Posts
Jeremy
D. Morley
On 24 February
2017, Jamaica deposited its instrument of accession to the Hague Convention on
the Civil Aspects of International Child Abduction. Jamaica is the
97th Contracting State to the Convention. The Convention will enter into
force for Jamaica on May 1, 2017, but it will not have effect with respect to
other states unless and until such countries specifically accept Jamaica’s
accession.
Jamaica has
brought the Convention into domestic law by amendments to its Children
(Guardianship and Custody) Act. A review of the amending statute indicates some
issues that should be considered as part of the process of reviewing the
acceptance of the accession by other countries.
One issue is
that the legislation empowers Jamaica’s Central Authority – defined as “the
Minister with responsibility for justice” – to “refuse an application” if it
decides that “the application is not well founded.”
The second, and
related, issue is that the legislation identifies “the Court” as the Supreme
Court of Jamaica and states that the Court should make every effort to decide
cases expeditiously and within six weeks, but it does not state how cases are
to be brought to the court and does not explain the jurisdiction of the Court if
the Central Authority has itself made a determination that an application is
not well founded.
A third issue is
that the legislation authorizes a refusal to return a child “where the return
of the child would breach his rights under Chapter III of the Constitution of
Jamaica.” Chapter III of the Constitution comprises an extremely broad listing
of “fundamental rights and freedoms,” including specific provisions for the
protection of freedom of movement, for protection from inhuman treatment, and
for respect for private and family life, all of which could be raised as
purported defenses in a Hague Convention case in Jamaica.
In any event,
Jamaica’s accession to the treaty is a welcome development.
