Submitted by CRIN on
FIJI
Title:
Devi v. The State
Court:
High Court of Fiji
Date:
5 March 2003
CRC Provisions:
Article 3: Best interests of the child
Article 9: Separation from parents
Domestic Provisions:
1997 Constitution of Fiji, section 27(3) (right to bail unless not in the interests of justice)
Bail Act (No. 26 of 2002)
Case Summary:
Background:
A mother was charged and held in custody for the offence of counterfeiting money; her husband was also accused and held in custody. The mother’s application for bail was denied by the Magistrates’ Court. She applied to the High Court on the basis that, under the CRC, the court needed to consider the best interests of her four-year-old child in the grant or refusal of bail.
Issue and resolution:
Best interests of the child; separation from parents. The High Court granted the mother bail with certain conditions.
Court reasoning:
According to the CRC, which applies in Fiji pursuant to section 43(2) of the Constitution, in all acts involving children, a decision must be made after assessing what is in the best interests of the child. Where, for instance, both parents are in custody and there are no arrangements for the care of young children, bail should be granted because it is in the best interests of the children that they are not separated from their parents. There may be circumstances where public interest considerations or the conduct of the parents themselves would justify a refusal of bail, such as cases of abuse or neglect. Each case must turn on its own facts.
The best interests of the applicant’s child, who is now left without a caregiver, is a primary consideration in the grant or refusal of bail in this case. There is no good reason to refuse bail. The husband is also in custody and they have a child about whom no one has any real information in relation to his welfare and custody.
Excerpts citing CRC and other relevant human rights instruments:
Clearly the care of dependents is a relevant consideration in the grant or refusal of bail. The United Nations International Convention on the Rights of the Child was adopted by the United Nations General Assembly in 1989. Article 3 states:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Article 9 provides:
“States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”
The ethos of the Convention is clear. In all acts involving children, a decision must be made after assessing what is in the best interests of the child. The Convention is a valuable guide to the weight that a court must put on section 19(2)(b)(iv) of the Bail Act. Where, for instance, both parents are in custody and there are no arrangements for the care of children of tender years, bail should be granted because it is in the best interests of the children that they are not separated from their parents. One situation where it would not be in their best interests, would be where the parents are accused of abusing or neglecting their children. However, this is not to say that bail should always be granted where both parents are in custody. There may be circumstances where public interest considerations or the conduct of the parents themselves, would justify a refusal of bail. Each case must turn on its own facts.
The Convention applies in Fiji pursuant to section 43(2) of the Constitution which provides that the courts “must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter”... The High Court of Australia said in Minister of State for Immigration and Ethnic Affairs –v- Ah Hin Teoh [1995] HCA 20; (1995) 69 ALJR 423, 183 CLR 273 (per Mason C.J. and Deane J):
“It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.”
And, in relation to Article 3 of the Convention:
“The concluding words of Art 3.1 are “the best interests of the child shall be a primary consideration.” The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal but not paramount weight.”
The best interests of the Applicant’s four year old, who is now left without a care-giver, is a primary consideration in the grant or refusal of bail in this case.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. The Court correctly applied Article 3, which provides that the best interests of the child shall be a primary consideration in all actions concerning children, and Article 9, which provides that the State shall ensure that a child is not separated from their parents against their will except where such separation is necessary for the child’s best interests.
Citation:
[2003] FJHC 47
Link to Full Judgment:
http://www.paclii.org/fj/cases/FJHC/2003/47.html
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.