Continuing the series of comparisons between sections of our proposed Cayman Islands Bill and the corresponding Articles of the Convention.

By Rev Nicholas Sykes

Comparing the Cayman Islands draft Bill of Rights, freedoms and responsibilities with the European Convention on Human Rights. (11)

The remaining sections of CI BRFR do not correspond with any of the main ECHR Articles but are sometimes reflected by Protocols.

Comment on
CI BRFR Section 17 Protection of Children

CI BRFR Section 17 mandates the Legislature to enact laws to provide children “with such facilities as would aid their growth and development” and to ensure a number of rights for them. The Legislature “shall proceed on the basis that a child’s best interests are of paramount importance in every matter concerning the child.”

Significantly, while the list of rights includes a “name from birth”, it does not include a nationality.


Protection of children

CI BRFR Section 17.-

(1) In addition to the provisions of this Part which afford protection to children, the Legislature shall enact laws to provide every child and young person under the age of eighteen (referred to in this section as a “child”) with such facilities as would aid their growth and development, and to ensure that every child has the right –

(a) to a name from birth;

(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c) to basic nutrition, shelter, basic health care services and social services;

(d) to be protected from maltreatment, neglect, abuse or degradation;

(e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that –

(i) are inappropriate for a child of that age; or

(ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 5 and 22, the child may be detained only for the shortest appropriate period of time, and shall be treated in a manner and kept in conditions that take account of his or her age;

(h) to have a legal practitioner assigned to the child by the Government, and at public expense, in civil proceedings affecting the child, if substantial injustice would
result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) In implementing subsection (1), the Legislature shall proceed on the basis that a child’s best interests are of paramount importance in every matter concerning the child.


Comment on
CI BRFR Section 18 Protection of the Environment

CI BRFR Section 18 mandates the government to “have due regard” for the protection of the environment and to adopt “legislative and other measures” to protect it.


Protection of the environment

CI BRFR Section 18.-

(1) Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is not harmful to the health or well-being of present and future generations, while promoting justifiable economic and social development.

(2) To this end government should adopt reasonable legislative and other measures to protect the heritage and wildlife and the land and sea biodiversity of the Cayman Islands that -

(a) limit pollution and ecological degradation;

(b) promote conservation and biodiversity; and

(c) secure ecologically sustainable development and use of natural resources.

Comment on
CI BRFR Section 19 Lawful Administrative Action

CI BRFR Section 18 charges “public officials” with the responsibility always to discharge their functions in a manner which is “lawful, rational, proportionate and procedurally fair”, and confers the right on persons to have written reasons for those decisions that affect them. This constitutional right should allay many concerns over the public protection for persons with disabilities.

Lawful administrative action

CI BRFR Section 19.-

(1) All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.

(2) Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act.


Comment on
CI BRFR Section 20 Education may be compared with ECHR Protocol 1, Article 2, providing for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views.

CI BRFR Section 20 is stated to be “without prejudice to section 10”, the determinations of which would therefore take precedence in any perceived conflict of the sections. The CI Government were not permitted at the negotiations to make the section apply specifically to “every Caymanian child”, but it had to apply to every child. It was therefore redrafted to provide for Government to “seek reasonably to achieve the progressive realization, within available resources” of providing every child with primary and secondary education. The section also provides for the satisfaction of minimum standards in the operation and regulation of private schools.


Education

CI BRFR Section 20.-

(1) This section is without prejudice to section 10.

(2) Government shall seek reasonably to achieve the progressive realisation, within available resources, of providing every child with primary and secondary education which shall, subject to subsection (3), be free.

(3) Every person who is the parent or legal guardian of a child shall be entitled to have his or her child (of whatever age) educated, at his or her own expense unless a law otherwise provides, in a private school (that is to say, a school other than one established by a public authority) and, in such a school, to ensure the religious and moral education of his or her child in accordance with his or her own convictions.

(4) Nothing contained in any law or done under its authority shall be held to contravene subsection (3) to the extent that it is reasonably justifiable in a democratic society and to the extent that the law makes provision requiring private schools, as a condition of their being allowed to operate and on terms no more onerous than are applicable to schools established by a public authority,
to satisfy –

(a) such minimum educational standards (including standards relating to the qualifications of teaching staff and other staff) as may be prescribed by or under any law; and

(b) such minimum standards imposed in the interests of public order, public morality or public health as may be so prescribed.