, the public has no access to hear domestic violence and child custody cases. In fact, domestic violence cases are held in camera and the rulings in those cases are never reported. The rationale seems to be that the interests of the victims of domestic violence and children are best served by maintaining privacy. However, in Ellie Butler's case, and perhaps others in which it is felt that the wrong decision was made, some persons believe that greater public awareness could preserve lives.

 

Should legal aid be available in domestic violence and child custody cases?

 

Yes. Many claimants in child custody cases have limited (or no) resources to retain the services of attorneys-at-law and are left with no choice but to represent themselves unless an attorney decides to handle the case for free. The sad truth is that most claimants do not have proper understanding of the court proceedings to represent their interests well and often end up with unfavourable court decisions and then consult attorneys to assist in having those decisions varied or discharged.

There are many more unanswered questions that may be asked arising from Ellie's case, and the Jamaican legislators must try to address them before it is too late.

- Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeveeve@gmail.com or lifestyle@gleanerjm.com.