Abuse, protection orders, and a CPFSA infringement

All Woman

DEAR MRS MACAULAY,
I am a Jamaican who lived and worked in Trinidad for a period of time. I have a son who was born in Trinidad to a Trinidadian father. I had a restraining order in place because of constant harassment, abuse, threats, stalking and bullying from my son's father (2010-2013). Reports were made to the police in Trinidad but nothing was done. I fled to Jamaica without my son because I feared for my life, and because of stipulations in the court order.

From 2013 to 2018 I made every effort in court in Trinidad to have my son join me here in Jamaica. Finally on 19/10/2018 I was granted sole custody and for my son to reside with me here in Jamaica. My son was handed over to me with only the clothes on his back and a tracking device.

Thirteen days later the father came to Jamaica and on 5/11/2018 he went to the CPFSA (Child Protection and Family Services Agency) and reported that I hit my son. He was assigned to an officer who visited the school and interviewed my son, the principal and my mother. The officer later contacted the father and told him that she is monitoring the matter so as to have my son removed from me.

Because of this report the father has filed a certificate of urgency in the court of appeal in Trinidad seeking to reverse custody.

My question is, does the CPFSA have the legal right to take action or give advice that contravenes the custody ruling? Can a CPFSA officer make a ruling to overturn a court ruling? What legal action can be taken against the CPFSA officer?

I have paid thousands of dollars to lawyers in Trinidad. My son's father does not pay child support. The father wants me to pay the costs for the appeal.

I need your help to find justice.

I have noted the contents of your letter about your having to obtain a protection order because of the violation of your rights due to constant abuse inflicted on you by the Trinidadian father of your child. I also noted that despite the order you had to escape to Jamaica without your son because you feared for your life, I conclude, because of the father's breaches of the order, as you say that you made reports to the police there but nothing was done.

I also note that you struggled through court processes there to obtain custody, care and control of your son, and the way your son was handed over would indicate to me that the father did not accept the judgement. Your son was not, or is, a person awaiting trial for a criminal offence, nor was he a person convicted of an offence, so the tracking device was unwarranted. This was appallingly insensitive to the emotional and psychological effect wearing such a device would have on your son, whatever his age, which you have not disclosed.

The report by the father to the CPFSA seems extremely spurious, just off the face of it, and on proper consideration would lead to a conclusion that someone in your position would not cut your nose to spite your face. In other words, you would have to be mentally deficient to act as he alleged after you had fought for so long and at great financial sacrifice to obtain an order for your son to live with you.

I am therefore surprised by what you report as the conclusion of the officer who was assigned by the CPFSA, and I hope and believe that you must have been misinformed. You did not say that the officer interviewed you, but only the father, your son at his school, the principal, and your mother. Before any conclusion could be made that you have a case to answer, you would have the right to have the opportunity to face your accused and defend yourself.

In any event, the decision about whether your son ought to be removed from your care is for the court, and since he is here with you, it's for the court here in Jamaica.

You should have taken your orders from the Trinidadian court (you did not say which court made the orders) to the Family Court in your parish and sought the advice and assistance of the clerk of courts to have it re-sealed, that is to say, to make it also a Jamaican court's orders. This could be done by the filing of documentary processes, or there may have to be a hearing wherein you give evidence to the court as to the reasons why the order was made.

Please make a copy of it first, as you must take your original sealed, and/or sealed copy. You should do so now, immediately. You can also make an application here for maintenance of your son. Speak to the clerk of court at the Family Court about this also.

You may also be advised to make a fresh application here. Your son is here within the jurisdiction of the Jamaican courts and as your son, remember that he is entitled to be registered as a Jamaican through your citizenship. This is done by a straightforward application at the Immigration Department offices. You can go there with yours and your son's birth certificates and seek their advice on how you can have him registered as a Jamaican citizen.

But your son does not need to be a citizen of Jamaica for the court to be able to deal with his welfare once he is here, and you have the additional basis of having him here pursuant to the court order of another Commonwealth country.

As to the father's appeal in Trinidad, this is his right, and it is also your right to contest it and he cannot and has no authority of any kind, whether in law or in fact, to make you pay the costs of his appeal. It is for the court of appeal to decide on the issue of costs and you in contesting the appeal have to right to also apply that he pays your costs of contesting his appeal. Unfortunately, this means more expenditure, but you cannot leave his appeal unanswered.

Now to your specific questions about whether the CPFSA has the legal right to take action or give advice that contravenes a custody ruling. As a straight question, one would say no, but if on clear evidence following an allegation brought to them that a child is being abused, which they have fully investigated, they can have the matter brought to the attention of the court for the protection of the child that the custody, care and control orders should be revisited. But you say the officer told the father that she was monitoring the matter, so clearly there was no provable evidence that you had done what he alleged.

This being so, in my opinion, the file should have been closed. However, any monitoring may just be precautionary, and would have to be done with your assistance. A CPFSA officer has no authority of any kind to overturn a court ruling and only another court of a higher jurisdiction can do so. I think before you seek legal action against the officer, you can speak with her supervisor, and if this does not satisfy you, then speak to the head of the CPFSA. Remember, it is the father who has a protection order restraining his actions of abuse made against him by a court. Your record is clear — always remember that and use this fact.

Failing this, then you can consider applying for an injunction restraining the particular CPFSA officer from continuing to act as she has been doing on the spurious allegations of your son's father. But in my opinion you should go to the Family Court as I have advised and seek to have that court assume its jurisdiction over your son. This is your immediate and best course of action, plus contesting the appeal in Trinidad.

If the CPFSA officer had evidence of wrongdoing on your part, the agency would have taken action in court about the matter, as only the court can act in relation to an existing court order.

Please go to the Family Court and speak with the clerk of court and ask for her assistance to protect your child and enforce the court order and contest the appeal in Trinidad.

I wish you and you son the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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