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Court dismisses mother’s case against DCFS

The Court of Appeal has dismissed an allegation of malfeasance by a mother against the Department of Child and Family Services.

The appellant, who cannot be identified for legal reasons, sought damages for pain and suffering caused by supervision orders and care orders for her son made between 2008 and 2010.

But in a decision dated March 19, Justice of Appeal Anthony Smellie said that while the case was unfortunate, the appellant had not put forward anything to support her complaints of malfeasance by the Department.

“Sad and lamentable for its impact upon the appellant and her children though the circumstances were, the reality is that this was the result of the breakdown in the relationship between herself and her son’s father, not the result of misfeasance on the part of the DCFS officers,” the judge wrote.

He added that while the appellant said she only consented to the orders out of fear her son would be put into foster care, in the circumstances it appeared to be a “thinly veiled excuse” to explain why she approved the orders she is now complains of.

Mr Justice Smellie said the Department acted in response to concerns raised to them by the child’s father and the Bermuda Police Service.

He said that detailed assessments and enquiries were put before and considered by the Court, including reports from qualified and independent psychologists before the orders were made.

“This is all to the contrary of the DCFS being shown to have acted with malice or bad faith,” the Justice of Appeal added.

The appellant brought claims against the Department in 2018 over the handling of her child’s case by staff.

Supervision orders and care orders for her son were made between 2008 and 2010, but the appellant said she did not appeal the decisions at the time because she did not know she could.

The claims were struck down in 2019 by Alexandra Wheatley, the Registrar of the Supreme Court, who sat as an Acting Puisne Judge, who found that the claims were vexatious and out of time.

But the appellant launched an appeal against the decision under several grounds – including that while Ms Wheatley had been appointed as an acting judge, she had not formally taken the judicial oath of office.

Mr Justice Smellie said that the oath was more than a mere formality, but the courts should consider the wider impact of overturning the ruling based solely on her failure to take it.

“Here, Ms Wheatley was not mistaken as to the court or her jurisdiction but was oblivious to not having taken the correct form of oath,” he said.

“She was no mere ’usurper’, having been lawfully appointed by instrument granted by the Governor in keeping with the Constitution. Everyone therefore reasonably assumed that she was validly appointed to act.

“Any question as to the validity of the ruling as an act performed with her not having entered properly into the functions of her office, for want of the proper oath, is in our view amply answered by the application of the ’de facto doctrine’ such that the ruling is to be regarded as valid.”

The Appeal Panel also found that there was “no sustainable basis” for allegations of misfeasance in public office with reckless disregard as claimed by the appellant.

“Conspicuously absent from the draft amended writ and the draft amended statement of claim is any allegation of the kind of malice required to be proven – in the sense of conduct specifically intended to injure the plaintiff – or bad faith,” Mr Justice Smellie wrote.

“In short, the facts now sought to be pleaded by the appellant are still incapable of establishing the requirements of the tort of misfeasance in public office.”

The Appeal Panel dismissed the case, but made no order as to costs.