Oireachtas Joint and Select Committees
Wednesday, 8 March 2017
Joint Oireachtas Committee on Children and Youth Affairs
General Scheme of Childcare (Amendment) Bill 2017: Discussion
This committee meeting is to begin our pre-legislative scrutiny of the Childcare (Amendment) Bill 2017 regarding guardians ad litem. We will begin our consideration of this very important piece of legislation by hearing from representatives of Barnardos and the Children's Rights Alliance. Later in the morning the Select Committee on Children and Youth Affairs will meet with the Minister for Children and Youth Affairs, Deputy Katherine Zappone and officials from her Department to consider Revised Estimates for Public Services - Vote 40. I propose that the committee now moves into private session to deal with some housekeeping matters. Is that agreed? Agreed.
On behalf of the joint committee, I welcome Mr. Fergus Finlay, chief executive officer, and Ms Freda McKittrick, assistant director, guardian ad litemservice, from Barnardos. I also welcome Ms Tanya Ward, chief executive officer, and Ms Edel Quinn, senior legal and policy officer, from the Children's Rights Alliance. I thank them for appearing before the committee.
In accordance with procedure, I am required to draw their attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009 witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
Any submission or opening statement made to the committee by witnesses will be published on the committee website after this meeting. I understand the witnesses intend to make a short presentation. This will be followed by questions from the members of the committee on the heads of the Bill. I invite Mr. Finlay to make his opening statement. Following that, we will hear an opening statement from Ms Ward.
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.
Ms Tanya Ward:
I intend to share my time with my colleague, Ms Edel Quinn.
I thank the committee for the opportunity to present on behalf of the Children's Rights Alliance. We unite more than 100 member organisations and it is our goal to make Ireland one of the best places in the world to be a child. We are campaigning for the implementation of children's rights in our laws, policies and services.
We welcome the publication of the general scheme of the guardian ad litem Bill. This is a very important step.
It is an ongoing part of the dialogue that has been happening in this area with the Minister for Children and Youth Affairs and the Department, and we welcome that. There has been extensive consultation in the development of it.
For many reasons, we welcome the establishment of the scheme and of the service. As Mr. Finlay stated, we are dealing with one of the most vulnerable groups of children in the country, namely, those within the child care system. There are approximately 6,500 children in the child care system. Only half of them have judicial supervision or even have the possibility of a guardian ad litembeing appointed. One should be aware that there is a possibility of a guardian ad litembeing appointed in the case of only half of the children in care.
The other point that comes through in respect of many of the children who are in the care system is, as Mr. Finlay stated, that they have been abused and neglected, and have been failed in some way. Through the 17 official reports, we know that the State has failed children in the care system in many different ways and we have to remember that. One of the most important and shocking findings coming from the Ryan report is that children did complain when they were starved and neglected. They tried to complain to various people but they were not listened to. That is why the voice of the child, and ensuring that children can participate in proceedings affecting them, is so incredibly important. We know the cost of not listening to children.
I will outline one or two positives of the scheme and where we might enhance those areas, and my colleague, Ms Quinn, will contribute. The first positive is there will be a national guardian ad litemservice that is established and regulated. That is really important. We know from the report on child care law reporting that there are potential issues in respect of the quality of service that is provided throughout the country. There is some very good service on one hand but we are not sure whether children are getting the best service on the other. That is why regulation is incredibly important.
One matter that is at issue for us is that while guardians ad litemwill be given independent status under the Bill, the service that is to be commissioned will not have independent status. That could be a serious issue for us because the service will be accountable to the Minister for Children and Youth Affairs. The financial management of it will be in the hands of the Child and Family Agency but the service itself will not have an independent status. For example, the Courts Service of Ireland is an independent service. Previously, the then Department of Justice, Equality and Law Reform managed the courts service and there were serious issues around in the courts system's independence because the Department was directly managing it. It could be an issue. If the service itself is not given an independent status in the Bill, the Minister could impose certain restrictions, regulations and funding requirements that could impact on the overall independence of the service.
Another positive in the scheme is that there is a presumption that guardians ad litemwill be appointed in child care proceedings. That is a positive step. We know from the reports on child care law reporting that these are not appointed in all circumstances. Not all children who come before the child care courts get a guardian ad litem. That requirement should be extended to the Circuit Court and to the District Court. There should be a presumption that a guardian ad litemis appointed in all child care law proceedings. That is an important principle that we need in the future.
Another issue coming up in the Bill relates to the role that is defined in the legislation. At present, under the scheme of the Bill, the position regarding the role guardians ad litemwill play is quite circumscribed. Essentially, they will be expert advisers. The role of the guardian ad litemneeds to be extended. I will pass on to my colleague, Ms Quinn, to elaborate and explain, from a human rights perspective, why that is important.
Ms Edel Quinn:
The issue I want to address, as Ms Ward mentioned, relates to the status of the guardian ad litemunder head 6 of the general scheme of the Bill. It is important to ask from the start who is the guardian ad litemand what should his or her role be. For us, the guardian ad litemshould be the child's representative in the court. That flows from the child's right to have his or her views heard, as Mr. Finlay mentioned. Article 12 of the UN Convention on the Rights of the Child - I will repeat it, although Mr. Finlay mentioned it, because it is important - provides that the child has the right to have his or her views heard in all matters affecting him or her, including judicial proceedings, either directly - by speaking to the child directly - or through a representative such as a guardian ad litem. That provision was incorporated into the Constitution as a result of the children's referendum. Under Article 42A, they now have the right to be heard in child care proceedings and for due weight to be given to those views, having regard to the age and maturity of the child. It does not mean that the child's views are the deciding factor but they are considered as one of the deciding factors.
In addition to the role of the guardian ad litemin informing the court of the child's views and advising the court in the child's best interests, over the years the role of the guardian ad litemhas evolved to have a wider remit. In practice, guardians ad litemhave been given legal representation in proceedings. They have fulfilled the role of defending the rights of the child and they have had a similar status in child care proceedings to the parents or Tusla. That has meant that they have been able to vindicate the child's rights where there has been a gap. As has been mentioned by both Mr. Finlay and Ms Ward, under head 6 of the general scheme the status of the guardian ad litemwill be as a special type of expert witness, and that reduces and dilutes the role of the guardian ad litemto a large degree.
In effect, what can the guardians ad litemdo today? They have the crucial role of being able to cross-examine witnesses. They can cross-examine parents. They can cross-examine Tusla where there might be a bad decision that is not in the child's best interests around the allocation of resources. Critically, they can take appeals against bad decisions. They have full access to reports in respect of the child. They can attend meetings with professionals such as, for example, to get a child assessed for psychiatric needs. They can liaise with a child and his or her parents around access.
We understand that they will not be able to undertake any of those roles under the new scheme. They will simply be able to make a report to the court. We see that as a big problem. One of the big questions to be answered then is who will fulfil this role if it will not be the guardian ad litem? Who will undertake that role of vindicating the rights of the child in the proceedings? These are fair procedure rights that a child is entitled to, and the High Court recognised that recently in a case before Christmas. Ms Justice Marie Baker recognised that right. In order for those fair procedure rights to be vindicated, the guardian ad litemshould have legal standing in proceedings to represent the child and the child, through the guardian ad litem, will then have an equal standing in the proceedings to other parties.
To wrap up, this function of the guardian ad litemwhere it has had this wider remit predates the children's referendum. It would be a sad state of affairs if children were left with inferior rights as a result of the status of the guardian ad litemnow as opposed to before the children's referendum.
Ms Tanya Ward:
It is not only Tusla that will need to be held accountable in these scenarios. Potentially, the judge could make a decision that the child would need to question, and challenge, as well. It is an important check and balance in the system to ensure that decisions are made in the best interests of children. As one can imagine, social workers throughout the country can be overburdened with high volumes of cases. Perhaps they are not able to give a child the attention that he or she needs. Perhaps their supervisor takes a particular view on something or perhaps the judge takes a particular view on something. There needs to be someone there to defend and vindicate the rights of the child. Sometimes the parents can do that but, as one can imagine, it is difficult for a parent, if, for example, he or she has been prosecuted for neglecting his or her child, to play that special role.
As a final point, to echo what Mr. Finlay said, we recognise that a real attempt has been made to restrict the role that Tusla has in the management of the money in respect of the guardian ad litemservice in the scheme but, from an independence perspective, it would be much better that Tusla would not have a role in managing the moneys around the guardian ad litemscheme. It could be the Department of Children and Youth Affairs or it could be another body. That is really important, particularly in the context of the perception of the system and the perception of independence.
Before I take questions from members and in the interests of everybody present, I wish to obtain clarity from Ms Ward on one point? Can she explain what she meant by saying that there are 6,500 children in care and that 50% of them have the possibility of a guardian ad litembeing appointed?
Ms Tanya Ward:
Approximately half of children in the care system are in voluntary care and an order, either an interim order or a care order, is not sought by Tusla before the courts. Guardians ad litemare appointed at the discretion of judges at present. They are only appointed in 56% of cases, according to one snapshot that the Child Care Law Reporting Project was able to establish.
The difference between those and voluntary care is the 50%. That is what you are getting at.
I thank the witnesses for their presentations. Mr. Finlay started off by saying that Grace and the babies in Tuam have taught us a lesson. Sadly, we need to listen to this lesson. That is the first message. I first came into the Dáil in 1998, around the time the Commission to Inquire into Child Abuse was established. There was an apology from the Taoiseach of the time and so on. We thought that we were recognising what had happened in the past. Nearly 20 years later we are discovering again the appalling neglect and lack of a voice of children in very vulnerable situations. The witnesses have certainly brought that home to me this morning.
Both witnesses have rightly emphasised the issue of a rights-based approach. There has to be a right to a guardian ad litem. In drafting this legislation, my first question would be how we can ensure that every child within the courts system, at least, would have that right, so that it would not just be at the discretion of the judge. I know there are other children outside of the courts system who might also benefit. Are the witnesses satisfied that the legislation does provide this right to every child? If they are not, how can we alter the wording of the legislation? I suspect this will touch on some of the points the witnesses have made already, particularly in their written submissions.
I would like a bit more clarity on how exactly the witnesses believe the system should be run. Both of them have suggested that the issue of guardians ad litembe dealt with directly by the Department, or else by another independent body, rather than by Tusla. The legislation suggests it should be Tusla.
The witnesses have pointed out that the guardian ad litemshould not just be an expert witness for the court but should be the voice of the child. The witnesses have given some documentation around how that should be implemented in their written submissions. Could they elaborate on this? Our job is to feed into the legislation as it is being drafted and to ensure that it is as strong as possible.
I was reading the case studies from Barnardos. One was about Sally, a girl who was in care early on and was given back to her mother's care between the ages of four and six. She was found out in the open with nobody looking after her and was brought back into care again. Eventually it became established that something awful had happened to her in those two years. The guardian ad litemin this case appears to have been involved all the way through, right up to her 18th birthday, ensuring that Sally understood all the way along the line what the care provision was going to be. What I understood from the case study was that the guardian ad litemenabled the child to trust the system. How comprehensive can the role of the guardian ad litembe? Based on that case, it does not appear to be just a matter of appearing in court with the child but seems to be something of a broader role.
I know Mr. Finlay of old and admire his work hugely, as I also admire the Children's Rights Alliance. I have no fear of what the witnesses are saying here today. I admire what they are saying and doing.
I have a couple of questions, though, probably arising out of my own ignorance. Mr. Finlay mentioned that Barnardos has a panel of 32 guardians ad litemworking with 800 children each year. If it comes to pass that we are going to have a guardian ad litemfor every single child who needs our help - we are talking about thousands of children - how are we going to do that? How are we going to have the manpower to be able to look after all these children?
In the past, we have trusted social workers, Tusla and lots of other organisations with the care of our children, yet we have been let down badly in so many cases. Although, with the mother and baby homes situation, we seem to be talking about events that happened more than 50 years ago, our digging is getting nearer and nearer to the present day. Who is going to scrutinise the guardians? Is there going to be a body that will oversee them and ensure that we do not make the same mistake again of trusting without even looking at the possible dangers that can evolve?
I fully agree that it should be a separate body to deal with the financial aspect of funding this. It should not be Tusla. The almost incestuous integration of what is happening in the HSE and bodies like this is too much. We need to have something that is separate, for the children only and nothing else. If the witnesses need any backing or support on that issue I will be happy to give my voice.
I thank the witnesses for their presentations. Never before did we feel such weight as Oireachtas committee members as this morning in respect of the revelations of the past month. The Bill is very welcome. Along with other members, I have been looking for it to come before us for some time. However long it takes us to get it right, we now need to do so - to get this Bill right in its entirety. We need to future-proof it so as not to continue making the mistakes of the past. We will be doing this blind to some extent, without any commission reports or anything. We all need to take a collaborative approach.
I was very much taken aback by the witnesses' presentations. They were fantastic. I know there are 6,344 children in care at this moment. To think that only 1,500 of them have access to a guardian ad litemservice, and that at the discretion of a judge, is shocking. The most important thing that needs to be enshrined in the legislation, with the will of everybody, is the right of the child to be represented, and not just on a discretionary basis. Both witnesses touched on that this morning. Deputy O'Sullivan has also addressed it. We need to strengthen the Bill in respect of that issue.
Considering the balances, checks and controls and the overarching body that needs to be put in place, I am concerned that we would be creating another structure. Will we be able to monitor it? I have a concern around creating another entity, when it may be the case that another body cannot manage it. I have a concern about taking the role away from Tusla because Tusla was set up to protect the child. That was the whole reason it was taken out of the HSE and the reason we have Tusla there.
I think Tusla is still a department in infancy which we need to grow because it has never been given the opportunity to do that as it has not had enough staffing or funding. Coming back to collaboration, it all has to work together. There is a role for Tusla to play here and I am not in favour of leaving it out completely. I would like to hear what the controls, balances and staffing of the overarching body would be.
What has worried me from the various press articles over the past fortnight is that one person who acts as a guardian ad litemservice is getting €300,000 for providing that service. I do not know what controls or checks and balances exist for approving those sorts of services. That is what I want to see happen. If we go back to the Grace case, we see that someone was given an opportunity to provide respite which turned into full-blown fostering and there is no documentation. We need to get the balances and checks from its inception and write that in as part of the Bill. How do the witnesses foresee this working and how would it work with the agency that is in place?
Gabhaim buíochas leis an dá eagraíocht anseo tráthnóna as an gcur i láthair. I will make some general observations first and, if it is possible at a later stage, come back with some specific observations on some of the specific headings. I was very taken with the two presentations in general and I would be very sympathetic to many of the observations. I agree with the idea that a right to a guardian ad litemshould be explicit in law. Unfortunately much of the discussion in recent weeks on the guardian ad litemservice has related to cost and some of the headlines have been misleading, in terms of social workers costing X amount without any real reflection about what service is being provided in the specific instance. That is unfortunate. Obviously, some of this discussion has to take cost and cost efficiency and that kind of thing into account but the priority needs to be the voice of the child. Members of this committee need to be robust in reflecting that this is a very particular service with a very important role.
I am sympathetic and agreeable to the idea that this should be funded and structured separately from Tusla. The fact that Tusla is likely to be a party to so many cases means that it is logical and sensible that over time if some tensions or conflict were to emerge between the body of guardians ad litemand Tusla, there should be a firewall there. How would the witnesses see a national service operating, providing it was independent from Tusla? This is not an employer-employee relationship; I imagine it would be a contract for services type of relationship between the guardians ad litemand other Tusla services.
If this legislation is passed following some improvement, and I anticipate that it will be, a matter arises which I think would be a positive thing, I imagine there will be increased demand and an increase in the number of guardians ad litemrequired. Does the capacity exist within the number of people who are qualified to undertake this role? Will there be a need to bring on more people with the necessary qualifications?
I agree that the presumption should exist that children should be entitled to a guardianad litemand it should be extended to the lower courts. I am interested in the point about the extension of the role. This is largely dealt with in Head 3 where the role is defined largely as that of an expert witness. The witnesses are concerned that it will not be able to undertake some of the functions that it can undertake currently. The Barnardos submission outlines the idea of a tandem model. Could the representatives expand on how that tandem model would work where the guardian ad litemcommunicates with legal representation? I have never seen it in court myself and I am curious about how that works. Do the legal representation and the guardian ad litemcurrently participate in cross examination? Is that potentially cumbersome or is it something that should be the aspiration, where a guardian ad litemconveys the wishes of a child not only to the court but also the child's official legal representation, whether it is a solicitor or barrister?
I have one or two additional questions but that is enough for now.
For a new member like myself, cases such as the Grave case have happened in my lifetime and are very recent, and that has hit it home to me. Not to take away from the other subject which has arisen, which was before my time, for me and for my generation it beggars belief that this took place in our lifetime.
Could the witnesses flesh out in more detail why they would prefer an independent body administering this instead of Tusla? The witnesses mentioned how it is when children reach the age of 18 years that they are most at risk. Could they flesh out the areas of improvement they would like to see to help children who are reaching adulthood during that transition period?
Apologies for my late arrival. I have previous experience of working as a barrister with a guardian ad litemand I have been through that process so I understand how the court process works. It appears that the legal representation provided to a guardian ad litemis almost a certainty; most guardians ad litemare represented in court. The proposals with regard to the qualifications that a guardian ad litemshould possess include that they should be a qualified social worker with five years experience. If the guardian ad litemis to retain the ability to make court applications and engage in those legal processes, do the witnesses feel that those qualifications are sufficient or should some legal training be provided? The huge cost associated with the guardian ad litemis often the hiring of their barrister. If the guardian ad litemwants to retain the ability to make these applications, which are quite basic and over time they would be making the same applications time and again, how would witnesses feel about the development of a one year diploma course or certificate in legal studies, for instance, that each guardian ad litemwould have to achieve before they would be able to act in that particular capacity? This is a long-term plan but maybe it is something that we should work towards in terms of efficiency and cost saving and getting rid of the necessity to hire a barrister on every occasion.
I agree with the presumption of representation or the presumption of a guardianad litembeing appointed. Every child should have representation in court and it should not be at the discretion of one individual. However, I would say that the justice system does act very well in this regard and judges would be very mindful of this. The application can come either from the Child and Family Services, parents, the guardian, the court, so there are a number of checks and balances there to ensure that a guardian ad litemis appointed if needed. There are probably very few cases where a guardian ad litemis not appointed where one is needed but I agree that in law we should enshrine the presumption that one would be appointed. That is a very sensible approach.
Fears were expressed by Deputy Rabbitte and others about retaining the services under the remit of Tusla, but I wonder if we move it to somewhere else, do we get rid of those risks or would we create other problems? We could have the same problems with another organisation. Can we work with what is there to put further checks and balances in place and see if that service works properly? I agree with Deputy Rabbitte that it is an organisation in its infancy and instead of discarding that link we could work to improve it and address the concerns that have been expressed around that. Ultimately, we want to ensure that the guardian ad litemoffers an independent assessment and recommendation to the court, that they feel they can operate independently of any other organisation or body and that there is no fear in doing that.
What checks and balances can be put in place to ensure that continues? At the end of the day, guardians ad litemwill be paid from public funds and, therefore, there will always be a link to the State. Perhaps we can make it more tenuous by putting them at a further remove but the link will always be there. How can we ensure that an independent assessment will always be forthcoming and there will be no fear on behalf of the guardian ad litemin providing that?
Mr. Finlay said it costs €5,000 a week to keep a child in care and sometimes up to €10,000. To balance that statement and put it in context, however, more than 90% of the children in State care cost €300 a week.
I have many issues with the guardian ad litemsystem. I am a foster carer but it is disgusting that up to €15 million a year is paid to people to represent a child in court when I cannot access speech and language therapy for a child in my house who has difficulty speaking or access psychological services and supports for a child who is distracted by her home situation. This money gives children a voice in court but they need a voice and supports every day of the week. If what I have read it true, it is deplorable. How many guardians ad litemdoes Barnardos have?
Mr. Fergus Finlay:
The global figures are published every year and I can give the Chairman whatever detailed breakdown he wishes. The figures are published by Tusla and within our own published accounts. Barnardos was paid approximately €3.2 million last year in respect of the guardian ad litemservice it provides. That covered approximately 30 guardians and 800 children. On average, a guardian works with 25 children a year. Guardians are, by and large, employed as independent contractors by Barnardos on a contract for service. They earn, on average, €75,000 a year, which is the same as a social work team leader. Some earn more, some earn less. The cost to Tusla on a per child basis is approximately €4,500.
I agree with the Chairman. There are forms of care which cost very little and the best form of care is the foster care arrangement, which works well for the child and costs very little. Keeping children in care in that way in relationships that work well for them is hugely beneficial to the child and to the child's development but it is also very cost effective because the moment a child needs to go into residential care, the costs multiply significantly. If guardians can help to keep a child out of the residential care system and, particularly, out of the secure care system, they will save the State an enormous amount. That might sound like special pleading but I do not mean it to be that way.
The Chairman declared a special interest and I should also. It is intended that after this Bill is passed, there will be a tender for a national provider. Barnardos will be a competitor in that process. We may or may not be appointed. Whatever happens, what we want is that the best system will emerge. In any definition of the best system, value for money has to be included. There are no two ways around that. Some of the costs involved are indefensible and they need to be addressed.
In response to Deputy Chambers, one of the ways they will be addressed is that a requirement of the tender, as we understand it, will be that the new agency to be established will have an in-house legal resource for the precise purpose of ensuring guardians have more training and more access to advice and so on, and they will not always have to have a legal resource standing beside them when they are in court. Currently, particularly in the Dublin area, most cases involving guardians also involve a solicitor, although Ms McKittrick will know better. One in ten or 11 involves a barrister and they tend to be the more complex cases. The right way to get that cost down is to have a system in place where the provider is obliged to support the guardian with an internal resource. That would be cheaper and more effective and would result in guardians being over time much more independent of the legal profession to meet the Deputy's point.
I feel as passionately as the Chairman about the fact that every penny spent on this is not a penny spent somewhere where it is desperately needed. Like him, I have spent 30 years advocating for speech therapy and other essential services. It is a false choice to say that if children are deprived of their voice in court at a moment life changing decisions are being made about them, the speech therapy service or other support services that they need can be more easily afforded. These are not choices we should ask children to make.
Ms Freda McKittrick:
By removing the funding of a guardian ad litemfrom Tusla, it takes away competition. The funding would be ring-fenced. I accept the Deputy's point that if an organisation is to be set up under public procurement, it has to have proper governance. There is no governance at the moment. People practising as guardians ad litemcome into Barnardos on a voluntary basis; they do not have to do so. They can work elsewhere or by themselves. There is no regulation at the moment and that was highlighted in chapter 11 of the Comptroller and Auditor General's annual report in 2015. It is a free-for-all, leading to the kind of difficulties the Chairman is experiencing. The argument that is held up is that to get a guardian, we are sacrificing resources for Tusla. We need to get this out from under Tusla in order that we do not have to make such choices.
On the legal questions, currently the spend is balanced 50:50 between guardian ad litempractice and guardian ad litemlegal fees and we have no oversight regarding the fees. The proposed scheme would provide for a legal department and it would allow us to properly examine legal fees, obtain much better value for money in respect of the legal requirement that is needed, and to get on with our practice while opting for legal representation only when it is needed. It would allow the service to take an overview on when it was required. It is important the guardians ad litemhave a proper standing in court and that they are properly equipped.
Deputy O'Sullivan asked how it can be made a presumption. Under head eight, if a child is going to the High Court for special care, which means that he or she will be detained and their liberty will be restricted in the specialist care unit, a guardian ad litemwill be appointed. Subsection (2) states, "If a child is the District Court or Circuit Court, a guardian ad litemmay be appointed". The intention is that will become the norm but that is not strong enough. If that were to say, "...a guardian ad litemwill be appointed save in exceptional circumstances", that would allow the court to say one was not needed in this case.
Ms Freda McKittrick:
If we knew the courts would be consistent, we could take some comfort form that but we know that they are not. In 13% of cases in Galway, guardians are appointed while it is more than 80% of cases in Louth. I am a guardian and I work on the ground. The child care cases in Galway are the same as they are in Louth and the difficulties and challenges children face in the courts are just the same.
The case studies that we have submitted contain sensitive information that has been anonymised and details have been changed but they are based on real children. Sally did not have a guardian until the day she was taken into a special care unit. She did not have a guardian when she was in an adult psychiatric ward. She did not have a guardian when she was sent home to her mother when she was six. She got one when she went into special care and her guardian and social worker worked hand in hand with the Child and Family Agency to obtain resources. By having a guardian working alongside the social worker, the latter was able to access resources that had not previously been available to Sally. This is the kind of work that we do on the ground.
An element of the Bill that worries me is that guardians ad litem, GALs, are not allowed to cross-examine witnesses. We do not go to court everyday to cross-examine witnesses but when a question arises as to the quality of care that a child has received, we must be able to ask questions of the social workers and the parents if they want their children returned to their care.
Another element refers to how the guardian will not request an assessment in respect of a child. A child might need speech and language therapy or psychological intervention but we cannot ask for that as his or her guardians. Were the provision to read "the guardian may not require" and require us to make a court application, that would be fine, but to say that we cannot cross-examine or request more information puts us in the back seat and takes away from what we are able to do now. We do a great deal of valuable work but there are many more Graces out there as well. That is our worry. When a child who is among the quarter of children who are represented approaches 18 years of age, we are able to argue for a robust aftercare plan for him or her, but we do not know whether the same is happening for the remaining 75%. Tusla's aftercare policy, a matter that we will raise directly with that body, states that children with moderate learning disabilities will not get aftercare workers because that is the HSE's job. There is a gap, which leads to the concern that children with borderline mild-to-moderate learning disabilities are being put into community placements without sufficient protections for their welfare.
Ms Tanya Ward:
This issue entails a range of human rights, the most fundamental being children's rights to protection. When children are subjected to abuse and neglect, the Constitution empowers the State to intervene in a proportionate manner. It can be an intervention in family life, but that can deprive a child of his or her family. It is one of the most serious decisions that can be made about a child. Children have a right to have their voices heard and to participate in proceedings, they have a right to fair procedures under the Constitution, and they have rights in the care system. It is a complex area of law, which would explain why there must be a presumption to have a GAL placed and why legal representation in these proceedings is required.
Ms Edel Quinn:
The legal representation issue is about equality of arms for everyone at the table. As Ms Ward stated, this is a complex area, so it is important that everyone be represented on an equal basis.
Deputy Jan O'Sullivan asked what the GAL system would look like in practice. Our recommendation is that a child who requires a GAL should be designated as a party to the proceedings through that GAL. In this way, the child would have a solicitor. If the child is not designated, however, that would not be the case. By being a designated party, the child's voice would be heard and the GAL would have legal representation. In this way, GALs would have equal standing with children who were joined directly and all other parties to the case, including Tusla and parents.
Ms Tanya Ward:
I will address a few of the other questions. Political and legal accountability for GALs is a major issue. As Ms McKittrick stated, there are no governance arrangements or regulation of the GAL system. Establishing the service and regulating it in law are the first steps. From a legal point of view, GALs can be held accountable by judges, the other parties to a case, Tusla's lawyers and parents' lawyers. This is how it will happen in court. Politically, the State can hold the GAL service accountable.
The Minister for Children and Youth Affairs, working directly with the service, is how the system is structured in the Bill, but this raises an issue of independence in that the service's independence could be undermined by imposing too many restrictions and regulations and not funding it properly, which would mean that it could not provide an appropriate service. This matter needs to be considered.
The issue with placing the service with Tusla is that we live in a small country, so one can imagine the impact on local relationships if a GAL presents a view that opposes that of the Child and Family Agency. What will happen to that information and where will it go? We need to put procedures and barriers in place so as to ensure that there is no possibility of political interference or even the appearance of same. Often, the GAL could be in agreement with Tusla's decision, so it is important that we know that that has been done independently as opposed to because the GAL is being funded directly by Tusla or there is a close relationship between the two. This important issue of accountability needs to be considered.
Deputy Jan O'Sullivan asked about broader independent representation for children in care. Tusla funds Empowering People in Care, EPIC, to provide an independent advocacy service for children in care. This is an important measure, so the service must be properly funded, but having a legal service specifically for the courts is also important. Perhaps the two could be merged at some point.
Regarding training and qualifications, GALs could be trained in a range of fields that would build their capacity to provide a good service, for example, listening to children, working with children who have experienced trauma, and various forms of legal training. Training in how to be questioned and cross-examined is a major part of that. Social workers in Tusla and others must go before courts, but being questioned by judges and lawyers is difficult, so this is an important part of their training.
This matter could be addressed in the legislation, not by specifying what type of training people get, but by specifying that they should get training on a regular basis. There are similar provisions for solicitors. For example, they must amass so many continuing professional development points annually. The same could be imposed on GALs, so they would have to update their own training and experience constantly.
If no other members wish to contribute, I will revert to what we discussed with Mr. Finlay. He referred to it being an either-or choice but that was not my point. Previous committees to this one did not do their work. That is why we are where we are and €15 million or €16 million per year is being spent on GALs, who are unregulated and unaccounted for. In any language, that is wanton waste. The reason for this is the language - mother's apple pie, the voice of the child and however else it is referenced. We must remove the emotion and deal with the hard, cold, clinical facts. There is a finite amount of money for looking after our most vulnerable asset, namely, children who are in need of care from the State. We must ensure that that is done to the best of our ability, which means that we must discuss money. That is why I am at a loss regarding the figures.
I have a bias, but to put it in context, Barnardos spent €3.5 million on providing a voice for 800 children in court. For 300 children, that €3.5 million would have provided food, a roof over their heads, warmth, love and everything else in a home for 365 days of the year.
The point I am making is that that money would provide 300 children with the care they need 365 days of the year, and 800 would get a voice in court. When I talk about choices I am asking if we, as a State, are happy to allow that kind of wanton waste and exaggerated costs and fees to give the child a voice in court when we neglect so many other areas? To put that in context, the €3.5 million would provide 300 children with a roof over their heads, love, warmth and food 365 days a year and would provide a voice in court for 800 children. I am not saying that the voice in court is not needed. Of course it is needed, but there is something wrong if we are allowing that to happen, and it is our fault. I do not expect Barnardos to have raised the cost of guardians ad litem, GALs, as an issue. It would not make any sense for it to do that, but we, and our predecessors, should have examined this issue and asked questions about it. That is where I am coming from in this regard.
I want to make a point about taking the service from Tusla to ensure independence. I do not accept that argument. Tusla has many franchises and avenues. To distil that down to the logic the witness is putting forward, I should not be allowed comment on Tusla in terms of the foster care system. We are all impacted by and connected through Tusla. It would be great if another budget was created somewhere else. A previous speaker made the point that this did not come out of the Tusla budget but if we create another agency, more layers of management and accountability or whatever, that will swallow up massive amounts of the finite resources available that I want to see going to the areas where they are needed. Somebody mentioned early trauma, intervention and care. That is a huge area and if we could get the funding to address that, it would massively transform the area of children in care. There are many possibilities in that regard but we have to watch where the finances are allocated. I do not believe taking it from the remit of Tusla makes any sense on a financial level.
Ms Tanya Ward:
If I could come back on the point about one agency versus the Department. The difference between the voice of the child in court and the right of the child to access speech and language therapy is that the child has a constitutional right to have their voice heard in court. Unfortunately, the child currently does not have a constitutional right to speech and language therapy. We believe children should have that right. That is one of the rights that children have in the Constitution and it is fundamental that it is protected. I agree completely with the Chairman. We failed as a country to regulate the system and it has resulted in massive costs. Why are some GALs getting paid €300,000 a year? That is potentially more than some of the judges and some legal practitioners in the system. I agree with the Chairman. The fact that the Minister and the Department are moving to regulate this area is very important.
In terms of Tusla versus the Department of Children and Youth Affairs, we will not be creating another body by allowing the Department to directly manage the money going to this service. The creation of a new body would be if a new public body was established that involved some level of costs. Overall, in terms of the funding for the service, there will be more demands on the service but not every child needs the same level of support and representation. It is only if a particular problem arises on a case, and that is where the GAL needs to act. If we have regulation of a service, we will have value for money. The current pot of money will be better spent on the current cohort of children in the care system. The point to consider is that we will get a better service for the pot of money available to us. We might not get any savings but more children might be provided with a better quality service.
The Chairman is right to raise the money issue. It is one we need to examine and make sure that whatever is set up brings the maximum amount of benefit for vulnerable children out of whatever money is available. That goes without saying. There is a broader issue about the cost of legal systems in general, which is much broader than our committee's remit, but the enormous amounts of money spent on legal representation at tribunals etc. is a major issue. I support the Chairman's point that we need to examine the issue of value for money in this area but at the same time representation of their voice in court is the right of the child. Other people get legal representation to have their voice heard in court. It is about getting that balance right.
Ms Freda McKittrick:
It is important to stress, in terms of what we are doing, children's rights and the voice in court, that we also act in children's best interests. We advocate and lobby within the social work system and the court system for resources, better care plans for children, interventions and therapy for children. It is not just about going to court and giving the child's views. It is about ensuring that the child's interests are at the heart of decision making.
Mr. Fergus Finlay:
The common ground all of us here have is that if €12 million or €15 million is to be spent on this, it has to be spent properly and in a way that is regulated and accountable and, demonstrably, is value for money, and everybody knows that the current system does not do that. The current system is one whereby 60 to 70 people are enabled, by law and by practice, to invoice the State for work they have done, get that bill paid in an ad hoc, unregulated way. This Bill is proposing to replace that with proper accountability and regulation and better value for money. The Chairman has fought for children in his care. Many of us, as parents, have fought for children in our care. What I know for certain is that the child who has somebody to fight for them will be better off than the child who has nobody to fight for them, but it is not enough to say that. It has to be done in a way that is properly accountable to the State and to the taxpayer. If the Chairman says to me that there has been waste in the system up to now, I will not disagree with that. If we achieve nothing else through this debate other than a sense that we are all committed to providing a value for money system which is capable of delivering real care, prevention and outcomes that save the State money in the long term and that enable other resources to be put into prevention and early intervention for all children, then that is a good thing.
I agree with the Chairman that, to a large extent, this does come down to finances as well. He was correct to make the point that it is a lot of money to spend on a particular service when we cannot get basic psychological services, speech and language therapy and early intervention services for children. It is a fair point to make.
Mr. Finlay said that the average salary paid to a GAL under Barnardos' service is approximately €75,000 and that, on average, they would see about 25-----
-----children during the year, therefore, it costs Barnardos approximately €2,800 per child to pay this contract service. He then said in terms of GALs operating independently or from other service providers it is costing the State approximately €4,500 per child. It is already operating on a more conservative basis than other service providers but those two figures alone have highlighted the lack of regulation and the fact that money is floating around, so to speak, and that no one is accountable for it. Paying €2,800 per child, which is the average figure Mr. Finlay gave for Barnardos, is a good deal of money for a court process for one child and one GAL. It might be wise for the committee to seek to have sight of the terms of the tender process. What the Department is seeking from a service provider in terms of the service they will provide and the legal aspect is the key.
In other words, how will the provision of an in-house legal service work? Will Barnardos hire in two or three full-time solicitors?
Barnardos cannot have in-house barristers; barristers have to be independent and operate as sole contractors. Barnardos cannot have a barrister in situ; he or she would have to transfer over to work as a solicitor. Did Ms Quinn say she wanted to have equal-fire ammunition?
In that case, if proceedings involve other parties who have barristers and Barnardos cannot have its own in-house barrister under the current legal system, it will still have to hire one in and he or she will charge it whatever he or she wants to charge. Barnardos has very little control because there is a market rate. Its legal costs will still be quite high. In reality the salary of an in-house solicitor is also still quite high. Barnardos needs to address the legal qualifications its GALs possess to do their work. I do not see anything wrong with this. If Barnardos requires a person to be a qualified social worker and have five years' industry experience, why not train him or her to do court work? If his or her full-time job will be to operate in court and Barnardos wants him or her to retain the ability to cross-examine and make court applications, he or she is essentially performing a qualified legal role. Why not have him or her properly trained to do it? As a long-term plan, if Barnardos intends to be a service provider or compete for that role, it should think about this. It will not happen in a year's time, but it may happen in five or ten years and Barnardos will have properly qualified people to do the work.
I thank the delegates for their contributions. We have a long way to go in these pre-legislative hearings, but it is appreciated that the delegates have given of their time to answer the questions asked so frankly and clearly.