Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I hope to proceed with openness. I thank the Chair for sharing that advice.

I cannot accept the amendment because I do not agree that the appointment of a guardian ad litem should mandatory in every case. That opinion is shared by many stakeholders who have engaged with us, including Dr. Carol Coulter, who as the Deputy knows is the director of the Child Care Law Reporting Project. I have also discussed this with my officials at length. To tease out why that would be the case I will propose some hypothetical situations in which it might not always be necessary to appoint a guardian ad litem. One example would be a non-contentious case where a child is already in care, either with relatives or in general foster care, and where this is being formalised by a care order. Another example might be the case of a vulnerable parent, in which voluntary care may not be appropriate. The proceedings may be about formalising care by relatives. That is an example in which it might not be necessary to appoint a guardian ad litem. Another example might concern an older child, who might not want yet another professional to be assigned to him or her. An older child may request to speak to the judge directly, perhaps accompanied by his or her social worker. Those are examples where in my opinion it may not be necessary to appoint a guardian ad litem. Therefore the Bill should not stipulate that it is mandatory to appoint a guardian ad litem. Of course guardians ad litem do very valuable work, but in many cases it is important to provide flexibility. We must recognise that they are not the only way for a child to have his or her views and best interests represented in every set of circumstances. I expect the Deputies would agree with that.

The provisions relating to the appointment of a guardian ad litem must be read in conjunction with the additional obligations the Bill places on the court through the greatly expanded section 24, with which I know Deputies are familiar. That new section removes the reference to parents' rights and responsibilities and clearly states, "the court shall regard the best interests of the child as the paramount consideration in the resolution of any such proceedings". It includes a long list of factors that the court must consider when determining what is in the best interests of the child. It also inserts a new section 24A, which provides:

... the court, in so far as practicable shall— (a) determine the means by which to facilitate the expression by the child of his or her views in the proceedings, and

(b) give such views as the child wishes to express due weight, having regard to the age and maturity of the child.

Taken together, these provisions place a heavy duty on the court to hear the views of children who are the subject of care proceedings, to give those views due weight and to fully consider a long list of factors during its consideration of what is in the child's best interests.

The judge in childcare proceedings has an overarching responsibility to vindicate the rights of the child, including his or her fair procedure rights. The authors of Child Care Proceedings: A Thematic Review of Irish and International Practice, research commissioned by my Department, outlined other mechanisms used in other jurisdictions to hear the views of the child. Those include a meeting between the child and the judge, the child providing the court with a personal letter, video or drawing, the child responding to a questionnaire and the child communicating his or her views through his or her social worker.

I do not want to constrain the courts if they have a better way of doing something for a particular child. I am also mindful of the planned reform of the family courts and hope that in the future there may be other approaches to hearing a child's view more directly and representing his or her best interests. Amendments including the one proposed by Deputy Rabbitte acknowledge that a guardian ad litemis not always needed. The amendment suggests that when a child does not want one to be appointed to him or her, the child's views should be respected. My provision provides that when considering whether to appoint a guardian ad litem, the court should consider the views of the child on whether or not he or she should have one. Appointing a guardian ad litemto every single child, even children who have already expressed the view that they do not want one, forces a child to reject a guardian ad litemonce one is appointed.

That would be disrespectful to an articulate young person who has already made his or her views known to the court. I feel it would make more sense not to appoint a guardian ad litemif a child does not want one in the first instance. That is in the Bill as it stands. I also believe that adding an extra layer to proceedings by requiring a guardian ad litemto be appointed and then dismissed, because he or she is not needed, would undo a lot of the good work we are trying to do. We want a new guardian ad litemsystem to reduce complications and delays and not add to them. The Bill is an effort to bring about a recalibration of our statutory landscape in which the child is placed front and centre. I know members agree with that principle, even if they have different views on this particular issue.