Dad worried daughter being abused while with mom

Dear Mrs Macaulay,

I am worried that my daughter’s mother is mistreating her, or someone else in her home is. My daughter is three, and lives with her mother, and I see her on weekends. What legal steps can I take if I believe my child is in danger or at risk of harm with the other parent, and what evidence is needed to obtain protective measures, such as supervised visitation or restraining orders? I don’t want to go to the authorities and have them send me away, just because I’m a man.

It is very good of you, as the father, to write about your conclusions and concerns about your daughter’s safety in her custodial home. It is unfortunate that you seem not to have sufficient faith in the courts and agencies which deal with, and protect the rights of children, under their legal obligations to do so, on the basis that you are a man. I assure you that many cases are filed by fathers every day in the Family Courts and in the Supreme Court of Jamaica about the lives, rights and safety of their children, and the denials by mothers of their rights.

You have asked what legal steps you can take in the circumstances, but you have not asked whether you could apply to be granted legal custody and care and control of your daughter, and that her mother be granted only supervised access to her. I wonder why you did not ask this? If you are correct that your daughter is being abused, surely this latter conclusion would then be the best protection for her.

The above is the first legal step you can take, and in support of the application, you would have to provide convincing evidence to the court of the facts of actual abuse — bruises, wounds, sprained joints, obvious fear in the presence of certain persons, medical, physical, or psychological reports, which would all be based on what you have actually seen, or which your child reported (told) you.

Your evidence must be credible enough to convince a judge of its reliability for your application for orders of sole legal custody and care and control to be made in your favour. This application would be made pursuant to the Children (Guardianship and Custody) Act, wherein fathers and mothers have equal rights to custody of their children and equally share the obligations for their upbringing (save when overriding circumstances are proved which could diminish or erase the rights or obligation of one of the parents).

Another step which you can take is to report your beliefs that your child is in danger or at risk or being harmed to the Child Protection and Family Services Agency (CPFSA), with its head office at 48 Duke Street, Kingston, which would investigate your allegations. The CPFSA was merged with the Children’s Registry, and these offices are legally bound to investigate all such complaints made to them, and pursuant to the provisions in the Child Care and Protection Act. Strict provisions are contained therein about the heavy legal penalties which would apply to the failure of any of the staff who fail to meet their legal duties to investigate following a complaint/report of an honest belief of an endangered child who may be likely to suffer injury to their health ­— physical or mental.

A parent or person who has custody, care and control of a child, who assaults, physically or mentally ill treats or neglects the child, commits an offence of cruelty to the child and on conviction may be sentenced to imprisonment of up to a maximum of three years in a parish court or five years in a circuit court. If they know of the abuse or have information which causes them to suspect that a child is being abused or is in need of care and protection, and fail to report it, this is an offence.

In addition, this Act also provides that complete secrecy and confidentiality must apply to the identity of a person who makes a complaint to the staff of the CPFSA. Criminal charges can be laid against such staff member who breaches such confidentiality strictures, and would on conviction be sentenced to pay a maximum fine of $500,000, or to a term of imprisonment for a maximum six months, or to both a fine and imprisonment.

This combined agency must investigate your complaint if you go to them to report your fears and concerns that your daughter is being abused in her mother’s home by her or some other member of her household. In making your complaint to the CPFSA, you should tell them the facts on which you base your beliefs.

And, please believe me, that the fact that you are male and the father, would not impede their actions which are legal duties imposed on them by clear law, which also clearly states the legal penalties they would suffer if they neglect to perform their duties to investigate and act to protect the child. I know of many such investigations and actions taken, including the removal of the child from the endangering home and having the matter dealt with by the relevant court, pursuant to their duty to protect the children of Jamaica.

Please therefore act, in either of the above stated ways I have mentioned and as soon as possible. There must be no delay if your child is in danger of any form of abuse.

Also remember that if you know of this or have facts which should lead you to conclude that she is being harmed and you fail to report it or act on it by applying to the court for her legal custody and care and control, that you open yourself to being charged with an offence for your failure to do so.

The longer you wait without acting on the spurious belief that as a man you would not be listened to and taken seriously, cannot stand as you would be subjecting your child to a longer period of suffering.

You may feel more confident if you obtain the services of a lawyer to assist you, but so many other fathers have gone to the CPFSA and received their full attention and the requisite services necessary to ensure the protection of their children.

All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.