THE Court of Appeal on Friday, in giving its rationale for overturning an order by a Supreme Court judge last year granting permission to the Child Protection and Family Services Agency (CPFSA) to remove 52 wards from the Sunbeam Children’s Home in St Catherine, said while “the plight and condition of the children warranted such drastic action”, the agency “in its effort to remove and safeguard the children, ultimately failed to follow the procedure laid down by law”.

In January of 2024, the CPFSA initiated proceedings in the St Catherine Parish Court for an order to remove the children from Sunbeam’s care. Without discontinuing that application, the entity on February 13 filed a fixed date claim form in the Supreme Court, seeking the same order previously sought in the parish court, namely, the removal of the children in the care of Sunbeam. Two days later, the CPSFA filed a notice of application for court orders, accompanied by an affidavit of urgency, seeking the exact order contained in the fixed date claim it submitted before. The judge on hearing the notice of the application granted the order, and in March of 2024, the CPFSA, armed with a Supreme Court order, removed the 52 wards from two Sunbeam Children’s Home facilities. The State agency also revoked the licence of the facility, which had been in operation for nearly 50 years.

Aggrieved by the Supreme Court’s judge’s orders, Sunbeam on March 21, 2024, filed a notice and grounds of appeal challenging the decision made in favour of the CPFSA, arguing among other things that the judge erred in law in finding that it did not possess the requisite licence to operate a children’s home pursuant to section 47 of the Child Care and Protection Act at the time of hearing the substantive matter. Furthermore, Sunbeam charged that the judge erred in law in ordering the removal of the wards, and further erred in law in empowering the CPFSA to remove the wards in its care.

In April this year, the Court of Appeal, in ruling in Sunbeam’s favour, overturned the order and dismissed a counter-notice of appeal filed by the CPFSA and awarded costs to Sunbeam. The judges of the appeal at that time withheld the reasons for making that judgement.

On Friday, the Court of Appeal, in providing those reasons, said, “the CPFSA’s decision to proceed by way of application, in the absence of a properly instituted claim, and to seek relief tantamount to a final determination, was not merely procedurally irregular; it was legally indefensible.

“The impropriety of the approach adopted by the CPFSA, in the manner in which the application was framed and pursued, revealed a clear intention to circumvent the procedural architecture laid down by the Civil Procedure Rules and the Child Care and Protection Act. Both the rules and the statute exist to ensure that parties are afforded due process and that matters of such gravity are adjudicated with procedural integrity,” the court said.

Furthermore, the judges of the appeal said, “in matters involving the welfare of children, where the stakes are particularly high, the court must be vigilant in safeguarding the rights of all parties, while ensuring that statutory procedures are not sidelined in pursuit of expediency”.

The Court of Appeal said the CPFSA’s application, “in both form and substance, constituted a serious departure from accepted legal process and warrants censure”.

The court in the meantime took pains to point out that it was “not, in any way, disputing that the minister [then Minister of Education Fayval Williams] ought not to have revoked the appellant’s licence”.

“That was entirely within her discretion and authority. Equally, I am not criticising the minister’s decision to delegate the CPFSA to apply to the court for a removal order, thereby removing the children from the Sunbeam Children’s Home. On the contrary…the plight and condition of the children warranted such drastic action, whether after revocation of the licence or simply because a child or children were reportedly being maltreated,” it said.

The judges of the appeal said “there was documented evidence of a child being hit with a machete by a staff member, resulting in open wounds to the chest and arm”, and “other instances of documented abuse of other children, allegedly while under the appellant’s care”. It went further to point out that Section 16 of the Regulations specifies that discipline is to be promoted by a system of rewards and privileges. “Punishment could be implemented by forfeiture of rewards and privileges, temporary loss of recreation, and in exceptional cases, isolation. There is no scope for corporal punishment; in fact, such is strictly forbidden,” the court noted.

The Court of Appeal said while it “appreciated that CPFSA regarded the situation as dire, especially as the contraventions within the appellant’s facility were alleged to be repeated instances of neglect and abuse”, its “only reproval of the CPFSA was that, in its effort to remove and safeguard the children, it ultimately failed to follow the procedure laid down by law”.

“The CPFSA was required to apply for the removal order via the judge of the parish court and initially did so,” the judges of the appeal said, while noting that it “appreciated that the CPFSA was frustrated by the resulting delay caused by the vacillation of both the judge of the parish court and the judge of the family court, who kept bouncing the matter back and forth, and could not agree as to which of the two courts had the jurisdiction to grant the order”.

In a direct strike at those judges, the Court of Appeal said, “the judges of those courts were proverbially fiddling while Rome burned”.

“Since the care and protection of children was at stake, the judges of the parish court and the family court should have prioritised the intent behind the Child Care and Protection Act,” the court said.

It, however, maintained that, “notwithstanding the perceived egregious delay, the CPFSA ought not to have unceremoniously moved its application to the Supreme Court, without submitting an application under section 130 of the Judicature (Parish Court) Act and without obtaining the necessary leave from a judge of the parish court to proceed in that manner

“Regardless of its good intentions, the CPFSA’s actions amounted to forum shopping [the practice by litigants of choosing the court that will be most favourable to their case] when it unauthorisedly shifted the removal application to the Supreme Court. In so doing, the CPFSA committed procedural impropriety. Furthermore, [we were] not persuaded that the learned judge had the jurisdiction to grant the orders sought by the CPFSA, and in the circumstances, [we] considered that a jurisdictional error was committed,” the Appeal Court stated.