Barry Andrews (Dún Laoghaire, Fianna Fail)

The Child Care Act 1991 provides that in care proceedings under Parts IV or VI, where the child to whom the proceedings relate is not a party, the court may, if it is satisfied that it is necessary in the interests of the child and the interests of justice, appoint a guardian ad litem for the child. This Bill provides a similar provision in regard to special care. The guardian ad litem provides information to the court on what is in the best interest of the child and what are the views of the child. While guardians ad litem are not appointed in all care cases, they are appointed in all special care cases.

Last year, I launched the report of the Children Acts Advisory Board on guardians ad litem and indicated that application of the guidance document would be closely monitored in terms of how it was working in practice. The Ryan report implementation plan provides that the Minister of State with responsibility for children and youth affairs will engage with ministerial colleagues to agree a future policy of management and funding of this service. I have undertaken consultations in this regard and the process is ongoing.

My office has engaged with the Health Service Executive to map the existing guardian ad litem provision, determine costs and establish patterns nationally in regard to their appointment. This exercise is examining guardian ad litem appointments under the Child Care Act 1991 and in special care cases. Until I have been able to assess the impact of the guidelines, the provision contained in the draft Bill should not be changed. However, as I have already stated, once this assessment is completed, required changes in legislation may be considered.

I undertook on Committee Stage to put down an amendment regarding the insertion of a regulating-making power into the Bill. I gave that undertaking, subject to legal advice, having agreed in principle with what Deputy Flanagan was trying to achieve. However, I have been advised that because providing for the regulation of guardians ad litem would have potentially far-reaching consequences, that such regulations would affect the discretion currently enjoyed by the court to appoint guardians ad litem and that it would have the potential to affect the manner in which guardians ad litem currently carry out their function, to regulate as provided by the Deputy can only be dealt with by the Oireachtas by way of primary legislation. It is not possible that such primary legislation would include a regulation creating power to deal with matters of detail - such as the nature of the qualifications and other issues sought to be brought into consideration - but the governing principles and policies required to be provided for by way of primary legislation. Thus, this is a matter that cannot be provided for by way of a stand-alone regulation making power in this Bill, as envisaged by the Deputy. The point is that the Oireachtas cannot legislate in this area by enacting a regulation making power on its own. It must also enact a range of measures setting out the principles and policies governing guardians ad litem to which the regulation-making power, if one was required, would play a supporting and implementing role.

Delegated legislation by way of regulations is a necessary part of a modern functioning state, but such regulations must do no more than implement the principles and policies which have been provided for in the primary legislation which is required in advance of such regulations being made. I indicated that I would accept that in principle, but the legal advice is that we require primary legislation in advance of setting out such regulations.

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