Josaphat Small v Her Honour Sandra Robertson Family Court Magistrate

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Pariagsingh, M.
• Judgment Date: 30 May 2022
• Judgment citation (vLex): [2022] ECSC J0530-1
• Docket Number: Claim No. SLUHCV2020/0137

Between

Josaphat Small

Claimant

and

[1] Her Honour Sandra Robertson Family Court Magistrate

[2] The Attorney General of Saint Lucia

Defendants

Claim No. SLUHCV2020/0137

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Civil Division

Appearances:

Claimant in person; and

Kareem Alleyne and Antonia Charlemagne for the Second Defendant.

DECISION

Second Defendant's application to strike out

Pariagsingh, M.

1 — Before the Court is the Second Defendant's application filed on September 09, 2020 seeking an order that this claim be struck out against both Defendants. The grounds of the application in summary are that:

• (a) The Claimant has no standing to bring the claim on behalf of his two children;

• (b) The Claimant is non-suited to bring an action against the Second Defendant;

• (c) Time is prescribed for the bringing of a claim against the Second Defendant arising out of any delict of servants and/or agents of the Crown; and

• (d) The statement of claim does not disclose any grounds for the bringing of a claim against the Second Defendant.

2 In support of the application is the affidavit of René Williams, Senior Crown Counsel which comprises of legal arguments and submissions for the most part. Save for paragraph 6 and the first sentence of paragraph 8 the remainder of this affidavit mirrors the submissions advanced by Counsel at the hearing. Whilst the rules do permit matters of information and belief to be stated in any affidavit in support of an interlocutory application, that is not an open invitation to argue a party's case in their affidavit. This practice is to be discouraged as it poses a real challenge in responding, more so in cases such as this one, where the Claimant is a litigant in person. Accordingly, I have attached very little weight to the affidavit in support of the application.

3 There is no affidavit filed in response to the application by the Claimant. Instead on January 25, 2022 the Claimant filed a one page document titled “submissions” in which he request the opportunity to amend his case. I have attached no weight to this document.

4 At the hearing of the application I did not permit Counsel for the Second Defendant to make any submissions on behalf of the First Defendant. I only permitted the Second Defendant to pursue this application on behalf of the Second Defendant. My reason for doing so is addressed below when I treat with the claim against the First Defendant.

5 The Claimant's claim is that he is the biological father of three minor children. These children were ordered to be brought to the Family Court on September 18, 2019. The Claimant contends that the children were brought to the Family Court to have a conversation with their mother in the presence of the Family Court Director.

6 The Claimant contends that his children were taken into a room and he waited outside for a while after which he heard their voices. He opened the door to the room and alleges that he saw his children crying. He contends that he left the Family Court indicating that he was going to get a lawyer and come back.

7 His case is that when he returned he was met by security officers who informed him that he they were instructed by the Magistrate not to let him in. The Claimant contends that the liberty of the children was wrongly restrained from 9:30 am to 4:00pm. He further contends that during this same period, the children were abused by Police Officers at the Family Court. He contends that the wrist of one child was squeezed. The Claimant further contends that the children were threatened to be sent to Juvenile detention or foster care.

8 Neither the claim form nor the accompanying statement of claim seek any relief. All documents were filed by the Claimant in person. There are no documents identified or annexed to the statement of claim.

STANDING OF THE CLAIMANT:

9 It is clear from the statement of claim that this action is brought on behalf of the minor children. Paragraph 8 of the statement of claim refers to the alleged assault suffered by the children. The Claimant's first hurdle is rule 23 CPR which states:

23.2 (1) The general rule is that a minor or patient must have a next friend to conduct proceedings on his or her behalf.

(2) The court may, on the application of a minor, make an order permitting the minor to conduct proceedings without a next friend.

(3) An application for an order under paragraph (2) –

(a) may be made by the minor;

(b) if the minor has a next friend – must be on notice to that next friend; and

(c) if there is no next friend – may be made without notice.

(4) If –

(a) the court has made an order under paragraph (2); and

(b) it subsequently appears to the court that it is desirable for a next friend to conduct the proceedings on behalf of the minor; the court may appoint a person to be the minor's next friend.

(5) A next friend must act by a legal practitioner unless the court otherwise orders.

(6) The next friend must sign any certificate of truth under rule 3.12 on behalf of the minor or patient

10 To properly commence this action, an application had to be made for someone to be appointed as next friend of the children. That was not done. Even if I was minded to make such an order at this stage it would not assist the Claimant. A next friend cannot act in person, they must act through a legal practitioner. Rule 23.2 (5) CPR specially mandates this.

11 I agree with Counsel for the Second Defendant, that this Claimant lacks standing to bring this claim. I have considered the exercise of my discretion to direct that the Claimant make the...