Family Affairs article May 19
Litigation guardians panel praised
A top barrister involved in some of Britain’s most prominent child protection cases has praised the Government for its appointment of a litigation guardians panel.
Cyrus Larizadeh QC, who visited the island twice last year to talk to members of the Bermuda Bar Association on child law, said it was unrealistic to expect panel members to be completely independent from the Department of Child and Family Services in a country as small as Bermuda.
He said it should not be automatic that every child got representation in court hearings such as care proceedings or custody cases, since it was not always necessary.
Mr Larizadeh added: “I think the Government is trying to do its best to create something here. What does independence really mean? What we want from guardians is experience, competence and independence of thought.”
The five litigation guardians on the new panel, announced by Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, in December, will be appointed by the Family Court, if needed, to look after minors and instruct lawyers on their behalf.
Critics are concerned that panel members could have a conflict of interest through links to the DCFS and that a system had not been set up to pay them.
Mr Larizadeh said he could not comment on island politics, but found in his discussions in Bermuda that all agencies, including social services, were “very much alive” to the problems posed by the country’s small size.
He added it was unlikely Bermuda would be able to find completely independent social workers to become guardians and that, even in the UK, he had worked with litigation guardians who had earlier worked for local authorities.
Mr Larizadeh said: “They were not completely independent. They were trained by local authorities and they worked for local authorities.
“The idea that Bermuda is going to produce out of thin air a number of completely independent social workers who had never been trained or worked with the social work department seems to me unrealistic. One needs to be realistic.”
He added: “I may be sounding more sympathetic to the Government than others. I think they have got a difficult job to do.”
Mr Larizadeh, the chairman of the Family Law Bar Association in England and Wales, helped to draft a child protection law in Anguilla, another British Overseas Territory.
He became interested in Bermuda after island lawyer Saul Dismont did a placement at his London chambers in 2018.
Mr Dismont is thought to be the first lawyer in Bermuda to have made an application to the Family Court for the appointment of a litigation guardian for a child in a 2014 case.
He has since represented other children in Family Court cases and called for the Government to fund independent legal representation for minors — especially those in care.
Mr Dismont represented six charities in a civil case which led to a Court of Appeal ruling last June that the Government had shown a “flagrant disregard” for children through its failure to pay for independent legal representation.
Mr Larizadeh visited the island “off his own steam” in April, at the invitation of the charities, and in June as part of a delegation from the UK’s Children and Family Court Advisory and Support Service — known as Cafcass.
He held sessions with Bermuda lawyers, charities and safeguarding agencies on his area of expertise — interviewing child witnesses — and examined the Children Act, which he said was more advanced in some areas than the equivalent British law.
Mr Larizadeh said Bermudian legislation that required litigation guardians to be appointed in some proceedings mirrored parts of its UK equivalent.
But he added: “There are significant differences behind the scenes and that’s why I’m not as critical as some in Bermuda.
“It’s all very well having provisions, but you need funding and the facilities to, in fact, apply those provisions.
“You need a properly trained guardian panel; you need lawyers with the required expertise.”
Mr Larizadeh said that Bermuda had used litigation guardians “only recently and very rarely” because “the structure is not really in place”.
He added he was “very impressed” on his June visit with the Attorney-General “actually stepping forward at this conference and setting out her intention to bring about the change that was necessary. In other words, to look at this issue eagerly again ...
“I believe that the authorities in Bermuda, from the discussions that I have had during my two visits, are keen to try and properly action this provision.”
Mr Larizadeh said: “It’s all very well to say you are going to wave a magic wand and create it, but there needs to be proper funding.”
He added: “This is a route map for the future and it’s not going to happen overnight. I really don’t want the Attorney-General to appear like a pariah.
“I’m very sympathetic. I think she has a very difficult job.
“It’s a matter of trying to work together on this. Who would have thought a few months ago that there would even be a panel? I’m absolutely thrilled about that.”
Mr Larizadeh suggested agencies such as Cafcass, if available, have the expertise to provide training for guardian panel members. He said there would also need to be specialist lawyers trained in children law and practice. “England and Wales have the expertise to provide such training,” he said.
He said in England and Wales it was usual for children in care proceedings to be provided with the “tandem model” of a litigation guardian and lawyer.
But he said it should not be automatic and it was inevitable that some children in Bermuda would remain without representation until a proper framework was in place.
Mr Larizadeh said he was impressed with the “dynamic people” he met here last year, including those from children’s charities and Puisne Judge Nicole Stoneham, a former magistrate in the Family Court.
He said Mrs Justice Stoneham was inspiring, committed to child welfare and had “real vision”.
He has invited her to the UK in May to give a speech to the senior judiciary and family Bar about her life and career, as part of a celebration for 100 years of women in law.
• To view A New Dawn?, a report written by Cyrus Larizadeh QC after his visit to Bermuda last year, click on the PDF link under “Related Media”. Readers are forewarned of the use of some profanity
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