Children and Care Services Act 1998

WHEREAS it is expedient to make new provision for the care and protection of children; to provide for mandatory reporting of child abuse; to revise the law governing foster care and day care; and to make supplementary provision for those purposes:

[Notice in Official Gazette]

[Words of enactment omitted]

PART I

INTERPRETATION AND INTRODUCTORY PROVISIONS

Citation

1 This Act may be cited as the Children Act 1998.

Interpretation

2 In this Act, unless the context otherwise requires�

"Board" means the Child Care Placement Board established under section 12;

"care order" means an order under section 25 and includes an interim care order made under section 32;

"child" means, except in Part IX, a person who is under the age of 18 years;

"child assessment order" means an order made under section 37;

"children's home" means a home which, whether or not for reward, provides care and accommodation for more than three children at any one time, but does not include a home in which a child is cared for by a parent, relative or person who has parental responsibility for him;

"children's officer" means a person designated as a children's officer under section 10;

"contribution order" means an order made under section 81;

"court" means the Family Court and, where the context so requires, includes the Magistrates' Court and the Supreme Court;

"custody order" means an order relating to the custody of, or access to, a child;

"Director" means the Director of Child and Family Services;

"emergency protection order" means an order made under section 39;

"family proceedings" means proceedings in relation to a child�

(a) under the inherent jurisdiction of the Supreme Court;

(b) under Part IV of this Act;

(i) the Matrimonial Causes Act 1974 [title 27 item 3];

(ii) the Matrimonial Proceedings (Magistrates Court) Act 1974 [title 27 item 5];

(iii) the Adoption of Children Act 1963 [title 27 item 22];

(iv) the Domestic Violence (Protection Orders) Act 1997 [title 27 item 10];

(v) the Affiliation Act 1976 [title 27 item 24];

"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical;

"the Minister" means the Minister for the time being responsible for child and family services;

"operate" includes to conduct, manage or maintain;

"parent" includes a step-parent and a guardian;

"public holiday" means a day declared to be a public holiday under the Public Holidays Act 1947 [title 28 item 8];

"record" includes a record stored by use of a computer;

"registered children's home" means a children's home registered under section 46;

"residential home" means a facility operated by the Minister or a person or organization approved by the Minister that provides a programme of residential care for children of twelve years or older including assessment, treatment and secure accommodation;

"supervision order" means an order made under section 25(1)(b) and includes an interim supervision order made under section 32;

Meaning of significant harm

3 For the purpose of this Act "significant harm", in relation to a child, means ill-treatment or impairment of health or development of a child and includes circumstances where�

(a) the child has suffered physical harm inflicted by a parent of the child or caused by the failure of a parent to supervise and protect the child adequately;

(b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in paragraph (a);

(c) the child has been sexually abused by a parent of the child or by another person where the parent of the child knows or should know of the possibility of sexual abuse and fails to protect the child;

(d) there is a substantial risk that the child will be sexually abused as described in paragraph (c);

(e) the child requires medical treatment to cure, prevent or alleviate physical harm or suffering, and the child's parent does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(f) the child has suffered emotional harm demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child's parent does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a substantial risk that the child will suffer emotional harm of the kind described in paragraph (f) and the parent does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the condition;

(i) the child has suffered physical or emotional harm caused by being exposed to repeated domestic violence by or towards a parent of the child, and the child's parent fails or refuses to obtain services or treatment to remedy or alleviate the violence;

(j) the child has suffered physical or emotional harm caused by chronic and serious neglect by a parent of the child, and the parent does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(k) there is a substantial risk of physical, mental or emotional harm to the child by reason of neglect or the failure of the parent or person having parental responsibility to provide adequate food, clothing, medical treatment or accommodation for the child, and a person who leaves a child of tender years unattended for an unreasonable length of time without making reasonable provision for the child's safety and supervision shall be deemed to have neglected the child;

(l) there is substantial risk of physical, mental or emotional harm to the child by reason of substance abuse or other injurious behaviour by the parent or person having parental responsibility;

(m) the child has displayed violent behaviour and threatens to become a danger to himself or others or is otherwise beyond parental control;

(n) the child has been abandoned, the child's only parent has died or is unavailable to exercise custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in the care of another person and the parent of the child refuses or is unable or unwilling to resume the child's care and custody;

(o) the child has been the victim of an offence under section 19 or an offence referred to in sub-paragraphs (ii) to (vii) of section 55(1)(a);

(p) the child is by reason of his environment or associations exposed to moral danger; or

(q) the child is pregnant and refuses or is unable to provide properly and adequately for the health and welfare needs of her child in the womb.

Meaning of parental responsibility

4 (1) For the purpose of this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

(2) A person who�

(a) does not have parental responsibility for a particular child; but

(b) has care and control of the child,

may, subject to the provisions of this Act, do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare.

Purposes of the Act

5 The purposes of this Act are to protect children from harm, to promote the integrity of the family and to ensure the welfare of children.

Welfare principle

6 In the administration and interpretation of this Act the welfare of the child shall be the paramount consideration.

Delay

7 In any proceedings under Part IV (care and supervision) or Part V (protection of children), the court shall have regard to the fact that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child.

PART II

ADMINISTRATION

Responsibilities of Minister

8 The Minister has responsibility for the general supervision of the administration of this Act and the regulations and may give such directions as he considers necessary in the public interest.

Responsibilities of Director

9 (1) The Director of Child and Family Services shall�

(a) arrange for the investigation of any allegation or report that a child may be in need of protection, care or supervision and, where necessary, arrange for the delivery of child care services for the benefit of the child;

(b) when a child is in the care of the Director�

(i) provide accommodation for him; and

(ii) maintain him,

and may discharge those responsibilities by�

(iii) placing him with a family member, a relative of his or a fit person on such terms as the Director may determine;

(iv) maintaining him in a licensed foster home, a registered children's home or a residential home; or

(v) making such other arrangements as the Director considers appropriate for him to live with�

(A) his parent;

(B) a person who is not his parent but has parental responsibility for him;

(D) a relative, friend or other person connected with him;

(d) register children's homes;

(e) direct and supervise the inspection of the operations and records of any facility or other place where a child is placed.

(2) The Director may delegate to a children's officer the exercise of any functions conferred on the Director by this Act.

(3) The Director, a children's officer or any person authorized by the Director may appear and be heard in any court in respect of any matter arising under this Act and may intervene in proceedings instituted by any other person.

Children's officers

10 The Minister may designate public officers as children's officers.

Disclosure of information

11 (1) No children's officer or person employed in the administration of this Act shall communicate or allow to be communicated information obtained in the performance of his duties under this Act except where�

(a) giving evidence in any court; or

(b) authorized by the Director or the Minister.

(2) Any person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding $2000.

Child Care Placement Board

12 (1) There is established a Child Care Placement Board which, subject to this Act, shall be responsible for�

(a) advising the Minister on matters related to the care of children and, in particular, the placement of children in children's homes, in foster-care and in residential homes;

(b) encouraging and fostering community interest and involvement in child care issues;

(2) The Board shall consist of a Chairman, a Deputy Chairman and not less than 7 other persons appointed by the Minister in writing.

(3) Every member of the Board shall hold office for such period not exceeding three years as may be specified in the instrument of appointment and, on the initial formation of the Board, the appointments shall be staggered to establish a rotation.

(4) A member whose term has expired may be re-appointed.

(5) The Minister may refer to the Board any matter relating to residential child care and foster care and the Board shall enquire into and report to the Minister upon any matter so referred.

(6) The Board shall make an annual report to the Minister on the state of children in care in Bermuda and such report shall be laid by the Minister before both Houses of the Legislature and may be published in such manner as the Minister may, after consultation with the Board, determine.

(7) The quorum of the Board shall be such number as the Minister may fix being not less than one-half of the total number of members of the Board.

(8) Fees shall be paid to the members of the Board in accordance with the Government Authorities (Fees) Act 1971.

(9) Subject to this section, the Board may regulate its own procedure.

Family Court

13 The jurisdiction conferred upon the court by or under this Act shall be exercised by a Special Court established under section 12 of the Magistrates Act 1948 [title 8 item 15], and a Special Court when sitting to exercise such jurisdiction shall be known as the Family Court.

Decision to make order

14 (1) Where the court is considering whether or not to make one or more orders under this Act, it shall not make an order unless it considers that doing so would better promote the welfare of the child than making no order at all.

Attendance of parent at court

15 (1) Where under this Act a child is brought before the court, the parents of the child shall attend at the court during all stages of the proceedings unless the court is satisfied that it would be unreasonable to require their attendance.

(2) The court, for the purpose of enforcing the attendance of a parent, has the same powers as a court of summary jurisdiction to enforce the attendance of witnesses.

Sittings of the court

16 In the exercise of the jurisdiction conferred upon it by this Act the court shall, as far as practicable, sit in a different building or room from that in which sittings of courts other than the Family Court are held.

Exclusion of the public

17 Except by leave of the court no person shall be present at any sitting of the court other than the parties to the case, their counsel and other persons directly concerned in the case.

Appeals

18 Any child or other person aggrieved by any order made under this Act may appeal from the order to the Supreme Court in the manner and subject to the conditions provided by the Criminal Appeal Act 1952 [title 8 item 87] as though the order appealed against were an order made on a conviction by a court of summary jurisdiction.

PART III

ABUSE OF CHILDREN

Mistreatment, abandonment etc of child

19 Any person who, having the care and control of, or parental responsibility for, any child, wilfully abuses, mistreats, neglects, deserts or abandons the child or causes or procures the child to be abused, ill-treated, neglected, deserted or abandoned is guilty of an offence and is liable on summary conviction to a fine not exceeding $3,000 or imprisonment for a term not exceeding 6 months.

Mandatory reporting of child abuse

20 (1) Every person who has information indicating that a child is suffering or has suffered significant harm, shall forthwith report that information to the Director.

(2) Notwithstanding subsection (1) or any statutory provision, a person who performs professional or official duties with respect to a child, including�

(a) a physician, nurse, dentist, pharmacist, psychologist or other health care professional;

(b) a school principal, teacher, counsellor, social worker, youth or recreational leader, member of the clergy or child care worker; or

who, in the course of that person's professional or official duties, has reasonable grounds to suspect that a child is suffering or has suffered significant harm, shall forthwith report the suspicion to the Director together with the information upon which it is based.

(3) Subsections (1) and (2) apply whether or not the information is confidential or privileged except that nothing in this section shall be taken to affect or abrogate the privilege that attaches to a communication between a solicitor and his client.

(4) No civil action lies against a person by reason of that person reporting information pursuant to subsection (1) or (2) unless the reporting of that information is done falsely and maliciously.

(5) Every person who�

(a) contravenes subsection (2) or (6); or

(b) falsely and maliciously reports information to the Director indicating that a child is suffering significant harm or is suspected thereof,

is guilty of an offence and is liable on summary conviction to a fine not exceeding $3,000 or imprisonment for a term not exceeding 6 months.

(6) No person shall reveal or be compelled to reveal the identity of a person who has reported information to the Director pursuant to subsection (1) or (2).

(7) On receiving a report pursuant to subsection (1) or (2) the Director shall�

(a) cause an investigation to be made into the circumstances of the case;

(b) arrange for the provision of such child care services as he considers necessary; and

Child Abuse Register

21 (1) The Minister shall establish and maintain a Child Abuse Register ("the Register").

(2) The Minister shall enter the name of a person and such information as the Minister may determine in the Register where�

(a) the court finds that a child has suffered significant harm at the hand of that person in circumstances where the child�

(i) has suffered physical harm, inflicted by the person or caused by the person's failure to supervise and protect the child adequately;

(ii) has been sexually abused by the person or by another person where the person having the care of the child knows or should know of the possibility of sexual abuse and fails to protect the child; or

(iii) has suffered serious emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour, caused by the intentional conduct of the person; or

(b) that person is convicted of an offence against a child pursuant to the Criminal Code as set out in sub-paragraphs (ii) to (vii) of section 55(1)(a).

Notice of entry in Register

22 (1) A person whose name is entered in the Register shall be given written notice of registration.

(2) A person whose name is entered on the Register may apply to the court at any time to have his name removed from the Register and, if the court is satisfied by him that he no longer poses a risk to children, the court shall order that his name be removed from the Register.

(3) Any person aggrieved by a decision of the court pursuant to subsection (2) may appeal to the Supreme Court and the hearing shall be held in chambers.

Confidentiality of information in Register

23 (1) The information in the Register is confidential and shall be available only as provided in this section.

(2) A person whose name is entered in the Register is entitled to inspect the information relating to him entered in the Register.

(3) With the approval of the Minister, the information in the Register may be�

(a) disclosed to any authority for the purpose of investigating whether a child is in need of care or supervision; or

(b) used for the purposes of research.

(4) Upon the receipt of a request in writing from a person and with the written consent of the person to whom the request relates, the Minister may disclose information in the Register concerning�

(a) a person applying to adopt a child or to be a foster parent; or

(b) a person, including a volunteer, who is or would be caring for or working with children,

and the person who receives the information shall treat the information as confidential.

(5) Every person who contravenes subsection (4) and every director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation is guilty of an offence and upon summary conviction is liable to a fine of not more than $5,000 or to imprisonment for a period not exceeding one year.

PART IV

CARE AND SUPERVISION

Court orders, relevant factors

24 In making, varying or discharging an order under this Part, the court shall have regard in particular to�

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the importance of the child's development of a positive relationship with the parent and a secure place as a member of a family;

(h) the child's relationships with relatives;

(i) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity;

(j) the bonding that exists between the child and the child's parent;

(k) the range of powers available to the court under this Act in the proceedings in question;

Care and supervision orders

25 (1) On the application of the Director, the court may make an order�

(a) placing the child with respect to whom the application is made in the care of the Director; or

(b) putting him under the supervision of the Director or a probation officer.

(2) The court may only make a care order or supervision order if it is satisfied�

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to�

(i) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or

(ii) the child's being beyond parental control.

(3) No care order or supervision order may be made with respect to a person who has reached the age of 18 years (or 16 years, in the case of a child who is married).

(4) An application under this section may be made on its own or in any other family proceedings.

(5) The court may�

(a) on an application for a care order, make a supervision order;

(b) on an application for a supervision order, make a care order.

Timely disposal of applications

26 The court hearing an application for an order under this Part shall�

(a) draw up a timetable with a view to disposing of the application without delay; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as it is reasonably practicable, that that timetable is adhered to.

Effect of care order

27 (1) Where a care order is made with respect to a child, it shall be the duty of the Director to receive the child into his care and to keep him in care while the order remains in force, and the Director may place the child�

(a) in accommodation operated by the Minister;

(b) in a registered children's home;

(d) in a residential home.

(2) Where a care order is in force with respect to a child, the Director shall�

(a) have parental responsibility for the child; and

(b) have the power (subject to the following provisions of this section) to determine the extent to which a parent of the child may meet his parental responsibility for the child.

(3) The Director may not exercise the power in subsection (2)(b) unless he is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.

(4) Nothing in subsection (2)(b) shall prevent a parent of the child who has care of him from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare.

(5) While a care order is in force with respect to a child, the Director shall not�

(a) so far as is practicable, cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not be made; or

(b) have the right�

(i) to agree or refuse to agree to the making of an adoption order;

(ii) to appoint a guardian for the child.

(6) Where a care order is in force with respect to a child, no person shall cause the child to be known by a new name without an order of the court.

Parental contact with children in care

28 (1) Where the child is in the care of the Director, the Director shall (subject to the provisions of this section) allow the child reasonable contact with�

(a) his parents;

(b) where there is a custody order in force with respect to the child immediately before the care order was made, the person in whose favour the custody order was made; and

(c) where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the Supreme Court's inherent jurisdiction with respect to children, that person.

(2) On an application made by the Director or the child the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.

(3) On an application made by�

(a) any person mentioned in paragraphs (a) to (c) of subsection (1); or

(b) any person who has obtained the leave of the court to make the application.

the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.

(4) On an application made by the Director or the child, the court may make an order authorizing the Director to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (c) of subsection (1) and named in the order.

(5) When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of the Director, the court may make an order under this section, even though no application for such an order has been made with respect to the child, it if considers that the order should be made.

(6) The Director may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if�

(a) he is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare; and

(b) the refusal�

(i) is decided upon as a matter of urgency; and

(ii) lasts no more than 28 days or such longer period as the Director may determine.

(7) An order under this section may impose such conditions as the court considers appropriate.

(8) The court may vary or discharge any order made under this section on the application of the Director, the child concerned or the person named in the order.

(9) An order under this section may be made either at the same time as the care order itself or later.

(10) Before making a care order with respect to any child the court shall�

(a) consider the arrangements which the Director has made, or proposes to make, for affording any person contact with a child to whom this section applies; and

(b) invite the parties to the proceedings to comment on those arrangements.

Supervision orders

29 (1) Where a supervision order is in force, it is the duty of the supervisor�

(a) to advise, assist and monitor the progress of, the super-vised child; and

(b) to take such steps as are reasonably necessary to give effect to the order.

(2) The First Schedule makes further provision with respect to supervision orders.

Powers of the court in family proceedings

30 (1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care order to be made with respect to him, the court may direct the Director to undertake an investigation of the child's circumstances.

(2) Where the court gives a direction under this section the Director shall, when undertaking the investigation, consider whether he should�

(a) apply for a care order or for a supervision order in respect of the child;

(b) arrange for the delivery of services or assistance for the child and his family; or

(3) Where the Director undertakes an investigation under this section, and decides not to apply for a care order or supervision order with respect to the child concerned, he should inform the court of�

(a) his reasons for so deciding;

(b) any service or assistance which has been provided or is intended to be provided to the child and his family; and

(4) The information shall be given to the court before the end of the period of 6 weeks beginning the date of the direction, unless the court otherwise directs.

(5) If, on the conclusion of any investigation or review under this section, the Director decides not to apply for a care order or a supervision order with respect to the child�

(a) he should consider whether it would be appropriate to review the case at a later date; and

(b) if he decides that it would be, he should determine the date on which the review is to begin.

Plan of care for child

31 (1) The court shall, before making a care order or a supervision order, obtain and consider a plan for the child's care, prepared in writing by the Director and including�

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found in need of care or supervision;

(b) a statement of the criteria by which the Director will determine when his care or supervision is no longer required;

(d) where the Director proposes to remove the child from the care of a parent�

(i) an explanation of why the child cannot be adequately protected while in the care of the parent and a description of any past efforts to do so, and

(ii) a statement of what efforts, if any, are planned to maintain the child's contact with the parent.

(2) Where the court makes an order, the court shall�

(a) give a statement of the plan for the child's care that the court is applying in its decision;

(b) give the reasons for its decision, including�

(i) a statement of the evidence on which the court bases its decision; and

(ii) where the order has the effect of removing or keeping the child from the care or custody of the parent, a statement of the reasons why the child cannot be adequately protected while in the care or custody of the parent; and

(3) The Director shall make a report to the court, in relation to the plan of care under subsection (1), within 6 months of the initial order and thereafter as the court may direct.

Interim orders

32 (1) Where�

(a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b) the court gives a direction under section 30(1),

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 25(2).

(3) Where, in any proceedings on an application for a care order or supervision order, a court makes a custody order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.

(4) An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs�

(a) the expiry of the period of 6 weeks beginning with the date on which the order is made; or

(b) the disposal of the application.

(5) Where the court makes an interim care order, or interim supervision order, it may give directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child and parent.

(6) A direction under subsection (5) may be to the effect that there is to be�

(a) no such examination or assessment; or

(b) no such examination or assessment unless the court directs otherwise.

(7) A direction under subsection (5) may be�

(a) given when the interim order is made or at any time while it is in force; and

(b) varied at any time on the application of any party to the proceedings in which the direction is given.

Discharge and variation of care orders and supervision orders

33 (1) A care order may be discharged by the court on the application of�

(a) any person who has parental responsibility for the child;

(b) the child himself; or

(2) A supervision order may be varied or discharged by the court on the application of�

(a) any person who has parental responsibility for the child;

(b) the child himself; or

(3) On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.

(4) Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.

(5) When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 25(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded.

Orders pending appeals in cases about care or supervision orders

34 (1) Where�

(a) a court dismisses an application for a care order; and

(b) at the time when the court dismisses the application, the child concerned is the subject of an interim care order,

the court may make a care order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.

(2) Where�

(a) a court dismisses an application for a care order, or an application for a supervision order; and

(b) at the time when the court dismisses the application, the child concerned is the subject of an interim supervision order,

the court may make a supervision order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.

(3) Where a court grants an application to discharge a care order or supervision order, it may order that�

(a) its decision is not to have effect; or

(b) the care order, or supervision order, is to continue to have effect but subject to such directions as the court sees fit to include in the order.

(4) An order made under this section shall only have effect for such period, not exceeding the appeal period, as may be specified in the order.

(5) Where�

(a) an appeal is made against any decision of a court under this section; or

(b) any application is made to the Supreme Court in connection with a proposed appeal against that decision,

the Supreme Court may extend the period for which the order in question is to have effect, but not so as to extend it beyond the end of the appeal period.

(6) In this section "the appeal period" means�

(a) where an appeal is made against the decision in question, the period between the making of that decision and the determination of the appeal; and

(b) otherwise, the period during which an appeal may be made against the decision.

Representation of child and of his interests in certain proceedings

35 (1) For the purpose of any specified proceedings, the court shall appoint a litigation guardian for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.

(2) The litigation guardian shall be under a duty to safeguard the interests of the child.

(3) Where�

(a) the child concerned is not represented by counsel; and

(b) any of the conditions mentioned in subsection (4) is satisfied,

the court may appoint counsel to represent him.

(4) The conditions are that�

(a) no litigation guardian has been appointed for the child;

(b) the child has sufficient understanding to instruct counsel and wishes to do so;

(5) Counsel appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.

(6) In this section "specified proceedings" means any proceedings�

(a) on an application for a care order or supervision order;

(b) in which the court has given a direction under section 30(1) and has made, or is considering whether to make, an interim care order;

(d) on an application under section 33(4);

(e) in which the court is considering whether to make a custody order with respect to a child who is the subject of a care order;

(f) with respect to contact between a child who is the subject of a care order and any other person;

(g) under Part V (protection of children);

(h) on an appeal against�

(i) the making of, or refusal to make, a care order, supervision order or any order under section 28;

(ii) the making of, or refusal to make, a custody order with respect to a child who is the subject of a care order;

(iii) the variation or discharge, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii);

(iv) the refusal of an application under section 33(4); or

(v) the making of, or refusal to make, an order under Part V; or

(i) which are specified for the time being, for the purposes of this section, by rules of court.

(7) The Minister may establish panels of persons from whom litigation guardians appointed under this section must be selected.

Right of litigation guardian to have access to Director's records

36 (1) Where a person has been appointed as a litigation guardian under this Act he shall have the right at all reasonable times to examine and take copies of any records of, or held by, the Director which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned.

(2) Where a litigation guardian takes a copy of any record which he is entitled to examine under this section, that copy or any part of it shall be admissible as evidence of any matter referred to in any�

(a) report which he makes to the court in the proceedings in question; or

(b) evidence which he gives in those proceedings.

(3) Subsection (2) has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence.

PART V

PROTECTION OF CHILDREN

Child assessment orders

37 (1) On the application of the Director for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that�

(a) the Director has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;

(b) an assessment of the state of the child's health or development, or of the way in which he has been treated, is required to enable the Director to determine whether or not the child is suffering, or is likely to suffer, significant harm; and

(c) it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

(2) A court may treat an application under this section as an application for an emergency protection order.

(3) The court shall not make a child assessment order if it is satisfied�

(a) that there are grounds for making an emergency protection order with respect to the child; and

(b) that it ought to make such an order rather than a child assessment order.

(4) A child assessment order shall�

(a) specify the date by which the assessment is to begin; and

(b) have effect for such period, not exceeding 14 days beginning with that date, as may be specified in the order.

(5) Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child�

(a) to produce him to a children's officer or police officer; and

(b) to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.

(6) A child assessment order authorizes any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.

(7) The child may only be kept away from his home or normal place of residence�

(a) in accordance with directions specified in the order;

(b) if it is necessary for the purposes of the assessment; and

(8) Where the child is to be kept away from his home or normal place of residence, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from his home or normal place of residence.

(9) The Director shall take such steps as are reasonably practicable to ensure that notice of the application is given to�

(a) the child's parents;

(b) any person who is not a parent of his but who has parental responsibility for him;

(d) any person in whose favour a custody order is in force;

(e) any person who is allowed to have contact with the child by virtue of an order under section 28; and

(f) the child,

before the hearing of the application.

(10) The Director and any of the persons mentioned in subsection (9) may apply to the court for a child assessment order to be varied or discharged.

Protective intervention order

38 (1) Upon the application of the Director, the court may make a protective intervention order pursuant to this section directed to any person where the court is satisfied that the person's contact with a child is causing, or is likely to cause, the child to suffer significant harm.

(2) The court may make a protective intervention order, ordering that the person named in the order�

(a) cease to reside with the child;

(b) not contact the child or associate in any way with the child,

and imposing such terms and conditions as the court considers appropriate for implementing the order and protecting the child.

(3) Where an order is made pursuant to this section, the Director may enlist the assistance of a police officer to enforce the order.

(4) Any person who contravenes a protective intervention order is guilty of an offence and upon summary conviction shall be liable to a fine of not more than $3,000 or to imprisonment for a period not exceeding 6 months.

Emergency protection orders

39 (1) On the application of the Director for an order under this section with respect to a child, the court may make the order if, but only if, it is satisfied that�

(a) there is reasonable cause to believe that the child is likely to suffer significant harm if�

(i) he is not removed to accommodation provided by or on behalf of the Director; or

(ii) he does not remain in the place in which he is then being accommodated; or

(b) enquiries are being made with respect to the child under section 42(1)(b), and those enquiries are being frustrated by access to the child being unreasonably refused to a person seeking access and that the Director has reasonable cause to believe that access to the child is required as a matter of urgency.

(2) While an order under this section ("an emergency protection order") is in force it�

(a) operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the Director;

(b) authorizes�

(i) the removal of the child at any time to accommodation provided by or on behalf of the Director and his being kept there; or

(ii) the prevention of the child's removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and

(3) Where an emergency protection order is in force with respect to a child, the Director�

(a) shall only exercise the power given by virtue of subsection (2)(b) in order to safeguard the welfare of the child; and

(b) shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order);

(4) Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to�

(a) the contact which is, or is not, to be allowed between the child and any named person;

(b) the medical or psychiatric examination or other assessment of the child.

(5) A direction under subsection (4)(a) may impose conditions and one under subsection (4)(b) may be to the effect that there is to be�

(a) no such examination or assessment; or

(b) no such examination or assessment set out unless the court directs otherwise.

(6) A direction under subsection (4) may be�

(a) given when the emergency protection order is made or at any time while it is in force; and

(b) varied at any time on the application of�

(i) the Director;

(ii) the parties to the application for the emergency protection order;

(iii) the litigation guardian; or

(iv) any person named in the direction.

(7) Where an emergency protection order is in force with respect to a child and�

(a) the Director has exercised the power given by subsection (2)(b)(i) but it appears to him that it is safe for the child to be returned; or

(b) the Director has exercised the power given by subsection (2)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,

he shall return the child or, as the case may be, allow him to be removed.

(8) Where he is required by subsection (7) to return the child the Director shall�

(a) return him to the home or normal residence at which he resided immediately prior to the order being made;

(b) if that is not reasonably practicable, return him to the care of�

(i) a parent of his;

(ii) any person who is not a parent of his but who has parental responsibility for him; or

(iii) such other person as the Director considers appropriate.

(9) Where the Director has been required by subsection (7) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so.

(10) Where an emergency protection order has been made with respect to a child, the Director shall, subject to any direction given under subsection (6), allow the child reasonable contact with�

(a) his parents;

(b) any person who is not a parent of his but who has parental responsibility for him;

(d) any person in whose favour a custody order is in force with respect to him;

(e) any person who is allowed to have contact with the child by virtue of an order under section 28; and

(f) any person acting on behalf of any of those persons.

(11) Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible.

(12) A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (2)(b) to remove, or prevent the removal of, a child.

(13) A person guilty of an offence under subsection (12) shall be liable on summary conviction to a fine not exceeding $1,000.

Duration of emergency protection order and other supplemental provisions

40 (1) An emergency protection order shall have effect for such period, not exceeding 28 days, as may be specified in the order.

(2) Where�

(a) the court making an emergency protection order would, but for this subsection, specify a period of 28 days as the period for which the order is to have effect; but

(b) the last of those 28 days is a public holiday,

the court may specify a period which ends at noon on the first later day which is not such a holiday.

(3) The Director may apply to the court for the period during which the emergency protection order is to have effect to be extended.

(4) On an application under subsection (3) the court may extend the period during which the order is to have effect, by such period, not exceeding 14 days, as it thinks fit.

(5) An emergency protection order may only be extended once.

(6) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, a court hearing an application for, or with respect to, an emergency protection order may take account of�

(a) any statement contained in any report made to the court in the course of, or in connection with, the hearing; or

(b) any evidence given during the hearing,

which is, in the opinion of the court, relevant to the application.

(7) Subject to subsection (10), any of the following may apply to the court for an emergency protection order to be discharged�

(a) the child;

(b) a parent of his;

(d) any person with whom he was living immediately before the making of the order.

(8) No application for the discharge of any emergency protection order shall be heard by the court before the expiry of the period of 72 hours beginning with the making of the order.

(9) No appeal may be made against the making of, or refusal to make, an emergency protection order or against any direction given by the court in connection with such an order.

(10) Subsection (7) does not apply where the person who would otherwise be entitled to apply for the emergency protection order to be discharged�

(a) was given notice of the hearing at which the order was made; and

(b) was present at that hearing.

(11) A court making an emergency protection order may direct that the applicant may, in exercising any powers which he has by virtue of the order, be accompanied by a registered medical practitioner or a registered nurse, if he so chooses.

Power of police officer to detain child

41 Where a police officer has reasonable and probable grounds to believe that a child is suffering, or is likely to suffer, significant harm, the police officer may detain the child and shall forthwith take such reasonable steps as are necessary to�

(a) notify the Director of the detention and also, where practicable�

(i) the child's parents;

(ii) every person who is not a parent of his but who has parental responsibility for him; and

(iii) any other person with whom the child was living immediately before such detention; and

(b) deliver the child to the Director or make appropriate arrangements for the temporary detention of the child until the Director assumes responsibility for the care of the child.

Duty of Director to investigate

42 (1) Where the Director�

(a) has obtained an emergency protection order in respect of a child; or

(b) has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm,

the Director shall make, or cause to be made, such enquiries he considers necessary to enable him to decide whether he should take any action, and if so, what action should be taken, to safeguard or promote the child's welfare.

(2) The enquires shall, in particular, be directed toward establishing�

(a) whether the Director should make any application to the court, or exercise any other powers under this Act, with respect to the child;

(b) whether, in the case of a child�

(i) with respect to whom an emergency protection order has been made; and

(ii) who is not in accommodation provided by or on behalf of the Director,

it would be in the child's best interest, (while an emergency protection order remains in force) for him to be in such accommodation.

(3) Where enquiries are being made under subsection (1) with respect to the child, the Director shall (with a view to enabling him to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable�

(a) to obtain access to the child; or

(b) to ensure that access to the child is obtained, on his behalf, by a person authorized by him for the purpose, unless he is satisfied that he already has sufficient information with respect to the child.

(4) Where, as a result of any such enquiries, it appears to the Director that there are matters connected with the child's education which should be investiga

Bermuda Consolidated Legislation

Children and Care Services Act 1998