AN Appeal Court panel was split two to one as the justices sought to answer the question of whether the Children’s Court has jurisdiction to try children charged with rape, buggery and gun crimes.

The panel described as “troubling” the fact that two decades after the passage of the Childcare and Protection Act, “doubts continue to exist regarding the intent of Parliament in respect to certain of its provisions”.

In remitting the cases of two children — one charged with rape, the other with buggery — to the Children’s Court “to be dealt with according to law”, and the matter of a third child who was charged with the firearm offence, “to the High Court Division of the Gun Court, where jurisdiction lies for trial”, the judges said, “perhaps it is time for the legislation to be overhauled to make it clearer and more workable”.

The panel — which comprised justices Carol Edwards, Evan Brown and Kissock Laing — in two hearings between July last year and February this year mulled the question of whether the Children’s Court has jurisdiction to try children charged with the offence of rape or buggery and criminal offences on indictment based on certain sections of the Childcare and Protection Act, the Judicature (Parish Courts) Act and the Judicature (Family Court) Act.

Said the panel, “The questions posed raise very important issues regarding the jurisdiction of and procedures in the Children’s Court in cases where children are charged with serious offences.

“The cases will be remitted to the Children’s Court to be dealt with, according to law. It is troubling that so long after the passing of this legislation doubts continue to exist regarding the intent of Parliament in respect to certain of its provisions. Perhaps it is time for the legislation to be overhauled to make it clearer and more workable”.

The cases involving the three children were sent to the Court of Appeal by a judge of the parish court sitting in the Children’s Court in Chapleton, Clarendon, for an opinion.

The first child, who was 13 years old at the time, was charged with buggery. The Appeal Court answered “yes” to the questions of whether the Children’s Court has the jurisdiction to try all matters in which a child under the age of 14 years is charged with a criminal offence and whether the Children’s Court has the jurisdiction to try all charges of buggery in which children are the perpetrators.

However, on whether the Children’s Court has the jurisdiction to try the offence of buggery on indictment, it answered “no”.

The second child, who was 17 years old when he appeared before the parish court judge, was charged with the offence of rape under the Sexual Offences Act.

The Appeal Court, in settling the question of the jurisdiction of the Children’s Court to hear a matter in which a child who has reached the age of 14 years is charged with a criminal offence not listed in the Act’s fourth schedule, said, “the Children’s Court has the jurisdiction to try any offence involving a child 14 years of age and above, where that offence is not listed in the fourth schedule, or where the offence is statutory and the statute does not otherwise confer the jurisdiction on a different court or courts”.

It, however, said the “Children’s Court has no jurisdiction to try the offence of rape as the statute creating the offence has conferred the jurisdiction on the Circuit Court exclusively”.

In respect of the third child who, at the time of his appearance before the Children’s Court, was 16 years old and charged with a firearm offence, the Appeal Court, in settling the question of the powers of the Children’s Court in such instances, said, “the Children’s Court has no jurisdiction to try a child over the age of 14 who has been charged with an offence listed in the fourth schedule and such matters must be committed to the Circuit Court for trial”.

Fourth schedule offences include murder or manslaughter, treason, infanticide, as well as any offence under 26 sections of the Offences Against the Person Act which deal with crimes ranging from conspiracy to murder, wounding with intent, use of audio, visual or audiovisual communication to promote criminal activity, assaults, and child stealing, as well as robbery under the Larceny Act, and any related firearm offence as defined in the Gun Court Act.

In the meantime, the Appeal Court panel further pointed out that in respect of such cases the jurisdiction of the Children’s Court is limited to the conduct of committal proceedings with a view to committing the case for trial in the court where jurisdiction lies, “or to sentence, if and when, a case is remitted to the court for sentencing”.

The Appeal Court said the matter involving the child charged with a firearm offence is to be sent back to the High Court Division of the Gun Court, where jurisdiction lies, for trial.

“It is clear from these provisions that the Children’s Court is a court of summary jurisdiction and that children who come into conflict with the law, subject to the exceptions in the Act, must be tried summarily in the Children’s Court or some other court of summary jurisdiction, if the charge is one for a summary offence heard before such a court. Although the Act does not specifically so state, it is also clear that the Children’s Court exercises a special statutory summary jurisdiction,” the Appeal Panel said.

In noting that Section 72 (7) of the Act provides that where a child 14 years of age or more is charged before the Children’s Court with a fourth schedule offence, the Children’s Court’s jurisdiction is limited to committal proceedings the Appeal Court panel said, “it is clear…that the Children’s Court has no jurisdiction to try matters involving a child 14 years of age or older charged for any of the offences in the fourth schedule, including any firearm offence, and its jurisdiction is limited to holding proceedings with a view to a committal for trial in the court in which such jurisdiction lies”.

“This means that even children 14 years and above who have committed offences listed in the fourth schedule, and who have been committed for trial in the Circuit Court, may, if that court thinks it fitting, have their cases remitted to the Children’s Court to be sentenced according to the sentencing powers of the Children’s Court,” it said further.

In the meantime, while in concert as it relates to their conclusions on the second child, there was total dissonance amongst the panel where the conclusions of Justice Laing was concerned in relation to the first child and “some agreement” with his conclusion relating to the third child but disagreement with his reasoning.

Justice Laing in, dissenting, said, “I have found myself in the position in which, with the utmost respect for the majority, I disagree on the issue of whether the Children’s Court has the jurisdiction to try cases of buggery and the response to the questions posed concerning [first child]”.

“It is my respectful opinion the Children’s Court is not empowered to conduct the trial of the offences of rape or buggery as this would run afoul of the Act, the Parish Courts Act and the Sexual Offences Act. Therefore…I am of the opinion that there is no statutory basis for the Children’s Court to conduct the trial in respect of children charged with either the offence of rape or buggery, whether the accused child is under the age of 14 years or 14 and over,” Justice Laing stated.