Mr. Fergus Finlay:

I thank the Chairman. My colleague, Ms Freda McKittrick, is the head of our guardian ad litemservice and our resident expert in all these matters. Between us, we should be able to answer any questions in due course. We have made a detailed submission to the committee in addition to the opening statement.

The story of Grace has shocked and disturbed us all. It raises deep questions of accountability and practice. It obliges us, to the extent that we regard our country as a republic, to find out how and why terrible things were allowed to happen to one of our fellow citizens. These things happened on the watch of the State and while the State was funding the care of a child who grew to be a young woman.

In her suffering and resilience, Grace has taught us an underlying and indelible lesson, if only we are willing to listen. If a child is vulnerable and at risk but has no voice, that risk is multiplied. If a child is crying out for help and cannot be heard, help will never come. If corruption or abuse is possible, the existence of closed doors and blind eyes will make it certain.

Every day, children appear in front of the courts in Ireland. If those children or young people are charged with a crime, they are constitutionally entitled to the best defence they, or the State on their behalf, can afford. That is as it should be. However, if a child stands in front of a court charged with no crime but faces decisions that can affect the course of the rest of his or her life, that child has no right to be heard. We know that the judge, whose job is to determine the future of the child, takes that task seriously. Frequently, they exercise their discretion to appoint an independent person to help to establish where the best interests of the child lie. However, the point is that this only happens at the discretion of the judge - it is not a child's right.

Over the 20 years of operating a guardian ad litemservice, our guardians have worked with children who have made multiple attempts on their own lives while in the care system. They have worked with children who have been abandoned, abused or neglected. They have worked with children who have been put at immense risk by their parents' drug and alcohol problems. They have worked with children who have been hurt almost beyond repair by sexual and other forms of abuse. They have worked with children who self-harm, who blame themselves for the things that have gone wrong in their lives or who are full of self-hatred and want to take it out on the world. They have worked with children who have been left alone, hungry, fearful and cold. All of those children appear in front of the Irish courts, which is where their future can be decided.

It may seem perverse to say it, but in one respect at least, these are the luckier children. They are children at risk to whom a judge has appointed a guardian whose only task is to represent the best interests of those children and young people, to advocate for them and to seek a better outcome than the life that faces them now.

We could supply this committee with dozens of case histories. We have attached some to our submission. What they show is a system that wants to produce the best results for children. There are dedicated and committed social work teams and thousands of carers doing amazing jobs. However, it is a system that is terribly constrained by resources and other pressures. In some ways, it is constrained by the culture, which still exists in Ireland, that children should be seen and not heard. Our case histories show people often working together, though sometimes challenging each other, to try to secure the best result. They also show a system that has become more legalistic, more adversarial and more expensive in the struggle to balance the best interests of children against scarce resources and often imperfect solutions. Our case histories do not show happy endings in every case, but all of our experience shows that children always do better when they have someone who represents their views and wishes and no one else's.

For that reason, our first reaction to the Bill before the committee is to welcome it strongly, but also to say that it does not go far enough, and in some respects it sends us backwards. This is a Bill that seeks to make it the norm rather than the exception that a vulnerable child, faced with the decisions that an imperfect world can make, would have someone at their side at all times. However, this does not make it a right. The right should be explicit in law. It is not explicit in law despite the fact the 31st amendment to the Constitution, passed by referendum of the people, provides that, "in the resolution of all proceedings ... brought by the State ... for the purpose of preventing the safety and welfare of any child from being prejudicially affected ... the best interests of the child shall be the paramount consideration [...] the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child".

It is not the law in Ireland despite the fact that the United Nations Convention on the Rights of the Child, which Ireland has ratified, obliges us in Article 12 to enable children to express their own views in all matters concerning them. In particular, "the child shall ... be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body".

We will always strongly argue that we must move towards progressive realisation of those rights. The primary purpose of this Bill is to establish a single national provider of the service which is essential to those rights. We strongly welcome the Bill on that basis also. In our written submission, we advocate ways in which the Bill can be significantly improved. I will touch on some of them in a moment.

However, the underlying principle of the Bill is that this is an area that needs its own reform. As the largest provider of guardians in Ireland, last year our 32 guardians worked with more than 800 children. We have always argued for more and greater transparency in the system. In several submissions over the years we have made to the Department we have advocated a unified and much better managed approach.

There is no doubt that a cloud has been cast over the independent representation of vulnerable children by the and unregulated system which has been allowed to develop. A recent study by the Comptroller and Auditor General shows clearly that in an unregulated world costs can vary significantly from case to case, and in overall terms there is a huge question mark about whether children are being effectively and independently represented on a value for money basis.

Barnardos has always argued that the only remedy to secure proper transparency and accountability while maintaining standards and independence is a stand-alone entity, operating on the basis of a single contract with the State and subject to best practice in the areas of management and governance. This Bill, together with the necessary processes in areas such as tendering that will follow its passage, is designed to secure that.

However, we believe that some of the measures contained in the draft heads will militate against what the Bill aims to achieve. The provision whereby Tusla continues to be the funder of the service, for example, is both unnecessary and undesirable. It is not something Tusla wants, and very few of the submissions made to the Department in this area advocate it. The only provision that makes sense would be a public contract between the Department and the provider. We strongly recommend to the committee that that approach be taken.

It is important to state unequivocally in the law that the role of any guardian must be to seek to promote the best interests of the child. It is our view and our experience that the best outcomes are always to be found when those who are involved in the child’s welfare work together collaboratively to try to develop plans that are adequately resourced and centred on the child’s needs. There will be times when disagreements arise and where there is a need to challenge decisions made around allocation of resources. Particular issues arise at moments of complex and challenging transition for children. The moment when they reach 18, for instance, can be the moment when they are most at risk. Anyone who has followed the tragic story of Daniel McAnaspie will know that to be the case.

In that context, it will never be enough for a guardian to be, as the explanatory memorandum says, some kind of expert witness with no role other than to prepare a report. While we have never had any wish to see an adversarial approach being taken to this work and we do not believe the current frequently highly conflictual situation serves the best interests of children, guardians cannot be passive. They must be able to support good practice and challenge poor practice. They must be able to express strong views when necessary resources are being withheld. They cannot adequately represent the best interests of children to the court by remaining silent. It must also be said that there is one thing guardians know, that the best outcome for children is found when everyone involved is working together in a collaboration that centres on the needs of the child. The more conflict that can be removed, the better the outcome that is likely to emerge. The day-to-day experience and work of guardians prove this. Getting this balance right is complex and, in our view, requires further drafting work. We have attached a more detailed examination of the Bill to this presentation and would be more than happy to answer any questions the committee might have.

If we get this Bill right, we can make significant strides towards achieving something I believe we all want. We all want a system that is well-managed and accountable. We all want transparency and consistency in the investment the State will be required to make.

From our examination of the figures as they apply to Barnardos, and I cannot speak for anyone else, roughly speaking it costs between €4,000 and €5,000 per year per child when a guardian working on the case. That sounds expensive. When compared with the fact the State pays around €5,000 per week to keep a child in private residential care or about €10,000 per week to keep a child in State-provided secure care, €5,000 a year to keep children out of the care system is actually very cheap.

Over and above the question of cost, there is one key point. We now know that the babies and children of Tuam had no voice. The thousands of children sent to industrial schools by Irish courts had no voice. Grace had no voice. The system fails when it fails to listen. That is why we believe it is unthinkable, knowing what we know, that we would continue to allow our child care and child protection system to continue to operate without being absolutely certain that the children most affected by the system have a voice of their own, and that that voice is always heard.