The Child Care and Protection Act and the Entertainment Industry

Legal Notes

With Simone Bowie

Wednesday, March 09, 2011

IF you have ever been perturbed by the presence of what appears to be a 14-year-old in the middle of a dance floor in a club, or if you are a parent of a child whose singing career you are anxious to get off the ground, this article may be of interest to you. The Child Care and Protection Act (the "Act"), addresses a wide range of issues pertaining to children (persons under 18), many of which relate to the employment of children and which have a direct impact upon the Entertainment Industry.

The Act, in regulating the employment of children, defines employment as "employment in any undertaking, trade or occupation, carried on for profit or gain, irrespective of whether the employment is gratuitous or for reward". It further provides that children under the age of 13 ought not to be employed to perform any work whatsoever. Children between the ages of 13 and 15 may however be employed in occupations falling within a list approved by the Minister with responsibility for labour ("the Minister"). Such occupation must consist of light work for a specified number of hours and under conditions that the Minister considers appropriate.

The Act also stipulates that no one under the age of 18 is to be employed in the performance of any work that is:

(a) likely to be hazardous;

(b) likely to interfere with the child's education;

(d) in an industrial undertaking or night work (work between the hours of 10 p.m. and 5 a.m.).

Of note, special provision is made under the Act for our young rising stars. The Minister may issue a permit to enable a child to be employed for the purpose of participating in artistic performances. The permit will specify the number of hours during which and the conditions under which the child may be employed. Readers may recall that it was reported in 2007 that dancehall child star Kareem Dawkins, more popularly known as QQ, was forced to desist from performing because of the lobbying activities of child labour law advocates. It was subsequently reported that a proper permit was then issued with the appropriate guidelines.

If a child is employed in contravention of any of the above provisions of the Act, the offender is liable to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding six months or to both. Even the parent of a child may be found liable if it can be shown that the offence was caused by an act, default or representation of the parent.

The provisions of the Act that deal with children and nightclubs may also cause some nightclub owners/operators to rethink their policies. Not only are nightclub owners/operators strictly prohibited from employing children, the owner/operator also commits an offence if he permits a child to enter a nightclub, unless he can prove to the satisfaction of the court that he took all reasonable steps to ascertain and reasonably believed that the person was not a child. It would therefore be for the court to determine what constitutes "reasonable steps". Most nightclubs have signs stating: "Only Persons Over the Age of 18 are Allowed to Enter". Having regard to the severe penalties prescribed for this offence, an owner/operator of a nightclub may wish to also check IDs.

A nightclub owner/operator found guilty of an offence under the relevant provisions of the Act may be fined a maximum of one million dollars or be sentenced to imprisonment for a term not exceeding one year. The owner/operator will also be liable to have his licence to operate the nightclub revoked and shall not be eligible to be issued a new licence for a period of 3 years.

Nightclub owners/operators are not the only proprietors that need to take heed of the Act's provisions. Too often the cry of many parents, after finding a young teenager with cigarettes or alcohol, is "how did they get it?" or "why would someone sell alcohol to a child?". The Act prohibits the owner/operator of any establishment that sells or serves intoxicating liquor or tobacco products from serving or selling these products to children or employing them to do same.

Such a person will be guilty of an offence unless he can prove that he took all reasonable steps to ascertain, and reasonably believed, that the person employed or the person to or by whom the intoxicating liquor or tobacco product was sold or served, was not a child. Notably, persons who purchase liquor or tobacco products from a child may also be liable.

Another interesting set of provisions within the Act are those relating to children, begging and street performances. Street performers singing and dancing with the hope that persons will give them some reward is a fairly common sight in large cities. With the growth in the number of local dance groups, this may also become more popular in Jamaica. The Act regulates similar activities which may involve children. It is an offence under the Act for any person having the custody, charge or care of a child to cause or allow the child to beg or receive alms (donations of money or food) on any street or premises. It is also specifically an offence for any person while singing, playing, performing or offering anything for sale in a street or public place to have a child with him, who has been lent or hired out to him, as the child shall be deemed to be in that street or place for the purpose of inducing the giving of alms.

The primary purpose of the Act is to put in place safeguards against abuse and neglect and to ensure that adults act in the best interest of children. Persons employing children and all members of the entertainment industry, should be mindful of its provisions.

Simone Bowie is an Associate at Myers Fletcher & Gordon and is a member of the firm's Commercial Department. Her practice areas include sports and entertainment law, securities, corporate finance, takeovers and mergers. She may be contacted at simone.bowie@mfg.com.jm.

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The Child Care and Protection Act and the Entertainment Industry