Litigation guardians named amid concerns

  • Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, set up the board last month (Photograph by Akil Simmons)

    Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, set up the board last month (Photograph by Akil Simmons)

Fears were raised yesterday about whether a new panel of litigation guardians is independent from the Government.

Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, set up the board last month.

She appointed five qualified social workers to act as independent advocates for children in some court proceedings, but did not release the names until last night, after The Royal Gazette sent her a list of the members and asked for comment.

A source with knowledge of the panel said before Ms Simmons released the names, that its members were Elaine Charles, Marilyn “Peggy” Jackson, Sharon Apopa, Lyndon Jackson and Amirah Abdullah — and that all had links to the Department of Child and Family Services or the court system.

Ms Charles worked as a social worker for the DCFS before her retirement.

Ms Jackson was counsellor/social worker at CedarBridge Academy and is also understood to have worked for the DCFS’s residential treatment services section.

Dr Apopa was programme manager for Child and Adolescent Services before she retired. CAS is part of the Bermuda Hospitals Board and provides support services to clients of the DCFS.

Mr Jackson is a counsellor at Bermuda College.

His LinkedIn profile said he worked for the DCFS’s intervention team between 1999 and 2003 and for the Department of Court Services between 1995 and 1999.

Ms Abdullah, a civil servant, is the co-ordinator for the report writing team at the Department of Court Services.

The source said: “The individuals selected are all affiliated in some form with DCFS, under the direction of director Alfred Maybury, and Court Services, under the direction of his wife, Gina Hurst Maybury.”

Tiffanne Thomas, an independent social worker who has acted as a litigation guardian for more than 30 children since 2014 and who has launched legal action against the Government for unpaid fees, was not appointed to the panel.

She worked for the Department of Court Services between 2004-11 and was a DCFS part-time relief worker for two and a half years.

She said yesterday: “Whilst delayed by 20 years, it is a relief that the Government has finally considered it worthwhile to embody a panel of litigation guardians in accordance with the Children Act 1998.”

Ms Thomas added: “This is a sign that we may perhaps be on the path towards protecting the rights of children.

“However, it is important to underscore the importance of independence and objectivity of the litigation guardian panel.”

Ms Thomas said: “The litigation guardian’s sole responsibility is to the child being represented, without regard for operational, organisational or budgetary agendas or constraints.

“Simply put, the litigation guardian must at all times ensure that the welfare of the child is paramount.”

Ms Thomas added: “It is my hope that the members of the litigation guardian panel have met the criteria of complete independence from any existing child-serving organisation or government department.

“Failure to satisfy this fundamental criteria would undoubtedly raise the issue of conflict. Further it would beg the question: ‘who is the litigation guardian representing?’.”

She said a conflict of interest would arise for a social worker acting as a litigation guardian if they had “a duty to more than one individual and/or entity, with competing demands”.

Ms Thomas said being a litigation guardian required a major commitment and that full-time work for another organisation could affect availability for emergency court hearings or case conferences.

She added: “The nature of this work is demanding and can often be unpredictable.”

Saul Dismont, a lawyer who has represented children in cases against the DCFS over the failure to fund independent court advocates, said he understood that none of the panel members had “experience or training as a litigation guardian”.

He added: “The only person in Bermuda I know who has full experience as a litigation guardian and knows all the relevant law and rules is Tiffanne Thomas and, oddly, she has been excluded from the list.”

Mr Dismont said: “The sole duty of a litigation guardian is to protect the welfare of a child, irrespective of any objections from DCFS or the AG.

“The first thing a litigation guardian does to protect the child in the court proceedings is to ensure they have a lawyer.

“The litigation guardian also effectively investigates the DCFS by having complete access to [the] files of the director.

“If the director and/or Attorney-General selected the panel, that raises questions about the panel’s independence.”

But another source, with knowledge of the island’s child protection system, said: “I think the panel looks okay.

“Peggy Jackson and Sharon Apopa are retired social workers who are well informed and experienced regarding children and adolescents, as well as the child protection system. They are very good at what they do.

“Lyndon Jackson is a former social worker ... I believe he would also do a good job and has some experience with child protection and foster care.”

A government spokeswoman said last night: “The panellists have extensive skills, experience and training.

“There will also be professional development provided to them, in this subject matter, during this fiscal year, which will keep them abreast of best practices in this area.

“The panel functions independently in this role and the Ministry of Legal Affairs oversees the administrative functions such as salary.”

Ms Abdullah and Ms Charles declined to comment and Dr Apopa, Ms Jackson and Mr Jackson could not be contacted.

Ms Simmons set up the panel after the Court of Appeal ruled in June last year that the Government had shown a “flagrant disregard” for children by failing to pay for them to have independent legal representation.

She said early last month that the panel members were “qualified, certified and experienced social workers” but did not identify them.

The cases in which a litigation guardian could be appointed include custody and access disputes between parents.

Litigation guardians could also handle cases involving petitions from the Department of Child and Family Services to take children into care in Bermuda or send them to overseas institutions.

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Published Jan 9, 2020 at 8:00 am (Updated Jan 9, 2020 at 8:26 am)

Litigation guardians named amid concerns

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