In Jamaica, a parent can bring their child to a police station or before a court if they feel they can’t manage them or deem their behaviour beyond control. Section 24 of the Child Care and Protection Act (CCPA) gives the Family Court the power to make a correctional order for the children brought before it by the parent or guardian who feels their child suffers from “uncontrollable behaviour”. Consequently, judges can commit such a child to the Department of Correctional Services custody for the display of maladjusted, antisocial behaviour or perhaps other mental health issues that manifest as problems.

This practice stems from the British Children’s Act, 1890, which sought to round up “undisciplined” children and put them before the court for reform.

Over the years, legislators, including myself, have acted to remove the so-called “uncontrollable behaviour” label from our children, recognising the impact that continuous harmful psychosocial factors have on their development, which subsequently should not lead to incarceration, but rather necessary counselling or therapeutic rehabilitation treatments for the underlying causes; thereby removing the option for judges to remand them to a juvenile correctional facility.

This is why in 2014/2015 we decided to use land at Maxfield Park Children’s Home to build a therapeutic facility to counsel and help children with mental and other psychosocial issues securing $60 million from Jamaica Social Investment Fund (JSIF) as seed funding.

In December 2016 a joint select committee of Parliament was appointed to complete the statutory review of the Sexual Offences Act, with the review of other legislation to protect women, children, the disabled, and the elderly from violence. Among the legislation was the CCPA – to amend and repeal Section 24.

No one, including UNICEF, was opposed to the repeal, citing: “We find sometimes that [some] people think that a child who is acting out just needs a ‘good lick’, or they need to be locked up in a juvenile correctional centre or [think that] a few months in a juvenile correctional centre will straighten them out. Very often kids who end up in juvenile correctional centres are abused children who are experiencing mental health problems. It is a complicated issue and one which requires us to change our thinking and our attitudes about what mental health really is.” (UNICEF 2021)

Fast-forward to July 27, 2023, Minister of Education and Youth Fayval Williams tabled a Bill in Parliament titled An Act to Further amend that Child Care and Protection Act (CCPA). Clause 6 of the Bill reads: “Section 24 of the principal Act is repealed.”

She declared that the legislation was being fast-tracked to remove judges’ discretion to place children who have not committed a crime in penal institutions and replace it with an option for the court to make a therapeutic order.

Furthermore, “[A]s soon as the law is passed it will stop using the term ‘uncontrollable’ and instead use the term’ behavioural issues’ and make provisions for the orders that may be made by the court, in respect of such a child, to include a residential therapeutic order or a non-residential therapeutic order, having regard to the results of a social inquiry report and a physiological or psychiatric report.”

Here is where the confusion reigns and why Leader of the Opposition Mark Golding and I asked for one week’s extension to deliberate the Bill further before voting to pass it. We all thought, including UNICEF, that the court would no longer be a part of this procedure. Wasn’t this the purpose of repealing the section in the first place? So why is the court still involved ? Why must children still have a court record for behavioural and mental health problems? Why are we continuing to stigmatise them?

There is no requirement in the proposed Bill for parents to first seek help from Child Protection and Family Services Agency (CPFSA) to manage their child’s behaviour before they go to court to be absolved of their parental responsibilities. International standards emphasise that teenage behavioural challenges are best addressed through voluntary, social welfare responses to strengthen the parent-child relationship. Courts should only get involved when attempts to work constructively with the child and family have been tried and subsequently failed. (UNICEF recommendation, CCPA amendment, July 4, 2023)

What is more, the proposed Bill says that the court does not have to take into consideration (when making the order) that behavioural problems are often the result of a more extensive array of complex issues in the child’s family, school, and community; it only has to focus exclusively on the child.

The Bill also adds a raft of new determinants which it broadly defines as “behavioural challenges” concerning a child, such as constant truancy from school, running away from home, staying out late without explanation, engaging in disruptive activities at school, having a low frustration threshold, having unexplained injuries, behaviour that is emotionally abusive to physically abusive to another, smoking tobacco, habitual defiance of or non-complicated of parental authority, consumption of alcohol, and the list goes on.

For those of us who raised a child, some of these would be considered normal adolescent behaviour. Also, the definition fails to separate children with behavioural challenges and children in conflict with the law by including children who commit offences.

Moreover, if I am to believe Minister Robert Morgan was sincere in May 2021 that, “If you decided to leave your mother’s house or leave your family home and disappear for a day, [then] you have not committed a crime,” then why not create a tribunal within the CPFSA at which children’s behavioural challenges are dealt with the parents, instead of with the court?

Additionally, there is s new and dangerous provision slipped in to allow for adverse court orders to be made against children who are the subject of “an allegation that the child committed an offence”. No doubt, this could easily be abused so that it’s used to permit the scraping up of young people suspected of being gang members and essentially detaining them indefinitely without charge.

I have consistently written and spoken about the facts facing the mental health of our children and the need for more preventative, parental, and therapeutic interventions to support them. The reality that only 7 per cent of our children’s mental health needs are being met, and 47 per cent of the population suffers from personality disorders are disturbing. So I fully support the repeal of section 24 and the need for more treatment-oriented alternatives for children with behavioural challenges.

However, the proposed Bill will not achieve this goal to facilitate our children receiving more therapeutic, child-centred, and family-focused approaches for their care and protection. Getting here necessitates sweeping changes to the CCPA and a centrally funded capital budget for more child psychiatrists.

Currently, Jamaica only has two child psychiatrists, and the Bill stipulates a social inquiry report and a physiological or psychiatric report of the child in question before the therapeutic or non-therapeutic order is made.

“But here they go again, wanting a delay,” was the cry of the Minister Williams.

No, Minister, what we want is to debate and pass legislation that is in the best interest of our children. What is being presented as an amendment is a farce. It’s a name-change only from uncontrollable behaviour to behaviour challenges and then seeks to pile on more duties on the court.

Lisa Hanna is Member of Parliament for St Ann South Eastern, People’s National Party spokesperson on foreign affairs and foreign trade, and a former Cabinet member.