Payment for litigation guardians supported
Island charities pledged yesterday to launch an appeal after a judge ruled that lower courts should consider the appointment of litigation guardians for children involved in law cases — but that the Government was not obliged to pay for the service.
Kelly Hunt, executive director of the Coalition for the Protection of Children, said five organisations were “disappointed” with the judgment and had banded together to fight the June ruling by Puisne Judge Stephen Hellman.
Mr Justice Hellman said that magistrates had to look at the appointment of legal representatives for children in court, but could refuse to do so as long as it gave reasons why it was not necessary. He added that the Children’s Act also stopped short of making the Government pay for court representation for children.
Mr Justice Hellman added in his judgment: “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.”
Ms Hunt said: “The representation of children and their interests during court proceedings by a litigation guardian has not been general practice in the majority of cases for the past 20 years.
“When children are neglected, abandoned or abused, they have been stripped of their rights to be protected and cared for.
“Having an independent advocate appointed for children in court is a basic human right and should not be withheld from this vulnerable population.”
Ms Hunt was speaking on behalf of the coalition, Family Centre, Childwatch, Citizens Uprooting Racism in Bermuda, and Saving Children and Revealing Secrets.
All five were involved in the 2017 case, along with the Human Rights Commission and the Women’s Resource Centre.
The organisations asked Supreme Court for a declaration that the law required the courts and Government to provide legal representation for children in most cases.
Mr Justice Hellman said in a written judgment in June this year that the Government had a statutory duty to ensure every child who needed representation in court got it.
He added that unless public funding was available for children in court, their “constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised”.
But Mr Justice Hellman said it would be “wrong in principle” for the courts to use their powers to authorise the use of government money when the legislation did not allow for that.
Section 35 of the Children’s Act was designed to provide legal representation for children who required it. Successive governments, however, have failed to fund the service and the Family Court has rarely appointed litigation guardians or lawyers for children.
Tiffanne Thomas, a social worker who has acted as a court-appointed litigation guardian for 35 at-risk children since 2014, announced earlier this month that she was to quit as litigation guardian in 17 cases that involved “at risk” children.
Ms Thomas said she made the decision because she had never been paid for the work she carried out on the children’s’ behalf.
Ms Hunt said the organisations were “disheartened” by Ms Thomas’s announcement.
She added: “We believe that how we care for and protect our children is not only the most important issue of the day, but a true reflection of who we are as a society. Together, we are urging the Government to find the funding to ensure that children are independently represented in court by a litigation guardian.”
Ms Hunt added: “The Department of Child and Family Services is often the only entity requesting the court to do something on behalf of a child.”
Ms Hunt said that children had “little to no knowledge” of the law. She added: “While many of the Department of Child and Family Services’ social workers do an amazing job in their field by making sure children’s needs are taken care of, they cannot advise a child on their legal rights, cannot make submissions independently on a child’s behalf and/or challenge the department’s applications.
“Ultimately, DCFS cannot submit to the court that it should do something contrary to the department’s policies or budget constraints.”
She said that a litigation guardian was “warranted and necessary ... to ensure that our children’s best interests are represented independently and remain the sole focus of the courts during child welfare proceedings”.
Ms Hunt added: “We must prioritise our children and ensure that this vulnerable population is both valued and protected at all costs.”