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Bill omits legal advice for children – Cooper

Elephant in the room: Sheealgh Cooper, the children’s rights advocate, has demanded for the provision of free legal advice to juveniles before the courts (File photograph)

A longtime child welfare campaigner welcomed a proposed law to improve protection for youngsters yesterday, but said it lacked a guarantee of funding for independent legal representation for vulnerable children in court.

Sheelagh Cooper said: “I am very pleased to see the proposed amendments to the legislation designed to better protect children.”

Ms Cooper added: “In particular, the Government is commended for recognising the need for greater attention to the need to protect children who testify, and to remove the antiquated need for corroboration of child testimony.

“Additionally, I am pleased to see an emphasis on the need to deal expeditiously with these cases.”

The campaigner, who founded the Coalition for the Protection of Children, added: “However, noticeable by its absence is any reference to the funding of representation for children, either through legal means or through a litigation guardian. Seems to me that’s the elephant in the room.”

Ms Cooper was speaking after the Senate approved the Child Safeguarding (Miscellaneous Amendments) Act 2019 on Wednesday.

The Bill was designed to prevent sex abuse and exploitation of children, protect the rights of victims and promote co-operation between agencies in Bermuda and overseas.

The legislation is still to be debated and approved in the House of Assembly.

The proposed law updates the Children Act 1998, but not section 35, which deals with the appointment of litigation guardians, independent advocates, for children in certain court proceedings.

Nick Kempe, the Opposition leader in the Senate, asked if the Children Amendment Act 2018 would return to Parliament in its present form after it was tabled in the House of Assembly last November.

The Bill proposed to change section 35 of the 1998 legislation, replacing the word “shall” with “may” in relation to the requirement for a court to consider the appointment of a litigation guardian in cases that involved children. A family law expert said last December that the planned amendments would “undoubtedly erode the legal rights” of children to obtain independent legal representation and have appointed litigation guardians.

Mr Kempe asked if the Children Amendment Act would be removed or brought forward for consideration, “seeing as that waters down the protection of children”.

Kathy Lynn Simmons, the Minster for Legal Affairs, said: “I will say categorically that the intention of the ministry is always to ensure that we have the best model for any initiative and the Bill that was tabled is a very narrow amendment.

“I have undertaken to ensure that, in reviewing the scheme appropriate to litigation guardians, it will be the best scheme, that will reflect the best standards, for that particular protection that’s afforded children in the court process.”

She advised senators to “stay tuned and rest assured” that “international best practices” will be adopted for Bermuda’s children.

Mr Kempe asked for further clarification on if “it was the Government’s intention to proceed with that Bill as is”.

Ms Simmons said: “That’s not a matter for the Senate, at this time.”

The Court of Appeal ruled last month that Government has shown a “flagrant disregard” for children through a failure to pay for them to have independent legal representation.

The panel ruled that ministers had been in breach of obligations under the Children Act 1998 for some time because they had not introduced a scheme to fund litigation guardians.

The Government earlier said the Children Amendment Act 2018 would provide for the regulatory oversight of litigation guardians and create a framework for their licensing, regulation and appointment.

A spokeswoman for the Ministry of Legal Affairs said last month: “Prior to the tabling of the Bill there was no legal framework that would allow payment for litigation guardian services.

“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.”