Parents sue DCFS over seizure of son

  • Supreme Court ruling: Assistant Justice David Kessaram

    Supreme Court ruling: Assistant Justice David Kessaram

A couple whose three-year-old son was unlawfully seized from their home by police on the instructions of the island’s child protection agency are to sue for compensation, The Royal Gazette can reveal.

The man and woman, who cannot be named for legal reasons, want unspecified damages from the director of the Department of Child and Family Services, the Attorney-General and the Bermuda Police Service after a court earlier ruled that the authorities had acted wrongly.

The American couple left the island and launched a lawsuit after their child was taken by police officers from the family home in May 2017.

They did not get him back for two days and the mother said in an affidavit filed with the Supreme Court: “Nothing can describe the pain of my child being ripped away and being incapable of helping him.

“I cannot imagine what he must have gone through and the effect it will have on his development, but I fear he has been irreparably harmed.”

The pair won the case and received a Supreme Court ruling from Assistant Justice David Kessaram in February last year that the DCFS, the Family Court and the police had “improperly exercised” their powers.

Mr Justice Kessaram said British case law gave guidance on how courts in the United Kingdom dealt with emergency protection order applications.

He recommended the department and the Family Court in Bermuda used the UK guidance when an order was sought for the removal of a child from their home.

The boy at the centre of the lawsuit had been to King Edward VII Memorial Hospital three times with injuries between December 2014 and May 2017, including the day before he was removed from the family home.

But the judge found that the DCFS did not have enough evidence to seek an emergency protection order.

The emergency room doctor who saw the child on May 2, 2017, diagnosed nursemaid’s elbow, a common injury in young children, and said in an affidavit that the boy’s parents were “concerned and interactive appropriately. They were very softly spoken with their son and loving. I did not have any concerns that this child had been abused in any way ...”

Mr Justice Kessaram said there was “simply no basis” for the Family Court to “find that there was reasonable cause to believe that significant harm would likely be suffered by [the child] if left in the care of his parents”.

Now the mother and father have asked the court to consider whether they should be awarded compensation for the trauma caused to the family by the mistakes of the department, the Family Court and the police officers who attended their home.

The husband said: “As a result of the harm brought on to us by DCFS and other agencies, we had to go through difficulties no family should have to endure.

“Sadly, we felt we had no choice but to leave Bermuda.”

He added: “Families shouldn’t live in fear of the authorities every time their child has the slightest accident. We are hoping that once concluded, this case will help right the wrong brought on to our family, create accountability and protect other families.”

Mark Pettingill, the couple’s lawyer, said the court would determine the appropriate amount if the couple were successful with their latest civil claim.

He asked: “What price do you put on someone unlawfully taking your child from you? That’s what has to be assessed.”

The mother said last year that she and her son saw a therapist to help them deal with what had happened after they left the island.

She added: “It really helped to find the words to explain to him what happened because we wanted to make sure that he didn’t feel that he might have done something wrong.”

The woman said: “I couldn’t imagine a worse emotional feeling for a mother than to see this happen to her child. One of the ways we have been trying to process it is really to try to ensure this doesn’t happen to other families.

“That was really one of the motivations for this case — can we help stop this from happening to other families?”

A judgment in May on a separate case found that the police had overstepped their authority when they handcuffed a 15-year-old boy in the care of the DCFS and locked him up at the Co-Ed prison.

Mr Pettingill was the assistant justice who ruled on the case.

The Department of Child and Family Services is the responsibility of the Ministry of Legal Affairs. A spokeswoman said the ministry “does not comment on individual cases”.

The Bermuda Police Service did not respond to a request for comment.

To view the judgment in full, click on the PDF link under “Related Media”

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Published Aug 6, 2019 at 8:00 am (Updated Aug 6, 2019 at 6:43 am)

Parents sue DCFS over seizure of son

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