Lawyer challenges Simmons on child litigants
A top lawyer said yesterday the Attorney-General was wrong to accuse The Royal Gazette of publishing a “misleading” article about changes to a law designed to protect vulnerable youngsters in court.
Kathy Lynn Simmons, also the legal affairs minister, insisted that the rights of children were not being eroded by changes to the 1998 Children Act on the appointment of litigation guardians to protect young people.
Ms Simmons added that “contrary to the statement from the Human Rights Commission, the rights of the child are not being eroded as the current section 35(1) of the Children Act 1998 does not make it mandatory for the court to appoint a litigation guardian”.
But the legal change — where a court “may” consider the appointment of a litigation guardian rather than “shall” consider under the present Act — was challenged by Mark Diel, a lawyer with Marshall Diel & Myers.
Mr Diel — also quoted in The Royal Gazette article on the law change on Thursday — said: “The point I was making — as accurately quoted in the article — is that the effect of this section as it currently stands is that the court has a duty to consider whether or not to appoint a litigation guardian in every case.
“It may be that in some cases there may be no need to appoint a litigation guardian, for example where the child has a lawyer retained for him or her by the parents.
“But it's pretty obvious that in most cases concerning vulnerable or at-risk children that a litigation guardian should be appointed.
“So the Attorney-General's point about the existing section as it stands doesn't result in a mandatory appointment of a guardian is strictly speaking correct — but that wasn't the point to start with.”
Mr Diel added: “With the current wording the court has to consider this – there is no need for an application. With the amended wording it says that the court ‘may determine as to whether a litigation guardian should be appointed'.”
He said: “It's about the court considering whether or not to appoint a guardian and, frankly, in most cases one should be.”
Mr Diel also questioned why the wording of the Act was changed at all if the intent was not to water down existing protection.
He was speaking after the Children Amendment Act was tabled in the House of Assembly yesterday.
The revised Act was tabled in the House by Kim Wilson, the health minister, as Ms Simmons sits in the Senate.
The Attorney-General said on Thursday: “The Bill seeks to remove ambiguity concerning the appointment of litigation guardians and strengthen the existing framework that assigns a litigation guardian to children whose custody, care or control is before the courts.
“The new framework establishes a licensing regime for litigation guardians.
“This regime will require persons wishing to be appointed as litigation guardians to possess relevant qualifications and submit applications to the existing statutory Child Care Placement Board.
“The board, whose remit will be expanded, will review applications and issue a licence.”
Ms Simmons added: “A person who is granted a licence will be added to a register of licensed litigation guardians to be established and maintained by the Minister of Legal Affairs.
“The court will appoint persons from the register to represent the interests of children. Provision is also made for remuneration of the litigation guardian.
“The amendments will also provide structure with regard to the appointment and remuneration of counsel.”
Mr Diel said on Thursday that there was a Constitutional requirement to a fair hearing.
He said: “Someone needs to explain why some children may not get the protection of a litigation guardian application and others will.”
Mr Diel also questioned where the ambiguity was in the present version of the Act and asked if Ms Simmons could explain how the amendment would fix it.
He also queried who would make a litigation guardian application if a child — who might not even be in the courtroom —was not already represented.
Mr Diel welcomed an amendment to set fees for litigation guardians but asked if “less than a third of the amount currently paid, for example, under legal aid provisions” was enough and how the figure was arrived at.
The fee was $90 in the draft Bill seen by The Royal Gazette earlier this week but was listed as $75 in the Bill tabled in the House of Assembly.