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Clarity sought on litigation guardians panel

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Tiffanne Thomas (File photograph)

Children’s groups hope the Government will provide more information about the newly established panel of litigation guardians.They said yesterday that questions about funding and the selection process remained unanswered.Scott Pearman, the shadow legal affairs minister, added that Bermuda must not “penny-pinch” when it comes to safeguarding children.The Coalition for the Protection of Children, Family Centre, Childwatch, Saving Children and Revealing Secrets and Citizens Uprooting Racism in Bermuda said they were “very troubled by the recent reports in The Royal Gazette regarding child welfare”.As part of its Who Cares? series, the Gazette has highlighted stories from some young people with experience of the Department of Child and Family Services.In a joint statement, the charities and child advocacy group explained: “Our ultimate hope is that all the children affected will be afforded the respect and justice of an independent investigation. “An immediate measure that can be taken is the enforcement of the law that provides children with lawyers and litigation guardians in court, so that we can be confident children are being dealt with legally.”Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, announced last week the establishment of a panel of people who can act as litigation guardians appointed by the court under the Children Act 1998.She was the first minister to do so since the legislation was introduced.The children’s groups said it was “an encouraging start”.They added: “It is of grave importance that we get this process right from the beginning.“We look forward to learning how these individuals were selected, what form of funding will be provided, and what specialised training in this field has been obtained. “Hopefully, those selected are completely independent of Government and there is no conflict of interest or monetary restrictions when representing the best interests of the child.”The groups were part of a legal challenge brought against the Government in 2017.That culminated in a ruling last June when the Court of Appeal made declarations that ministers had “for some time” breached obligations set out in the Act because they failed to introduce a scheme to fund litigation guardians.The children’s groups said: “Children need, deserve and have the right under the Children’s Act, section 35, to independent representation in Family Court.“The role of a litigation guardian is to ‘safeguard the interests of the child’ by having complete access to the child’s records held by the director of child and family services.“The litigation guardian and the child’s lawyer are then able to make submissions to the court on the child’s welfare. “Our position holds that this is not only a right for the vulnerable, but a core value of a just and fair society. “When a litigation guardian is not appointed by the court, it is effectively breaching a child’s right to a fair trial.”The groups “implored” the Government and judiciary to make sure that minors were properly represented and said the burden of proof should be on the court to show “why a litigation guardian is not beneficial in each case involving the welfare of a child”.They added: “Our joint position on the matter is that proper transparency and accountability remains critical where child safeguarding is concerned.”The groups said: “We continue to offer our support to the Government in achieving the goal of protecting our children.”The Gazette asked for information about who was on the panel, how the individuals were selected, what qualifications or specialised training they had, and how much they would be paid. No response was received by press time.Mr Pearman, a One Bermuda Alliance MP, welcomed the establishment of the panel but added that “the public needs to know further details”.He said: “The Attorney-General needs to make clear who is to take on these crucial roles to ensure that Bermudian children are assisted by litigation guardians who are truly independent.“It is also important to know what the budget is as that will dictate the number of cases the litigation guardians are able to take on. “We must not penny-pinch when it comes to protecting our young people.”Ms Simmons said last week that the panel’s five members were “qualified, certified and experienced social workers”. She added: “The ministry will monitor and assess the effectiveness of the implementation of the present legislative scheme for the appointment of litigation guardians and counsel, while simultaneously advancing a fiscally sustainable and independent model in keeping with best practice in this area.”Tiffanne Thomas, an independent social worker, revealed in November 2018 that she intended to resign her position as a litigation guardian from 11 active cases involving 17 “at risk” minors because of lack of payment.She was not included on the panel.The Supreme Court ordered last month — in a hearing on a single case — Ms Thomas should be granted costs of $60 per hour for her time in the courts.Mark Diel, her lawyer, said yesterday: “We have received no payment at all, of any sort, and we’ve been informed that the Attorney-General is appealing this decision.”

Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs (Photograph supplied)
Kelly Hunt, executive director at the Coalition for the Protection of Children (File photograph by Akil Simmons)
Scott Pearman, the One Bermuda Alliance Shadow Minister for Legal Affairs (File photograph)