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Child expert urges House to reject amendment

Children's rights campaigners urged the Government yesterday not to push on with a proposed legal change that they claimed would erode the right of vulnerable youngsters to independent legal representation in court.

Katie Richards, a family law expert, said she hoped a tabled Bill in its present form would not be given the green light by politicians.

The Bill amended the wording of section 35 of the Children Act and replaced the word “shall” with the word “may” in relation to the requirement for the court to consider the appointment of an independent advocate, a litigation guardian, in cases that involved children.

Ms Richards said: “The proposed amendments to the 1998 Children Act will undoubtedly erode the legal rights of children to obtain independent legal representation and the appointment of litigation guardians.”

The director at law firm Chancery Legal added: “The amendment proposed to section 35, where the word ‘shall' is replaced by ‘may', will have a fundamental and grave impact on the legal rights of children before the courts.

“While the current wording of section 35 and the inclusion of ‘shall' does not make it mandatory to appoint a guardian in every case, the purpose behind the Act was clear, in that the appointment of a guardian would be made in the vast majority of cases falling within specified proceedings.

“By inserting the word ‘may' this unquestionably waters down the test for the appointment of a guardian and provides greater discretion to the court, as opposed to the positive obligation and presumption under the Act as it currently stands.”

The Children Amendment Act 2018 was tabled two weeks ago in Parliament and is expected to be debated today in the House of Assembly.

Kathy Lynn Simmons, the Attorney-General and legal affairs minister, said this month the Bill was designed 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”.

However, Ms Richards said: “With the greatest respect, there is no current ambiguity concerning the appointment of a litigation guardian.

“The test in the Act is clear and even if there were to be some ambiguity, the proposed amendments do not seek to remedy this.”

Tiffanne Thomas, a social worker who has acted as a litigation guardian in 35 cases involving minors since 2014, said she was disappointed at the government move.

Ms Thomas, the director of Therapeutic Consulting Services, added: “The Bill presented in the House of Assembly explicitly states that the amendments will repeal subsection 1 of section 35 in the existing Act, thus creating room for it to be discretionary.”

The draft Bill was tabled in Parliament just days after it was revealed through a public access to information request that 48 of 50 children sent to overseas institutions since April 2014 at the request of the Department of Child and Family Services had no legal representation.

None of the children sent abroad by the court before April 2014 as part of the department's psychoeducational programme had legal representation.

One woman who told her story to The Royal Gazette last month claimed she was sexually abused by a counsellor at a camp in Georgia and not allowed home to Bermuda for holidays.

Mark Diel, a director of law firm Marshall, Diel & Myers, said: “I was reading this article having visions of Scrooge's childhood, being left behind at school over Christmas. It's heartbreaking and the children have no say in it, no ability to get before the courts.

“It's like a prison sentence. Sending people away for extended periods of time, it's horrendous. It strikes me as Dickensian.”

He suggested a constitutional right to a fair hearing had been breached in the cases of children sent abroad without independent representation.

He added: “I think it's fair to say it's systemic. What you need is a number of them to come forward. The court needs to look at what damages these people have suffered.”

Mr Diel said the cases highlighted why the present section 35 of the Children Act was needed. He added: “It's because these children are at risk, because very often either the parents don't know or perhaps in certain cases don't care, that you need someone whose sole interest is to look out for the legal interests of the children.”

Child rights campaigner Sheelagh Cooper said the psychoeducational programme and the use of “offshore facilities” for Bermudian children needed to be reviewed as part of inquiries into DCFS already under way.

A spokeswoman for the legal affairs ministry said the psychoeducational programme was developed for children who could no longer be treated on the island.

She added its committee included government specialists in children's care and education who vetted applications to send children overseas.

The spokeswoman said: “An application then has to be made to the courts to have children removed from the jurisdiction.

“The application must indicate why the child is being removed, where they will be going, for what purpose and the length of time must be specified.

She added the psychoeducational committee and the courts got updates on children's progress and “clinical and comprehensive assessments” and an aftercare programme was available when they returned home.”

The spokeswoman said: “These assessments have assisted DCFS in obtaining a clear and comprehensive understanding of the needs of the child. These overseas assessments have assisted in the development of an individualised treatment plan.

“Aftercare consists of reintegration to the education system, ongoing individual and family support and referrals.

“If the child has reached the age of 18 years old they may choose not to participate, however, services are still offered to them.”

To view the Children Act amendment, click on the PDF link under “Related Media”

Joining forces: lawyer Katie Richards and social worker Tiffanne Thomas

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Published December 14, 2018 at 8:00 am (Updated December 14, 2018 at 6:48 am)

Child expert urges House to reject amendment

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