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Judge launches attack over lack of payment for litigation guardian

Puisne Judge Nicole Stoneham (File photograph)

A judge launched a blistering attack on Government’s refusal to pay a social worker appointed to look out for the best interests of children in care, The Royal Gazette can reveal.

Puisne Judge Nicole Stoneham told a hearing: “The welfare of children in this country is paramount and I have sat here for over an hour and heard arguments about money. It sickens me.”

Mrs Justice Stoneham was speaking at a November 22, 2019 hearing in a case of two siblings in care who were represented by Tiffanne Thomas in her role as a court-appointed litigation guardian, or independent advocate for children.

The judge said: “The welfare of children supersedes money and it is a very shameful and sorrowful day that the siblings who are already at risk then become potentially subject to further risk because we, Bermuda, cannot figure out what’s best for our children and we have reduced their welfare to who is going to pay and how much.

“I am disgusted.”

Ms Thomas stepped down from the case involving the siblings and other matters in which she had been appointed by the Family Court because the Government refused to pay her for her services.

The refusal sparked the launch of a $2.6 million lawsuit which has now been settled.

The media was not present at the 2019 hearing because it was refused access, but a transcript was placed on the file for Ms Thomas’s discontinued civil case at the Supreme Court.

It revealed that the children’s mother appealed to the court to keep Ms Thomas on the case and said removing her could be detrimental, particularly to one of the youngsters.

Mark Diel, who appeared for Ms Thomas, suggested that the judge order that she be paid $60 an hour for her costs until there was a resolution on what she was owed for her services as a litigation guardian over the past six years.

He added that figure could be deducted from any settlement reached in the civil case.

He said Ms Thomas’s electricity had been turned off and she faced the loss of her home if she did not get paid for the valuable work she did.

Mr Diel added: “It is abhorrent to me that someone who is … doing this good a job is being this badly treated.”

He said it was “beyond bullying” to treat a litigation guardian in that way and that it was “reprehensible.”

Mr Diel’s request was challenged by Brian Moodie, from the Attorney General’s Chambers, who represented the Government.

He told the hearing there was now a litigation guardian panel, set up by Attorney-General Kathy Lynn Simmons, and its members were all prepared to start work “without remuneration” until Parliament signed off on their rate of pay.

Mr Moodie said Ms Thomas had known not to expect payment for her services since 2016 when the Government told her it wanted litigation guardian services to be provided “pro bono”.

Ms Thomas, he said, “continued to hold out her services” even after the letter that outlined the Government’s position was delivered.

But Mrs Justice Stoneham agreed to Mr Diel’s request.

She said that Ms Thomas, like anyone else, had to earn a livelihood to eat.

Mrs Justice Stoneham ruled: “I will make an order that she has to be paid.”

The judge earlier praised Ms Thomas for her work.

She said: “Her services have exceeded anything that I have seen in my experience, having sat in the Family Court, in the Magistrates’ Court, by any senior social worker at the Department of Child and Family Services.

“And I can say that without reservation.”

The judge said as she closed the hearing: “We safeguard these children.”

Ms Thomas was first appointed a litigation guardian in a case that involved a child in July 2014.

She said in a witness statement, filed in the Supreme Court in March this year, that the court had never appointed a litigation guardian before her “despite it having been a legal requirement since 1998”.

The Ministry of Legal Affairs announced the members of the litigation guardian panel in December 2019.

A spokeswoman said the panel would be independent and the ministry would oversee “the administrative functions, such as salary”.

The ministry did not respond to a request for comment on Mrs Justice Stoneham’s criticism this week.

It also did not answer a question on why the Government earlier wanted litigation guardian services to be provided free and why it changed its mind.

It referred a string of questions to the Judiciary:

• How many cases have members of the litigation panel been appointed to and how many children have benefited from a litigation guardian from the panel since it was set up?

• What is the hourly rate of the panel members?

• What is the total spending so far on the litigation guardian panel?

There was no response from the Registrar of the Supreme Court by press time.

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Published October 16, 2020 at 8:00 am (Updated October 15, 2020 at 8:29 pm)

Judge launches attack over lack of payment for litigation guardian

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