Column: OBA On Child Safeguarding Bill 2019

[Opinion column written by OBA Shadow Finance Minister Nick Kempe]

Last week, the Government rushed a Bill entitled the Child Safeguarding Bill 2019 through the Senate, despite Opposition protests as to the unnecessary disregarding of due process.

Only Senators were invited to a briefing session less than 48 hours before the Senate sitting in order to be walked through a confidential working draft of the legislation.

Whilst that briefing session was comprehensive, the bill presented was not the final draft and the various charities that advocate for the safeguarding of children were not even provided a copy of the bill for consultation purposes.

Key stakeholders and those most knowledgeable about our child protection laws were thereby denied the opportunity to provide feedback. As for the public – has anyone from the Government made you aware of these important legislative changes before you read this article?

Don’t get me wrong. Many of these legislative changes proposed are very much needed to better protect our children. Many are changes that the OBA supports. But these changes have also been a long time in coming.

The Children Act was passed back in 1998. The law has moved on in the past two decades. So why the haste from the PLP? Why not make sure we get this right? Why rush this Bill through all in one sitting, contrary to Senate procedure, and without any adequate consultation of the essential stakeholders and the Public?

One of the main drivers of this legislation is to bring Bermuda’s standard up to the protections identified and agreed upon in the Lanzarote Convention. In Clause 47 – the Bermuda Bill introduces a new procedure by which child witnesses will give evidence.

Unfortunately, and I have spoken to people about this, concerns remain that this clause may still not satisfy Articles 35.1.a, 35.1.b, 35.1.e or 35.2 of the Lanzarote Convention.

Again, a proper consultation process and following standard Senate procedure, would have allowed these concerns to be identified and hopefully addressed prior to the passing of the Bill in the Senate.

On June 21, 2019, Bermuda’s Court of Appeal ruled that the Minister had a “flagrant disregard” for the human rights of children for failing to enable that children before the Courts had the protection of Litigation Guardians and legal counsel.

Since the Judgment, it appears the Minister has continued to have flagrant disregard as still no child has been represented by a qualified Litigation Guardian. This issue is not being fixed by this new Bill. Why not?

There is great commonsense behind the saying that you “measure twice and cut once”. Yet the Government seems unwilling to measure first at all. Well don’t be surprised if things do not turn out as expected.

Only this time it’s the children who will suffer.

There are other problems with the Bill in addition to the glaring omission of any solution to the failure to provide Litigation Guardians and legal representation.

The Coalition for the Protection of Children’s Executive Director, Kelly Hunt, made a number of recommendations for further inclusions within the week of the Bill’s tabling and passing:

• All allegations of child abuse reported to DCFS should be required to be equally shared with police. With the Bermuda Police Service estimating that ninety-five per cent of all cases of child abuse on the island are ignored or not reported, this measure seems like an obvious inclusion.

• The range of prohibited jobs for registered sex offenders should be widened to include all school staff and that anyone who works or volunteers with children should produce a certificate to confirm they were not on the sex offender register.

• The committee outlined in this Bill does not promote accountability nor the independent review of those charged with protecting children. Child protection is not owned by a single entity and is best assured through collaboration. The Committee should be bipartisan and require members from child safeguarding charities.

As I have said, the One Bermuda Alliance agrees that much of what is in this Bill is worthy of celebration. However we feel that with proper consultation – which may have only added a week or two to the entire process – this Bill could have been so much stronger.

Mrs. Hunt put it best when she said: “To provide children with a stronger safety net for the prevention, intervention and treatment of crimes against young people, we must work better together.”

The OBA supports the intent of the Bill passed in the Senate last week. We understand it will now also be rushed through the House of Assembly today [Friday].

However we have the following outstanding questions about the Government’s actions as relates to the safeguarding of children:

• What are the Government’s intentions with the “other” bill amending the Children Act 1998 that has been on the order paper in the House of Assembly since November 2018? This other Bill waters down the protections of children as relates to litigation guardians [Clause 35]. The AG refused to answer this question last week in Senate.

• Were the allegations of abuse and neglect in DCFS reported to the police?

• What happened to report from the first investigation into the allegations of abuse started under Minister Weeks? The AG has refused to answer this when asked directly three times in the last month.

• Is it correct that since the Court of Appeal’s Judgment in June no Litigation Guardians and legal representatives have been appointed to protect Bermudian children, whose cases continue to progress through the court system without support?

We await the answers.

- Nick Kempe

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