Charities: litigation guardians underused
Children’s charities have backed calls for minors to be represented by an independent advocate in legal proceedings.
The support comes after lawyer Saul Dismont claimed thousands of children had been deprived of their legal right to be represented by an independent litigation guardian and a lawyer in Family Court.
Sheelagh Cooper from the Coalition for the Protection of Children said the issue of a child’s right to representation had been a concern to the charity since the Children’s Act became law in 1998.
She claims courts are reluctant to use provisions in the legislation allowing for children to be represented by a litigation guardian because no clear revenue fund or policy exists.
The Department of Child and Family Services has told The Royal Gazette that it ensures the best interests of each child are put before the court and pointed out that the appointment of a litigation guardian was a discretionary power of the court only.
Department staff maintain a litigation guardian could also duplicate work already being done on a child’s behalf by the court social worker.
But Ms Cooper claims that the system whereby children are solely represented by Government agencies does not always work.
“Every annual report that we have produced has continued to recommend that the courts avail themselves of this option for children,” she said.
“The reluctance to use this legislation is twofold. First, since it is up to the court to call for a litigation guardian, there would need to be a fund allocated for this purpose; no such revenue fund exists.
“There has been no policy developed to guide the family court as to how this might operate.
“Judges and magistrates view the Department of Child and Family Services to be acting in the best interests of the child and therefore they see no need for the child to be represented.”
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”.
Ms Cooper added: “The Department of Child and Family Services view their role as acting in the child’s best interests which is as it should be, but the system breaks down when you have parents in serious conflict who tend to use the children as pawns in a heated battle and while the children do not have their own representation.
“The result is that matters are often debated by the lawyers of the two parents while the child’s wishes are not taken into account.”
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.
Martha Dismont from Family Centre told this newspaper: “Family Centre believes that it is very important to have the option of an independent child advocate available.
“It is not believed that it is needed in all instances, but to have one available as it is needed, is crucial to believing the right result can be achieved for children.
“And, since the provision is made within the Act for such an advocate, it doesn’t make sense to not ensure that at least one is available, as needed.”