Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

I will begin by qualifying what I intend to say. There are a great many positive things in this legislation. In many ways, it will leave the area far better regulated and monitored. However, our responsibility in this committee is to try to work with the Minister to improve it. The concerns we have heard today and last month from several organisations are in two or three primary areas. The first concern relates to where the service will be located and how it will be managed and funded. I recognise the point made by the Minister to the effect that it will be separate from Tusla. However, it will still be funded from it. The Ombudsman for Children was before the committee earlier and made the point clearly that it was not only about a conflict of interest but a perceived conflict of interest. The specific difficulty relates to a party being unhappy with a set of proceedings and knowing that there is the same paymaster for legal representation on both sides. It is a question not only of Caesar's wife being beyond reproach but also being seen to be beyond reproach. That is an important point.

I am also somewhat concerned about the process of tendering for a national service provider as opposed to a permanent statutory or public body. Corresponding examples include the civil legal aid provided by the Legal Aid Board and so on. I am concerned that if we were to operate on the basis of tendering, over the course of a decade or beyond we could potentially have a second competition involving a tender followed by a different service provider. We could see a loss of institutional memory and all that goes with it. My instinct is that we should have a permanent body funded directly through the Department of Children and Youth Affairs. I see no reason we should not have such a body. If Tusla can fund such a body, why can the Department not do so? It should be permanent.

A second major issue arises. Catherine Ghent from the ISPCC was before the committee earlier. She expressed reservations about the constitutionality of the legislation, specifically the fact that there was no automatic right to have a guardian ad litemto represent the voice of the child. While I recognise that there may be circumstances in which a judge might decide that it is not necessary, the decision should be one for the child and whether he or she wishes to have a guardian ad litem. Allowing for discretion in the hands of the judge rather than the child may not be in line with the spirit, whatever about the letter, of Article 42.

Another major issue relates to head 6, to which there are several aspects, the first of which is the ability to cross-examine. All speakers expressed strong views on this point and suggested the proposal presented a difficulty that needed to be addressed. I also believe the fact that the guardian ad litemcannot request a professional assessment is an issue. It may well be in the best interests of the child.

My final point relates to a point well argued by EPIC on the potential enhancement of the guardian ad litemservice under this legislation. The role of advocates as chosen by children through EPIC and other organisations needs to be safeguarded. It is not the same as that of a guardian ad litem; it is different in that there is a closer relationship with the child. It is the view of EPIC – one I support – that we need to be certain that the new dispensation ensures both advocates and guardians ad litemwill be in a position to work hand in hand in court proceedings.