Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I thank all the Deputies for their contributions to the debate yesterday and today. Everyone spoke in favour of the Bill in principle and there was a broad welcome for it, which I appreciate. I also appreciate the good, solid and robust work of the committee, under the chairmanship of Deputy Farrell, on the pre-legislative scrutiny. As I indicated in my opening remarks, we took on two of the most significant recommendations from the committee. They were not the only recommendations but one of the matters Deputy Farrell referred to in his contribution was that as we put the guardian ad litem on a statutory basis, it should not be subject to procurement and that is not the case. That was a big decision to make but the committee was correct in recommending that and so we have proposals for same.

Deputy Funchion spoke about the cost issue, of which I am conscious, and we tried to take that into account in the Department in the construction of the Bill in its current form, although we clearly state that cost is a key component in concerns that will drive the reform. However, it is not the only concern and there are more comprehensive concerns and overall ambitions for an office that will be initiated by the Department to oversee this as a new set of processes and regulation that are part of that wider reform.

I will make one or two more general points about the Bill before directly responding to some of the helpful questions and suggestions raised by Deputies yesterday and today, which will assist us as we move to Committee Stage. Several Deputies identified some of the arenas they will be bringing amendments forward in and some concerns they have. More generally, the Bill brings the Child Care Act 1991 into line with the provisions of the thirty-first amendment to the Constitution. Deputy Farrell ended his contribution by saying how important that was. In particular, one of the first Parts was Part 2 of the Bill where in section 24(1) it states that: "In any proceedings in relation to the care and protection of a child, including proceedings before the High Court under Part IVA in relation to special care, the court shall regard the best interests of the child as the paramount consideration.” That kind of phrase is repeated throughout the context of our concern in creating the Bill and also within the Bill itself.

The provision strengthens the child's rights, which is the most important factor in the determination of the proceedings. To ensure the children and young people are always at the heart of proceedings, the Bill provides for a presumption in favour of the appointment of a guardian ad litemin all childcare proceedings before the District Court but this provision also allows for appropriate judicial discretion. A couple of issues were raised around this. Yesterday, Deputy Sherlock referred us to section 35B(3) of the Bill. He quoted from the Bill, which states: "In proceedings under Part IV, IVB or VI the District Court, of its own motion or on the application of any party to the proceedings, shall consider whether to direct that a guardian ad litembe appointed for a child." Deputy Sherlock asked whether that was clear enough and whether we should state explicitly that the judge ought to do this. He raised the question of whether the child has an absolute entitlement to a guardian ad litem or if there is a presumption in favour of a guardian ad litem.

As Deputies are aware, the Bill lays out that there is a presumption in favour, as distinct from whether it should be an entitlement, which was raised in Deputy Funchion's questions around a possible amendment. Deputy Farrell also referred to that. As it stands, there is a presumption in favour, as distinct from an entitlement, which we believe to be important because it may be the case that it is not always the best decision to appoint a guardian ad litem if, for example, a child wishes to have a direct engagement with a judge or if a child or young person wants to speak in a less mediated fashion. That should be left open as a possibility. Having said that, if, having gone through all the matters the judge needs to consider in the appointment and the presumption in favour of appointing a guardian ad litem, he or she decides not to do so, the judge must give reasons for that and must identify how the views of the child will be heard. Although it is true to say there are other mechanisms in other jurisdictions that provide ways of facilitating the views and the best interests of the child to be expressed, in our jurisdiction the guardian ad litem is the way we do that. As it stands, the Bill strikes the right balance to leave it open if it is more in the interests of the child not to appoint a guardian ad litem if the child so wishes but ultimately the judge has to go through a full process because there is a presumption in favour of appointing one. As has been said, we can take that up more directly when we come to Committee Stage.

The Bill also seeks to maintain a balance between the different sets of concerns raised by Deputies Rabbitte and Sherlock yesterday. On the one hand there is the need to ensure the child and young person is at the centre of the proceedings - that is not lost sight of - and on the other hand there is the requirement to ensure that the role of the guardian ad litem does not inadvertently lead to more adversarial or protracted proceedings. The child should be kept at the centre but with a guardian ad litem being there, that facilitates the best possible way of moving through the system to enable what is best for the child.

On some of the comments yesterday, it is not accurate to say the current section 26 makes any provision for a guardian ad litem to be made a party. Accordingly, the Bill does not downgrade the status of a guardian ad litem. Instead, the Bill is seeking to make guardians ad litem available to more children and to children across the country on a systematic and equitable basis. That is in light of some comments from Deputy Funchion as well. The Bill is currently constructed so that it is more appropriate for a child to be made party as distinct from a guardian ad litem being made party. In the Bill, as it is constructed, if that happens, the child or young person can keep a guardian ad litem, whereas currently he or she would not be able to do that. It is more appropriate that the Bill works more in the best interests of the child. It is about the child taking that interest in being made a party rather than the guardian ad litem, which brings a different and an independent perspective.

The guardian ad litem has a special and unusual status in the Bill. Under the provisions of the Bill, guardians ad litem are required to provide a report to the court but to correct a point that was made yesterday, it is not correct to say that the Bill limits them to providing one report. Section 35E(2) states: "A guardian ad litemappointed for a child shall – (c) inform the court of any additional matters, relevant to the best interests of the child, coming to his to her knowledge as a result of the performance by the guardian ad litemof his or her functions." It is not limited, therefore, to just one report from the guardian ad litem. Another progressive aspect of the Bill is that this provision also recognises that in drawn-out proceedings, a child’s views may change and a guardian ad litem may need to come back to the court with an update on the child’s views on any other matter that is of relevance to the proceedings.

The question of an automatic entitlement to legal representation was raised by Deputy Funchion.

As the Bill is drafted, we do not believe an automatic entitlement to legal representation is necessary because it could potentially make cases more adversarial and they may take longer as a result. However, the office to be established will have a legal services unit, so they will always have access to legal advice and representation when needed. Under the Bill, a guardian ad litemalso has a duty to inform the child or young person at the centre of proceedings of the recommendations in his or her report, and of the outcome of the proceedings. The intention is that the guardians ad litemwill be involved throughout the proceedings.

There is a clear consensus among stakeholders, Deputies and committee members that reform is needed as the current system is costly, unregulated and provides no oversight of guardians ad litem. I reiterate, because it was one of the committee's primary recommendations, that under the Bill a new national guardian ad litemservice will be established within the executive office of my Department and Tusla will have no involvement with it. We have been working to plan for the implementation and bringing into operation of that executive office as soon as possible after the Bill is enacted. The decision to establish a guardian ad litem executive office within my Department was taken by the Government.

My officials continue to be open to working with experts in order to hear further views, including those of committee members. We look forward to moving to Committee Stage, and it was helpful in this debate to hear, first, the general welcome of the principle behind the Bill and, second, that Deputies were so clear in identifying areas about which they have questions or in respect of which they may be tabling amendments in order that we can think further about them. I have tried to outline some of the reasons we did what we did, but as always we are open to having a debate and seeing whether there are possibilities or a need for change.

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