Circumstances Under Which Children Can Be Removed From Their Parents’ Care and Custody
Introduction
According to the Children’s Authority Act Chapter 46:10 (hereinafter referred to as the CAA), a child is defined as a person under the age of eighteen. As a signatory to the United Nations Convention on the Rights of the Child and having enacted domestic legislation to give effect to it, Trinidad and Tobago therefore has a legal obligation to safeguard the rights and welfare of children. In some circumstances, this obligation may necessitate the removal of a child from the care of their parents. This article will explore the circumstances in which a child can be removed from their parents under the law.
Imminent Danger
The phrase “that is my child” often suggests that parents have absolute authority over their children. While parents do indeed possess significant rights and responsibilities, these are not unlimited. Under the law, if a child is found to be in imminent danger, the State is empowered to intervene, even to the extent of removing the child from the parents’ care.
Section 5 (1) (e) of the CAA states:
‘The Authority may have and exercise such powers and functions as are conferred on it by this Act and in particular may upon investigation, remove a child from his home where it is shown that the child is in imminent danger.’
The Act defines ‘imminent danger’ in Section 3 as the:
‘likelihood of physical, emotional, mental or psychological harm.’
Therefore, if an investigation by the Children’s Authority finds that a child is likely to suffer from any of the aforementioned type of harm, the child may lawfully be removed from their home.
Importantly, harm does not have to be physical. A child may suffer emotional, psychological or even sexual abuse without any visible signs. For example, while a parent may not strike their child, they may still cause harm through neglect (e.g., failing to provide timely meals or refusing to educate the child), exposure to harmful substances (e.g., giving the child alcohol or drugs), failing to immunize a child, or mental and emotional abuse (e.g. gaslighting, frequent insults, neglecting emotional needs, or using humiliating language like “dotish”).
These behaviors can result in profound harm to a child’s mental and emotional well-being, potentially leading to anxiety disorders, academic underperformance, depression, chronic stress, withdrawal from social activities, or even post-traumatic stress disorder (PTSD).
Parents must recognize that their rights do not supersede a child’s right to safety, dignity, and a holistic well-being. Yes, as a parent you have the right under the law to discipline your child. However, this does not mean that you can abuse the child. Specifically, Section 4 (6) of the Children Act, Act No. 12 of 2012 states:
‘Nothing in this section shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a child to administer reasonable punishment to such child.’
Therefore, the punishment being applied to the child, should be reasonable and not done in such a capacity that places the child in ‘imminent danger.’ If an investigation finds that the child is likely to experience harm, the Children’s Authority is legally justified in removing the child from the parent’s care in accordance with Section 5 (1) (e) of the CAA.
Children, like adults, have rights including the right to education, leisure and protection from torture or cruel, inhumane, or degrading treatment. These rights are enforceable and must be upheld.
Recourse Available For Parents Whose Child Has Been Taken Away
If your child has been taken away, you can seek legal recourse by either challenging the decision of the Authority in the Family Court or applying for leave in the High Court, to pursue an action for Judicial Review of the Children’s Authority decision, to remove your child from your custody. Once leave has been granted by the Court for you to bring an action for Judicial Review, Judicial Review Proceedings can then be commenced, in which the Court would review the legality of the decision of the Children’s Authority. You may also visit the Legal Aid and Advisory Authority for legal advice and possible representation.
Conclusion
While parental rights are indeed fundamental, they are not absolute. The best interests and welfare of the child must always remain of prime importance. When there is a real risk of harm, be it physical, emotional, mental, or psychological; the State, through the Children’s Authority, not only has the right but the solemn duty to intervene. This includes, when necessary, removing the child from a harmful environment in order to safeguard their well-being.
Children should never be subjected to violence, vulgarity, abuse, neglect or any form of harm. Instead, children deserve to grow up in nurturing environments that allow them to thrive. Only then can we truly hope to build a safer, stronger Trinidad and Tobago for generations to come.
Submitted by
Civil Legal Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Website: www.laaa.org.tt