THREE prominent attorneys-at-law have said that, though extremely unfortunate, the law could dictate that the case of the one-year-old girl who was accidentally left for hours unattended in her father's car be treated as manslaughter.
“In instances where there is the death of an infant, which really is not deliberate, but may attract the consideration of negligence, there is always the offence of manslaughter because that's what it is. It will depend on what the investigations reveal. The entire family, including the father, must be agonising over this,” Queen's Counsel Peter Champagnie told the Jamaica Observer in an interview.
“So, for instance, it has happened in the past where a parent leaves home and leaves the child alone with a kerosene lamp and then the child is unattended and all of that, and a fire results and the child dies. There is the scope of the law in relation to negligence to arise in the form of manslaughter,” he continued.
Police sources have said that the girl's father, a detective sergeant assigned to Black River Police Station, was supposed to have taken her to a day care but forgot, leaving her in the parked car for more than eight hours while he worked elsewhere.
She was discovered unconscious hours later, and was rushed to a hospital where she died two days after.
In an interview with the Jamaica Observer on Wednesday, a relative, who asked not to be named, said that, in normal circumstances, the child would have been cared for on a daily basis by her maternal grandmother while her parents — both members of the Jamaica Constabulary Force (JCF) — were at work. The child's mother is a sergeant of police in the same St Elizabeth Division.
Police reported that the child succumbed at hospital early Wednesday morning, and the St Elizabeth police have since launched a probe into the circumstances surrounding the death of the infant.
Champagnie described the situation to the Sunday Observer as heartbreaking.
“I want to emphasise the point that this situation that we are speaking of is most unfortunate. It is so sad that I refuse to even read the story. I have five children and I can't imagine how I would be able to relate to that. I couldn't,” he said.
According to the Offences Against the Person Act, whosoever shall be convicted of manslaughter shall be liable to be imprisoned for life, with or without hard labour, or to pay such fine as the court shall award in addition to, or without any such other discretionary punishment as aforesaid.
The Oxford Dictionary of Law defines negligence as “carelessness amounting to the culpable breach of a duty; failure to do or recognise something that a reasonable person would do or recognise, or doing something that a reasonable person would not do”.
Attorney Bert Samuels told the Sunday Observer that, as a result of this “very unfortunate incident”, the prosecution will not be able to rely on any “intent on the part of the father” to have caused either serious injury to the child or death.
“It therefore fits squarely into the law regarding manslaughter, which the prosecution can show if it was gross negligence or recklessness. If so, that's the charge to be made and the jury will consider that charge and come to a verdict,” Samuels reasoned.
“Just speculating a little, had the child suffered serious injury of any kind, but not death, the Child Care and Protection Act would still see the father being liable to be charged. That is an academic argument at the moment,” he stated further.
Constitutional lawyer Dr Lloyd Barnett contended that it could be argued that the policeman was negligent, and if the negligence amounted to recklessness, then that could breach the criminal threshold.
The Oxford Dictionary of Law defines recklessness as: “A form of mens rea that amounts to less than intention, but more than negligence.”
“It is very difficult to have any sort of conclusive attitude towards it, because it might depend on what he has to say in support of his defence. On the face of it, he left the baby in a position where it was dangerous. He would have to explain that and people would have to believe his explanation. So it goes beyond just theory, but the actual assessment of the evidence,” Barnett told the Sunday Observer.
Consultant psychiatrist and therapist Dr Wendel Abel has linked the death of the girl to the Forgotten Baby Syndrome (FBS).
(FBS) is explained as a situation in which parents accidentally leave a baby or child in a locked car, often ending with tragic results. (FBS) occurs when parents are focusing on future tasks instead of the moment.
Researchers have said that this can be an extremely dangerous mental state for a quiet or sleeping baby.
Medical officials also explain that a parent can walk away from the car without thinking about their child in the back seat.
In addition, Abel said the situation is more common among men when they step outside of their regular routine.
Champagnie added that this is not a new phenomenon and, in some cases, the parents have been penalised.
“It has happened in the United States before and in those cases the parent was subjected to some kind of criminal sanction. So it is not beyond the remit of the criminal law to be visited up on the person in this instance. But, of course, it will depend on a number of variables,” he said.
One of such international cases involves American 41-year-old Justin Ross Harris, who moved from Tuscaloosa, Alabama, to the Atlanta area for work in 2012.
Harris forgot to drop off his 22-month-old son Cooper at day care on the morning of June 18, 2014, driving straight to his job as a web developer for Home Depot without remembering that the boy was still in his car seat.
He died after sitting for about seven hours in the back seat of the vehicle outside his father's office.
Harris was convicted in November 2016 on eight counts, including malice murder in the death of his son, and a judge sentenced him to life without parole, as well as 32 more years in prison for other crimes.