Appeal Court slashes $2m award for abused boy

A $2 million compensation award made by a High Court judge in favour of a teenage boy who was the victim of bullying and sexual abuse at two institutions has been slashed by the Court of Appeal.

In a decision delivered on Wednesday, three Court of Appeal judges reduced the compensation award to $844,650.

In June, the judges Justices Peter Rajkumar, Charmaine Pemberton and Mira Dean-Armorer presided over the appeal of the Attorney General.

Attorneys for the State had submitted there were no breaches to the boy’s constitutional rights since he was put at the St Michael’s Home for Boys by an order of the magistrate as a place of safety. It was the State’s position that the boy was sent to the St Ann’s facility on the recommendation of a psychiatric consultant, and by being admitted there, he was not denied his rights to liberty.

He was later removed and put in the care of the Children’s Authority.

In the ruling delivered by Rajkumar, the judges, however, agreed that the boy’s detention at St Michael’s from June 10, 2014 and May 18, 2015-October 5, 2016, was unlawful. They also declared his detention at the St Ann’s Hospital from October 6, 2015-October 12, 2017, breached his rights to protection of the law.

The total amount of court-ordered compensation is to be put in an interest-bearing account with payments to be made on application to the Registrar or a Master of the court for the boy’s expenses.

In 2019, Justice Avason Quinlan-Williams ordered compensation for the boy 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 earlier, she had ordered his removal from the St Ann’s Psychiatric Hospital.

In 2014, aged nine, he was placed in St Michael’s 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 he was there, his mother claimed he was sexually assaulted by another inmate in a bathroom.

Even while at St Michael’s, his mother alleged that he was constantly sexually harassed by staff, bullied and made to perform sexual acts by other residents.

In October 2016, he was referred to St Ann’s for psychiatric evaluation and from then until the court intervened the following year, he remained a patient there.

She had said the State, with 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.

In their unanimous ruling, the Appeal Court judges said while the boy was properly sent to St Michael’s in 2012 by order of a magistrate when his mother was charged for child abandonment, his remaining there after 2014, when his mother was convicted, was unlawful, as the institution was not an orphanage.

However, Rajkumar said although it was it wrong in law, it did not breach the boy’s rights and was not considered “arbitrary detention.”

His detention after May 2015, however, did amount to a breach of his rights, the judge said, because the proclamation of the Children Act put a duty on the State to have children’s community residences available.

“Their provision would have enabled the option of placing (the boy) in one, as by then it had clearly been recognised (as it in fact had been recognised from inception), that St Michael’s was not suitable for him in light of his youth, behavioural issues and physical and mental condition which made him a target of bullying and abuse. It would have avoided the need to consider St Ann’s Psychiatric Hospital as the only, and therefore by default, the best option, for his alternative placement,” he added.

The boy’s detention there “exposed him to treatment there as a vulnerable minor which in its repetition and severity amounted to a breach of his right to security of the person.”

Rajkumar said while claims of bullying and attacks by older inmates at St Michael’s was not surprising, what was surprising “was the horrific nature of the incidents of abuse that did occur, as well as the fact that they were allowed to be repeated.”

He said it was obvious that the standards of decency in society “should never have permitted the treatment.

“Repeated incidents causing actual physical harm, reasonably foreseeable by the institutional personnel, must constitute a breach of this right.”

While the judges held that his admission to St Ann’s was lawful, it was his continued detention there that amounted to a breach of his rights.

“The fact that the documented evidence is that his placement there was intended to be temporary was significant, as was the fact that it ended up being anything but that, only coming to an end after a court order.

"The new Children Act and associated legislation as proclaimed were intended to avoid that situation. They were intended to provide, in respect of children, protection against detention in unsuitable accommodation. That legislation was not applied in this case to provide protection for (the boy) against detention in unsuitable accommodation. His right to the protection of the law was thereby breached,” the judges held.

They dismissed the Quinlan-Williams’s finding that his placement in seclusion, from time-to-time, as a disciplinary measure and the administering of medication equated to cruel and unusual punishment.

In reducing the amount of compensation ordered by the judge, the Appeal Court said there was no basis on the evidence for vindicatory damages.

“To the extent that the court may want to express its abhorrence at what (the boy) endured it is necessary in fairness to all parties to examine the evidence dispassionately and determine on the basis of cogent and admissible evidence … When such admissible evidence is examined in context, it does not reveal any basis for a further award of vindicatory damages.”

He said the breaches, when examined, were not because of malice but “institutional inertia,” as the court set aside the $1 million award for vindicatory damages ordered by Quinlan-Williams.

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.

In the 90-page decision, Rajkumar pointed to the evidence presented by the Children’s Authority, which said he required a round-the-clock team of 12 nurses at a cost of $108,000 per month. Rajkumar admitted it was a “very significant sum.”

The ground floor of the building was dedicated exclusively to the boy.

According to the evidence, while at St Michael’s, the boy was cuffed in the face, which resulted in a black eye. Burn marks on his arm were also observed by the magistrate who visited him there in April 2014.

The next month, he was hit with a piece of wood by a staff member before he went missing.

An inspector of orphanages was appointed to investigate the institution.

In early 2015, there were reports that a resident of St Michael’s threw pepper sauce in the boy’s eyes and staff reported that an inmate had beaten and threatened him.

He was allegedly molested in June 2015 and by May 2016, there were continued reports of physical abuse, including an attack with a piece of iron by residents.

When he was admitted to St Ann’s, burns and multiple scars about his chest abdomen and face. He was also allegedly sexually assaulted by a patient at the hospital.

Rajkumar noted that at the hospital, while not ideal, the boy was in a structured environment with a high level of supervision.

He also said the role of the boy’s mother could not be ignored, as she was only prepared to take him back for brief periods.

Appearing for the State at the appeal were Fyard Hosein, SC, Rachel Theophilus, Tinuke Gibbons-Glen, Svetlana Dass and Diane Katwaroo.

The boy and his family caregivers were represented by Anand Ramlogan, SC, Jayanti R. Lutchmedial and Ganesh Saroop and instructed Jared Jagroo.

Attorneys Justin Phelps and Salisha Baksh appeared for the NWRHA, which has authority for the St Ann’s Hospital.

Attorneys Damali Nicholls, Sharlene Jaggernauth and Denelle Singh appeared for the Children’s Authority. Kofi McIntyre and Karen E Piper represented St Michael’s Home for Boys.