24 Judgment 21 June 2019
Government’s flagrant disregard’ for children
The Government has shown a “flagrant disregard” for children by failing to pay for them to have independent legal representation, the Court of Appeal ruled yesterday.
Court of Appeal judge Dame Elizabeth Gloster said in a written judgment that there was a “clear and serious continuing breach” by ministers responsible for the Department of Child and Family Services to ensure the human rights of children were protected.
She wrote: “The current position is unacceptable and amounts to a flagrant disregard for the human rights of children in the relevant family proceedings.”
The court made declarations that ministers have been in breach of obligations under the Children Act 1998 for “some considerable time” because they failed to introduce a scheme to fund litigation guardians. As a result, the court found children were being “denied effective access to participation and representation in court proceedings that critically affect their lives”.
In response to the judgment, the Ministry of Legal Affairs said the Government had already begun developing a framework to address the problem.
A spokeswoman said: “The judgment validates the work started by this government to actively establish a more comprehensive framework which provides both funding and accountability for litigation guardians appointed by the courts.
“The judgment reflects the general policy direction of the ministry.”
She added: “In some ways, we are ahead of today’s ruling and are well advanced in our initiative to enhance the support for our children during the court process so that their voices will continue to be heard and to ensure that all outcomes are in their best interests.”
Childwatch, Citizens Uprooting Racism in Bermuda, the Coalition for the Protection of Children, Family Centre, Scars and the Women’s Resource Centre brought the civil case to enforce the rights of vulnerable children to the highest court on the island in March.
They argued that the Children Act 1998 required the Government to find funding for children to be represented in Family Court by independent advocates, known as litigation guardians, and lawyers.
The charities alleged that, due to the law not being followed for the past two decades, hundreds of children had been failed by the system because they had their matters heard without being appointed any representation.
The cases include custody and access disputes between parents and matters involving petitions from the Department of Child and Family Services to remove children from their families or send them to overseas institutions.
Puisne Judge Stephen Hellman had earlier ruled in the Supreme Court that the Children Act required the Family Court to consider appointing litigation guardians for every child involved in legal proceedings.
However, Mr Justice Hellman said the legislation stopped short of making the Government pay for the service.
The charities appealed his decision, with lawyer Saul Dismont, representing the plaintiffs, arguing at a hearing in March that the minister responsible for the Department of Child and Family Services was breaching her duty in failing to make the necessary funds available.
He said there was a constitutional entitlement to a fair hearing in Bermuda and children were being denied that right because they were being denied representation.
The Human Rights Commission filed the original lawsuit against the Government, on behalf of three unnamed minors. But the Court of Appeal heard in March that it had withdrawn from the case (see separate story). The Women’s Resource Centre also withdrew from the case.
The House of Assembly heard in March that $242,000 had been allocated for litigation guardians in the 2019-20 budget to “ensure the independent representation of children during court proceedings”.
Shadow Attorney-General Scott Pearman queried whether that was an adequate amount.
He said: “It is difficult to see how that will be anything more than a Band-Aid.”
Mr Pearman added that the Children Act intended for children to be provided with a litigation guardian and a lawyer, where necessary.
He said: “Obviously those costs, even at legal aid rates for the attorneys, and I declare an interest in [being an] attorney, are unlikely to be $242,000 in a fiscal year.”
Attorney-General Kathy Lynn Simmons, the minister responsible for Child and Family Services, said last November that the Government had no legal obligation to pay social worker Tiffanne Thomas for her work as a court-appointed litigation guardian since 2014.
Ms Thomas, who withdrew her services as litigation guardian from 17 active cases involving “at risk” minors because of lack of payment, is suing the Government for $2.6 million.
She welcomed the Court of Appeal ruling yesterday.
Ms Thomas, a director at Therapeutic Consulting Services, said: “This marks a tremendous success for the children of Bermuda.
“We are at a pivotal place because we have the potential to make significant substantial changes to ensure that the mistakes of the past 20 years are not repeated.
“Not only do we have the potential, but we have the legal obligation as found by the Court of Appeal.
“Now we can get on with the business of truly working towards enhancing child safeguarding measures in accordance with the established law.”
Government tabled the Children Amendment Act 2018 last November, which it said would provide for the regulatory oversight of litigation guardians and create a framework for the licensing regulation and appointment of litigation guardians.
The Legal Affairs spokeswoman said yesterday: “Prior to the tabling of the Bill there was no legal framework that would allow payment for litigation guardian services.
“In addition to the Bill, the need to achieve a more financially sustainable model was apparent, given the incredibly high fees demanded by some litigation guardians.
“Therefore, a working group was established within the ministry to develop the policies, procedures and recommend legislative amendments necessary to support the establishment of an independent litigation guardian office.”
The Royal Gazette revealed in November that just two out of 50 vulnerable Bermudian children sent to overseas institutions in the past five years had legal representation.
Prior to 2014, none of the children sent overseas by the Family Court had legal representation.
• To view the written judgement, click on the PDF under Related Media