Court: ‘Detaining Of Minor Plaintiff Was Unlawful’

May 10, 2019

The detaining of the minor Plaintiff was “unlawful,” the Court has ruled in regards to a legal case brought by a 15-year-old boy, who was represented by litigation guardian Tiffanne Thomas.

The ruling by Assistant Justice Mark Pettingill said, “The application was brought on an urgent basis given the detention of the Plaintiff aged 15 years at the time, at the Co-Ed facility.  The basis for the application was that the minor Plaintiff was being unlawfully detained and had been placed in the Co-Ed Facility at the direction of the Director of Child and Family Services [DCFS].

The court document stated that the Plaintiff, a 15 year old boy, was placed in the care of the DCFS by Magistrates Court Order on 27 March 2019, and an application was made to the Court on 29 April 2019 with a submitted plan of care, which included the removal of TF to a facility in Utah where he was to be placed into a program

The ruling said, “It is accepted that TF initially was compliant with the ruling of the Magistrate Court to be sent to the Utah facility and arrangements were made for his immediate transport to the airport to be placed on a flight to the U.S. It is apparent that TF on the way to the airport requested that he be allowed to gather some personal items to take with him on the trip and this was denied given time restraints and he was told that whatever he needed could be purchased for him when he arrived.

“In my view, the request of TF to gather some personal affects was by no means unreasonable,” the ruling said. ”It could be that TF had some personal totem or comfort item that was important to him or a jacket that he wished to wear or a t-shirt or photograph of some emotional value. It is a significant measure to remove a child out of the jurisdiction to a foreign country and consideration should be given to anything that may add comfort to such an action. In any event, it appears that this refusal ‘tipped the pebble off the cliff’ and on arrival at the airport, TF left the van and went to the bus stop and ultimately returned to the Housing Facility for the night and then attended school the next day.

“It is agreed that whilst at school, two social workers and three police offers attended and TF was placed in hand cuffs and removed from the campus despite the fact that he was compliant and was certainly not under arrest for any crime.

“This is the first element of this matter which causes the Court significant concern as I fail to recognize by what legal authority the Police became involved and effectively placed a minor child in custody. Whilst I accept that there appears to have been a Recovery Order in place in relation to the minor child, and whilst on agreement of counsel I extended the Order at the Habeus Corpus hearing, I cannot see how such an Order had legal force at the time of the Plaintiff being taken from school.

“There can be no doubt that the DCFS has an onerous responsibility in fulfilling its mandate which I accept, must as a paramount priority, operate in the interest and protection of Children.

“I appreciate that there must on occasion be situations that arise that require some “out the box’ thinking and action as I termed them in my comments to Counsel, which includes emergency situations where a child needs to be protected from significant harm.

“However, there must necessarily be a system of checks and balances, clearly set out within the structure of The Children Act 1998, that must be diligently observed and adhered to and this in my assessment clearly applies to the following:-

  • i] The involvement of the Bermuda Police Service in any matter under the Children Act.
  • ii] The designation of “Residential Home” by the Minister, and
  • iii] The power to transfer a Minor from a residential home to a “senior training school” or the Co-Ed facility which must be by Court order.[s.52]

“With regard to the above I find that;

  • i] There was no legal authority for the Police to have effectively arrested TF at school and transported him to the Co-Ed and in so doing they acted unlawfully and beyond the scope of any Recovery Order that was in place.
  • ii] The Co-Ed facility is not a facility operated by the Minister responsible for the management and approval of a “residential home” set out in the Act and the Minister would have acted ultra vires in the circumstances in approving the Co-Ed as a “residential home”.
  • iii] The Plaintiff was not lawfully transferred to the Co-Ed under the authority of a Court Order and such application could have been made in this regard in accordance with s.52 of the Act and was not.

“As a consequence of the foregoing findings above, I rule that the issuing of a Writ of Habeus Corpus was granted and that the detaining of the minor Plaintiff by the Commissioner of Prisons was unlawful. I further find that the Director or Child and Family Services was complicit in the unlawful detention of the minor Plaintiff TF by misapplication or disregard for the requirements of The Children Act 1998.”

The full ruling follows below [PDF here]:

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