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Calls for children to get better protection

Lawyer Saul Dismont from Marshall, Diel and Myers, has called for greater protection for children in court proceedings.

Child advocates have demanded that minors involved in court proceedings be given greater legal protection.

Lawyer Saul Dismont claims thousands of children have been deprived of their right under the Children’s Act 1998 to be represented by an independent social worker or litigation guardian as well as lawyer in Family Court.

But government agencies have dismissed Mr Dismont’s assertion and maintain that they ensure the best interests of children are represented in proceedings.

Director of Child and Family Service, Alfred Maybury, told The Royal Gazette, that the appointment of a litigation guardian and a lawyer for a child was not mandatory under the Act, and was at the discretion of the court, not his department.

“The court has got it right,” Mr Maybury said. “They look at each case on its own merits and make a decision. We believe that the best interests of the child have been represented in every case.”

Mr Dismont, whose firm Marshall, Diel and Myers has backed his campaign to provide children with greater representation in court, has branded the failure to appoint children with litigation guardians and lawyers “appalling”.

“Everyone will agree that children are our most valuable asset and deserve the greatest protection; particularly those that are vulnerable,” Mr Dismont said.

“But clearly for the last 18 years they have been getting the very least in the system.

“What is happening in the court and what we see by the practice of children not having representation reflects a bigger problem; the general institutional ambivalence towards these vulnerable children.”

Bermuda’s Children’s Act, which is based on similar UK legislation, states that a court “shall” appoint a litigation guardian for a child in specified proceedings unless “it is satisfied it is not necessary to safeguard [the child’s] interests”.

Mr Dismont said: “The scheme has been in force in England for nearly 30 years and consequently approximately 90 per cent of all those hundreds of thousands of children coming through the court system have been represented.

“On their behalf litigation guardians and attorneys have discovered and ended malpractice, abuse and systematic failures, and this has developed an envied system of protection for children.

“Children in Bermuda have exactly the same protection on paper, yet there are only eight cases that have benefited from it.

“This is despite there being approximately 25 applicable cases in Family Court per week. So that is approximately 1,200 hearings per year where children have not had any representation at all, even though the law requires it for each and every one of them.

“That is approximately 21,600 hearings in the past 18 years. Of course there may have been less hearings in previous years, or more, but many hearings involve more than one child. The point is that thousands of children have had their legal rights abused.”

Child and Family Services senior social worker Kennette Robinson refuted the claims as “totally inaccurate”, adding: “They should be challenging the court if they feel that every child should have a litigation guardian. The courts have made a determination it is not necessary. Ultimately, it is the court’s discretion.”

She said that in some cases the appointment of a litigation guardian would “duplicate” work already being done, while Mr Maybury said an independent court social worker could also fulfil the role.

The Royal Gazette understands that the first official litigation guardian was appointed in 2014.

Since then Mr Dismont and litigation guardian Tiffanie Thomas have taken on a further eight cases involving 15 children between them.

Ms Thomas said: “We have seen that when parents find themselves in court relating to their children they don’t know their rights or their children’s rights. They don’t even know about litigation guardians.

“So not only are they going through the system without proper guidance, but also without any information.

“In the cases we have been involved in we have seen the benefits of the process set out in the legislation; orders are discharged quickly, while the interests of the child remain paramount because we can advocate on their behalf.

“The importance of the role of a litigation guardian is also that it provides accountability and a magnifying glass on the whole system.”