Dr. Niall Muldoon:

I thank the Chairman for the invitation to present to the committee this morning. Today we are discussing an extremely important piece of legislation that will have a major impact on the experiences of thousands of vulnerable children and young people in Ireland. Before outlining the view of my office in respect of the general scheme, I would like to briefly outline the work of the Office of the Ombudsman for Children, OCO.

The OCO is an independent human rights institution established under the Ombudsman for Children Act, 2002 to promote and monitor the rights of children in Ireland. We examine and investigate complaints made by, or on behalf of, children about the administrative actions of public bodies. We are independent and impartial, acting neither as an advocate for the child nor as an adversary of the public body; we respect and promote local complaints procedures, and we aim to achieve systemic change that addresses the root causes of complaints.

In my work, I am statutorily obliged to consider the best interests of the child and to give due consideration to the wishes of the child, in accordance with age and understanding. I also have a statutory remit to promote and monitor the rights and welfare of children. This involves a number of actions, one of which is to advise on legislation, as I am doing today, and my advice is always informed by my obligation to promote children’s rights.

Since our office was established, some of the most powerful and effective work we have done has been in hearing the voice of young people through consultations. We carried out the "Big Debate" around the children’s constitutional referendum, and we created A Word from the Wise, a collection of personal stories based on complaints we received and which we then presented to the UN Committee on the Rights of the Child. Only last month, we published a report on scoliosis which included the powerful testimonies of three young people who had experienced significant delays before undergoing scoliosis surgeries. What we have learned in our work is that young people have a lot to say, they can have great insight, and most important, their views about decisions that affect them almost always add to the success of the outcome.

I very much welcome the general scheme because the establishment of a nationally organised and managed guardian ad litem, GAL service at a statutory level is a crucial step towards ensuring that children and their rights are placed at the centre of judicial proceedings affecting them.However, in order to ensure that the national GAL service is child-centred, independent, accessible and transparent, I am recommending a number of amendments to the scheme as it stands.

Legislation that informs reform of the current system needs to be underpinned by recognition of guardians ad litemas being first and foremost a service for children to give effect to their constitutional and international rights. It appears that the general scheme is based on an understanding of guardians ad litemas being primarily a service to the courts, with the function of providing support to the courts when they deem it necessary to inform their decision making. This in no way reflects the reality that implementing the rights of children in judicial proceedings is not a choice for adults, but an important legal and constitutional obligation that must be fulfilled. We must ensure that access to a GAL is first and foremost the right of a child affected by judicial proceedings, and then secondarily a service for the courts.

It is our view that the optimal approach to putting in place a national guardian ad litemservice is to establish and properly resource an independent statutory body. Such a body would be given powers to establish a panel of guardians ad litemwho can be appointed by a court in proceedings covered by the legislation. A single, State-funded agency would ensure greater consistency across Ireland. It would be independent and would provide a means to recruit, train and select GALs.

This system would allow for GALs to be employed on a salary and the legal costs of solicitors representing GALs to be better controlled. It would also provide a means for quality control and oversight of the service. This is in line with practices in England and Wales, where guardian ad litemservices are managed by a non-departmental public body, which is accountable to the Secretary of State for Justice, known as the Children and Family Court Advisory and Support Service, CAFCASS.

The establishment of an independent statutory body is important as the general scheme, as it currently stands, would allow for the procurement of a national service by a private body and would largely result in the maintenance of the status quofor a long period of time, with all rather than the majority of GALs operating under the auspices of one external agency. The establishment of an independent statutory body with the broad responsibility for providing children with access to independent representatives would also future proof the legislation, which is crucial. It would ensure that it has the capacity to work towards fulfilling Ireland's international obligations to promote the rights of children involved in all judicial proceedings, not just in child care proceedings. Although the process of setting up an independent statutory body will clearly involve challenges, these can be overcome by forward planning and engaging with all the necessary stakeholders. We should also make use of the learning available from Northern Ireland, England and Wales regarding the establishment and operation of such a model. We can even improve on that.

In commenting on the general scheme, it is also important that I add my objection to those already made regarding Tusla continuing to fund the GAL service. It is essential that this service remains fully independent as GALs will be working closely with Tusla and we cannot allow a risk of blurred lines to exist. In legislating for a statutory GAL service we must ensure that it is done correctly from the beginning. The highest standards of governance should be targeted and achieved.

I have touched on the main recommendations of the Ombudsman for Children's Office, but we have also made a detailed submission to the committee. Members will see that our contribution is driven by the need to remember, at all times, that the children who are availing of GAL services can be extremely vulnerable. The proceedings themselves can be long and complex, and the decisions made have profound and lasting implications for the young people involved. A guardian ad litemcan play an important role in arguing for the necessary supports and therapies for children. However, there is currently no consistency in the appointment of GALs or in the extent to which courts hear the voice of the child in child care cases. The Child Care Law Reporting Project found that of 1,194 District Court cases reviewed over the period from December 2012 to June 2015 on average a guardian ad litemwas appointed in 53% of cases. A GAL was appointed to children in 79% of cases in Louth, but only 13% of cases in Galway. The lack of transparency and structure is an issue. The role a GAL plays must be set out clearly.

This legislation is very welcome but it must provide a child centred and rights based service. In drafting this long called for and extremely important legislation it is essential that we bear in mind Ireland's obligation in respect of children's rights and the progressive realisation of those rights. It is particularly relevant this year, the 25th anniversary of Ireland's ratification of the UN Convention on the Rights of the Child, and also in light of the children's referendum which recognises children's rights at constitutional level and clearly establishes the duty of the Government to protect and vindicate those rights through its laws. Of particular relevance in this context are Articles 42A.4.1 and 42A.4.2, which provide that in the resolution of child care proceedings brought by the State and proceedings concerning adoption, guardianship, custody and access the best interests of the child must be the paramount consideration and the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child. In its concluding observations on Ireland's children's rights record in 2016 the UN Committee on the Rights of the Child, CRC, recommended that measures should be taken to ensure that the effective implementation of legislation recognises the right of the child to be heard in relevant legal proceedings. This legislation is a vital opportunity to do that. There are approximately 6,500 children in care at present. We must strive to ensure that the views of all those young people are properly represented and that we push forward to consider the opinions of all young people involved in legal proceedings.

Finally, in drafting this legislation the rights of children with disabilities, children with mental health issues and the rights of children of all ages and of all abilities must be considered. The CRC highlights that non-verbal forms of communication, including play, body language, facial expressions, drawing and painting, should be used so children can avail of the opportunity to demonstrate understanding, choices and preferences. I thank the committee for inviting me to address it today. I am hopeful that, following consultation with the relevant stakeholders and with a clear focus on the rights of the children involved, this can be a very progressive legislative measure to provide for some of Ireland's most vulnerable children.