Government refuses to name litigation guardians
Government is refusing to name the members of a new panel of litigation guardians meant to protect the rights of children in court proceedings.
Legal Affairs Minister Kathy Lynn Simmons announced the establishment of the panel on December 3 but has ignored repeated queries seeking to know how the panel was selected and who its members are.
Children’s advocates have welcomed the advent of litigation guardians – correcting a 20 year breach of the Children’s Act 1998 – but are also in the dark about who they are.
Litigation guardians are meant to be independent and represent only the interests of the child in certain proceedings such as court orders to send them to overseas institutions.
But it is impossible to determine their independence if the panel is kept secret.
Minister Simmons’ statement reads:
“Our responsibility is to make sure any polices aimed at protecting and providing representation to our most vulnerable citizens – our children, are in accordance with the law. The litigation guardian is under a duty to represent the child and safeguard the child’s interests in certain proceedings.As the Minister responsible for child and family services, I am pleased to be the first Minister to establish a panel of persons to serve in this capacity. The Chief Justice has been advised accordingly and the Court can now effectively select a litigation guardian from the panel unless it is satisfied that it is not necessary to do so in order to safeguard the child’s interests. The panel is comprised currently of five persons who are qualified, certified and experienced social workers. The number of persons on the panel may increase in due course based on resource and service requirements.The Ministry will monitor and assess the effectiveness of the implementation of the present legislative scheme for the appointment of litigation guardians and counsel, whilst simultaneously advancing a fiscally sustainable and independent model in keeping with best practice in this area.”
A Government spokesperson did reveal that $240,000 had been budgeted for the panel, but would not say why the Minister has decided to keep secret the identity of its members or how it was selected.
Government’s child safeguarding arrangements have been under scrutiny following concerns over the failure to fund litigation guardians, the Department of Child and Family Services’ handling of claims of abuse of children under its care and its psycho-educational programme which is outsourced to facilities abroad.
In a statement to the Senate in June, Minister Simmons called on the media to cease its inquiries into the psycho-ed programme and abuse allegations.
A number of children have claimed that they were deceived into being sent away and that no one represented their interests when such decisions were made.
A group of five charities sued the Government over it failure to fund litigation guardians, saying it breached the constitutional rights of children. It lost the first round of litigation when a judge ruled that the law did not require the government to pay for the services of litigation guardians. But the Court of Appeal ruled in June that government had to have a scheme to fund litigation guardians to protect the human rights of the island’s children.
By then, the government had already began establishing a framework to correct the situation, the ministry said.
Last month it was reported that a 17-year old Bermudian DCFS client had died in West Ridge Academy, a treatment centre in Utah.
And this week, assistant director of DCFS, Kennette Robinson pleaded not guilty to charges of assault and mistreatment of a child, following reports of an incident at the L.F. Wade International airport.
To date, there has been no independent, systemic investigation into Bermuda’s arrangements to safeguard vulnerable children.
An Internal Audit investigation looked into financial matters and found that certain allegations against director Alfred Maybury were not substantiated. But government has declined to release the report of that investigation, or say whether it conducted another review.
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