Guardian ad litem arrangements
Pre-legislative Scrutiny by the Joint Oireachtas Committee for Children and
Youth Affairs
Opening statement of Minister for Children and Youth Affairs
**CHECK AGAINST DELIVERY**
5th April 2017
I thank the Joint Committee and its Chairman, Deputy Daly, for providing me
and officials of my Department with the opportunity to brief the Committee
on the General Scheme of the Child Care (Amendment) Bill 2017. I welcome
the Committee’s engagement and interest in the matter.
The General Scheme provides for the extensive reform of existing ad hoc
Guardian ad litem arrangements in child care proceedings. Before going into
the detail of the General Scheme, I would like to highlight a number of key
positive features of the reform proposals:
· There will be a presumption in favour of the appointment of a
Guardian ad litem in all child care proceedings, and where the court
decides not to appoint a Guardian ad litem, the court will be
required to give the reasoning behind its decision.
· A nationally organised, managed and delivered Guardian ad litem
service will be established
· This service will be responsible for providing Guardians ad litem to
the courts and will support the professional practice and development
of Guardians ad litem and monitor their performance.
· The service will also be responsible for making legal advice
available to Guardians ad litem through an in-house legal facility
and arranging legal representation for a Guardian ad litem where it
is deemed by a service provider to be required.
· The role and function of a Guardian ad litem and the qualifications
and experience required to act as a Guardian ad litem will be clearly
defined.
In conjunction with reform in this area, my Department is progressing a
review of the 1991 Child Care Act in its entirety. This detailed review
includes identifying areas which need to be revised or updated to reflect
current practices and to respond to current needs. It also includes the
examination of a number of potential new areas for development – for
example the inclusion of principles underpinning the revised Act including
explicit reference to the principle that all those involved in child care
proceedings promote and uphold the rights of the child. My Department has
been engaging with Tusla in this regard and intends to commence a
comprehensive public dialogue very shortly to inform this important review.
My Department will be working with the Children’s Rights Alliance in this
regard.
Importance of Guardians ad litem to the court and to children
It is important to acknowledge at the outset that Guardians ad litem
perform a very important function in child care proceedings. They are an
invaluable source of advice to the Courts and they are also a great support
for the children and young people who are involved in these proceedings.
I am taking a child-centred and child-rights based approach to the reform
of current Guardian ad litem arrangements. My focus is on ensuring that all
children in child care proceedings get the opportunity to have their voice
heard, through having access to an independent Guardian ad litem. The
emphasis in these cases is on what is in the child’s best interests.
Child’s views
The first area of focus is on hearing the views of the child. One of the
key objectives of The National Strategy for Children and Young People’s
Participation in Decision-making 2015-2020 published by my Department is
that children and young people will have a voice in the Courts and legal
system.
One such mechanism for hearing the views of the child in public law cases
is for the appointment of a Guardian ad litem. Under current arrangements,
the appointment of a Guardian ad litem is made where a court considers this
to be necessary in the interests of the child and in the interests of
justice. This is entirely at the discretion of the individual judge. This
approach has resulted in the uneven appointment of Guardians ad litem
across geographical areas. I want to ensure an end to inconsistency in this
area.
The approach I am taking is for a presumption in favour of appointment of a
Guardian ad litem for all children in child care proceedings. Where the
court decides not to appoint a Guardian ad litem, the court must openly
state its reasons for not appointing a Guardian ad litem, which might
include choosing to hear the voice of the child through a direct meeting
between the child and the judge in chambers. This approach will help ensure
that more children, across all areas of the country, get access to the
services of a Guardian ad litem.
National Guardian ad litem service
The second key reform is the establishment of a nationally organised,
managed and delivered Guardian ad litem service, separate from Tusla. The
purpose of this service will be to enhance the decision making capacity of
the courts by operating a well-managed, high quality and cost-effective
service, in the best interests of children and young people.
I intend that the new service will be established initially by means of
public procurement to facilitate speedy reform. I will be the contract
holder for this service and my Department will closely monitor the new
service for effectiveness and efficiency so as to inform the further
development of the service and the final positioning of the national
service in a new or existing/reformed public body.
Though I will be the contract holder with the new national service
provider, Tusla will make periodic block payments to the national service
provider for Guardian ad litem costs in accordance with the terms of the
contract. Care has been taken in the General Scheme to ensure the
independence of the service and its Guardians ad litem from Tusla by
stating explicitly that the Guardian ad litem is independent in the
exercise of his/her functions and that Tusla will not exercise any
governance or oversight of the service provider or of the performance of
individual Guardians ad litem. This will limit any perception of a conflict
of interest or lack of independence on the part of the Guardian ad litem or
the national service.
Guardian ad litem role, qualifications and experience
The role and function of the Guardian ad litem will be clearly set out. The
Guardian ad litem will have two functions, firstly to inform the court of
the child’s views and secondly to advise the court of what, in the Guardian
ad litem’s professional opinion, is in the best interests of the child.
The current absence of formal qualification requirements and experience
standards for those who wish to act as Guardians ad litem is being
addressed. Those who wish to work as Guardians ad litem in the future will
have to have qualifications in social work or psychology and at least five
years’ experience in child welfare and child protection. They must also
supply a vetting disclosure as provided for under the National Vetting
Bureau Act, 2012.
Legal representation for Guardians ad litem
Under the proposals, access to legal representation will be more
transparent and formalised. The national service provider will be required
to provide in-house legal advice to Guardians ad litem and will organise
legal representation with expertise in care proceedings for Guardians ad
litem where the service is satisfied that the circumstances of the case
warrant it. This approach will not remove the ability to engage legal
representation which will be paid for by the State but will regulate it in
a way that is more cost effective but still provides for a child’s rights
to be vindicated.
Rebalancing of funding
While this proposal will enhance governance, it is not a cost-saving
exercise. It is about providing the best service to the courts and to
children to ensure that the child’s best interests are served and that
children’s views are taken into account in child care proceedings. The
intended approach will result in an increase in the number of appointments
of Guardians ad litem with attendant increase in expenditure on Guardian ad
litem fees and expenses, and a reduction in spending on external legal
advice. My aim is to re-focus current expenditure so that resources are
available to meet increased Guardian ad litem costs by reducing the current
spend on legal costs. I anticipate that the reforms will lead to
substantially reduced legal costs. This will come about through the
provision of in-house legal advice by the national service provider and the
introduction of standardised legal fees for a national panel of legal
representatives for those cases where legal representation for the
Guardians ad litem is required.
While every effort will be made to introduce these reforms within existing
resources, I acknowledge that some additional expenditure may be required.
Should this arise, any additional funding required will be quantified and
sought by me in the context of the Estimates process.
Parallel work
My Department is also carrying out a number of steps in parallel with the
work on the Bill, including the preparation of ‘Request for Tender’
documentation for the procurement of a national service provider. It is
intended that the new service will be evaluated over time, and other
options can then be examined as appropriate, including for example, the
option of establishing it within the proposed family courts system,
establishing the Guardian ad litem service as a separate public body, or
placing it within existing statutory structures.
Conclusion
The proposed new legislation is designed to address those deficiencies in
the current Guardian ad litem service which are acknowledged by all
interests. I believe it is vital that we put in place a well organised,
quality assured and cost effective national Guardian ad litem service as
soon as possible, and I am committed to achieving this. I and my
Department will work intensively to implement it as soon as the Bill can be
finalised and enacted.
Once again, I thank members for the opportunity to brief the Joint
Committee today and I welcome the observations of the Joint Committee on
the proposed legislation. I am happy to address any questions that the
Committee may have or to provide any clarifications that may be required.