Children in care sent overseas without legal representation
Twelve Bermudian children in care have been sent to overseas institutions since 2021, with just two receiving legal representation before the decision to send them abroad was made.
Figures released by the Department of Child and Family Services reveal that the youngsters were sent to a handful of institutions in the United States, some for assessment, some to enrol in “therapeutic programmes” and some for both.
Only one of the 12 had an independent advocate, known as a litigation guardian, to represent them during the court proceedings, which led to them being sent abroad, and one had a lawyer.
Tinée Furbert, the Minister of Youth, Social Development and Seniors, told a press conference: “We, as a ministry, have budgeted for legal counsel, as well as what’s most important, litigation guardians, and that does exist for representation for our young people.”
The Government was found by the Court of Appeal in 2019 to have shown a “flagrant disregard” for children by failing to introduce a scheme to fund litigation guardians.
The panel of judges ruled in the civil case that there was a “clear and serious continuing breach” by ministers responsible for the DCFS to ensure that the human rights of children were protected.
They said that vulnerable children were being “denied effective access to participation and representation in court proceedings that critically affect their lives”.
The Ministry of Legal Affairs and Constitutional Reform, which had responsibility at the time for the DCFS, said after the judgment that it had already begun developing a “more comprehensive framework” to address the problem, which would ensure funding and accountability for litigation guardians appointed by the courts.
The children in care sent overseas are in the psychoeducational programme run by the DCFS, which now falls within Ms Furbert’s portfolio.
The Royal Gazette reported extensively on the programme in a series, which included allegations from scheme participants that they suffered abuse while in institutional care in the United States.
Ms Furbert, answering questions at yesterday’s press conference on the National Youth Policy, said that the Government’s first preference was to provide services on island for young people in need.
She added: “But when our resources are short — or sometimes we have agencies who are not willing or able to provide appropriate services — we explore other mediums to be able to make sure that our young people have access to the best opportunities possible.”
Asked if cost was key, the minister said: “We provide millions of dollars to children in making sure that they are able to get the support that they need.”
She said that a litigation guardian panel set up by the Government had room for seven members, with five on the panel at present.
“I’m actually very proud of the litigation guardian process because we have worked very hard to provide training and guidelines for our litigation guardians, and they are available, through court orders, to be accessible to our children who are in the court system through court proceedings,” Ms Furbert added.
Earlier in the press conference, she said: “ … we have a lot of work to do to show our young people that they are loved and that they belong.”
The figures released by the DCFS to The Royal Gazette under public access to information show that a total of 18 children aged between 6 and 17 were sent to the US as new admissions in the past three years.
Six of the 18 were “voluntary parent placements” which, according to the department, meant that the youngsters were not eligible to have a lawyer or litigation guardian appointed by the Family Court. They remained in the legal care of their parents.
The Pati disclosure stated: “Of the 12 children in the care of the director [of the DCFS], a litigation guardian was appointed by the courts for one child and a second child had legal representation.”
The disclosure revealed that Bermudian children are still being clinically assessed about 2,500 miles away at the University of Utah’s Neuropsychiatric Institute, which is now called the Huntsman Mental Health Institute.
In 2019, we reported that Bermudian children as young as 9 had been sent to the hospital, with 29 examined there since 2012.
Since 2021, youngsters have also attended Uinta Residential Treatment Centre and Solstice West Residential Treatment Centre, both in Utah; Devereux Advanced Behavioural Health and Family First Adolescent Services, both in Florida; and Harbor Point Behavioural Health Centre, in Virginia.
The cost to the public purse of sending them away in 2021 and 2022 was more than $2.3 million, based on notices posted in the Official Gazette.
The cost for 2023 does not yet appear to have been published, though the Pati response said it was due to be on about January 2.
There were no children from the psychoeducational programme sent abroad in 2020, when the pandemic severely restricted travel. It is not known if any children in care already overseas when lockdown began remained abroad.
Information Commissioner Gitanjali Gutierrez has reiterated the need for a review of Bermuda's "older secrecy frameworks" to ensure that they do not weaken public access to information.
Ms Gutierrez's comments came as she issued two decisions last month about Pati requests made to the Department of Child and Family Services by The Royal Gazette about overseas childcare placements.
In both cases, she found that the department was justified in deciding that a secrecy provision in the Children Act prohibited some of the requested records from being disclosed publicly.
She said in a statement that her decisions, alongside another recent decision of hers on the DCFS and one about the Office of the Tax Commissioner, "highlight the need for a legislative review of Bermuda’s older secrecy frameworks — which was promised but not yet delivered on — to prevent more unintended consequences where an existing law is inconsistent with the Pati Act’s purposes."
One of The Royal Gazette's Pati requests, detailed in ICO decision 44/2023, asked for records about Glen Mills Schools, a harsh reform facility in Pennsylvania where Bermudian children were sent for decades.
The department released some records but refused to disclose others, citing Section 37 of the Pati Act, which says records are exempt if their disclosure is prohibited by other legislation.
Ms Gutierrez wrote in her decision that she was "satisfied that the department was justified to rely on Section 37(1) in denying public access to all overseas placement records...because Section 11 of the Children Act was a statutory prohibition on disclosure of the requested information."
The other Royal Gazette request, outlined in ICO decision 45/2023, asked for a wide range of records relating to overseas childcare placements.
The department released most of the information requested but denied other parts of the request because the records were not held or were already in the public domain. It found the remaining records exempt, again under Section 37 of the Pati Act.
The Information Commissioner upheld that decision.
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