Friday, October 10, 2008

Teachers Matter

I am humbled, if a bit mystified, that you have given me the honour of speaking to you on the theme for this year's World Teachers' Day.  I have been a teacher for barely one year.  Probably, every one of you in the room today is more qualified to speak on the subject than I am.  However, I am willing to accept the challenge, if you don't mind taking the risk of being bored.
First, I ask myself who is a teacher?  One answer that I like is that a teacher is a person whose profession it is to make a difference to children, to move student achievement forward, and to bring students to their highest potential.
If our teachers are to meet this definition, they have to be of the highest quality.  We must be both talented and motivated.  It would seem to me that quality is at risk when:
The profession is not competitive with other occupations in attracting such persons; or
There is a shortage of qualified teachers; or
The profession is not held in high regard by the society; or
There are fewer applicants than there are teaching vacancies.
The obvious solutions would appear to be to:
Improve teaching's general status; and to
Heighten teachers' competitive position in the job market; and to
Broaden the source of teacher supply to include well qualified people from other careers; and to
Provide special incentives for teachers whose skills are in short supply; and to
Give extra encouragement and support for teachers working in difficult locations
Teachers, like any other professional, need to have our knowledge and skills constantly developed.
Teacher education, induction, and professional development, are all essential techniques and tools.
Teachers require a lifelong learning framework.
As an aside, I do regret that I have never been offered any form of induction programme before I started teaching.  I have heard a rumour that such a programme exists.  Perhaps, someone thought I was too old to learn?
Teachers will matter when only the best candidates among us are selected for employment.  Teachers will not matter when there is no policy for recruiting, selecting and employing teachers.
There are questions that must be asked.
Is the tenured employment of a teacher in the public service, and the permanency this entails, conducive to encouraging professional development? 
Is there any incentive for continuously reviewing our skills and improving our practice? 
Are there in Anguilla any mechanisms for teacher evaluation and accountability?
Let it not be said of us, as George Bernard Shaw did, “He who can, does.  He who cannot, teaches”.
I want to tell you about Mr Rais.  He was my arithmetic teacher when I went to boarding school in Trinidad at 9 years of age.  This was a long time ago.  The main teaching tool then was the chalk board and a wood-backed duster to wipe it clean from time to time.  Mr Rais made me learn my tables.  He taught additions, subtractions and multiplications.  It must have been very boring for him.  He used to pace up and down the spaces between the desks as we did our class assignments.  He would peer over my shoulder at my exercise book. Every time he noticed an error, he would rap me on the top of my head with the wooden back of the duster.
As a result, to this day, I cannot multiply beyond 5.  The 10 times table was easy.  You just had to add a zero to the figure.  If I have to work out 8 times 8, I can only do it by adding 3 times 8 to 5 times 8.  Or, for variety, I might subtract 2 times 8 from 10 times 8.  I failed mathematics at O-Level twice.
I loved physics and chemistry from Form 1.  I asked for a chemistry set as a Christmas gift every year.  I did well in those subjects right up to Form 5.  Then, mathematics entered the picture.  I failed both physics and chemistry at O-Level.  When I think of that teacher, a special loathing rises in me.
Probably, if he were still living, and you asked him about those days, he would tell you that what he remembers is that, “For every person who wants to teach, there are 30 not wanting to learn.”
I am sure none of you makes a similar mistake with your students.  Unlike Mr Rais, you know that teachers matter.
A speech given, as a High School teacher myself, at a workshop organised by the Anguilla Teachers’ Union at the Rodney McArthur Rey Auditorium on Friday, 11 October 2008

Thursday, October 09, 2008

Child Support

Notes for a speech given at the Department of Social Development Staff Development Day Workshop, at the Soroptimists' Conference Room, The Valley, on 9 October 2008
At present, child support orders are generally made under the Magistrates Code of Procedure Act[1].
The old nineteenth century Act provides two regimes of support. One is for the children of: (i) married women; and the other is for the children of (ii) unmarried women.

1. Married women:
The provisions for child support are found at sections 134-137. Note that the present law provides that:

(i) Legal custody of a child vests in the husband. The court can only give legal custody to the mother, if she is a wife, if she proves, eg,

(a) that the father has forced her into prostitution,

(b) or is a habitual drunkard,

(c) or has committed a “matrimonial offence” such as adultery or desertion,

(d) or has been convicted on indictment.

(ii) Only in one of those conditions can the wife obtain from the Magistrate's Court an order for child support.

(iii) She loses, generally, all rights if the court is satisfied that she has committed an act of adultery.

(iv) If she ever resumes cohabitation, the order is discharged, and she has to start all over again when he abandons her and the children a second time.

(v) She cannot enforce a child support order by applying for the imprisonment of the father if the amount she has allowed to fall into arrears is more than two months or $4,000.

2. Unmarried women
The present-day provisions are found at sections 138-146 of the Magistrates Code of Procedure Act. They provide:

(i) The mother must normally bring her complaint to the Magistrate for a child support order within 12 months after the birth of the child.

(ii) The evidence of the mother alone is not sufficient. It must be corroborated by some independent evidence, eg, by a witness who saw them together in "compromising circumstances" around the time she testified she had sexual relations with the man.

(iii) The court is limited to making orders for the expenses of birth (and prior death) and for weekly maintenance. The court cannot order the man to help her with other expenses surrounding the having and bringing up of a child.

(iv) Child support arrears cannot be collected unless the mother can prove that the father possessed sufficient means to pay. She cannot merely testify that he did not comply with the court order. She has to become a detective and find the evidence that can satisfy the court that the man has the income to meet the court order, and that he has been deliberately flouting the court order.

(v) The court can, normally, only make an order for the support to be paid to the mother of the child, and not to anyone else, unless the mother has died. The grandparents or whoever else is bringing up the child cannot enforce the order and ask the court to make the man meet the terms of the court order the mother obtained.

The Reforms
The major reforms proposed have come out of the OECS Family Law and Domestic Violence Project. This is part of the initiative of the Eastern Caribbean Supreme Court towards judicial and legal reform in the OECS region.

The Bills that have been circulated for discussion, and adoption by the Houses of Assembly of the various countries and territories of the OECS are:

  1. The Child Justice Bill;
  2. Children (Care and Adoption) Bill;
  3. The Domestic Violence Bill;
  4. The Family Law (Guardianship, Custody and Access to Children) Bill;
  5. The Maintenance of Children Bill;
  6. The Status of Children Bill.
The ones that we are to look at today are:

  1. The Status of Children Bill
This Bill will completely reform the law relating to the status of children:

(i) It abolishes the distinction between children born in wedlock and out of wedlock.

(ii) It does away with any reference to whether or not the parents of a child are married to each other or not.

(iii) The right of the child to inherit its father's property no longer depends on whether or not its parents are maried to each other.

(iv) It vests in the father for the first time rights in relationship to the child.

(v) Paternity is now presumed where:

(a) he was married to the mother at the birth of the child;

(b) the child was born within 10 months of his death or divorce;

(c) the child was born within 10 months of his ceasing to cohabit with the mother;

(d) he was adjudged in his lifetime or after his death to be the father;

(e) the mother (during the father's lifetime) or the father signs a notarised document acknowledging him to be the father.

(vi) It creates the Family Court.

(vii) It sets out the procedure for the court to make a “declaration of parentage”.

(viii) It provides the medical procedures for “parentage” to be determined.

The Act is supported by the following Regulations:

The Status of Children (Parentage Testing Procedure) Regulations
This provides for parentage to be established by DNA testing. There are detailed procedures to be followed, and the forms that have to be completed in each case.

2. The Maintenance of Children Bill
Some of the major proposed reforms of this Bill are:

(i) The High Court may, eg, in bankruptcy proceedings, make an order restraining the depletion of a person's property which would impair or defeat the making of a maintenance order.

(ii) The Bill makes no distinction between married women and unmarried women and of children born in wedlock and children born out of wedlock. All the complicated provisions that previously distinguished each of these two from each other are swept away.

(iii) The concept of “putative father” goes. The concept of “child born out of wedlock” goes. Each “parent” of a “child” now has an obligation to provide for its support.

(iv) "Congujal relationship” is now recognised, and identical maintenance responsibilities follow regardless of whether one is the mother or the father, or whether or not they are married to each other.

(v) The court is permitted to make orders for “joint physical custody” and “joint legal custody”. So, for the first time, an unmarried father may obtain joint physical custody, or joint legal custody permitting him access to the child.

(vi) A parent who receives money for child support must use it for that purpose. If he or she misapplies that money, he or she now commits an offence

(vii) The Bill is supplemented by draft regulations. They are titled the Maintenance of Children Regulations. The most important changes for Anguilla are:

(a) Regulation 3 provides for the court to send a notice to the person who has been orderd to support a child.

(b) Regulation 4, and section 17 of the Bill, envisage the Magistrate's Court appointing a Collecting Officer from the staff of the court house. In Anguilla, that may well be more appropriately drafted by providing for an officer of the Department of Social Development to perform that duty, as it is not normal for the court house to collect, disburse and account for child support monies.

(c) The Schedule consists of all the various forms needed by the Bill.

The third new proposed piece of legislation that that we will look at and that will reform the child support regime in Anguilla is:

3. The Family Law (Guardianship, Custody and Access to Children) Bill
This Act makes provision for:
(i) The equality of parental rights in relationship to children, particularly as concerns the custody and upbringing of children;

(ii) Custody orders only to cease to have effect after six months of the mother and father resuming cohabitation. So that trickster fathers can no longer entice the mother of his child into a short lived and spurious reconciliation that will have the effect of making her start the proceedings for child support all over again.

(iii) The intervention of counsellors and mediators and other professionals to be ordered by the Court dealing with the matter.

(iv) Orders to be made prohibiting “harassment” or “interference with the child”

[1] RSA c M5.

Sunday, May 25, 2008

Constitutional Future of the Colony of Anguilla

Constitutional Future of the Colony of Anguilla

- By Don Mitchell CBE QC

23 May 2008

A colony is traditionally defined as a group of emigrants or their descendants who settle in a distant territory but remain subject to or closely associated with the parent country.  Anguilla is a colony of Great Britain.

Technically, Great Britain considers that she has no more colonies.  She has Overseas Territories instead.  Anguilla is a British Overseas Territory.  We are, as of right, British Overseas Territories Citizens.  Britain has extended British citizenship to persons who have Overseas Territories citizenship.  Most Anguillians have both types of citizenship.  Most Anguillians are British Citizens in addition to being British Overseas Territories Citizens.

As a British Overseas Territory, we are governed by laws that are made far away from us, in the United Kingdom.  The most important of these laws are:

1. The West Indies Act 1967

This Act was passed by the British Parliament back in the year 1967.  That was the year when Britain was setting up the Associated States.  The West Indies Federation had broken up in 1961.  Jamaica, Trinidad, Barbados, Guyana, and the Bahamas had gone into independence.  All of the remaining small islands were encouraged to become Associated States.  This was meant to be a half-way house to independence. 

Under this Act, the Associated States achieved full internal self-government.  Britain retained responsibility only for defence and foreign affairs.  All other aspects of government were handed over to the locally elected or locally appointed bodies.  Britain promised, by writing the provision into the Act, that she would never again legislate for any of the Associated States in the West Indies except with their express permission.  She would never again intervene in our domestic affairs.  In that sense, the Associated States enjoyed full internal self-government. 

Montserrat and the Virgin Islands refused to become Associated States.  Anguilla refused to be a part of the Associated State of St Kitts, Nevis and Anguilla.  The result was the Anguilla Revolution of 1967 and the subsequent British Invasion of 1969.  The invasion was intended to drive us back to St Kitts.  But, the British relented once they got here, and promised us they would never force us to live under a government that we rejected. 

Gradually, all the Associated States became fully independent.  St Kitts-Nevis negotiated for independence in 1980.  They agreed to give up any future claim to the territory of Anguilla.  The British Parliament was, with the permission of the Anguillian government and of the St Kitts-Nevis government, permitted to once again resume legal governance of Anguilla.  That was when Parliament passed the Anguilla Act 1980.

2. The Anguilla Act 1980

This is an Act of the British Parliament.  It was the law under which Britain agreed to take Anguilla back as a Colony, after Anguilla had rejected being a part of the Associated State of St Kitts, Nevis and Anguilla.  We have seen that under the West Indies Act, Britain undertook never again to legislate for any Associated State without its permission.  In 1980, our government gave permission for the Anguilla Act to be passed. 

Our Constitution is called the Anguilla Constitution 1982.  It was made by “the Queen in Council” under powers given to her by the British Parliament in the Anguilla Act 1980.  The Anguilla Constitution is thus called an “Order in Council”.  By the Anguilla Act 1980, the British Government has powers to legislate for Anguilla by way of an Order in Council.  The Queen does not really intervene personally in the government of Anguilla.  She and the Privy Council merely, as a formality, sign any Order in Council put before them by the Foreign Secretary.

3. The Anguilla Constitution 1982

The Anguilla Constitution is a statutory instrument made by the Privy Council in London.  It was negotiated by the Anguilla Government with the legal advisers of the Foreign and Commonwealth Office in London.  It sets out our fundamental rights.  However, it is not our supreme law.  Only in an independent country is the Constitution the supreme law.  Our Constitution is subject to the West Indies Act and the Anguilla Act of the British Parliament.  In theory at least, the British Parliament could at any time either pass a new Act for Anguilla or amend or replace our Constitution.  Our only assurance that this will not be done in an arbitrary way is a promise made by the British Government in its White Paper, “Partnership for Progress”.  They promised to respect our rights and to negotiate future changes to our status with us.

Future Prospects for Anguilla

Anguilla is a Colony of the United Kingdom of Great Britain and Northern Ireland.  That is not a status that we are required to remain in permanently.  We remain a Colony only so long as we wish it.  At any time, we may inform the British Government that we no longer want to be a Colony.  We will then negotiate our way into full Independence.  The British Government have promised us that they will place no obstacle in our way.  That promise is contained in the express provisions of the Anguilla Act and in the Partnership for Progress White Paper.  The British Government does not want to retain colonies.  They are subject to criticism at the United Nations and from their European partners for still having colonies.  They would be happy to see us go.  They would be glad to be free of the responsibility.  We contribute nothing to the British economy or society.

For years, the British Government has been discussing with our leaders in the Overseas Territories possible changes to our status.  They have offered us three options.  The first is full integration into Britain as Guadeloupe is integrated into France.  Their French partners in Europe would find that acceptable.  The second option is that we are entitled to retain the status quo.  That is, if we wish, we may remain a Colony with the British Government and Parliament having a final say in our affairs.  The third option they are prepared to discuss with us is for us to go into full independence.  The United Nations says there should be another option, a permanent form of Associated Status.  But, the British Government have said in their Partnership for Progress White Paper that they are finished with that experiment.  They have not completely turned their back on it.  They will not accept it as a permanent status.  They will only discuss Full Internal Self-Government in the context of a timetable for Independence.  They are ready to discuss full independence with us anytime we want to.

Full Internal Self-Government can be described as a half-way to independence status.  Under this status, Britain gives up any right to intervene in our local affairs unless specifically invited by our government.  We give to the British government responsibility to handle our defence and foreign affairs.  Why have the British Government rejected the United Nations decision that Associated Status is a legitimate permanent status that a colony may aspire to?  Why are the British reluctant to give a Colony such a permanent status?  Why will they discuss full internal self-government only in the context of a timetable for Independence?

The answer is not hard to find in the reports and debates.  Under international law, Britain has legally enforceable obligations for good government and human rights in all her territory, both domestic and overseas.  The British Government have stated that they do not want to take the risk of being sued over something they cannot control.  The head of the Foreign and Commonwealth Office is a Minister.  He is called the Foreign Secretary.  He is, first and foremost, a politician.  From time to time, he has to answer questions asked in the House of Commons.  He does not want to answer questions about some form of mis-government in an Overseas Territory when he has no power to correct the problem.  He would prefer not to fact that embarrassment.  When a few years ago the Chief Minister of Turks and Caicos was caught smuggling Cocaine into Florida, the Foreign Secretary was able to suspend the Constitution and declare a state of emergency.  The UK resumed direct rule of the Turks and Caicos Islands for a few years.  The people of Turks and Caicos made no objection as they were glad for the higher supervision.  When a few months ago the House of Assembly of Montserrat created a scandal in the island by increasing their pensions without having gone through the necessary Cabinet approvals, the Foreign Secretary instructed the Governor to refuse to sign the Act.  The people of Montserrat approved the action.  Nothing like that could happen again once full internal self-government is put in place.  The British Government would have to stand by helplessly wringing its hands.

Are Anguillians ready for full internal self-government at this time?  The majority of persons making representations to the 2006 Constitutional and Electoral Reform Commission answered, Yes, but on condition.  The people want to see full internal self-government backed up by a full range of checks and balances.  They do not want to exchange the arbitrary if largely benevolent rule of a far-away British Government for the potential spite and malice of all-powerful local politicians and civil servants who can do them daily damage, and for which there will be no recourse except by expensive litigation.  The people told the Commission that they want full self-government under a transparent and democratic system, with automatic safeguards guaranteed under the Constitution.  The Commission's Report brought forward the people's recommendations to the British Government and to the Government and House of Assembly of Anguilla.  If those recommendations had been unreservedly accepted, Anguilla would now, like the BVI and the TCI be enjoying a full measure of internal self-government with all the checks and balances for the individual's protection.  We would not call it “full internal self-government”, but that is what it would have been in practice.

What is the difference?  Why would the British Government give us what amounts to full internal self-government so long as we do not go in their face and demand it?  The difference is that if the British promise full internal self-government, and officially write it into law, they will never again be legally entitled to intervene if something seriously wrong with our government.  They will have to shut up and pay up when the court awards damages.  The Minister who is being subjected to questions in the House of Commons over some corruption or mis-government in the overseas territory will have to explain that he is powerless to do anything about it because the territory enjoys full internal self-government.  The British Government will clearly not permit itself to be driven into such a desperate position. 

Given the expressed British position, do I believe that Anguilla should demand full internal self-government?  No, I believe that it is a mistake.  It is going to start up an almighty row.  It will create a local and international crisis.  We do not know what repercussions it will have on our economy and society in the lead-up to the general elections due by mid-2010.  And, it will all have been so unnecessary.