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.