Dr. Karen McAuley:

I thank Deputy Hourigan for her question. There are a couple things I might add on that. First, allowing that this is general scheme and not the actual Bill and therefore the wording may be adjusted, I would flag the way it is currently set out under section 97(3). It states that a GAL would be appointed unless it is not in the child's best interests. We find that an unusual form of wording in and of itself, irrespective even of what the child care (amendment) Bill will say about the appointments of GAL in care proceedings. This is primarily because it raises the question of what circumstances would it not be in the best interest of the child to appoint a GAL? Whether it is necessary, etc., is a different question. However, it suggests that it would not be in their best interests. We think that needs clarification. It may just be that the wording is a bit awkward, to be fair, but we do not know that. The reason we think that is because one of the core roles of a GAL is to recommend to the court what is in the best interest of the child. That is one of its fundamental functions. That is the first point.

The general scheme of the child care (amendment) Bill 2021 was published last autumn. As the Deputy knows, it is looking to do a number of things. It is to set out in law the role and functions of a guardian ad litem, etc. In the current wording, again allowing that this is the general scheme, two things are worth noting. First, in proceedings before the High Court, a GAL is automatically appointed. For example, in proceedings relating to the placement of a child in secure care or special care, a GAL is automatically appointed. Obviously, that is a form of civil detention, if you like, which involves a deprivation of liberty. The admission of a child for inpatient care, for example, particularly in context of involuntary admission and detention, therefore, is also a form of detention. We have to think about that and about parity there.

The other piece on the child care (amendment) Bill 2021 is on the proceedings in the District Court. These are obviously care proceedings. I appreciate the idea is that the District Court will be involved in such proceedings under this legislation. What is provided for at the moment is more or less aligned with a presumption in favour of appointing a GAL. It states that the court shall appoint a guardianad litemfor the child unless the best interests of the child can be determined in another way and unless the court is satisfied that there is another way to facilitate the child to be heard. Therefore, it is a much more positive way of framing it. Going back to the current general scheme, it may just be a question of wording that needs to be adjusted. However, from our perspective it is not clear when it would not be in the best interest of the child. As well as this, the wording seems strange. I hope that answers the Deputy’s question.