When the village fell silent

  • Dropping the ball: the court system is failing at-risk children

    Dropping the ball: the court system is failing at-risk children


The phrase “it takes a village to raise a child” is frequently uttered in Bermuda — so often, perhaps, that it’s become something of a trope.

We all understand its noble meaning — that we, as a society, are all responsible for bringing up the island’s youth — without needing to hear more than the first four words.

But does Bermuda really live by its favourite maxim? Why not ask those who, as vulnerable children, have been clients of the Department of Child and Family Services over the past 20 years.

In particular, the views of the youngsters who have participated in the department’s “psychoeducational programme” should help to elucidate the matter.

As recent news reports have revealed, these are the children sent abroad to secure facilities in the United States for “treatment” after the DCFS decided it could provide no further help for them on the island.

They are the kids, in the overwhelming majority of cases, who didn’t get to have any say in the decision to exile them thousands of miles from home, to a foreign country, to an institution they often would not be allowed to leave for years.

And no one spoke up for them. The village was silent.

Despite a provision in the Children Act 1998, which says the court “shall” consider whether it is necessary to appoint an independent advocate — known as a litigation guardian — for a child involved in legal proceedings, it appears the Family Court didn’t bother in all but a tiny number of cases.

The Department of Child and Family Services, led by its now-suspended director Alfred Maybury, appeared to believe that its voice was the only one that needed to be heard by the Family Court — and it convinced the court of the same.

It is understood that the department never invited the court, of its own volition, to appoint a litigation guardian and never drew the provision in the Children Act to the court’s attention.

The department and the court, entirely complicit in this systemic failure to protect the wellbeing of Bermudian children, held steadfast to the belief that children don’t deserve a say in decisions that affect them, despite all evidence to the contrary.

Bermuda’s Children Act was based on a similar law from Britain — and was passed almost a decade after the British recognised the need for it to be mandatory for courts to consider whether to appoint a litigation guardian, an advocate entirely separate and independent from social services.

We must assume the Family Court panel, comprising a magistrate and two lay persons, knew about the section 35 provision in Bermuda’s Children Act 1998 as soon as it was enacted into law.

Yet, as far as we know from sources with knowledge, it didn’t inquire in each and every case involving a child as to whether legal representation was needed. Let’s be frank: it didn’t give it a passing thought.

The first litigation guardian was appointed a full 16 years after the Children Act became law — and the department resisted the appointment.

It is understood that lawyers from the Attorney-General’s Chambers, instructed by Mr Maybury, actively sought to prevent the child involved from getting an external source of help and support, a person to look out for their interests alone and instruct a lawyer on their behalf.

The department has also opposed litigation guardian applications in other cases.

We know, thanks to public access to information, that 48 of 50 children sent abroad as part of the psychoeducational programme since April 2014 had no legal representation.

We don’t yet know the number of children who went overseas before that, but we can be sure that none of them had a litigation guardian or a lawyer.

You may say the village did not know about these at-risk children and their plight. Family Court is held behind closed doors and its proceedings are not reported in the media.

Yet we all heard Cabinet ministers in both the Progressive Labour Party and One Bermuda Alliance administrations talk during their Budget briefs about the psychoeducational programme — the millions of dollars it cost and the need to send youngsters far from their homes.

Health minister Nelson Bascome said in 2003 that “children with high-risk behaviour problems” were having to be sent abroad “because we do not have the facilities in Bermuda to facilitate them” but that it would be better if they could be treated here.

But caring for them here wasn’t a priority for the PLP or OBA, and nor was funding litigation guardians.

It is understood that a cost analysis carried out by DCFS several years ago determined it would be cheaper to keep sending them away. In other words, money trumped basic humanity.

It now appears that the “high-risk behaviour” in many cases was a euphemism for children playing hookey from school because of a dysfunctional home life.

Hardly unusual and hardly needing the sledgehammer approach of what has often amounted to a prison sentence overseas for youngsters who have never broken the law.

We are talking about fewer than ten children a year who need this service.

Can the village, the “village” with one of the highest GDPs in the world, really not get it together to take care of these children close to home and help them become functional adult members of our society?

The village is now well aware of this scandal, for scandal it is, and has been told that children are still being sent abroad without legal representation.

Soon, if a draft Bill tabled in Parliament on Friday is approved by MPs, the right of children to even have the court consider whether they need a litigation guardian could be eroded.

The cosy notion of Bermuda’s “village” looking out for all of its young bears no relation to what has happened to the island’s disenfranchised children.

When it comes to those kids, the village dropped the ball, big time.

We now have the chance to make things right, to demand that the Government stops sending children overseas, re-amends the draft Bill to ensure it is still mandatory for the court to consider in every case whether legal representation is needed, starts funding litigation guardians and lawyers for every child who needs them, and compensates those utterly failed by the system.

If we do nothing, shame on us all.

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Published Dec 3, 2018 at 8:00 am (Updated Dec 3, 2018 at 7:29 am)

When the village fell silent

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