Pati on litigation guardians
Who speaks for our children?
Almost 50 vulnerable Bermudian children were sent to overseas institutions in the past five years without their wishes being taken into account by the courts, The Royal Gazette can reveal.
Statistics released under public access to information legislation by the Department of Child and Family Services showed that 48 youngsters sent abroad as part of the Government’s psychoeducational programme since April 2014 had no legal representation at all.
The Family Court ordered that the minors be sent thousands of miles from home at the request of the department, often to residential and confinement centres which they were unable to leave for years.
Two other youngsters who were sent overseas over the same timeframe did receive legal representation.
Tiffanne Thomas, a social worker who has acted as a court-appointed advocate, or litigation guardian, for 35 at-risk children since 2014, said: “Sending children to another jurisdiction for treatment is a practice that we, as a country, have endorsed for many years.
“To learn that 48 children have been sent overseas without independent representation is disappointing but not entirely surprising. We have developed practices and processes that are not fully aligned with the Children Act 1998 and it is disheartening as our vulnerable children are having their rights systemically breached by a system that is legislated to protect them.”
Ms Thomas added: “Based on the statistics provided under the Pati request, less than 5 per cent of children sent overseas have had their rights protected, which is a significant cause for concern.”
The Ministry of Legal Affairs and senior magistrate Juan Wolffe declined to discuss why so few children who appeared in the courts were allowed their own legal representation.
A Ministry of Legal Affairs spokeswoman said: “The appointment of a litigation guardian is at the discretion of the courts, thus DCFS is not in a position to answer the question.”
Mr Wolffe, who is in overall charge of the Family Court, said it would be inappropriate to respond.
He said: “To do so would, invariably, require me to disclose confidential information which should not be for public consumption. Family Court matters are always held in private.”
The Children Act’s section 35 was designed to give every child who needed it the right to representation in court.
However, successive governments have failed for the past 20 years to provide funding for the service and the Family Court has rarely appointed litigation guardians or lawyers for children.
Ms Thomas was appointed by the court but has not been paid for any of the cases she has worked on since 2014 and recently quit as a litigation guardian.
Kathy Lynn Simmons, the Attorney-General, said the Government had “no legal obligation” to pay her.
Scott Pearman, the shadow legal affairs minister, said the OBA administration did not pay Ms Thomas because she only submitted her first invoice in March 2017, just a few months before the party lost power in a General Election.
He said he believed there was no formal contract in place “so there was no way to know how, or how much, she would be paid”.
Mr Pearman said the OBA would allocate funding for litigation guardians if it was re-elected. He added: “The OBA has called on Government to fund litigation guardians.
“Obviously, some thought needs to be given as to how this will work in order to comply with the existing legislation and, importantly, to ensure that Bermudian children have the necessary support when appearing before the courts without their own legal representation.”
Puisne Judge Stephen Hellman said in a Supreme Court ruling in June that unless public cash was made available for youngsters who needed representation, their “constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised”.
The psychoeducational programme run by the Department of Child and Family Services has cost taxpayers more than $35 million over the past ten years.
However, little has been revealed about where children are sent or how decisions are reached to send them away.
A statement from the DCFS released under Pati said the scheme was designed to meet “the needs of children who have exhausted the educational and therapeutic service options available in Bermuda”.
The Ministry of Legal Affairs spokeswoman said the number of referrals each year to the psychoeducational programme had declined “as a result of an increased effort by DCFS to exhaust all available services and resources on island before submitting a recommendation ... for overseas assessment or treatment”.
There were nine referrals in 2013-14, eight in 2014-15, five in 2015-16, four in 2016-17 and four in 2017-18.
The spokeswoman said: “It is also worthy to note that despite the new referrals per year, the total number of children actually in placements per year has also been declining.
“This is due to children transitioning back to the island and efforts to have them reintegrate into services and supports on island.”
Patricia Gordon-Pamplin, a former social development minister, told Parliament in 2015 it was important to “maintain the appropriate services overseas that are not available locally” or there would be a direct impact on the education system “if these children create a disruption to the system due to unaddressed social, emotional, psychological and/or psychiatric issues”.
The Pati disclosure came as the Government faced a series of potential lawsuits from former Child and Family Services clients who claimed Alfred Maybury, the director, failed to protect them from alleged abuse and negligence from department staff.
Saul Dismont, a lawyer who has acted for several children in the Family Court, warned Michael Weeks, then Minister of Social Development and Sport, in August to “expect a number of civil claims from a number of children relating to claims against the director”.
The letter led to Mr Maybury’s suspension and two investigations.
Mr Dismont, of legal firm Marshall Diel & Myers, claimed this month that some youngsters in the psychoeducational programme were sent abroad under false pretences.
He said: “We know that some of the children were told if they were going abroad that they were going snowboarding and going camping and then they ended up in a secure treatment facility for three years.
“None of those children at the time had the benefit of a litigation guardian. It’s extremely likely if they had, they would not have ended up where they ended up.”
• To view the Department of Child and Family Services’ full response to the Pati request, click on the PDF link under “Related Media”