THE Child Protection and Family Services Agency (CPFSA) is maintaining that it “did everything within its power to follow due process, even in the face of procedural obstacles” when it sought and obtained an order from the Supreme Court to remove 52 wards from the Sunbeam Children’s Home in St Catherine in 2024.

This after the Court of Appeal on Friday, in giving its rationale for overturning the order, declared that 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”.

The reasoning of the judges of the appeal referenced the CPFSA’s move in January of 2024 to initiate proceedings in the St Catherine Parish Court for an order to remove the children from Sunbeam’s care. According to the Appeal Court, “without discontinuing that application”, the CPFSA then 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. It said two days later, the CPFSA 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.

The Appeal Court in April this year ruled in Sunbeam’s favour and 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.

In giving those reasons last Friday, the judges of the appeal said, “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.

However, the CPFSA in a quick response to the article detailing the ruling which was carried by the Jamaica Observer on Monday, said “its application concerning the collective relocation of children from the Sunbeam Children’s Home was not unceremoniously moved to the Supreme Court”.

“The application was first filed in the parish court, which declined to hear the matter and directed that it be taken to the family court. The family court subsequently refused to hear the matter as well, stating that it fell outside its jurisdiction and directed that the matter be returned to the parish court. Both courts effectively declined to grant audience or consider the matter, thereby making it impossible for the CPFSA to proceed under Section 130 of the Judicature (Parish Court) Act,” it said.

The CPFSA said in light of “this procedural impasse” it “pursued the only viable legal recourse available, filing the matter before the Supreme Court, which has inherent jurisdiction to consider such matters”.

“This course of action was not an attempt at forum shopping, as was erroneously suggested; as the agency would have ensured that it attempted to place the matter before both the parish and family courts before ultimately approaching the Supreme Court,” the entity declared.

“As the Court of Appeal would have noted, there was clear evidence of signs of abuse occurring at Sunbeam Children’s Home. The CPFSA did everything within its power to follow due process, even in the face of procedural obstacles, to ensure that the safety and well-being of the children involved remained the top priority in the handling of this matter,” the entity said further.

On Friday, the Court of Appeal 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”.

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 side-lined 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 also 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.