Watchdog critical of child court Bill
An erosion of the right of vulnerable children to have independent legal representation in court would be “yet another attack on the human rights of its citizens by the Government”, the Human Rights Commission warned yesterday.
Tawana Tannock, chairwoman of the HRC, said she was “shocked and concerned” to read a front-page story in The Royal Gazette on a draft Bill, the Children Amendment Act 2018, shared by an anonymous source.
The proposed legislation contained a section that experts claimed would remove a requirement for the Family Court to consider whether a litigation guardian — or independent advocate — was needed in every court case that involved a child.
The obligations of courts over litigation guardians was raised in a lawsuit brought against the Government by the Human Rights Commission and six charities last year.
The plaintiffs plan to appeal a ruling by Puisne Judge Stephen Hellman, which found that the courts did have to consider whether to appoint legal representation, but stopped short of saying that the Government must fund it.
Ms Tannock said: “The Human Rights Commission, despite being the lead plaintiff in the action before the court, in support of children's rights on this matter, was not given the courtesy of consultation or at the very least notice that such a Bill had been drafted and was to be tabled. If the language in the Bill is correct, as reported in The Royal Gazette, the proposed amendment Bill would essentially constitute yet another attack on the human rights of it citizens by the Government.”
She added: “Unlike other amendments over the past year, this proposed amendment is not based on discrimination because of country of origin, or sexual orientation, but on arguably one of the most vulnerable sectors of our population, our children.
“This morning, we have contacted the Government and asked for a copy of the Bill and requested a period of consultation with stakeholders, including the commission, prior to any amendment which seeks to address the issue of representation of children in court. We strongly urge the Government not to table the proposed Bill until it has sought consultation and feedback from those stakeholders who seek to safeguard the protection of our children.”
Section 35 (1) of the Children Act says that the court “shall appoint a litigation guardian for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests”.
The new Bill would amend the Act by a repeal of subsection (1) and replace it with: “The court may determine as to whether a litigation guardian should be appointed for a child for the purpose of any specified proceedings ... and in making its determination, the court shall seek to safeguard the interests of the child concerned.”
The Ministry of Legal Affairs denied it had “any intention to repeal the provision in the Children Act 1998 which provides for the appointment of litigation guardians”.
A spokeswoman said amendments to the Act would “provide a framework with regard to the appointment, function and payment of litigation guardians”.
Child welfare campaigner Sheelagh Cooper said the Government's commitment was “grounds for optimism”.
Ms Cooper added: “If this is the case, this represents a very important and positive development and is in keeping with the pledge made in last year's Throne Speech.”
• To read the Human Rights Commission's full statement, click on the PDF link under “Related Media”.