Seepersad v Ayers-Caesar and others

Interim relief in constitutional proceedings should be assessed by the tripartite test in RJR-MacDonald Inc v Canada (Attorney General) [1994] 1 SCR 311: whether there is a serious issue to be tried, whether refusal would cause irreparable harm, and which party would suffer the greater harm pending determination on the merits.

In cases involving children, their best interests are a primary consideration under article 3.1 of the United Nations Convention on the Rights of the Child, but are not paramount. They may be outweighed by cumulative competing considerations, provided that no other consideration is treated as more important. Interim relief should respect statutory restrictions against bail while securing lawful accommodation for the child.

The appellant was charged with murder at the age of 16 and remanded to an adult women’s prison. The Bail Act prohibited bail for persons charged with murder. Later legislation required children who were not released on bail to be placed in a Community Residence and prohibited detention in an adult prison.

She brought constitutional and judicial review proceedings seeking interim release to her mother or placement in a suitable Community Residence. The High Court refused conservatory orders. The Court of Appeal instead ordered the State to provide a suitable Community Residence and directed that the appellant be transferred there when one was provided. She appealed as of right, arguing that release to her mother was required and seeking costs. The central issue was whether the Court of Appeal had selected the proper interim remedy.

1. Appeal dismissed. The Court of Appeal had made the only order available in the circumstances: the Attorney General was to provide a suitable Community Residence under the Children Act 2012 and the Children’s Community Residences, Foster Care and Nurseries Act 2000, followed by transfer of the appellant from prison. Release to her mother would have been equivalent to release on bail. It would have conflicted with the statutory prohibition in the Bail Act and would have pre-empted the final determination of the constitutional issues.
2. Per the Board, interim relief in constitutional cases is governed by the tripartite test in RJR-MacDonald Inc v Canada (Attorney General) [1994] 1 SCR 311: a preliminary merits assessment, irreparable harm, and the balance of harm. Although the Court of Appeal did not expressly cite that case, it had considered each component, including the appellant’s interests, the statutory prohibition on bail, her age, and the proposed improvement of prison accommodation.
3. The best interests of a child must be a primary consideration under article 3.1 of the United Nations Convention on the Rights of the Child. They are not paramount. The cumulative effect of other considerations may outweigh them, provided no competing consideration is treated as more important.
4. The Board accepted the Court of Appeal’s conclusion that constitutional courts may grant mandatory interim orders. The restrictive approach in Attorney General v Bansraj (1985) 38 WIR 286 was effectively confined to cases equivalent to private-law disputes. The point was not challenged in the appeal.
5. The practical dilemma had passed because the appellant had reached adulthood and the final proceedings had subsequently been determined. The Board observed that appeals are against orders, rather than merely the reasons for them. Submissions on costs were to be filed within 21 days.

• Privy Council: Appeal as of right from the Court of Appeal of the Republic of Trinidad and Tobago dismissed. The interim mandatory order was upheld. [2019] UKPC 7
• Court of Appeal of the Republic of Trinidad and Tobago: On 12 November 2015, ordered the Attorney General to provide a suitable Community Residence and directed the Commissioner of Prisons to transfer the appellant there when available. Reasons were delivered on 28 April 2016. On 19 December 2018, the Court set aside the constitutional findings and damages awarded below and limited relief to a declaration concerning contraventions of sections 54(1) and 60(1) of the Children Act 2012.
• High Court: Rampersad J refused interim conservatory orders on 28 September 2015. Kokoram J later granted declarations, quashed the remand order and awarded damages, subject to the subsequent Court of Appeal decision.