A CUSTODY BATTLE over a teenager may set the course for whether the Child Care Board can have blanket immunity on releasing information that could help the defence.
The issue comes out of a recent decision by the Caribbean Court of Justice (CCJ) in response to a challenge by attorney Tariq Khan after the CCB failed to produce the notes of one of its officers as requested by Khan.
Khan, through legal aid, is representing the mother of the child who was 13 years when the matter first went before Justice Dr Sonia Richards in March 2014.
The father is seeking custody, care and control of the child claiming that the teen was being abused while in the care of the mother. As a result, the court ordered the CCB to investigate and an officer spoke with several persons. The first report recommended the child remain with the mother but a second one dated October 2014 recommended joint custody but with the care and control going to the father.
In 2015 during trial Khan requested the notes of the officer for the second report and was vigorously opposed by the CCB’S counsel who claimed “privilege from disclosure on the basis of confidentiality and public interest immunity”. Fourteen months later the judge ruled in favour of the mother; the CCB appealed and the Court of Appeal reversed the judge’s decision.
Khan then took the matter to the CCJ earlier this year and the court reinstated the judge’s original order in favour of the mother. While praising Justice Richards for the application of the law and use of international standards, the panel said she took too long to deliver the ruling and the situation was further compounded by the delay at the appellate court.
“Delay is never in the best interests of the child, the less so when there is an allegation of abuse and judicial practice should reflect that. Hence, continuing the proceedings after our decision is likely to be an exercise in futility,” the CCJ stated, adding that reports on a child of 13 will have little effect on one of 16.
However, Khan told the WEEKEND NATION the matter was still before the court and that he challenged the CCB’S automatic claim to immunity and withholding of certain information.
The attorney, who is involved in many family matters, said the case established that it is the court that will make the ultimate decision in striking the balance and determining whether not disclosing information is put before the right to a fair trial.
“My view is the case established the right of the judge, which I believe was always there, to conduct a balancing exercise between withholding information on the basis of the rights to public interest immunity, because it is in the public’s interest to withhold that information or to balance the matter in favour of the person’s right to a fair trial… what this case in my view has established is that a judge is entitled to, on a case by case basis, to exercise that balance based on the circumstances so that the days of blanket immunity cannot continue,” Khan said. ( AC)
First published in the Daily Nation on March 31, 2017