Into the Looking Glass: Our Society within the Justice System


bealex boy-looking-in-mirror-f214-22-605Most of us do not ever venture into a Court unless we are a part of the Justice System in Barbados – maybe a lawyer, police officer or probation officer.

While efforts have been made to upgrade the Courts they are essentially functioning under the same physical constraints as they have been for decades.

One still approaches the Court to find people sitting on benches or standing outside the Court until they are ushered in. Some benches now have back rests but some still do not. Perhaps the Courts are intended to be an unwelcoming place because the intention is to make one uncomfortable with the visit.

Who is likely to be there

(I sometimes think however that our infrastructure reflects who we expect to use it, and thus the stark contrast between the van stand and the international airport – but that is merely a random thought. )

The Magistrate’s Court has both a civil jurisdiction of no more than $10,000.00 with some exceptions such as wrongful dismissal and a criminal jurisdiction, thereby seeking to address many of the small but not unimportant issues plaguing the society.

Individuals are often seen at their most desperate and their most vulnerable. Some manage to catch a glimpse of what it is like for those whose existence in our society are predetermined to be solitary, poor, nasty, brutish, and short.

For every charge or grievance there is a societal issue which has lead to the appearance before the Court. And arguably the appearance marks a failure of the society to deal with that set of circumstances adequately.

The underlying social issues

Assaults might stem from relationships within the community which have soured whether they be relationships between spouses or between friends.

Disputes might occur over maintenance because parents do not understand their parenting role or their understanding might be clouded by anger over the failure of the relationship.

A debt in the past which would have been forgiven between friends becomes a matter for the Court because friends consider themselves wronged somewhere along the line in the friendship – maybe a falling out over a woman.

Then there is the passing parade of those involved in minor criminal activity. Many of them young men under 25 years of age – the future of Barbados. Magistrates offer words of warning, words of reason with the certain knowledge that quite often those who appear before them will appear once again, older, with more serious crimes.

Underpinning all of this is that many of our Citizens have mental problems which just like physical problems will get worse if not treated.  

All of these matters come before the Magistrate who over time comes to recognise the human emotions layered beneath the cold bedrock of the law.

Can the Court adequately address these underlying problems?

The Magistrate’s Court is a good barometer if we wish to examine the struggles of ordinary people. It is clear that some individuals need help. Probation officers are on hand, recourse is made to investigations and reports on the family as well as reports to inform sentencing. There are some rehabilitation and counselling programmes which are available, some run by government and some which are private.

Relatively new tools have been introduced such as the Domestic Violence (Protection Orders) Act Cap. 130A and the Penal System Reform Act Cap. 139 which give the Magistrate more and better options in dealing with those who appear before him.

And yet we have not done enough.

What is to become of the individuals in now forced relationships who have the responsibility of raising children when they have not themselves come to terms with their own problems?

What is to become of the hundreds of boys and young men who appear before the Court on a monthly basis?

Should community disputes however small require the engagement of the full armament of the judicial system?

It is now normal for there to be a public outcry fuelled by social media when there is some tragic event. But the truth is we do not pay very much attention when the symptoms first appear either as individuals or as a society. 

Seeking new solutions

For those who agree that more should be done and that there should be more effective solutions, it will be a daunting task to recalibrate the thinking of the majority to the view that those who appear before the Courts could benefit from earlier interventions and evaluation, monitoring and support after trial.

Since we are no longer our brother’s keeper – let it be said too that weightier interventions and more effective programmes would make the society better for us all.

Lynette Eastmond

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Child Maintenance During And After Divorce Proceedings

child-support imageThe duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish… – Blackstone (Commentaries, book 1, chapter XVI)

In Barbados, the Family Law Act Cap. 214 of the Laws of Barbados (‘the Act’) provides for the right to maintenance of a party to a marriage or union other than marriage as well as for the right to maintenance of children of the marriage or of the union. According to the Act, maintenance means “the provision of money, property and services, and includes (a) in respect of a child, provision for the child’s education and training to the extent of the child’s ability and talents. It should be noted that either party to the marriage may apply for maintenance for the child or children”.

According to Section 39 of the Act ““union other than marriage” or “union” means the relationship that is established when a man and a woman who, not being married to each other, have cohabited continuously for a period of 5 years or more and have so cohabited within the year immediately preceding the institution of the proceedings”. A child of the marriage, according to Section 3 (1) of the Act, includes a child adopted after the marriage of the husband and wife and a child of both the husband and wife born before their marriage.

Section 51 of the Act states that the parties to a marriage, or union other than a marriage, are liable, according to their respective financial resources, to maintain the children of the marriage or of the union who are unmarried and have not attained the age of 18 years. It is useful to note that the court may also make an order for maintenance with respect to a child who has attained the age of 18 years if the provision of maintenance is necessary to enable the child to complete his education or if the child is mentally or physically handicapped.

Section 54 (3) (b) of the Act provides that the order should specify the period for which it is in force or until a particular day.  Moreover, section 54 (1) states that in determining whether to make an order for maintenance of a child or in determining the period for which the order should remain in force or the amount of any payment to be made under the order, the court should consider the following:

“(i) the income, earning capacity, property and other financial resources of the child,

(ii) the financial needs of the child; and

iii) the manner in which the child is being, and in which the parties to the marriage or union expected the child to be, educated or trained.”

The court should also take into account the following and other factors which are listed under section 53 (2): “the financial needs and obligations of each of the parties; the responsibilities of either party to support any other person; the eligibility of either party for a pension, allowance, or benefit under any Act or rule, or under any superannuation fund or scheme, or the rate of any such pension, allowance, or benefit being paid to either party; the duration of the marriage or union other than a marriage, and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration”.

It should be noted that the decree nisi of dissolution of marriage will not become absolute until the Court is satisfied that proper arrangements have been made for the welfare of the children who are under eighteen years of age.

                                                                                                                         – Kara-Je Kellman

Yes! A Man Can Rape His Wife!

In a previous article, we discussed whether a man can rape his wife in the Barbadian context in light of the Sexual Offences Act CAP 154 (‘the Act’) of the Laws of Barbados. Previously, the Act provided that the husband was only guilty of the offence of rape on his wife where there was in existence in relation to them a decree nisi of divorce; a separation order within the meaning of Section 2 of the Family Law Act; a separation agreement; or an order for the husband not to molest his wife or have sexual intercourse with her.

However, as recently as last night, the Senate of Barbados passed legislation creating the offence of marital rape. The Sexual Offences (Amendment) Act, 2016 is an Act amending the Sexual Offences Act CAP 154 to provide for the circumstances under which the offence of rape is committed by a husband against his wife. Consequently, it removes the restrictive circumstances under which the husband may commit the offence of rape on his wife.

Section 3 (4) of the Act now reads “A husband commits the offence of rape where he has sexual intercourse with his wife without her consent by force or fear, where he knows that she does not consent to the intercourse or is reckless as to whether she consents to the intercourse.”

Therefore, the Barbadian legislation now provides for the offence of marital rape, specifically as it relates to the husband committing the offence against his wife. This will be a welcomed change for some who believe that marriage should not erase the possibility of one partner raping the other. There are some others however who will be disturbed by this amendment since they are very devoted to traditional views. In my view, this new amendment should be embraced as it is definitely a step forward in the right direction.

                                                                                                                                           -Kara-Je Kellman

Do Fathers Have Equal Rights?

The hearts of young children are delicate organs. A cruel beginning in the world can twist them into curious shapes. The heart of a child can shrink so that forever afterward it is hard and pitted as the seed of a peach. – Sir Hugh Wooding

This is why parents are under an obligation to create a nurturing environment for their children. However there is no doubt that many men feel that the law does not favour them when it comes to the custody of their children.

Meaning of Custody
When considering the custody of a child the terms custody, care and control are used. In many consent orders custody is shared and care and control is given to one parent with the other being given liberal access to the child.

Custody refers to the rights and duties and powers of the parent or guardian in relation to the child, which terminate at the age of majority. Care and control or possession of the child is a subset of those rights, which terminate at an earlier age, at the age of discretion.

Contentious Issues Over Children
It is expected that the parents will act in a mature way always keeping in mind that the welfare of the child is of paramount importance.

Nevertheless where parents find themselves before the Courts it is often the case that parents are filled with mixed emotions about each other. Sometimes having been hurt in the relationship one or both might feel bitter toward the other.

Indeed they might argue that it could never be in the best interest of the child for the other parent to have care and control. This is where the Court is called upon to make a decision.

There is a perception that the Courts will always find in favour of the mother unless she has some serious problem which makes her incapable of caring for the child.

Let us see what the law says.

The Historical Perspective
The common law, which Barbados inherited from the British, established that the mother had the right to the custody, care and control of a child born outside of marriage. On the other hand with respect to the child born within marriage, the father’s right to custody, care and control was superior to that of the mother.

Arguably however with the introduction of the Status of Children Reform Act 1979 (Cap. 220 of the Laws of Barbados) and other such legislation across the Caribbean where all children are to be treated equally, that distinction in the allocation of parental responsibility has changed. Section 3 of the Act states:

For the purposes of the laws of Barbados the distinction at common law between the status of children born within or outside of marriage is abolished, and all children shall, after the commencement of this Act, be of equal status; and a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside of marriage.

In Barbados the rights of the putative father with respect to a child born out of marriage is linked to cohabitation with the mother in a union other than marriage which is recognised under the Family Law Act. If no such union exists then the father has no automatic parental rights unless there is declaration of paternity in his favour. Once that paternity has been established however it would seem then that the law will view both parents as equals.

No Presumption that a Child should be with either Parent
In the case of Edwards v. Edwards (Barbados: Unreported No. 187 of 2004) where one of the children in question was 10 months old Justice LeRoy Inniss stated:

There is no presumption that it is in the interest of children to be with either parent. In considering all of the evidence however, it cannot be ignored that nature has provided a mother with a special source of easily available nutritious food for her young. No doubt in the very act of feeding, besides receiving physical nourishment, a close bond is created between mother and infant child. It is only for some compelling reason that a court should seek to overrule nature.

He concluded that he had found no reason in this case.

The Court therefore found that the mother could take the children from Barbados even though she had absconded with them previously. The fact that the father feared that he might never see them again was not persuasive enough.

The Court felt that the Canadian courts would exercise their jurisdiction to assist the father if the mother prevented him from seeing the children.

Father Awarded Custody
In the case of Gill v. Gill  (Barbados: Unreported No. 302 of 1988) the children were in their early teens and had been living with their mother in British Colombia. There had been an interim order there giving the mother care and control of the children. Chief Justice Sir Denys Williams in this case acknowledged that the father had taken the children from British Colombia by means of a trick.

While he did not condone the flouting of the order of that Court he took the view that in examining the circumstances that the children were better off with their father in Barbados. They were doing well in school and close to taking their Advanced Level examinations and had been in Barbados for over two and a half years.

The Chief Justice spoke to the children and took their views into account. The CJ acknowledged that they had grown accustomed to life in Barbados with their father and therefore it would be upsetting and unsettling for them to be taken away from the environment to which they had grown accustomed. The Court therefore found that the father should have care and control.

So it is clear that the law recognises that each parent is equally entitled to custody of the child. One should note however that the Courts are not immune from the influence of cultural norms and it would therefore not be surprising if mothers, all things being equal might have a slight advantage in the case of very young children.

    -Lynette Eastmond