Attorney-General accused of failing boy, 5

  • Child and family advocate: Martha Dismont

    Child and family advocate: Martha Dismont

The Attorney-General was accused yesterday of a denial of legal protection to a five-year-old boy through a failure to fund independent court representation for him.

Lawyers filed an application for leave to apply for judicial review by Martha Dismont, on behalf of the child, whose litigation guardian was said to have withdrawn her services in November 2018, because she had not been paid.

Appeal judges ruled in June that ministers had “for some time” breached obligations set out in the Children Act 1998 because they failed to introduce a scheme to fund litigation guardians.

They found that meant that children involved in specified proceedings had been denied effective access to, and participation and representation in, court cases.

Papers filed at the Supreme Court yesterday alleged that, more than four months since the judgment, no funds had been provided and not even an interim scheme had been set up.

Ms Dismont said in an affidavit: “This situation for the applicant and all other affected children is simply unacceptable and inexplicable.

“How can we expect children to respect the law and the court system when those who are obliged to protect children refuse to respect the law and a judgment of the Court of Appeal?”

The affidavit accompanied the application, which was filed against the Attorney-General, a position at present held by Kathy Lynn Simmons, who is also the Minister of Legal Affairs.

Ms Dismont is the founder and executive director of charity Family Centre, but filed the affidavit in a personal capacity.

She explained in the document that the boy’s litigation guardian, who was Tiffanne Thomas, withdrew her services last November because of the minister’s “failure to pay her”.

Ms Dismont wrote: “Consequently, the applicant no longer has an independent social worker to make submissions and recommendations on the child’s welfare.”

She added: “The respondent’s failure to pay the litigation guardian is also denying the applicant legal representation.

“Although he has a lawyer, the law does not permit a lawyer to take instructions from a five-year-old.

“The lawyer must act under the instructions of a litigation guardian. In this case, there is not one due to the respondent’s failure to pay her.”

She added that the child and his lawyer, Saul Dismont, were “deprived full access” to records on the boy held by the Department of Child and Family Services because only a litigation guardian can obtain and use them in evidence.

Ms Dismont referred to the Court of Appeal findings published in June and said judges “unanimously held” that the minister was obliged to provide funding for litigation guardians and lawyers and that a failure to do so was “breaching children’s human rights”.

She said: “However, the judgment has had no effect on the respondent.”

Ms Dismont highlighted that no litigation guardians had been appointed since the appeal court judgment was handed down four months ago.

She said: “Due to the ongoing failure of the respondent, there are now no lawyers or litigation guardians available to be appointed in any new matters and the applicant’s lawyer will also soon be forced to apply to withdraw from all the cases he has been appointed in.

“The applicant is entitled to the benefit of the application of the law, the protection of law and a fair trial. But he is being denied all of them due to the respondent’s flagrant disregard for children, as stated by the Court of Appeal.

“For 20 years, the Children Act has required the minister responsible for the Act to establish panels of persons from whom litigation guardians may be appointed. No minister has ever done it.”

Section 35 of the Act relates to the representation of children and their interests in some legal proceedings.

The act said that “specified proceedings” included cases involving care or supervision orders, the consideration of custody orders, and in respect of contact between a child who is the subject of a care order and another person.

Ms Dismont claimed that charities were promised two years ago that they would be involved in the selection of litigation guardians and the panel’s requirements.

She added that for the past four months, the minister “has repeated that she will provide a panel of litigation guardians for the court to choose from” but that has not happened.

Ms Dismont highlighted a letter from 2016 when she said the Attorney-General’s Chambers, under the previous potholder, Trevor Moniz of the now Opposition One Bermuda Alliance, wrote to Mr Dismont that “the minister will exercise his authority to establish a panel ... with the intent that the work be performed on a pro bono basis”.

But Ms Dismont added that the panel was never created.

She said: “Therefore, given the history of this issue and the respondent’s dismissal of the law and a judgment of the Court of Appeal, I have no confidence that the respondent will fulfil her obligations to the applicant unless this action is brought.”

The application filed in the civil jurisdiction of Supreme Court yesterday sought relief in respect of the minister’s “refusal to abide by” the Court of Appeal judgment, and her “decision to deny the applicant’s right to a fair trial”, by a failure to put in place a scheme to fund litigation guardians and counsel.

It also asked for relief in relation to the failure of the minister to appoint a panel of litigation guardians.

The paperwork explained that the boy sought measures including an order that the minister would “immediately stop breaching” his right to a fair trial, which required the provision of funding for litigation guardians and counsel.

It asked the court to declare that the Attorney-General would be in contempt of court “if she does not abide by the judgment ... and provide funding for litigation guardians and counsel appointed under the Act” or if she does not set up a panel of litigation guardians.

Relief also included “an order for vindicatory and exemplary damages” to be paid to the boy for each day that the minister “continues to breach” his right to a fair trial.

The Government did not respond to a request for comment.

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