Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I believe there is a clear need to radically reform the basis on which the current arrangements operate. They have been operating in that way since 1991, when the guardian ad litem system was introduced by the then Government, without regulation or governance structures attached to the position. That is the genesis of the problems which I must deal with and reform.

In care proceedings under the Child Care Act 1991, a guardian ad litem may be appointed by a court. In accordance with the legislation, guardians ad litem are appointed where the court considers this necessary in the interests of the child and in the interests of justice. Such guardians play a very important role in making the views of the child or young person known to the court.

As I have previously indicated, I will bring forward legislative proposals to reform this area in the current year in collaboration with the Minister for Justice and Equality. My Department is very actively examining all aspects of service provision in this area with a view to the introduction of more regulated and sustainable provision which will address a range of issues, including payment arrangements. The examination is taking account of the potential key elements of a reformed service, which are not in place at present, such as the criteria for the engagement of guardians ad litem, their role and responsibilities, necessary qualifications for appointment and the basis for their remuneration.

As I said, there is a need to radically reform this area. It is a legacy issue which the Department is addressing in liaison with the Department of Justice and Equality. It is part of a comprehensive reform of the legal framework for children’s rights and services which is under way. This includes a number of areas in both public and private proceedings, because the role of guardians applies across both public and private law. Child welfare and protection are relevant in both areas and obviously the role of the guardian is required where decisions are to be made in respect of guardianship, custody and access.

That is part of the collaboration between the officials from my Department and the Department of Justice and Equality. There have been many meetings in this regard to develop the proposals which will form part of the legislation.

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It is envisaged that such a collaborative approach to devising reforms will be of common interest and benefit.

Other reforms which have already been initiated or completed as part of the wider programme of legal reform relating to children are also very relevant. These reforms include the establishment of the Child and Family Agency on 1 January last, the amendment to section 17 of the Child Care Act enacted in 2013 to address the frequency with which interim care orders need to be renewed, the introduction of national procedures relating to court practice by the Child and Family Agency, the examination being given by the Minister for Justice and Equality to the establishment of dedicated family courts and the referral of a draft general scheme and heads of Bill in respect of the Child and Family Relationships Bill to the Oireachtas. This latter proposed legislation, which is being taken forward by the Minister for Justice and Equality, signals the proposed introduction of revised arrangements for guardians ad litem in respect of certain family law proceedings. As mentioned, this is an important context for the collaboration which is under way between both Departments.

With regard to existing guardian ad litem arrangements, under the Child Care Act 1991 the cost of guardian ad litem services fell to be paid by the Health Service Executive. The responsibility for such payments has now transferred to the Child and Family Agency with effect from its establishment on 1 January 2014. The agency does not procure or manage provision of these services in any normal sense since it is the courts which make such appointments and to whom guardians ad litem report. Indeed, given that a guardian ad litem may take a contrary view to that presented by the Child and Family Agency about a case, the agency would be respectful that it is the court that has determined the appointment of the guardian ad litem to act in an independent capacity in the interests of the child. The agency can, however, apply to the court to have the amount of a guardian ad litem's costs or expenses measured or taxed, although additional costs arise in respect of such a process. The existing limitations on the agency’s role in respect of guardian ad litem fees were clarified in a report by the Ombudsman in 2008 regarding the HSE’s handling of the issue.

Both child welfare and protection cases and private family law proceedings can raise issues of considerable complexity and sensitivity that have enormous implications for children. In child welfare and protection, regrettably, the intervention of the courts under the Child Care Acts must be sought on a regular basis - there were in excess of 7,400 full care orders and interim care orders sought in 2012. Guardians ad litem have an important role in many such cases. However, together with my colleague, the Minister for Justice and Equality, I aim to bring forward in the current year proposals for a revised guardian ad litem service that will be more consistent, equitable and economic than that which has persisted since provision was first made in the Child Care Act 1991.

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