Privy Council restores $2m award for abused teen

The content originally appeared on: News Americas Now

Black Immigrant Daily News

The content originally appeared on: Trinidad and Tobago Newsday

File photo: Former attorney general Anand Ramlogan

THE Privy Council has restored the $2 million judgment sum ordered in 2019 for a teenage boy who was bullied and sexually abused at the St Michael’s Home for Boys and the St Ann’s Psychiatric Hospital, before he was placed in the care of the Children’s Authority.

On Monday, the London-based council – TT’s highest court – allowed the teenager’s appeal pursued by his mother, in which he challenged the decision by the Appeal Court to reduce the compensation awarded to him by Justice Avason Quinlan-Williams.

On appeal by the State, the amount was reduced to $844,650, completely wiping out the $1 million in vindicatory damages. The damages was the highest sum ever awarded in a local case. Although he is now 19, his name was ordered kept confidential by the courts.

In their decision, Privy Council judges, Lords Hodge, Leggatt, Burrows, Richards and Lady Rose restored Quinlan-Williams award of $921,200 in compensatory damages and $1 million in vindicatory damages.

The total amount is to be paid into the court and put in an interest-bearing account and from it, payments are to be used for the teenager’s expenses for his care, treatment, welfare and accommodation and can only be disbursed on an application to the High Court registrar or a Master.

“There was nothing wrong with the reasoning of the judge on this issue (vindicatory damages) and she has had the benefit of being closer to the facts of this appalling case than the Board,” the judgment said although they admitted $1 million was higher than what they would have awarded.

APPALLING ABUSE

They also found the Appeal Court incorrectly calculated the period for which compensatory damages should have been granted and the amount which should not have been overturned.

“It cannot be said the trial judge overstated the harm suffered by JM (the teen’s initials).”

On the award of vindicatory damages, the judgment said the Court of Appeal was wrong in law to hold there needed to be deliberate misconduct or malice by the State.

“In these facts, the institutional inertia resulted in JM suffering appalling physical and sexual abuse and ill-treatment over a five-year period.

“He was a child with a genetic disorder that is not itself a mental illness, who had committed no offences and was detained in inappropriate institutions for young offenders or for adults with mental illnesses.”

They noted that not every infringement of a constitutional right attracted vindicatory damages and it is, “if but only if,” compensatory damages are inadequate to vindicate that right.

Admitting the $1 million was higher than it would have awarded, the Privy Council said absent a clear flaw in the reasoning, appellate courts should be reluctant to interfere with a trial judge’s assessment.

In 2012, the boy then nine and his sister were removed from the care of their mother after she was arrested for child abandonment and neglect, and put into State care.

Ten days later, a magistrate ordered he be remanded to St Michael’s School for Boys for “safe keeping.”

The judgment pointed out St Michael’s was not an orphanage but an industrial school which housed and educated young offenders between the ages of 10-16.

APPEAL COURT WRONG

“JM was not an offender and in September 2012, was nine years old.”

He has Prader-Willi Syndrome, a rare genetic disorder, which inhibits physical and cognitive development, produces feelings of insatiable hunger leading to obesity and is associated with behavioural problems. It is not considered a mental illness.

Two years after he was sent to St Michael’s, his mother was convicted and he was ordered to be “committed” to the institution until he turned 18.

A care plan was developed for him, but this ceased in the latter part of 2014 and by the next year, a social worker said the institution was unable to properly implement a further care plan.

During his time there, he was bullied and endured physical and sexual abuse by residents and staff.

He was temporarily transferred to St Ann’s Psychiatric Hospital for safe keeping but while there, he was diagnosed as mentally ill and needed to be detained at the hospital.

Staff at the hospital struggled to manage his needs. He was eventually removed from the hospital and put in the care of the authority after his mother filed the lawsuit.

The Law Lords also determined the correct analysis of the constitutional rights that were infringed.

Quinlan-Williams considered his detention at St Michael’s to be unlawful while the Court of Appeal disagreed.

In their decision, the Privy Council said Quinlan-Williams was “correct” while the Appeal Court “made an error in law in overruling” her and its reliance on the magistrate’s power to make such orders was “misplaced.”

“That provision cannot be correctly interpreted as allowing the magistrate to make an order that would place the child in an institution that was not safe for that child.” They also said the State had a duty to ensure magistrates had options open to them when ordering a child, such as JM, to an institution that could provide safe care and could not rely on the “analogous reasoning” that there were no practical alternatives.

They pointed out he was a non-offender to an institution designed for offenders over age 10, when at nine, he was not one and where the impact on him was “real and substantial rather than trivial or technical.”

As they quoted from the European Convention on Human Rights, the Privy Council judges said in looking at his detention at both institutions, a child who committed no crime and suffered from a genetic disorder, the State was responsible for the five years he spent at the two which were “wholly inappropriate” for him.

“He should never have been in either institution,” they said, as they held the Appeal Court was wrong in finding he did not suffer an infringement of the right not to be subjected to cruel and unusual punishment.

“His rights to security of the person and to protection of the law were both infringed. The Board has also taken the view that the trial judge was justified in finding that his right not to be subjected to cruel and unusual punishment was infringed: but even if that particular right was not infringed, there can be no denying that he was in a ‘living hell’ at St Michael’s and that at St Ann’s he was regularly sent to a seclusion room, sometimes with physical restraints.”

The teenager was represented by Anand Ramlogan, SC, Robert Strang, Adam Riley and Ganesh Saroop while the State was represented by Howard Stevens, KC, and Katharine Bailey.

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