THREE COURT of Appeal judges have reserved their decision in an appeal by the State against a ruling of a High Court judge in favour of a teenage boy who was the victim of bullying and sexual abuse at two institutions before he was removed and put in the care of the Children’s Authority.
Presiding over the appeal were Justices Peter Rajkumar, Charmaine Pemberton and Mira Dean-Armorer.
In 2019, Justice Avason Quinlan-Williams ordered compensation for the boy in the sum of $2 million which was to be held in trust until he turned 18.
Quinlan-Williams had described the boy’s story as “disheartening.” Two years prior, she had ordered his removal from the St Ann’s Psychiatric Hospital.
In 2014 at the age of nine, he was placed in the St Michael’s School for Boys after his mother was convicted of wilfully abandoning and neglecting him. He was eventually diagnosed with Prader-Willi Syndrome and later transferred to the St Ann’s Hospital. While there, his mother claimed he was sexually assaulted by another inmate in a bathroom.
Even while at the St Michael’s School for Boys, his mother alleged that he was being constantly being sexually harassed by staff, bullied and made to perform sexual favours by other residents.
In October 2016, he was referred to the St Ann’s Hospital for psychiatric evaluation and from then until the court intervened the following year, he remained a patient at the institution.
She had said the State, with the financial oversight, legal and moral responsibility for the boy ought to have provided special accommodation for children like the boy who suffered from medical and physical disabilities, pointing out that to date, the State has failed to allocate the necessary resources to establish appropriate facilities for the care of mentally and/or disabled children.
The State appealed the judge’s decision.
Senior Counsel Fyard Hosein, who appeared for the Attorney General, submitted there were no breaches to the boy’s constitutional rights since he was put at the St Michael’s Home by an order of the magistrate as a place of safety. He said the boy was sent to the St Ann’s facility on the recommendation of a psychiatric consultants, and by being admitted there, he was not denied his rights to liberty.
He urged the court not to put individual rights ahead of the community. “The time has come to interpret the Constitution, not to restrict rights but to create rights which does not form part of the normal paradigm.”
On the issue of the quantum of vindicatory damages ordered by the judge, Hosein said it was “over compensation” and an “unreasonable windfall” which did not consider that the child was not deprived of his liberty, there was no breach to his right to security of person, and his detention was arbitrary.
He said a declaration would have been sufficient.
“There was no breach of fundamental rights,” Hosein said, adding that constitutional order should only be granted if a court finds there were mala fides in the actions of state agencies.
In resisting the appeal, Senior Counsel Anand Ramlogan, who appeared for the boy and his mother, said in this case, the judge undertook a forensic analysis of the evidence presented to her and she was justified in coming to the conclusions which she did.
He said it was a “marvelous and intellectual analysis” of the evidence by the judge, agreeing with her finding that there was no justification for putting the child in a mental health institution.
“The whole regime broke down for the treatment of this child,” he said, as he also commended the judge’s explanation for arriving at the final figure of compensation.
“His entire period of detention was unlawful. Along the way, during that unlawful detention, there were constitutional breaches of security of person, cruel and unusual treatment and breaches of protection of the law.”
Although the child turned 18 earlier this year, his name and his family caregivers cannot be published by order of the Court of Appeal which was told he was now at a home in Guanapo.
Ramlogan expressed concern with this, saying he might mentally be of the age of 12 and it would be improper to place him in a facility with adults.
Although this was resisted to by Hosein, the judges did order the Children’s Authority to provide a report on the current living arrangements, his prognosis, treatment, behaviour, the amenities at the facility and the costs of housing him there since it was said over $100,000 had been spent monthly to hire 12 nurses to care for the boy previously.
Also making submissions at the appeal were attorneys for the NWRHA, the Children’s Authority and the St Michael’s Home.