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Charities welcome litigation guardians victory

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Dame Elizabeth Gloster

Three “brave abused” children and a handful of charities successfully fought for a legal change that will protect youngsters by ensuring they have independent representation in court, the groups involved in a Court of Appeal case said yesterday.

A joint statement by the five charities that backed the children said: “We encourage the Government to follow through with its repeated declarations to achieve a greater degree of protection and care for children.

“It must be said the Government’s continued resistance to the court action stands in opposition to that mandate.”

A spokesman for the charities added: “The case would never have begun if it were not for these three children and the charities uniting with the Human Rights Commission and the Women’s Resource Centre.”

The judgment found that children have a right to representation in specified legal proceedings and that denying them that representation, as has happened for the past 20 years, showed Government’s “flagrant disregard” for their rights.

The Court of Appeal ruling should ensure no child from Bermuda is sent to an overseas institution without representation from an independent advocate, known as a litigation guardian, and a lawyer, and ensure that representation continues if they are sent abroad.

The spokesman said The Royal Gazette highlighted the scandal of children being sent to institutions overseas and that some said “they suffered ... physical abuse and heard other children being raped”.

He added it was “impossible to overstate” the impact of last Friday’s court ruling.

The statement was released by Childwatch, Citizens Uprooting Racism in Bermuda, the Coalition for the Protection of Children, Family Centre and Scars.

The spokesman said the judgment would benefit not only Bermudian children.

He added: “Thousands of children throughout the British Overseas Territories will also benefit as the judgment has established the level of protection children must be provided to secure them a fair trial.

“This case may also be relied on to further human rights internationally.”

He said the Children Amendment Act 2018, which has been tabled in the House but not yet debated or approved, “stands in opposition to the mandate to achieve a greater degree of protection for children, as it reduces the amount of children that will be provided with representation”.

The spokesman added: “It is sincerely hoped that the Government will reconsider this.”

Dame Elizabeth Gloster said in the ruling there was a “clear and serious continuing breach” by the minister responsible for the Department of Child and Family Services to ensure the human rights of children were protected.

The court made declarations that ministers had been in breach of obligations under the Children Act 1998 for “some considerable time” because they failed to introduce a scheme to fund litigation guardians.

As a result, the court found children were being “denied effective access to participation and representation in court proceedings that critically affect their lives”.

The Ministry of Legal Affairs, in response to the judgment, said on Friday that the Government had already begun to develop a framework to address the problem.

A spokeswoman said: “The judgment validates the work started by this government to actively establish a more comprehensive framework which provides both funding and accountability for litigation guardians appointed by the courts.

“This judgment reflects the general policy direction of the ministry.”

The spokeswoman added: “In some ways, we are ahead of today’s ruling and are well advanced in our initiative to enhance the support for our children during the court process so that their voices will continue to be heard and to ensure that all outcomes are in their best interests.”

But social worker Tiffane Thomas said yesterday it was hard to align the Government’s statement with the history of the case.

She said: “The matter only proceeded to court due to the Government failing to follow a law for the protection of children, refusing to rectify it and ignoring every effort to settle the matter amicably, for the sake of vulnerable children.”

Ms Thomas said it was “promising” to hear that the Government had undertaken to address the breach of children’s rights.

But she added it was inaccurate to say that it had come before Friday’s ruling.

Ms Thomas said: “The Bill tabled in November seeks to remove the legal presumption that the court must provide every child with a litigation guardian.

“In that respect the Bill seeks to reduce child protection to that of England in 1975, which was found to be wholly unsatisfactory over 30 years ago.”

The Government tabled the Children Amendment Act 2018 last November, which it said would provide for the regulatory oversight of litigation guardians and create a framework for the licensing, regulation and appointment of litigation guardians.

The legal affairs spokeswoman said on Friday that before the tabling of the Bill there was “no legal framework that would allow payment for litigation guardian services”.

She added: “In addition to the Bill, the need to achieve a more financially sustainable model was apparent, given the incredibly high fees demanded by some litigation guardians.

“Therefore, a working group was established within the ministry to develop the policies, procedures and recommend legislative amendments necessary to support the establishment of an independent litigation guardian office.”

Attorney-General Kathy Lynn Simmons, the minister responsible for Child and Family Services, said last November that the Government had no legal obligation to pay Ms Thomas for her work as a court-appointed litigation guardian since 2014.

Ms Thomas, who withdrew her services as litigation guardian from 17 active cases involving “at risk” minors because of lack of payment, is suing the Government for $2.6 million.

The Royal Gazetterevealed in November that only two out of 50 vulnerable Bermudian children sent to overseas institutions in the past five years had legal representation.

Before 2014, none of the children sent overseas by the Family Court had legal representation.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

President of the Court of Appeal: Sir Christopher Clarke (Photograph from Brick Court Chambers)