Child Care and Protection Act

LEGAL ASPECTS OF CHILD CARE

UNIT 1 – Introduction to the Law relating to children

Who is a child?

 A child is person who has not attained the age of
majority.

 In Jamaica, section 2 of the Child Care and
Protection Act defines a child as a person under the
age of 18 years.

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The law and infancy
In recognition of infancy, the law has always made special
provisions with respect to the welfare of children.

For example, doli incapax, the presumption that a child
below the age of 12 years cannot commit a crime.(see s.63 of
Child care and Protection Act)

Juvenile offenders have always been dealt with in a
separate forum-Juvenile court now children court

Sentencing options are different for children.
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Major laws affecting children in Jamaica

 The Child Care and Protection Act 2004
 The Status of Children Act 1976
 Maintenance Act 2005
 Children (Adoption of) Act 1956
 Children (Guardianship and Custody) Act 1956
 Sexual offences Act 2010
 Offences against the persons Act 1864

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Major legislative influence

 A significant influence driving our legislative changes
regarding children over the last 20 years, is the
International Convention/treaty on the Rights of the
Child.

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The Convention on the Right of the child

What is a treaty/convention?
 A treaty or convention is an express agreement under
international law entered into by sovereign states and
international organizations.

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 The Convention on the Rights of the Child was the first
instrument to incorporate the complete range of
international human rights — including civil, cultural,
economic, political and social rights as well as aspects of
humanitarian law.

 It is an agreed minimum standard that should obtain in all
participating states concerning the care, protection and
development of children.

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 Jamaica ratified the Convention on the Rights
of the Child in May 1991.

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The Articles of the Convention.
 The Articles of the Convention may be grouped into
four categories.

A set of guiding principles and Three Rights, namely;
I. Survival and Development Rights
II. Protection Rights
III. Participation Rights

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The Guiding Principles:

 The guiding principles of the Convention include:
I. Non-discrimination;
II. Adherence to the best interests of the child;
III. The right to life, survival and development;
IV. The right to participate.

They represent the underlying requirements for any
and all rights to be realized.

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Article 1: Definition of the child

The Convention defines a 'child' as a person below the age
of 18, unless the laws of a particular country set the legal
age for adulthood younger

The Committee on the Rights of the Child, the monitoring
body for the Convention, has encouraged States to review
the age of majority if it is set below 18 and to increase the
level of protection for all children under 18.

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Article 2: Non-discrimination

The Convention applies to all children, whatever their race,
religion or abilities; whatever they think or say, whatever
type of family they come from. It doesn’t matter where
children live, what language they speak, what their parents
do, whether they are boys or girls, what their culture is,
whether they have a disability or whether they are rich or
poor.

No child should be treated unfairly on any basis.

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Article 3: Best interests of the child

 The best interests of children must be the primary
concern in making decisions that may affect them. All
adults should do what is best for children. When
adults make decisions, they should think about how
their decisions will affect children. This particularly
applies to budget, policy and law makers.

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Article 6: Right to life, survival and development

 Children have the right to live.

 Governments should ensure that children survive
and develop healthily.

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Article 12: Respect for the views of the child

 When adults are making decisions that affect children,
children have the right to say what they think should
happen and have their opinions taken into account.

 This does not mean that children can now tell their
parents what to do. This Convention encourages adults to
listen to the opinions of children and involve them in
decision-making -- not give children authority over adults.

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Article 12: Respect for the views of the child

 Article 12 does not interfere with parents' right and
responsibility to express their views on matters affecting
their children. Moreover, the Convention recognizes that
the level of a child’s participation in decisions must be
appropriate to the child's level of maturity.

 Children's ability to form and express their opinions
develops with age and most adults will naturally give the
views of teenagers greater weight than those of a
preschooler, whether in family, legal or administrative
decisions.

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Survival And Development Rights

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Survival And Development Rights

 These are rights to the resources, skills and contributions
necessary for the survival and full development of the child.

 They include rights to adequate food, shelter, clean water,
formal education, primary health care, leisure and recreation,
cultural activities and information about their rights.

 These rights require not only the existence of the means to
fulfill the rights but also access to them.

 Specific articles address the needs of child refugees, children
with disabilities and children of minority or indigenous groups.

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Article 4: Protection of rights

 Governments have a responsibility to take all available
measures to make sure children’s rights are respected,
protected and fulfilled.

 When countries ratify the Convention, they agree to
review their laws relating to children. This involves
assessing their social services, legal, health and educational
systems, as well as levels of funding for these services.

 Governments are then obliged to take all necessary steps to
ensure that the minimum standards set by the Convention
in these areas are being met.
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Article 4: Protection of rights

 They must help families protect children’s rights and create
an environment where they can grow and reach their
potential.

 In some instances, this may involve changing existing laws
or creating new ones. Such legislative changes are not
imposed, but come about through the same process by
which any law is created or reformed within a country.

 Article 41 of the Convention points out the when a
country already has higher legal standards than those seen
in the Convention, the higher standards always prevail.
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Article 5: Parental guidance

 Governments should respect the rights and responsibilities
of families to direct and guide their children so that, as they
grow, they learn to use their rights properly.

 Helping children to understand their rights does not mean
pushing them to make choices with consequences that they
are too young to handle.

 Article 5 encourages parents to deal with rights issues "in a
manner consistent with the evolving capacities of the
child".
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Article 5: Parental guidance

 The Convention does not take responsibility for children
away from their parents and give more authority to
governments.

 It does place on governments the responsibility to protect
and assist families in fulfilling their essential role as
nurturers of children.

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Article 6: Survival and Development

 Children have the right to live.

 Governments should ensure that children survive and
develop healthily.

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Article 7: Registration, name, nationality, care

 All children have the right to a legally registered name,
officially recognised by the government.

 Children have the right to a nationality (to belong to a
country). Children also have the right to know and, as far as
possible, to be cared for by their parents.

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Article 8: Preservation of Identity

 Children have the right to an identity – an official record
of who they are.

 Governments should respect children’s right to a name,
a nationality and family ties.

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Article 9: Separation From Parents

 Children have the right to live with their parent(s), unless
it is bad for them.

 Children whose parents do not live together have the
right to stay in contact with both parents, unless this
might hurt the child.

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Article 10: Family reunification

 Families whose members live in different countries should be
allowed to move between those countries so that parents and
children can stay in contact, or get back together as a family.

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Article 14: Freedom of thought, conscience and religion

 Children have the right to think and believe what they want
and to practise their religion, as long as they are not
stopping other people from enjoying their rights.

 Parents should help guide their children in these matters.

 The Convention respects the rights and duties of parents in
providing religious and moral guidance to their children.

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Article 14: Freedom of thought, conscience and religion
 Religious groups around the world have expressed support
for the Convention, which indicates that it in no way
prevents parents from bringing their children up within a
religious tradition.

 At the same time, the Convention recognizes that as
children mature and are able to form their own views, some
may question certain religious practices or cultural traditions

 The convention supports children’s right to examine their
beliefs, but it also states that their rights to express their
beliefs implies respect for the rights and freedoms of others.
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Article 18: Parental responsibilities; state assistance
 Both parents share responsibility for bringing up their
children, and should always consider what is best for each
child.

 Governments must respect the responsibility of parents for
providing appropriate guidance to their children – the
Convention does not take responsibility for children away
from their parents and give more authority to governments.

 It places a responsibility on governments to provide support
services to parents, especially if both parents work outside
the home.
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Article 20: Children deprived of family environment

 Children who cannot be looked after by their own family
have a right to special care and must be looked after
properly, by people who respect their ethnic group, religion,
culture and language.

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Article 22: Refugee Children

 Children have the right to special protection and help
if they are refugees (if they have been forced to leave
their home and live in another country), as well as all
the rights in the Convention.

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Article 23: Children with disabilities

 Children who have any kind of disability have the
right to special care and support, as well as all the
rights in the Convention, so that they can live full
and independent lives.

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Article 24: Health And Health Services

 Children have the right to good quality health care – the
best health care possible – to safe drinking water,
nutritious food, a clean and safe environment, and
information to help them stay healthy.

 Rich countries should help poorer countries achieve this.

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Article 25: Review Of Treatment In Care

 Children who are looked after by their local authorities,
rather than their parents, have the right to have these
living arrangements looked at regularly to see if they are
the most appropriate.

 Their care and treatment should always be based on
“the best interests of the child”. (see Guiding Principles,
Article 3)

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Article 26: Social security

 Children – either through their guardians or
directly – have the right to help from the
government if they are poor or in need.

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Article 27: Adequate Standard Of Living

 Children have the right to a standard of living that is good
enough to meet their physical and mental needs.

 Governments should help families and guardians who
cannot afford to provide this, particularly with regard to
food, clothing and housing.

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Article 28: Right to Education

 All children have the right to a primary education, which
should be free.

 Wealthy countries should help poorer countries achieve
this right.

 Discipline in schools should respect children’s dignity.

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Article 28: Right To Education

 For children to benefit from education, schools must be run in an
orderly way – without the use of violence. Any form of school
discipline should take into account the child's human dignity.

 Therefore, governments must ensure that school administrators
review their discipline policies and eliminate any discipline practices
involving physical or mental violence, abuse or neglect.

 The Convention places a high value on education. Young people
should be encouraged to reach the highest level of education of
which they are capable.

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Article 29: Goals Of Education

 Children’s education should develop each child’s
personality, talents and abilities to the fullest.

 It should encourage children to respect others, human
rights and their own and other cultures.

 It should also help them learn to live peacefully, protect
the environment and respect other people.

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Article 29: Goals Of Education

 Children have a particular responsibility to respect the
rights their parents, and education should aim to develop
respect for the values and culture of their parents.

 The Convention does not address such issues as school
uniforms, dress codes, the singing of the national anthem
or prayer in schools.

 It is up to governments and school officials in each
country to determine whether, in the context of their
society and existing laws, such matters infringe upon
other rights protected by the Convention.
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Article 30: Children of minorities/indigenous groups

 Minority or indigenous children have the right to learn
about and practice their own culture, language and
religion.

 The right to practice one’s own culture, language and
religion applies to everyone; the Convention here
highlights this right in instances where the practices are
not shared by the majority of people in the country.

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Article 31: Leisure, Play And Culture

 Children have the right to relax and play, and to join in a
wide range of cultural, artistic and other recreational
activities.

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Article 42: Knowledge Of Rights

 Governments should make the Convention known to
adults and children.

 Adults should help children learn about their rights, too.
(See Protection rights, article 4.)

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Protection Rights:
Keeping Them Safe From Harm

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Protection Rights: Keeping Them Safe From Harm

 These rights include protection from all forms of child
abuse, neglect, exploitation and cruelty, including the right
to special protection in times of war and protection from
abuse in the criminal justice system.

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Article 11: Kidnapping
 Governments should take steps to stop children being taken
out of their own country illegally.

 This article is particularly concerned with parental abductions.

 The Convention’s Optional Protocol on the sale of children,
child prostitution and child pornography has a provision that
concerns abduction for financial gain.

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Article 4: Protection Of Rights

 Governments have a responsibility to take all available
measures to make sure children’s rights are respected,
protected and fulfilled. When countries ratify the
Convention, they agree to review their laws relating to
children.

 This involves assessing their social services, legal, health
and educational systems, as well as levels of funding for
these services. Governments are then obliged to take all
necessary steps to ensure that the minimum standards set
by the Convention in these areas are being met.

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Article 4: Protection Of Rights
 They must help families protect children’s rights and
create an environment where they can grow and reach
their potential.

 In some instances, this may involve changing existing laws
or creating new ones. Such legislative changes are not
imposed, but come about through the same process by
which any law is created or reformed within a country.
Article 41 of the Convention points out the when a
country already has higher legal standards than those
seen in the Convention, the higher standards always
prevail

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Article 19: Protection From All Forms Of Violence

 Children have the right to be protected from being hurt and
mistreated, physically or mentally.

 Governments should ensure that children are properly cared
for and protect them from violence, abuse and neglect by
their parents, or anyone else who looks after them.

 In terms of discipline, the Convention does not specify what
forms of punishment parents should use. However any form
of discipline involving violence is unacceptable.

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Article 19: Protection From All Forms Of Violence

 There are ways to discipline children that are effective in
helping children learn about family and social expectations for
their behaviour – ones that are non-violent, are appropriate
to the child's level of development and take the best interests
of the child into consideration.

 In most countries, laws already define what sorts of
punishments are considered excessive or abusive. It is up to
each government to review these laws in light of the
Convention.

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Article 20: Children Deprived of Family Environment

 Children who cannot be looked after by their own family
have a right to special care and must be looked after
properly, by people who respect their ethnic group,
religion, culture and language.

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Article 21: Adoption

 Children have the right to care and protection if they are
adopted or in foster care.

 The first concern must be what is best for them.

 The same rules should apply whether they are adopted in the
country where they were born, or if they are taken to live in
another country.

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Article 22: Refugee Children

 Children have the right to special protection and help if
they are refugees (if they have been forced to leave their
home and live in another country), as well as all the rights
in this Convention.

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Article 32: Child Labour
 The government should protect children from work that is
dangerous or might harm their health or their education.

 While the Convention protects children from harmful and
exploitative work, there is nothing in it that prohibits parents
from expecting their children to help out at home in ways that
are safe and appropriate to their age.

 If children help out in a family farm or business, the tasks they
do be safe and suited to their level of development and
comply with national labour laws.

 Children's work should not jeopardize any of their other
rights, including the right to education, or the right to
relaxation and play.
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Article 33: Drug Abuse

 Governments should use all means possible to protect
children from the use of harmful drugs and from being used in
the drug trade.

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Article 34: Sexual Exploitation

 Governments should protect children from all forms of
sexual exploitation and abuse.

 This provision in the Convention is augmented by the
Optional Protocol on the sale of children, child
prostitution and child pornography.

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Article 35: Abduction, Sale And Trafficking

 The government should take all measures possible to make
sure that children are not abducted, sold or trafficked.

 This provision in the Convention is augmented by the
Optional Protocol on the sale of children, child prostitution
and child pornography.

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Article 36: Other Forms Of Exploitation

 Children should be protected from any activity that takes
advantage of them or could harm their welfare and
development.

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Article 37: Detention and Punishment

 No one is allowed to punish children in a cruel or harmful
way.

 Children who break the law should not be treated cruelly.

 They should not be put in prison with adults, should be able
to keep in contact with their families, and should not be
sentenced to death or life imprisonment without possibility of
release.

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Article 38: War and Armed Conflicts

 Governments must do everything they can to protect and
care for children affected by war.

 Children under 15 should not be forced or recruited to take
part in a war or join the armed forces.

 The Convention’s Optional Protocol on the involvement of
children in armed conflict further develops this right, raising
the age for direct participation in armed conflict to 18 and
establishing a ban on compulsory recruitment for children
under 18.

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Article 39: Rehabilitation of Child Victims

 Children who have been neglected, abused or exploited
should receive special help to physically and psychologically
recover and reintegrate into society.

 Particular attention should be paid to restoring the health,
self-respect and dignity of the child.

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Article 40: Juvenile Justice

 Children who are accused of breaking the law have the
right to legal help and fair treatment in a justice system
that respects their rights.

 Governments are required to set a minimum age below
which children cannot be held criminally responsible and
to provide minimum guarantees for the fairness and quick
resolution of judicial or alternative proceedings.

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Article 41: Respect for Superior National Standards

 If the laws of a country provide better protection of children’s
rights than the articles in this Convention, those laws should
apply

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Participation Rights:

Having An Active Voice

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III. Participation Rights: Having An Active Voice
 Children are entitled to the freedom to express opinions and to
have a say in matters affecting their social, economic, religious,
cultural and political life.

 Participation rights include the right to express opinions and be
heard, the right to information and freedom of association.

 Engaging these rights as they mature helps children bring about the
realization of all their rights and prepares them for an active role in
society.

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Participation Rights Cont’d

 The equality and interconnection of rights are stressed in the
Convention.

 In addition to governments’ obligations, children and parents
are responsible for respecting the rights of others—
particularly each other. Children’s understanding of rights will
vary depending on age and parents in particular should tailor
the issues they discuss, the way in which they answer
questions and discipline methods to the age and maturity of
the individual child.

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Article 12: Respect For The Views Of The Child

 When adults are making decisions that affect children, children
have the right to say what they think should happen and have
their opinions taken into account.

68

Article 13: Freedom Of Expression
 Children have the right to get and share information, as
long as the information is not damaging to them or
others.

 In exercising the right to freedom of expression,
children have the responsibility to also respect the rights,
freedoms and reputations of others.

 The freedom of expression includes the right to share
information in any way they choose, including by talking,
drawing or writing.

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Article 14: Freedom Of Thought, Conscience, Religion
 Children have the right to think and believe what they want
and to practice their religion, as long as they are not stopping
other people from enjoying their rights.

 Parents should help guide their children in these matters. The
Convention respects the rights and duties of parents in
providing religious and moral guidance to their children.

 Religious groups around the world have expressed support
for the Convention, which indicates that it in no way prevents
parents from bringing their children up within a religious
tradition.

70

Article 14: Freedom Of Thought, Conscience, Religion

 At the same time, the Convention recognizes that as children
mature and are able to form their own views, some may
question certain religious practices or cultural traditions.

 The Convention supports children's right to examine their
beliefs, but it also states that their right to express their
beliefs implies respect for the rights and freedoms of others.

71

Article 15: Freedom Of Association

 Children have the right to meet together and to join groups
and organisations, as long as it does not stop other people
from enjoying their rights.

 In exercising their rights, children have the responsibility to
respect the rights, freedoms and reputations of others.

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Article 16: Right To Privacy

 Children have a right to privacy.

 The law should protect them from attacks against their
way of life, their good name, their families and their
homes

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Article 17: Access To Information; Mass Media
 Children have the right to get information that is important to
their health and well-being. Governments should encourage
mass media – radio, television, newspapers and Internet
content sources – to provide information that children can
understand and to not promote materials that could harm
children.

 Mass media should particularly be encouraged to supply
information in languages that minority and indigenous children
can understand.

 Children should also have access to children’s books.

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