A children’s rights campaigner said yesterday she hoped the Court of Appeal would enforce the right of vulnerable youngsters involved in legal proceedings to have independent representation.
Child charities took their case to the highest court in Bermuda on Monday to argue that the Children Act 1998 required the Government to find funding for children to be represented in Family Court by independent advocates, known as litigation guardians, and lawyers.
The charities allege that due to the law not being followed, hundreds of children have been failed by the system because they have had their matters heard in Family Court without being appointed any representation.
The cases include custody and access disputes between parents and matters involving petitions from the Department of Child and Family Services to remove children from their families or send them to overseas institutions.
Lawyer Saul Dismont, representing the organisations, argued that the minister responsible for the Department of Child and Family Services was breaching her duty in failing to make the necessary funds available.
He said there was a constitutional entitlement to a fair hearing in Bermuda and children were being denied that right because they were being denied representation.
A judgment is expected soon from the three-member Court of Appeal panel.
Sheelagh Cooper, the founder and former president of the Coalition for the Protection of Children, said section 35 of the Children Act was clear in requiring the Government to provide representation for children where needed.
“The question must be asked: why the reluctance [of the Government] to comply?” Ms Cooper said. “Although the cost involved would clearly be one disincentive to complying, I suspect the reluctance goes deeper than that.
“Most likely the major pushback is coming from the Department of Child and Family Services, who have enjoyed near absolute power over the lives of our most vulnerable children and their families without the interference of either legal representation or the intervention of a litigation guardian.”
She said there was a reason other Western democracies recognised the need for minors involved in legal proceedings to have representation entirely separate from social services.
“That is the fundamental human right to have one’s views and interests taken into account in judicial decision making,” said Ms Cooper. “Adults are afforded that right without question and the same has been extended to children by legislation but effectively taken away by refusal to find a revenue stream to support this basic human right.
“Government needs to get on with finding a revenue stream to support this basic human right.”
The House of Assembly heard on Wednesday that $242,000 had been allocated for litigation guardians in the 2019-20 Budget.
Shadow Attorney-General Scott Pearman asked health minister Kim Wilson: “Is it right that, going forward, no Bermudian child will be sent away for treatment unless that child has a litigation guardian? Is that to be the position going forward?”
Ms Wilson, speaking on behalf of Kathy Lynn Simmons, the Attorney-General and minister responsible for Child and Family Services, replied: “That is not correct.”
Earlier in the debate, Ms Wilson said: “All children involved in the psychoeducational programme are informed of all aspects of the programme before being placed. The court also speaks with the child and confirms with the parents that they fully understand what’s involved.”
Senate leader Ms Simmons said in November that the Government had no legal obligation to pay social worker Tiffanne 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.