Court: children should have lawyers
Magistrates must consider appointing legal representatives to protect the rights of children who appear in court — but only if the money is available.
Puisne Judge Stephen Hellman ruled that the Children's Act required the Family Court to consider the appointment of a counsel or “litigation guardian” for children.
However, he said the legislation stopped short of making the Government pay for the service.
Mr Justice Hellman said: “This leaves a deeply unsatisfactory situation where, pursuant to its statutory duty, the Family Court will make orders for the appointment of litigation guardians and counsel which will in many cases not be complied with for want of public funding.
“For the present at least, the legislative intent in enacting the section will continue to be frustrated and children's constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised.”
The judgment came after a legal action launched by several charities and community groups, including the Human Rights Commission, child protection group Childwatch and Citizens Uprooting Racism in Bermuda.
The Coalition for the Protection of Children, Family Centre, anti-child abuse charity Scars and the Women's Resource Centre were also involved in the court action.
The groups asked for a declaration that the Children's Act required the courts and the Government to provide representation for children in the majority of cases.
In his judgment, Mr Justice Hellman wrote that — in line with the legislation — the courts should appoint a litigation guardian or counsel for the child unless it is satisfied it is not needed to protect the child's interests.
He also said the court should give reasons for its decisions.
However, he added: “An order appointing a litigation guardian or counsel to represent the child concerned is made subject to funds being available to fund such appointment.”
Mr Justice Hellman said it would be “wrong in principle” for the courts to use their power to authorise the use of government money when the legislation did not allow for that.
He added: “I agree that fair hearing principles have evolved to the point where the child has a constitutional right to participate meaningfully in specified proceedings.
“However, where, pursuant to the right to a fair hearing, the Constitution confers a right to representation it does not also confer a right to have that representation publicly funded.”