Protecting the rights of our children

The following is an edited version of an open letter to David Burt, the Premier, which has been copied to The Royal Gazette, among others

Dear Sir,

Please accept this heartfelt letter, written by a concerned citizen and an established human services provider to the most vulnerable individuals of Bermuda.

I am the director of Therapeutic Consulting Services and hold a Bachelor of Science degree in psychology, a Bachelor of Science degree in psychiatric rehabilitation and a master’s degree in clinical social work. I have been working in the human services field both locally and internationally since 1999. For the past 15 years, I have been employed locally working with various populations in our community, including children, criminal defendants and individuals who have had a mental illness diagnosed. While working here in Bermuda, I have realised a significant deficiency in the treatment continuum of care as it relates to minor children.

In 1998, the Children Act was amended to afford children the right to have independent representation by way of a litigation guardian and counsel. Under Section 35 of the Act, a litigation guardian is appointed by the court to assist the court in its determination of a child’s best interest. To further this goal, the litigation guardian meets with and establishes a relationship with the child, contacts those persons significantly affecting or having relevant knowledge of the child’s life, gathers information, examines records and otherwise investigates the child’s situation to provide the court with pertinent information and an informed recommendation as to the child’s best interest.

The litigation guardian’s role and responsibility is solely aligned with the child, with the child’s welfare being the paramount guiding principle. As such, it is crucial in a small community such as Bermuda that this individual be an independent party from any existing government department or other established agencies to ensure that the focus remains on the child and eliminates the potential for dual relationships or competing priorities.

For the past four years, the issue of child representation has been the focus of much discussion and, simultaneously, much avoidance. Senior civil servants, as well as members of this sitting government, have acknowledged that the cost implication associated with ensuring that the rights of the children of Bermuda are protected, continues to be the source of reluctance to fully embrace the spirit of the Act. In a recent Supreme Court ruling by Justice Stephen Hellman, it was suggested that children ought to have representation if there are the financial means to fund the service. The said ruling forces me to question: “What is the value that we place on the vulnerable?”

On July 28, 2014, 16 years after the amendment of the Act, I was appointed by the Family Court as litigation guardian for a minor in what was considered the first case of its kind at that time. Since then, I have been appointed by both the Supreme Court and Family Court to represent 31 children, with a present caseload of 24 children. Representation is time-consuming and labour-intensive, requiring court appearances, research, clinical assessments, preparation of clinical reports inclusive of recommendations, home visits, school visits, attendance to case conferences with other pertinent treatment providers, ongoing advocacy, and any other responsibilities necessary to effectively represent a child’s best interests.

The Bermudian people will likely be surprised to learn that I have unwaveringly provided this service to the most vulnerable segment of our community without remuneration for the past four years. Notwithstanding the cost implications, it is noteworthy to highlight that in these past four years, I have consistently provided litigation guardian services to a high standard despite the issue of payment. I have met with multiple government officials who all, at a minimum, have indicated the following:

• All citizens of this country are valued

• There is value in the appointment of a litigation guardian and counsel

While I appreciate and acknowledge that my initial appointment preceded this government, I highlight that conversations were facilitated with both the former government as well as this government. Further, it appeared that there was a commitment from this government to ensure that Section 35 of the Act would be preserved, as evidenced by declarations made in the Throne Speech on September 8, 2017, and the subsequent town hall meeting facilitated on September 18, 2017 at the Berkeley Institute.

Thus, it was very distressing to be informed on April 24, 2018, by a sitting magistrate, that the Government of Bermuda through the assistance of the Foreign Office has initiated contact with an organisation in the United Kingdom that provides litigation guardian services. It is understood that a representative from the same UK organisation has been appointed, and appeared in court in Bermuda with respect to a local matter. Notwithstanding, it is important to highlight that Bermuda’s Children’s Act is a direct adaptation of the same Act in the UK, under which the mentioned UK organisation functions.

Further, this UK organisation is funded by the UK Government to provide litigation guardian services, yet the recent Supreme Court ruling, which has been embraced by senior civil servants, places a financial barrier on what should be considered a child’s right to representation. It also should be noted that there does not appear to be a record of any published advertisements seeking such services. It is most unfortunate that a labour government would seek to engage the services of a non-Bermudian when the same services are available through a local agency at an exceptional standard.

I respect the court and its processes, as evidenced by my continuing commitment to appear in court as required by way of court orders, despite being the only individual in the room — with the exception of counsel for the children — who is not remunerated for services, input and expertise. I have never declined an appointment, and when asked by a senior civil servant why an appointment has not been declined, my response was: “How does one determine which children are worthy of having their rights protected?”

Again, I am forced to ponder: “What is the value that we place on the vulnerable?”

Based on the efforts and evidence to date, it appears that there is no value. It appears that those without a voice, with the most limited resources, the ones who require the most protection, are the ones who are at the greatest risk.

I was encouraged by sitting members of this government to submit a proposal to government to formalise what has obviously become a necessary service to the children of Bermuda. However, when I provided the proposal, I was met with much resistance when entering discussions regarding costs. In numerous discussions, multiple government officials indicated that a labour government cannot be seen to receive “consulting services” without paying for them. Despite what could be considered a legitimate expectation in the face of documented commitments to settle outstanding payments, I was informed by a senior civil servant that it does not appear that there are grounds for a claim for payment.

To be clear, I am authorised to act in the capacity of litigation guardian only when appointed by the court. As such, it could be suggested that I have been court-mandated to provide a service free of charge, if one follows the rationale of this said senior civil servant. It goes without saying that the failure to pay for the services provided has resulted in some level of consequence, which has been formally documented and shared with political appointees, senior civil servants and members of this sitting government.

There are differing perspectives on the notion of there being “two Bermudas” and what distinguishes them. Sadly, it appears that I, and the children who I have had the honour of representing, experience the phenomenon of “two Bermudas” as one where there is a segment with a voice versus the vulnerable and voiceless.

Mr Justice Hellman’s Supreme Court ruling basically allows the Government to circumvent the law based upon whether it chooses to allocate funding towards the protection of the rights of the children of Bermuda. I look forward to living in a Bermuda that enhances the quality of life for all, while reinforcing that each individual of our community is valued and worth protecting.

You will note that this correspondence has been copied to media outlets, as I have a professional and ethical obligation to highlight a breach in the protection of the rights of a vulnerable population. Should you wish to discuss the contents of this letter, the data collected to date and the observations derived from the trends, I would be happy to make myself available.

TIFFANNE K. THOMAS

Director

Therapeutic Consulting Services

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