No representation: children are still being sent to overseas institutions without an independent advocate to speak up for them in court (File photograph by Blaire Simmons)
HAMILTON, Bermuda--None of the ten children in care who were sent overseas by the Family Court in 2024 and 2025 had an independent social worker to voice their views during the legal proceedings, it can be revealed.
The Department of Child and Family Services – which asked the court to order that the vulnerable youngsters go off the island for therapeutic assessment and services unavailable locally – shared the fact in a public access to information response to “The Royal Gazette”.
Its disclosure said that two of the children in care had legal representation.
However, it did not show if the court considered whether to appoint advocates, known as litigation guardians, for the children before they were sent thousands of miles from home to youth residential treatment facilities as part of the DCFS’s overseas therapeutic programme.
The figures were provided eight years after a judge in the Supreme Court ruled that magistrates must consider appointing legal representatives to protect the rights of children appearing in court and seven years after the Court of Appeal found that the Government had shown a “flagrant disregard” for children by failing to pay for them to have independent legal representation.
A source, who asked not to be named, told the Gazette the information shared by the DCFS “should concern all who truly care about the welfare and protection of children”.
They explained that Section 35 of the Children Act 1998 required the Family Court to appoint a litigation guardian in specified proceedings unless satisfied it was not necessary.
“The decision to send a child overseas for assessment or treatment is significant, and it is precisely when decisions of this magnitude are being made that the child’s independent voice and interests must be protected,” the source said.
“The Pati response does not tell us whether Section 35 was considered in each of these cases or, if it was, on what basis a litigation guardian was considered unnecessary.
“That is an important question that deserves an answer.”
The source said that since the 2018 and 2019 court rulings, much work had gone into establishing and strengthening a litigation guardian framework.
They added: “It is therefore deeply concerning if children, particularly those facing some of the most consequential decisions that can be made about their lives, continue to move through these processes without the benefit of the independent safeguard contemplated by Section 35.”
A second source, who also requested anonymity, suggested that magistrates and judges were used to taking into account the reports of court-appointed social workers, who have a broader mandate, and so some were perhaps “inclined to overlook appointing litigation guardians”.
“There is really no one who can request a litigation guardian be appointed, so it’s 100 per cent up to the magistrate to consider if a litigation guardian is appropriate,” they added.
“They have all had some type of education about the litigation guardian programme.”
The Ministry of Youth, Social Development and Seniors and the Department of Child and Family Services said this week they were “not legally responsible for deciding who has a litigation guardian” as it was a matter for the court to determine.
“The ministry and department work hard to keep this separate,” a ministry statement said. “This protects the independence of the courts and the litigation guardians, and helps avoid conflicts of interest.
“Independence is particularly important when the court considers decisions that can profoundly affect a child's family relationship, placement and future.”
It added that the ministry “remains steadfast in its commitment to safeguarding the rights and wellbeing of children in Bermuda and will continue working closely with all stakeholders to strengthen the litigation guardian framework”.
Senior magistrate Maxanne Anderson, the chairwoman of the Family Court, did not respond to a request for comment for this article.
