Litigation Guardian Rules 2018
Child court Bill a step backwards’
The Government is proposing a change to the law aimed at eroding the rights of children to have independent legal representation in court, it has been claimed.
An anonymous source shared with The Royal Gazette a copy of a draft Bill, titled the Children Amendment Act 2018 which they claimed could be tabled in the House of Assembly as soon as tomorrow.
The source claimed that one section of the legislation was aimed at lessening the Family Court’s statutory obligation to consider appointing a litigation guardian — an independent advocate solely concerned with the best interests of the child — in court cases involving children.
“These amendments remove the mandatory aspects of the current Act,” the source said. “These amendments and the Bill are poorly written and beg the question: who was consulted in drafting?”
The Ministry of Legal Affairs rejected the accusation last night, with a spokeswoman insisting it was “absolutely incorrect that the ministry has any intention to repeal the provision in the Children Act 1998 which provides for the appointment of litigation guardians”.
The Bill, seen by The Royal Gazette, would amend the wording of section 35 of the Children Act, which deals with litigation guardians.
The amendment would repeal the subsection of the Act that says the court “shall” consider appointing a litigation guardian unless satisfied that it’s not necessary to do so and replace it with a new subsection.
The amendment states: “The court may determine as to whether a litigation guardian should be appointed for a child for the purpose of any specified proceedings ... and in making its determination, the court shall seek to safeguard the interests of the child concerned.”
The Royal Gazette asked lawyer Mark Diel, a director at Marshall Diel & Myers, to read the draft Bill and provide comment.
Mr Diel, who was involved in a case which assisted in defining the right to a fair trial, said the amendment looked to be an attempt at “totally revamping” section 35 to make it no longer mandatory for the court to “even have to consider whether or not to appoint a litigation guardian”.
Mr Diel said: “The obvious question is: why do this? Surely in all cases, it is necessary for the court to consider whether or not to appoint a litigation guardian. It’s a very, very strange attempt to replace a mandatory requirement to consider the appointment of a litigation guardian with this sort of ‘discretion’ whether to consider doing so.”
He added: “Given that there remains the constitutional entitlement to a fair hearing, I am not convinced that this attempt to replace the obligatory with the discretionary will be successful.
“But someone needs to explain why some children may not get the protection of a litigation guardian application and others will.”
A second source, who asked not to be named, also read the draft Bill at our request.
“The changes they are proposing to make to section 35 actually will make it discretionary,” said the source. “They are trying to repeal the mandated nature of it. That would actually take us back 40 years.
“In 1975, the UK made it discretionary for the courts to consider appointing a litigation guardian.
“In 1989, the UK said this is unsatisfactory, it’s no longer going to be discretionary, it’s going to be mandatory. The Children Act, including section 35, was passed in Bermuda in 1998 — and now we are going backwards.”
The meaning of section 35 of the Children Act was raised in a civil lawsuit brought against the Government by the Human Rights Commission and six charities last year. The plaintiffs sought declarations on the obligations of the Family Court and others regarding the appointment of a litigation guardian and counsel to represent children during legal proceedings.
In an affidavit, the HRC’s Sara Clifford drew the court’s attention to what she described as a “disturbing practice” in the Family Court where children were sent to secure facilities in the United States, where she claimed some were forced to take medication and were denied contact with family and friends.
She said none of the children had the benefit of a litigation guardian or counsel.
Puisne Judge Stephen Hellman clarified in his ruling in June that the court had to consider whether to appoint a litigation guardian, had to appoint one where necessary and had to give reasons for its decisions.
However, he ruled that the Act did not set out how those services should be funded and “it would be wrong, in principle, for this court to use its inherent jurisdiction to authorise statutory expenditure where the Legislature has not expressly done so”.
Mr Justice Hellman added that without funding, the legislative intent in enacting section 35 would “continue to be frustrated and children’s constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised”.
The plaintiffs plan to appeal the judgment.
The Ministry of Legal Affairs spokeswoman said the 2017 Throne Speech stated that the Children Act 1998 “would be amended to enhance the existing protocols that aligns a litigation guardian to children whose custody, care or control is before the courts”.
She added: “The litigation guardian will ensure the interests of the child are fairly represented in the courts.
“To that end, the ministry intends to introduce amendments to provide a framework with regard to the appointment, function and payment of litigation guardians.
“The amendments will also provide structure with regard to the appointment of counsel. The new framework establishes a licensing regime for litigation guardians.”
• To read the draft legislation, click on the PDF above under Related Media.
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