Kathleen Funchion (Carlow-Kilkenny, Sinn Fein) | Oireachtas source

The Child Care Act 1991 is currently the primary legislation governing the welfare of children who are in need of care and protection. That Act recognises the principle that it is generally in the best interests of a child to be brought up in his or her own family.

We welcome the progress made with the Child Care (Amendment) Bill 2019 and the Minister's acknowledgement that the current system for the provision of the guardian ad litemservice is flawed and needs to be changed. Through this process of change, it is crucial that the best interests of a child are at the heart of any decision-making affecting him or her and that the best possible advocacy is provided for every child who is in need of representation because these children's lives will be affected by the decisions made in the courts.

The guardian ad litemsystem as it currently operates is not fit for purpose. It is completely unregulated, there is no oversight or accountability and the role of the guardian ad litemis not defined in legislation. The appointment of guardians ad litemin court proceedings is at the discretion of the judge, meaning that access to a guardian ad litemis inconsistent across the State. The provision of the guardian ad litemservice cost the State approximately €46.1 million over the three-year period from 2014 to 2016. That is a considerable amount which cannot be quantified in terms of value for money as there is no clear payment structure in place. I have no personal issue or difficulty with money being spent on the provision of services that benefit children but this system has got to change. We must be able to quantify that value for money. A regulated system can operate on a much more cost-effective basis as evidenced by similar services in other jurisdictions such as those provided by Children's Hearings Scotland.

We need a better service for the most vulnerable children in our society while being able to quantify costs. A huge amount of money is being wasted while, at the same time, an inconsistent and relatively ad hocservice is provided to our most vulnerable children. My biggest issue with and concern about the system relates to its unfortunate inconsistency.

There is much that needs to change in family law in this State and the manner in which we treat children in the courts. There are numerous points I would like to make on how positive changes could happen but, for the purpose of this debate, I will confine my comments to the relevant sections of the Bill that I feel need to be revisited and urgently addressed. I am not a fan of making technical speeches but there are times when they are needed.

Section 35B(2) has the effect that children whose cases are before the High Court and who are going to be placed in special care will always be appointed a guardian ad litem. This is the correct approach and we welcome the fact that this is standard practice. However, children whose cases are before the District Court regarding applications to place them in care - whether with relatives, in non-relative foster care or in residential units - are not automatically entitled to a guardian ad litem. That places affected children at a serious disadvantage and may be unconstitutional. All children in childcare cases should automatically be appointed guardians ad litemto ensure their wishes and feelings are heard in these important proceedings. The latest figures from the child care law reporting project indicate that guardians ad litemare presently appointed in 53% of cases. That means that children do not have that type of representation in 47% of cases. We are therefore seeking to amend section 35B(3) on this basis.

The child involved should be a party to proceedings in order to ensure that he or she has equality within those proceedings. This would be in line with practice that currently exists in Northern Ireland and England. The child's voice must be heard whatever the circumstances and as much as possible, while protecting his or her emotional and psychological well-being.

As the Bill is currently drafted, children may or may not be appointed a guardian ad litem. Subsequently, the child's guardian ad litemmay or may not be able to engage a solicitor as outlined in section 35D(2). Therefore, legal representation is not a guaranteed right for the guardian ad litem. This presents a situation where all parties are guaranteed legal advice except for the child who is at the centre of the case and who the case is essentially about. Of all parties involved, it is therefore the child who has the least representation. The child is at a serious disadvantage in proceedings as one can be assured that the Child and Family Agency will have legal representation, as will the parents if they wish to instruct a solicitor. The child, on the other hand, has a number of hurdles to overcome in order to have a guardian or legal representation. It is surely the vulnerable and innocent child at the centre of the case who should have the most representation, above everyone else, and who should be prioritised. At a minimum, the child should be treated equally. A number of children's rights solicitors have been contacted me to voice their concerns on that point and on the possibility of litigation in the future if this issue is not addressed.

In instances where parents choose not to engage in the court process, or are incapable of doing so, as is often the case, there may be no one to hold the Child and Family Agency to account and ensure that the child's wishes are being taken into account. The latter is another reason to believe that guardians ad litemshould have the right to legal representation on behalf of the children for whom they are advocating. This aspect definitely needs to be revisited.

Section 35G is ambiguous on whether guardians ad litemwill be entitled to all information regarding the case they are in charge of. This may compromise their ability to advocate fully and effectively for the child.

Section 35H should be strengthened to allow the guardian ad litemto be retained in the case of an order being discharged. The Bill is ambiguous on this. As a consequence of the high turnover of social workers, the guardian is frequently the only professional who is consistently involved in the case and who is the constant in a child's life throughout proceedings. We seek assurances around allowing a guardian ad litemto be retained in the case of an order being discharged.

We understand the Bill attempts to limit the guardians' ability to call and cross-examine witnesses. This compromises their ability to advocate fully and most effectively for the child.

In the event that the child is not a party to the proceedings, there is a legitimate argument that the guardian ad litemshould be a party to the proceedings.

If the sections highlighted are amended, this has the potential to be a Bill that could improve the protection of children. However, as it stands, the Bill would have a retrograde impact and would, in fact, weaken advocacy on behalf of, and protection of, the most vulnerable children. I emphasise the recommendation made by the Joint Committee on Children and Youth Affairs which strongly recommended that there should be no involvement of Tusla in the provision of the guardian ad litemservice. This is essential for absolute impartiality. I appeal to the Minister and all Deputies in this regard. There cannot be any overlap between this independent service and Tusla. I sincerely hope the Minister and her officials are open to taking on board our concerns and will consider our amendments in order that we can work together to improve and strengthen this much-needed Bill. Working out where the difficulties lie has always been my approach and that of my party. The Bill has potential for good but we must address these issues which had been raised not only by Sinn Féin but also solicitors working in the area of children's rights who deal with these matters daily and know exactly what they speak of. Perhaps the Minister will meet some of tho relevant groups or solicitors to discuss their concerns.

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