HRC v Family Court ruling
No response on lawyers for children in court
The Government is staying silent on its practical and financial plans to provide vulnerable children involved in court proceedings with legal representation, despite a judge’s recent criticism that not doing so breaches their rights.
Puisne Judge Stephen Hellman said in a Supreme Court judgment last month that unless public funding was made available for such youngsters, hundreds of whom appear before the courts without representation every year, their “constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised”.
But questions put to social development minister Michael Weeks by The Royal Gazette about how much money would be allocated for legal representation, ten months after the Progressive Labour Party’s Throne Speech pledge to ensure greater “protection and care for children”, went unanswered last week.
Child advocates said they were concerned the Government had yet to set aside money in its annual budget, table regulations on the issue or pay those professionals who have previously provided representation for children free of charge.
They said they were worried that a representative from Britain’s Child and Family Court Advisory and Support Services was appointed by the Family Court as a representative in a recent case here — despite the presence of local social workers able to do the job.
Bermudian social worker Tiffanne Thomas has acted as a “litigation guardian” in 31 cases since 2014 but has never been paid for her services.
She said her concern was less about the money she was owed and more about the pressing need for children to have proper, independent representation in court whenever necessary.
“Although the funding is relevant, the issue is the protection of children,” she said.
“The litigation guardian’s role and responsibility is solely aligned with the child, with the child’s welfare being the paramount guiding principle.”
Regarding the appointment of a Cafcass representative, she asked: “What does that mean for continuity for the child if they are not physically located in Bermuda? It is very important for the child to be able to establish healthy relationships that can be sustained.”
Ms Thomas said section 35 of the Children Act 1998 required the court in certain proceedings to “appoint a litigation guardian for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests”.
But she said the law wasn’t being applied in most cases, as Mr Justice Hellman pointed out in his ruling.
The judge said even when the Family Court made future orders for the appointment of litigation guardians and counsel they may not be complied with in “many cases ... for want of public funding”.
He added: “For the present, at least, the legislative intent in enacting section 35 will continue to be frustrated.”
Mr Justice Hellman said the state had a statutory duty to make sure every child who needed representation in court received it.
He described the current situation as “deeply unsatisfactory”.
The Government pledged in its Throne Speech in September to amend the 1998 Act “to achieve a greater degree of protection and care for children”.
According to the speech: “In a great many cases involving care and custody disputes, parties each have litigators and advisers representing their interests, while the child often does not have the same.
“Accordingly, the Act will be amended to enhance the existing protocol that assigns a litigation guardian to children whose custody, care, or control is before the courts.
“The guardian will ensure the interests of the child are fairly represented in the courts and that any subsequent orders or findings are respected by all parties.”
In an open letter sent to the Premier last week, Ms Thomas wrote: “Senior civil servants, as well as members of this sitting government, have acknowledged that the cost implication associated with ensuring that the rights of the children of Bermuda are protected continues to be the source of reluctance to fully embrace the spirit of the Act.”
Mr Weeks, in a brief public comment on the recent ruling from Mr Justice Hellman, pointed out that the judge said it would be wrong of the court to use its power to “authorise statutory expenditure where the Legislature has not expressly done so”.
He said Cafcass had been consulted to advance the Throne Speech pledge and a policy framework was now being drafted by the Attorney-General’s Chambers.
Lawyer Katie Richards, who has acted without payment on behalf of children in several cases after being made aware of their lack of representation, said section 35 meant that in every case the court should assess the need for representation for the child — both at the start of proceedings and if any circumstances changed once the case was under way.
“Mr Justice Hellman is saying the court has to give reasons [for not appointing representatives],” she said. “What the case has highlighted is that the true impact and applicability of section 35 is not being carried out in cases where it cries out for children to have a voice.
“The current lack of statutory structure and regulation is inadequate, resulting in cases continuing through the Family Court with no one advocating for the child concerned.”
The judge made his ruling after the Human Rights Commission, on behalf of two unnamed minors, sued the Attorney-General, the Minister of Social Development and the director of the Department of Child and Family Services for failing to ensure that children were properly represented in court.
The charities Childwatch, Curb, the Coalition for the Protection of Children, Scars and the Women’s Resource Centre joined the litigation as plaintiffs.
Lawyer Saul Dismont, representing the complainants, said earlier this year: “Without a lawyer in court challenging the court’s decisions, there is a greatly increased possibility that children will be dealt with unlawfully.”