Family Affairs Spring 2019
A lawyer’s journal: children not represented
Lawyer Saul Dismont detailed in a British law magazine this year how the Government had failed children by not paying for them to have independent legal representation.
Mr Dismont submitted an article to Family Affairs, the newsletter of the Family Law Bar Association, which was published in its spring 2019 edition.
He wrote how he came across a “profound case” in 2014 while he was doing a pupillage at Elizabeth Christopher’s law firm.
It involved a young man he was representing in the criminal courts who asked the lawyer to also help him in “child court” because he was worried “they” would try to send him away.
“He said he did not have a lawyer or anyone else,” Mr Dismont wrote. “I thought that unlikely but felt compelled to at least take him to the court to make sure.”
He said before attending the court, he checked the Children Act 1998 and found section 35, which entitles a child to a litigation guardian and counsel in specified proceedings.
Mr Dismont appeared before the Family Court on behalf of the boy and raised the issue of appointing a litigation guardian.
“It was evident that this was the first time the court had ever been directed to section 35,” he wrote.
“The poor social workers did not have the faintest idea what I was talking about, what a litigation guardian was and why my client had a lawyer in the first place.”
Further research revealed there was not a single Bermuda case which mentioned section 35, despite its mandatory nature.
Mr Dismont persuaded the court at the next hearing for the boy that a litigation guardian should be appointed.
“I struggled even to find a social worker that was not attached to DCFS in some way,” Mr Dismont wrote.
“The few I did find were already committed to charities that were solely committed to providing family counselling.”
He said Tiffanne Thomas was repeatedly recommended to him and the pair had worked together since.
“In every case we were involved in, we found something peculiar,” Mr Dismont wrote.
“Throughout our matters, AG [Attorney-General’s Chambers] counsel would appear for DCFS and would often refuse to tell us their position until we entered court and would accuse me of personally lying in the presentation of my client’s case. It was all very bizarre.
“The litigation guardian was accused of ... being too concerned with following the law ...”
He wrote that Ms Thomas had been appointed for 33 children since their first case but that represented a “tiny minority” of children in specified proceedings, with about 25 to 40 applicable cases a week.
Mr Dismont said the courts ignored section 35 for 15 years because the Act was not clear on payment and lawyers were not pressing the issue in court. The Government, he wrote, ignored invoices from him and Ms Thomas.
The Court of Appeal ruled earlier this year, in a case brought by the Human Rights Commission and child rights’ charities, that failure to introduce a funding scheme for litigation guardians breached obligations set out in the Children Act.
Mr Dismont, who represented the plaintiffs and whose article appeared in Family Law before the appeal judgment, wrote: “An interesting question to ask is why it is that British children in the British territory of England have the Rolls-Royce of child representation, yet British children in the British territory of Bermuda do not.
“Could it be that all British children are equal, but some British children are more equal than others?”
The Royal Gazette revealed in November 2018 that almost 50 vulnerable Bermudian children were sent to overseas institutions in the previous five years without their wishes being taken into account by the courts.
Statistics released under public access to information legislation by the DCFS showed that 48 youngsters sent abroad as part of the psychoeducational programme since April 2014 had no legal representation at all.
• To view the law article on the Family Affairs newsletter, click on the PDF link under “Related Media”
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