Childcare and Protection Act omission will hinder total prosecution

Dear Mrs Macaulay,

Can the Dayton Church officers and any members be successfully prosecuted for failure to report?

I have received so many strongly worded enquiries about whether or not the founder, pastor, the deacon, other officers and/or other members of the Church of Dayton Diamond Ridge can be prosecuted under the Child Care and Protection Act 2004.

I have also been asked about the Director of Public Prosecution’s statement and whether he would have to wait until he gets the file following investigations to decide, and why a file should be sent to him in the first place. I am also asked whether the DPP must rule before an officer of a church is charged. As a result of this, I have decided to reply to all these enquiries together.

I must confess that I cannot conceive why, as a matter of course, a file relating to sexual abuse of a child must be sent to the DPP. His statement, as reported, implies that in relation to the retired judge, the pastor, the DPP would have to decide whether he can be charged and prosecuted or not after the matter is investigated. The reason why this should be so escapes me.

A file of an investigation of a criminal matter can be sent to the DPP for a ruling on what charge(s) can be brought against which person(s) if the police are uncertain what offence, if any, has been committed and by whom. This is surely not the case here.

The DPP however has the power to commence, intervene and take over or terminate any prosecution. He cannot be questioned by any person or body relating to any decision he has made to prosecute or to intervene or to end a prosecution. I do not know of any requirement for the DPP’s ruling to be sought when an officer of a church is alleged to have committed a criminal offence and see no reason why this should be the case in this matter.

The other questions which were far more numerous, relate to the duty to report under the Child Care and Protection Act and the consequences of a failure to meet this duty.

Section 6(1) of the Act says that prescribed persons “shall make a report to the registry, according to the provisions of Section 6, when they, in the discharge of their duties, acquire information which ought reasonably to cause them to suspect that a child has been, is being, or is likely to be abandoned, neglected or physically or sexually ill-treated or is otherwise in need of care and protection”.

The second sub-section places a duty on “any person”, who has information which causes the person to suspect that a child was, is, or may in the future be abandoned, neglected, physically or sexually ill-treated or is in any other way in need of care and protection.

This sub-section also applies to “prescribed persons” outside the parameters of the discharge of their duties. In other words, during the ordinary course of their lives. The provision provides that the report of “prescribed persons” and those of “any person” must be made to the Registry.

This is the Children’s Registry within which there must be kept a children’s register. These are established by Section 5 of the Act. The register must contain the information supplied by the persons who are required to and those who make reports. The registry and registration centres are the places (offices) to which reports are to be made.

The Act requires the minister, by regulations, to establish the procedure to be used for entering information into the register, the form and contents. The regulations must also deal with the appointment and duties of the officers and staff of the registry, the location of registration centers and any other matter to ensure the effective implementation of the provisions of the section.

Section 6(4) of the Act makes it an offence if a “prescribed person” fails to make a report, which carries a maximum penalty on a summary conviction in a resident magistrate’s court of $500,000 or imprisonment for six months or both a fine and imprisonment.

The provisions in the Act are clear that the report must be made to the registry. However, there is presently no registry to which the report ought to be made as required by the Act.

The pastor, from his own statements is an accessory after the fact and can be charged with this offense. He knows the law and knows the importance of his knowledge and his statement. But the fact of the piecemeal implementation of the Child Care and Protection Act will not afford a successful prosecution if a charge is laid because there is no registry.

I have repeatedly written and spoken against this type of implementation of the Act. At the least it causes confusion, but it can also leave wide gaps in the operation of the law, in instances when the old law was repealed and new provisions are not implemented.

What happened with the pastor, deacon and other members who got information or maybe saw the video of the sexual violation would have fallen squarely within the provisions of the Act and they could have been the first persons prosecuted in this regard. Sad to say, it cannot be, because, of what is clearly a lack of commitment to the real protection of the children of Jamaica.

This lack of commitment has been and continues to be demonstrated by the way the Act supposedly passed for their care and protection is being applied (or should I say – not applied). A piecemeal implementation is sheer nonsense and irresponsibility. A report to the CDA or the police or to any other person or office has been advised since the Act came into effect for want of the ideal – the registry.

The common law is clear relating to accessories after the fact and an abbettors, so charges can be made but it is more than a pity that the “Children’s Act cannot be used for a new offence created by it because of a failure to implement that part of the legislation – for over two years from the date the Act came into effect. When will we seriously protect the children of Jamaica? When will we really and actually hear their cry and take effective action? I pray that it will be soon.

Margarette May Macaulay is an attorney-at-law and a Women’s and Children’s Rights Advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.