HRC sheds light on withdrawal from lawsuit

The Human Rights Commission shed some light yesterday on its decision to pull out of a legal attempt to ensure children’s rights were protected in court proceedings.

The HRC said that, although there were several reasons behind the decision, the matter was settled by a Supreme Court ruling last November that said the HRC could not sue or be sued. The commission, an independent statutory body for the promotion and protection of human rights, was the lead plaintiff in the civil case launched against the Government in 2017.

It filed the action on behalf of three unnamed minors, with the support of six charities, but a Court of Appeal hearing in March heard that the HRC was no longer involved in the lawsuit.

The commission said: “While there were several reasons which led to the decision that the commission be withdrawn as a party, the matter was effectively decided by a ruling of the Supreme Court of Bermuda, as rendered in November 2018, which held that the Human Rights Commission has no legal standing through which it may sue, or be sued in that name.”

The HRC alleged in 2017 that the Government, including the director of the Department of Child and Family Services and the Family Court, had for two decades acted “unlawfully” by failing to ensure children in legal proceedings were provided with an independent advocate, known as a litigation guardian, and a lawyer.

The charities, Childwatch, Citizens Uprooting Racism in Bermuda, the Coalition for the Protection of Children, Family Centre, Scars and the Women’s Resource Centre, who were co-plaintiffs in the case, agreed to continue without the HRC after it withdrew from the case.

The Court of Appeal ruled in their favour last month.

The HRC said: “The Court of Appeal granted a declaration that children involved in legal proceedings have been denied a right of access to the courts through the Government of Bermuda’s failure to provide funding for their legal representation.

“The Human Rights Commission welcomes this ruling and congratulates the firm Marshall Diel & Myers for its advocacy before the Court of Appeal which led to this result.

“In particular, the institution is immensely gratified to see that these court proceedings, since their original inception in 2017, have attracted such broad media coverage and have further resulted in engaging residents of Bermuda in open and free discourse concerning the value and importance of the protection of constitutional rights and the statutory protections afforded to such a vulnerable segment of our community.”

The statement added: “The Human Rights Commission is and will continue to support the rights of all residents of Bermuda in accordance with the powers afforded to the institution under its establishing legislation, the Human Rights Act 1981.

“The commission would like to formally recognise the difficulties and challenges faced by the children and other appellants in successfully appealing the Supreme Court decision. The dedication, commitment and bravery that they have demonstrated to the public and to the courts underscores the vital role that community stakeholders play in upholding constitutional rights and statutory protections.”

Puisne Judge Stephen Hellman had earlier ruled in the Supreme Court that the Children Act 1998 required the Family Court to consider the appointment of litigation guardians for every child involved in legal proceedings.

However, he said the legislation stopped short of making the Government pay for the service and that decision was challenged by the charities.

A Court of Appeal judgment published last month said: “The current position is unacceptable and amounts to a flagrant disregard for the human rights of children in the relevant family proceedings.”

The panel made a declaration that ministers had been in breach of obligations under the Children Act for some time because they failed to introduce a scheme to fund litigation guardians and counsel.

Judges found that the absence of funding for representation meant children were being denied “effective access to, and participation and representation in, court proceedings that critically affect their lives”.

A spokeswoman for the Ministry of Legal Affairs said afterwards that the Government had already started to develop a framework to tackle the problem.

She explained last month: “The judgment validates the work started by this government to actively establish a more comprehensive framework which provides both funding and accountability for litigation guardians appointed by the courts. The judgment reflects the general policy direction of the ministry.”

The HRC did not respond to a request for comment on the other reasons for its withdrawal from the case.

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Published Jul 16, 2019 at 8:00 am (Updated Jul 16, 2019 at 8:03 am)

HRC sheds light on withdrawal from lawsuit

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