Lawyers launch court case for boy, 5
Lawyers have been given permission to proceed with a court case launched on behalf of a five-year-old boy who it was claimed had been denied legal protection through a failure to fund independent court representation for him.
Martha Dismont, for the child, made an application in October for leave to apply for judicial review in an action against the Attorney-General and Minister of Legal Affairs.
The move came more than four months after appeal judges ruled that failure to introduce a funding scheme for litigation guardians breached obligations set out in the Children Act 1998.
Papers filed in the Supreme Court in October alleged that funds had still not been provided.
Ms Dismont, the executive director of Family Centre, but who acted in a personal capacity, said in an affidavit: “This situation for the applicant and all other affected children is simply unacceptable and inexplicable.
“How can we expect children to respect the law and the court system when those who are obliged to protect children refuse to respect the law and a judgment of the Court of Appeal?”
The affidavit accompanied the application and explained that the boy’s litigation guardian Tiffanne Thomas withdrew her services in November 2018 because of the minister’s “failure to pay her”.
Ms Dismont wrote: “Consequently, the applicant no longer has an independent social worker to make submissions and recommendations on the child’s welfare.”
She added: “The respondent’s failure to pay the litigation guardian is also denying the applicant legal representation.
“Although he has a lawyer, the law does not permit a lawyer to take instructions from a five-year-old.
“The lawyer must act under the instructions of a litigation guardian. In this case, there is not one, due to the respondent’s failure to pay her.”
She added that the child and his lawyer, Saul Dismont, were “deprived full access” to records on the boy held by the Department of Child and Family Services because only a litigation guardian can obtain them and use them in evidence.
The civil application in the Supreme Court asked for, among other things, relief in respect of the minister’s “refusal to abide by” the Court of Appeal judgment, and her “decision to deny the applicant’s right to a fair trial”, by a failure to put in place a scheme to fund litigation guardians and counsel.
It also asked for relief in relation to the failure of the Minister of Legal Affairs — at present Kathy Lynn Simmons — to appoint a panel of litigation guardians.
Ms Simmons announced last week that a panel had been set up.
She added: “The ministry will monitor and assess the effectiveness of the implementation of the present legislative scheme for the appointment of litigation guardians and counsel, while simultaneously advancing a fiscally sustainable and independent model in keeping with best practice in this area.”
Mr Dismont said later that leave was granted to pursue the case last month and the parties involved awaited a hearing date.
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