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Litigation guardian hits back at Simmons

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Public dispute: Tiffanne Thomas (Photograph by Akil Simmons)

The Attorney-General was accused yesterday of confusion in a row over the representation of vulnerable children in court proceedings.

The claim came after Tiffanne Thomas, a freelance social worker, announced she was to quit as a litigation guardian in 17 cases that involved “at risk” youngsters because she had not been paid by Government for four years.

Kathy Lynn Simmons, who is also Senate leader and took over child protection in last week’s Cabinet reshuffle, told ZBM News on Tuesday: “That matter was before the Supreme Court and the court determined that we have no legal obligation to pay Ms Thomas.

“Ms Thomas has launched an appeal with regard to that decision and therefore we are not authorised to discuss that any further.”

The Attorney-General added: “The representation of the children and their interests in proceedings before the court will be ensured, as we have other persons who have come forward to provide their services.

“So we are very committed to ensuring that our children are always protected in legal proceedings and otherwise.”

But Ms Thomas said Ms Simmons, who is also the Minister of Legal Affairs, had “clearly erred by going on the record and attempting to explain away my decision to step down as litigation guardian”.

She said: “I have never, to date, initiated action in the court for payment for my services. The case that the Attorney-General referenced was an action initiated by the Human Rights Commission and other local charities on behalf of children.

“The assertion that I am appealing the said decision is equally in error as, quite simply, one cannot appeal a case that they are not a party to.

“Further, the Attorney-General neglected to state that the section of the ruling that makes reference to this issue states that ‘the Government’s failure to fund litigation guardians will frustrate the system and breach the children’s constitutional rights’.”

Ms Thomas said Ms Simmons, as minister with legislative oversight for the country, should have read the court papers and known who the plaintiffs were.

She added: “Her inaccurate and misleading statement is alarming and made all the worse by the fact that she failed to address or comment on the numerous assurances I was given by her own chambers and assorted ministers that I would be paid for the work that I have performed.”

Ms Thomas was appointed as a litigation guardian in July 2014.

She said she had since submitted bills to Cabinet ministers — in both this administration and the former One Bermuda Alliance government — and to Alfred Maybury, the director of the Department of Child and Family Services.

Ms Thomas added: “E-mails were sent no less than 20 times to settle this.

“Seven meetings were attended. Seven promises for payment were received in 2018. I have records of each bill, as well as the e-mails when they were sent.”

She said that she did plan legal action against the Government for non-payment.

Ms Thomas and Saul Dismont, a lawyer who has represented children in some cases and has also not been paid, said they were given assurances in 2016 by the Attorney-General’s Chambers that payment would be made.

Ms Thomas said: “In 2018, I was asked for what I was owed and was subsequently asked for a breakdown for that figure.

“The amount and subsequent request for breakdown was requested by a high-level civil servant and member of the Government. It was two separate requests from different people.”

She declined to say how much she was owed on legal advice.

Ms Simmons’s interview with ZBM centred on a civil case brought against the Government in 2017 by the HRC and six charities to determine the obligations of the Family Court and the Government in the appointment of litigation guardians and counsel to represent children in court.

One of the plaintiffs was a minor, referred to as “O”, whom Ms Thomas represented as a litigation guardian.

Puisne Judge Stephen Hellman ruled that the state had a statutory duty to ensure every child who needed representation in court got it. He said that unless public funding was available for such youngsters, their “constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised”.

Mr Justice Hellman also 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.

A government spokeswoman said in September: “The decision to provide funding for litigation guardians and lawyers has not yet been determined. Any budgetary allotments must be approved by Cabinet.”

She added: “At present, there is no contractual arrangement that would allow the Government to pay Tiffanne Thomas for her services.”

A request for comment from the Attorney-General on Ms Thomas’s case and on who would fund the legal representation of children went unanswered by press time.

The OBA also failed to respond to questions.

Public dispute: Attorney-General Kathy Lynn Simmons (Photograph by Akil Simmons)