ABOUT THIS CASE
By Natalie O. Sandiford, Attorney-at-Law
Published 5 August 2023
OO v BK [2023] CCJ 10 (AJ) BB
The Caribbean Court of Justice (CCJ) has delivered a landmark judgment which has far-reaching implications for the framing of legislation and the treatment of cases concerning domestic violence in the Caribbean.
The decision in OO v BK et al [2023] CCJ 10 (AJ) BB arises out of an appeal from Barbados and carries significant implications for the fight against gender-based violence. It is anticipated that this landmark decision will have a profound impact on future gender-based violence cases, providing victims with greater legal support and encouraging governments to enact comprehensive legislation to combat this pervasive issue. This ruling also reinforces the important work of organizations such as Operation Safe Space and UN Women, providing them with a strong legal foundation to further their efforts in promoting gender equality and protecting the rights of victims of domestic violence.
Background
The appellant and first respondent were in a relationship for three years, during which time they cohabited for 21 months and had a son. In November 2019, the relationship ended. They resumed their relationship briefly between February to May 2020.
Following a violent incident, the appellant sought a protection order against the First Respondent in the Magistrate’s Court for herself and her minor son. However, the Magistrate dismissed the application on the ground that the appellant did not fall within any category of persons who qualified for protections under the Domestic Violence (Protection Order) Act, Cap 130A, as amended. The Magistrate held that the appellant was not a spouse, former spouse, or in a domestic, cohabitational, or visiting relationship with the First Respondent. Therefore, the legislation did not apply to the Appellant, and the court lacked jurisdiction to hear the matter.
The appellant was unsuccessful in her effort to challenge the decision of the Magistrate in the Barbados Court of Appeal. In upholding the decision of the Magistrate, the Court of Appeal by a majority, Narine JA dissenting, held that the Magistrate was entitled to decline jurisdiction. According to the Court of Appeal, the appellant had, by her own responses to questions raised by the Magistrate, taken herself out of any of the classes of persons entitled to protection under the Act. Further, the Court of Appeal found it difficult to comprehend how a former intimate partner could be eligible to apply for a protection order.
The Applicant appealed to the CCJ, seeking a ruling that the phrase ‘former spouse’ as used in the amended Act was not subject to a time limit. Given the appeal concerned a question of statutory interpretation, pursuant to its powers in Rule 12A.1, the CCJ on its own volition joined the Attorney General of Barbados as a party to the proceedings.
Leave to appear amicus curiae was also granted to Operation Safe Space Movement for Change Inc (OSS) in association with International Center for Advocates Against Discrimination Inc (ICAAD) and the UN Women Multi Country Office – Caribbean.
Salient Points from the Case
The issues arising for determination were set out as follows:
i. Was the appellant entitled to seek the protection of the Domestic Violence (Protection Orders) Act, as amended (the amended Act)?
ii. Was the Magistrate correct to rely on the opinion of the appellant on an issue of law?
In answering the question whether the appellant was entitled to seek protection under the amended Act, both Counsel for the appellant and for the second respondent invited the Court to adopt the literal interpretation of the term “former spouse” used in the legislation. In applying the literal rule, the CCJ held that that applicant was a person so entitled to seek a protection order under the legislation.
The Court also examined the purposive approach to statutory interpretation and held that even where there are no children emerging out of a cohabitational relationship, a party to a former cohabitational relationship, is nevertheless entitled as a ‘former spouse’ to seek the protection of the amended Act.
The CCJ also held that where the issue of statutory interpretation is at play, the Court should interpret legislation not only to achieve the objectives of the legislation, and the intention of Parliament but to achieve alignment with (1) fundamental human rights and core constitutional values and principles contained in Commonwealth Caribbean Constitutions, and (2) international treaty obligations and commitments of these States.
Consistent with the principle of sovereignty, the task of statutory interpretation in Barbados included attending to the state’s declared international undertakings through signed and subscribed international treaties and legal instruments.
Evaluation of the CCJ's Decision
This decision highlights the CCJ’s commitment to ensuring access to justice for victims of domestic violence and its willingness to assert its jurisdiction in cases of grave human rights violations, thus setting a precedent for future cases across the region.
Further, the CCJ acknowledges the importance of protecting victims of domestic violence and recognizes that gender-based violence is a pervasive issue in the Caribbean. The court carefully considered the international human rights standards applicable to the case. The CCJ ultimately found that the provisions in question unduly burdened victims and failed to provide adequate protection.
The CCJ reasoned that the requirement of providing evidence of abuse placed an additional hurdle for victims and could deter them from seeking help. The CCJ emphasized the importance of a victim-centered approach and stressed that the state has an obligation to provide effective mechanisms for victims to obtain protection orders. The court’s decision highlighted the need for a comprehensive and supportive legal framework to address gender-based violence.
Implications for Future Domestic Violence Cases in the Caribbean
The decision of the Caribbean Court of Justice has wide-ranging implications for future domestic violence cases in the Caribbean. By affirming the responsibility of the State to protect individuals from domestic violence and recognizing the urgency of addressing this issue, the CCJ’s ruling sets a new standard for the region. The decision also sets a precedent for the legal treatment of such cases, emphasizing the need for swift and effective action to protect victims and hold perpetrators accountable.
The ruling may potentially serve as a catalyst for legislative reforms in the region, encouraging governments to review and strengthen their domestic violence laws. Additionally, the decision may influence the training and education of judges, lawyers, and law enforcement officials, promoting a deeper understanding of the dynamics of domestic violence and the importance of a victim-centered approach within the justice system.
Overall, the recent decision of the CCJ sets an important precedent for the region and marks a step forward in the fight against gender-based violence in the Caribbean. It serves as a reminder of the ongoing need for legal and societal changes to ensure the protection and empowerment of victims and the eradication of gender-based violence.