Litigation guardians scheme receives $150,000 in funding
A programme set up to ensure that vulnerable children are properly represented in Family Court proceedings has been allocated $150,000 in the new government budget.
The Ministry of Youth, Social Development and Seniors said the funds for the litigation guardian scheme would come out of its $11.5 million headquarters budget, rather than from the budget of the Department of Child and Family Services.
Tinée Furbert, the Minister of Youth, Social Development and Seniors, told MPs on Wednesday that the litigation guardians were “appointed by courts to be the voice of the child” and were working on 29 cases as of December last year.
“Of this total, 27 cases were new for 2023 and 20 cases were closed by the end of the year,” she added.
“The closure of cases within 12 months is evidence of the strengthening of the ministry’s framework for litigation guardians.”
Campaigners for children’s rights claim that hundreds of youngsters appear before the courts every year without representation.
Ms Furbert told the House of Assembly that there were three litigation guardians at present and that a consultant from the British Foreign Office had remarked that Bermuda has more litigation guardians than cases.
The litigation guardian programme was set up more than four years ago to provide children involved in court proceedings with an independent advocate.
Before its start, the Government had resisted paying for litigation guardians, with a lawyer from the Attorney-General’s Chambers telling a 2019 court hearing about a 2016 letter that stated that it wanted such services to be provided for free.
The judge overseeing the hearing described being sickened by “arguments about money” when the welfare of children was at stake.
Disclosures under public access to information have shown that many children under the care of the DCFS have not had the benefit of a litigation guardian or lawyer.
The Royal Gazettereported in January that of 12 youngsters in care sent to overseas institutions since 2021, only two received legal representation before the decision to send them abroad was made.
As reported in 2018, almost 50 children were sent to overseas institutions in the previous five years without their wishes being taken into account by the courts.
The litigation guardian panel was announced in December 2019 after the Court of Appeal found that the Government had shown a “flagrant disregard” for children by failing to introduce a scheme to fund independent guardians to represent children in court.
The previous year, Puisne Judge Stephen Hellman said in a Supreme Court judgment that unless public funding was made available, many children’s “constitutional right to meaningful participation in decisions which may be of vital importance to their lives and wellbeing will often remain unrealised”.
The panel initially had five “qualified, certified and experienced social workers”, all with links to the Department of Child and Family Services or the court system.
Information Commissioner Gitanjali Gutierrez has ordered that fee information for litigation guardians appointed by the Government be made public.
She has given the Ministry of Youth, Social Development and Seniors until April 11 to disclose the information to The Royal Gazette, in response to a public access to information request made in November 2020.
The ministry previously released the contract given to the first five litigation guardians appointed to a panel set up by the Government in late 2019, but removed their names, their fee and other information.
Ms Gutierrez said that while some details should be withheld as they were personal, there was no justification for redacting the names of the litigation guardians, which were already in the public domain, and the fee information.
She accepted that the ministry was unable to locate other records sought by the newspaper about the litigation guardian panel, such as correspondence from when it was set up.
The Pati request was submitted to the Ministry of Legal Affairs, which set up the panel when it was responsible for the Department of Child and Family Services.
That ministry transferred the request to the social development ministry, which had taken on responsibility for the department, and Ms Gutierrez said this slowed down the Pati process.
She wrote that “this Pati request, in full, was transferred at a time when the original public authority, more likely than not, continued to possess and exercise control over responsive records on the topic.
“Based on communications shared between the parties, this situation created an unnecessary delay for the requester to receive a complete and substantive decision on whether access to public records was granted or not.
“The receiving public authority’s capacity and good intention to process the Pati request, completely and in a timely manner, was thwarted without good reason.”
The Information Commissioner said the matter highlighted the “urgent need” for the Minister for the Cabinet Office to deliver a records management code of practice.
“The Information Commissioner awaits the opportunity to consult on it,” she wrote.
“In its absence, the Information Commissioner urges for guidance to be circulated, and its adherence proactively monitored, to clearly set out the Government’s expectation on what a proper handover of public records for departments and ministry headquarters involves, where the situation arises due to Cabinet shuffles, post reassignments and other organisational changes.”
To read the Information Commissioner’s decision and see the redacted contract for litigation guardians, see Related Media.
Lawyer Saul Dismont raised concerns at the time about whether funding was in place to pay the panel members.
In January this year, Ms Furbert said the panel still had five members, with room for two more.
She said then that her ministry had “budgeted for legal counsel, as well as what’s most important, litigation guardians, and that does exist for representation for our young people”.
The minister added last month that funding had been boosted “to make sure that it was more streamlined” and to ensure as many children as possible had access to the litigation guardian service when needed.
The $150,000 allocation is not listed as an individual line item in the 2024-25 Budget book. A government spokeswoman confirmed that it would come from the $1.4 million for general administration at the Ministry of Youth, Social Development and Seniors HQ.
The RoyalGazette asked the ministry for details of spending on the litigation guardian programme for the past five years, but the figures were not provided by press time.
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