Seán Sherlock (Cork East, Labour) | Oireachtas source

I thank my colleague for such brevity given the limited time remaining. We welcome the Bill and its broad policies and principles. We have all been calling for this legislation for some time. The Minister has acted in haste over the summer period and we welcome that on the week the Dáil resumed, the Bill has been published and is before us.

I share some of the concerns Deputy Rabbitte outlined in respect of proceedings before the District Court, particularly in reference to the wording in section 35B where a court at District Court level "shall consider whether to direct that a guardian ad litem be appointed for a child and the court may by order so direct". If I was to read that at face value and read the wording of the Minister’s contribution, she clearly states there is a presumption in favour of appointing the GAL at the District Court level. The following section, section 4, outlines the parameters by which such a GAL is appointed.

If I was to look at it from the point of view of ensuring there is no ambiguity about whether the GAL is appointed for the child, it could be argued that the section 35B provision, especially as it relates to the District Court appointment, should be such that a GAL would de facto be appointed in all cases at District Court level. I am merely posing that to the Minister. There is a school of thought that says de facto it should always be the case.

I appreciate the point the Minister is making in respect of the need for the discretion of the courts and the guidance the judge has now by which he or she can appoint the GAL. I wonder about the Minister’s justification in leaving it open in respect of the District Court. It is one thing for the Minister to say there is a presumption in favour of appointment. That suggests to me that it may or may not happen, and that depends very much on the sitting judge on the day. If the sitting judge is hearing any other number of cases that are not necessarily family law cases or cases that require the services of a guardian ad litemor where the judge, dare I say it, does not necessarily have a specialism in this area, is the Minister leaving a gap which diminishes the right of the child? I would like more clarity on that point. I am minded to defer to the judgment of the District Court in respect of this issue and to leave it to the discretion of the judge, but I would like that point clarified, particularly before Committee Stage, because it could determine whether we would seek to amend it. I will, however, be guided by the Minister on that point.

I seek clarity also on the cost, budget and funding, because if it is the case that it is the Minister’s intention to create an executive office under the auspices of Tusla but acting separately within Tusla, within its own silo, as it were, that is to be welcomed.

The Minister has not spoken to the nature of the service. We are relying on the child care law reporting project for any utterances about the system and how it works. I have never found myself, because of the nature of the proceedings, attending any proceedings. We are therefore somewhat blind, as legislators, as to how the system works in real time. We are depending on experts such as Carol Coulter and the child care law reporting project.

There have been a number of submissions made in respect of the consultation process. I wish to quote from one such submission, which was made by a solicitor in Cork. Mr. Colm Roberts, a solicitor from The Law Centre in North Quay House, made a submission. Under the guise of the policies and principles, he states:

"the purpose of the service is to benefit the child by supporting the court to make interests of the child as the paramount consideration;"

I do not believe the principle as stated is appropriate. I say this as it is my view that the purpose of the service should primarily be for the benefit of the Court and not as worded.

The Guardian ad Litem's ... purpose must at all times be to benefit the court and its responsibility should be its primary purpose. That purpose should not become unclear or confused. It is unhelpful for the GAL to become an advocate in the adversarial process. These issues were commented on by a district court Judge in a decision reported recently in the Child Care Law Reporting Project...

When the GAL becomes too active a participant, he/she can alienate ... [himself or herself] from the parties and be perceived as becoming part of the problem rather than the solution, thus undermining its value and purpose.

It is my understanding that the GAL is appointed by the court to assist it in being fully and freely informed of the wishes of the child, the circumstances of the case and the potentiality of all viable options available in the interests and welfare of the child.

The court and not the GAL must remain the ultimate arbiter in determining the rights of children and parents in these matters to ensure compliance with its statutory, constitutional and ECHR duties.

I take that at face value because that is the voice of somebody who has been working at the coalface for many years, indeed somebody who is well known to many of us as a front-line expert.

It is my wish that there would be clarity about the exact role of the guardian ad litem, GAL, in a prescriptive way enshrined within the primary legislation. I ask the Minister to take on board views such as this because I believe that it reflects a reasonable and rational view of proceedings and it ensures that there is no ambiguity about the role of the GAL. I ask the Minister if she would take on board that particular point or at least, if it is not her view or if it is not her intention to legislate for this submission, to revert to us on Committee Stage.

Finally, we need to talk about the budget, transparency and the costs of the solicitors involved and of the GAL service. It is my party's view that this needs to be enshrined in primary legislation to the point of ensuring there is a report, for instance, laid before the Houses of the Oireachtas, to give us transparency about the exact cost of the service. We have no oversight of that. We know exactly what Tusla is spending on legal fees. Tusla and the Minister, I am sure, would have no problem in breaking down those costs. Some efforts have been made by the Joint Committee on Children and Youth Affairs to seek further information about the true costs of this service, but it would be useful for all of us to have sight of the costs as that would inform us as to whether moneys are being spent in a way that ensures the child - let us not forget this is about children and we must keep a focus on children - is getting the best possible service. Where reports are sought by the courts for access to particular services to be allocated to the child, there should be no excuse made that the services cannot be allocated because no budget is available to provide services for the child but yet the GAL - maybe I speak from a point of ignorance here - has costs for the period of the hearings of possibly hundreds or thousands of euro. A recommendation may be made that a service should be provided for the child, but the child cannot get access to the service that would have cost the same as the GAL because of resource constraints. Does the Minister see the point?

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