Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to reform the existing guardian ad litemsystem. At present, guardians ad litem, GALs, are appointed by the court for children who are the subject of child care proceedings under the Child Care Act 1991. The GAL's role is to ascertain the views of the child and communicate these to the court. The GAL also makes recommendations to the court as to what is in the best interests of the child. This is an important role that gives a voice to vulnerable children during care proceedings, yet the current legislative provisions do not set out the qualifications and experience necessary to act as a GAL. The status, role, and functions of the GAL are not defined. There is no requirement on the court to appoint a GAL, which means that appointments are ad hocand inconsistent.

The Bill will address these issues by repealing section 23 of the Child Care Act, and inserting a new Part specifically relating to guardians ad litem. The Bill provides a statutory basis for a national GAL service that will provide high-quality assistance to both vulnerable children and the courts. The reforms set out in the Bill have been welcomed by children's rights campaigners and are in line with the Oireachtas joint committee recommendations and submissions received by my Department. The publication of this legislation is delivering on commitments in both the programme for Government and in Better Outcomes, Brighter Futures, the national policy framework for children and young people.

I would like to discuss some of the policy considerations that informed the development of the Bill before I outline the main provisions in detail. The children's right referendum of 2012 saw the passing of the thirty-first amendment to the Constitution. In addition to recognising children as rights holders, the thirty-first amendment provided that, in the resolution of all proceedings involving children, the best interests of the child are the paramount consideration. In recognition of this, the Bill specifically provides that in any proceedings before a court in relation to the care and protection of a child under the Child Care Act, the court is obliged to regard the best interests of the child as the paramount consideration.

The Bill further provides that where a child is capable of forming his or her own views in any child care proceedings, the court must determine how to facilitate the child in expressing his or her views. The court must then give due weight to any views the child wishes to express, having regard to the age and maturity of the child.

In its 2015 annual report, the Comptroller and Auditor General considered the guardian ad litemservice.

The report noted a lack of transparency surrounding selection, registration and vetting of GALs. It also highlighted a lack of oversight regarding costs and found that payments made to GALs in Ireland appear to compare unfavourably to the contracted early rate of GALs in other common law jurisdictions. The report further expressed concerns that while GALs in this country are paid a standard hourly rate, they do not necessarily deliver a standard service.

Under the current legislative provisions, a GAL may engage legal representation if he or she feels it is in the child's best interest to do so. The selection and appointment of legal representation is a matter for each individual GAL as GALs are not employed or managed by a public body. This situation means that despite the large sums of money involved, there is no open, competitive, tendering process in place for legal representation for GALs. The Comptroller and Auditor General report, therefore, recommended that my Department examine options for engagement of legal representatives by GALs. This issue has been addressed in the specific section in the Bill on legal representation for GALs.

Deputies may be aware that a similar Bill to regulate GALs was introduced in 2019 and fell with the dissolution of the previous Dáil. The lapsing of that Bill gave my officials further opportunity to consider issues that have been raised by stakeholders and to further refine its provisions. The general scheme of this Bill was then examined by the Oireachtas joint committee in pre-legislative scrutiny. The committee's report focused on two key issues that have been the subject of lengthy debate. These are the appointment of GALs and the status of GALs. The committee recommended the mandatory appointment of a GAL in all proceedings before the court under the Child Care Act. The Bill provides for mandatory appointment in all proceedings under section 25 of the Mental Health Act 2001 and in special care proceedings before the High Court. I believe the automatic appointment of a GAL for a child in these types of proceedings is an important safeguard for a child who could potentially be deprived of his or her liberty. However, in relation to all other childcare proceedings before the court, the Bill provides for a presumption in favour of appointment.

I have considered the recommendations of the committee and have decided to retain this presumption in favour of appointment rather than making appointment compulsory. I am of the view that imposing mandatory appointment of a GAL on an older child, who clearly articulates that he or she does not want a GAL, would be disregarding the voice of that child. It would deny children the opportunity to make a direct input into crucial decisions affecting their lives in circumstances where they may prefer to engage directly with the court rather than through a GAL. The presumption in favour of appointment should also be considered in conjunction with proposed family court reform. By not providing for mandatory appointment, we are attempting to avoid rigidity in how a child or young person may engage with a court. The specialised family courts may, once established, be able to provide alternative mechanisms for hearing the voice of the child in addition to, or instead of, a GAL. I believe that providing for a presumption in favour of appointment is the most appropriate course of action. This approach is one that is supported by many stakeholders, including the special rapporteur on child protection.

The Oireachtas joint committee also considered the issue of whether a GAL should be a party to the proceedings. While providing that GALs have all of the necessary powers to fulfil their role, the Bill confirms that the GAL is not a party to proceedings. However, the Bill explicitly confirms the discretion of the court to allow a GAL to exercise certain party-type rights, where appropriate, in the child's best interests. The court may also direct GALs to carry out further duties, as the court considers necessary, in the interests of the child and in the interests of justice. I have considered the recommendations of the committee carefully and while some differences of opinion remain, I believe the Bill addresses many of the concerns raised.

I will now turn to the provisions of the Bill. Section 1 sets out the definition of key terms used in the Bill. It defines the Child Care Act 1991 as the principal Act. Section 2 provides for the repeal of certain provisions of the Child Care Act 1991 and the Child Care (Amendment) Act 2011. These repealed provisions will be replaced by the provisions of this Bill. Section 3 amends the interpretation section of the Child Care Act 1991 for the purpose of inserting a definition of the data protection regulation. Section 4 amends the principal Act by substituting a new section 24 for the existing section. The purpose of this amendment is to reflect the intent of Article 42A of the Constitution by confirming that in any childcare proceedings under the principal Act, the court must have regard to the best interests of the child as the paramount consideration. Section 5 inserts a new section 24A into the principal Act. The new section provides that where a child is capable of forming his or her own views in any proceedings under the principal Act, the court must determine how to facilitate the child in expressing those views. The court will be required to give any views that the child wishes to express due weight, having regard to the child's age and maturity.

Section 6 amends the in camerarule by inserting a new section 5B into section 29 of the principal Act. This new subsection provides that the Minister may grant an approval to an official, which will enable that official to attend childcare proceedings in specific circumstances. An approval may be granted if the Minister is satisfied that attendance by an official would assist in the promotion of good practice by GALs or where such attendance would assist in the review of the operation of the Child Care Act. These amendments provide clarification on the documents that the Child Care Law Reporting Project may also access.

Section 7 inserts a new Part, relating to guardians ad litem, into the principal Act. This new Part comprises sections 35A to 35Q. Section 35A sets out the definitions used in this Part. Section 35B specifies that a person is not appointed as a GAL for a child unless an order directing such an appointment has been made under this section. It provides that the High Court will appoint a GAL for all children in special care proceedings. It creates a presumption in favour of the appointment of a GAL in proceedings before the District Court. Where the District Court decides not to make an order appointing a GAL, the court will be required to give reasons for this decision in writing.

Section 35C requires the Minister to appoint a GAL where an order is made by the High Court or the District Court, or if the court has made a direction to keep proceedings under review. Section 35D deals with the provision of legal advice and legal representation for GALs. It requires the Minister to provide legal advice and legal representation to GALs appointed in special care proceedings. The Minister will be obliged to arrange for the provision of legal advice to GALs who have been appointed for a child in proceedings before the District Court upon request. The Minister may also arrange for the provision of legal representation to a GAL in the District Court, if the Minister considers it is in the best interests of the child to do so, having regard to the list of factors set out in this section.

Section 35E sets out the functions of a GAL. A GAL will be required to ascertain the views of the child, where the child is capable of forming his or her own views. Having considered those views, the GAL is then required to make recommendations to the court on what is in the best interests of the child. This requirement to make recommendations to the court also applies in circumstances where a child is not capable of forming or expressing his or her views or where the child is unwilling to express his or her views. The GAL is required to furnish a report to the court that sets out the views of the child, the GAL's recommendations and the rationale for those recommendations. Having regard to the child's age and maturity, the GAL will also be required to inform the child of the recommendations contained in his or her report. The GAL must also inform the child about the outcome of the proceedings, and any other matters relevant to the proceedings, that he or she considers appropriate. The GAL must also inform the court of any additional matters that are relevant to the best interests of the child which come to his or her attention during the course of the performance of his or her duties. GALs may also be required to perform such additional functions as may be directed by the court. When determining whether to direct the GAL to perform additional functions, the court is required to have regard to the nature of the case and to consider whether directing the GAL to perform additional functions is necessary and in the best interests of the child.

Section 35E further provides that a GAL is independent in the performance of his or her functions and, in performing those functions, the GAL will regard the best interests of the child as the paramount consideration. The section explicitly provides that a GAL is not a party to the proceedings. However, under subsection 11, the court may, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interests of the child and in the interests of justice to do so, order that the GAL shall have such party rights as it may specify. The court may specify whether the exercise of these rights is for the entirety of the proceedings or in respect of particular issues in the proceedings.

Section 35F sets out the powers of a GAL and provides that a GAL is permitted to apply to the court to request that a report be obtained on any question affecting the welfare of the child. A GAL may make an application where there is no existing report, or where there is a report but the information contained within it is out of date. Before making an application to the court, the GAL is required to consult the parties to the proceedings, or the counsel or solicitor, if any, representing the parties.

Section 35G allows the GAL to make a request to Tusla for information relating to the welfare of the child which is necessary for the performance of his or her functions. Subject to the general data protection regulation, GDPR, and the Data Protection Act 2018, Tusla is obliged to comply with such a request. In the event that the agency refuses to comply with a request from a GAL for information, the GAL may apply to the court for a determination on the dispute.

Section 35H specifies the circumstances in which an order appointing a GAL in either special care proceedings in the High Court, or proceedings in the District Court, ceases to have effect. It further provides that where a child for whom a GAL has been appointed becomes a party to the proceedings, the court shall determine whether the order appointing the GAL ceases to have effect.

Section 35I provides that the Minister will pay any reasonable costs or expenses incurred by a guardianad litemwhile exercising his or her functions under this Bill on or after the relevant date.

Section 35J provides that the Minister may develop a regulatory framework for the purpose of ensuring that guardians ad litem are held to high professional standards when performing their functions under the Act.

Section 35K provides that the Minister may ask a GAL to provide information relating the guardian's functions, including information relating to the proceedings in which the guardian ad litemhas been appointed. Subject to the general data protection regulation and the Data Protection Act 2018, a guardian ad litemis required to comply with such a request. This provision allows for the appropriate management and supervision of guardians ad litem.

Section 35L provides that the Minister may issue an authorisation to those persons he or she considers appropriate to perform the functions of a guardian ad litem. A person will not be considered as an appropriate person to perform the functions of a guardian ad litemunless he or she fulfils the requirements which are to be set out in regulations to be made under this section. The regulations may prescribe matters such as the particular professions from which guardians ad litemmay be authorised and the qualifications and minimum levels of professional experience required. It is intended that guardians ad litemwill be required to hold relevant qualifications in social work, social care, psychology or psychiatry, with at least five years' experience.

Section 35M provides that a person who has been authorised to act as a GALis required to notify the Minister in writing of any relevant matter which would affect his or her authorisation within the timeframe specified. “Relevant matter” is defined as a criminal record within the meaning of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

Section 35N sets out the circumstances in which the Minister may revoke the authorisation of a guardian ad litem.

Section 35O sets out the circumstances in which a GALauthorisation will cease to have effect. It further provides that where a guardian ad litemhas been appointed for a child and his or her authorisation is due to expire before the conclusion of proceedings, the Minister has the discretion to extend the authorisation.

Section 35P provides that the Minister may enter into contracts for service and issue an authorisation with persons considered appropriate to perform the functions of a guardian ad litem. This will enable the executive office to operate a panel of guardians ad litemon contract. While it is intended that the vast majority of guardians ad litemwill be directly employed by the executive office, this provision is intended to allow some flexibility. It may, for example, be necessary to be used where a GAL needs to be appointed for a child who lives in a very remote area and no employed guardians ad litemare available in that location.

Section 35Q sets out the transitional arrangements which will apply. These arrangements will ensure that there is minimal disruption to ongoing childcare proceedings in which a GAL was appointed before the date on which this Bill comes into operation.

Section 8 makes consequential amendments to the principal Act in order to insert references to the new part on guardians ad litemwhich is proposed to be inserted by this Bill.

Section 9 amends section 71 of the Children Act 2001 for the purpose of inserting a reference to the new Part which is proposed to be inserted by this Bill.

Section 10 amends section 25 of the Mental Health Act 2001 by substituting a new subsection for the existing subsection 14. The new subsection provides that in proceedings before the District Court relating to the involuntary detention of a child, the court must appoint a guardian ad litemfor that child and, furthermore, the GAL is entitled to both legal advice and legal representation for the proceedings.

Section 11 amends the National Vetting Bureau (Child and Vulnerable Persons) Act 2012 by inserting a reference to guardians ad liteminto Schedule 1 to that Act. The purpose of this amendment is to ensure the provisions of the vetting legislation apply to guardians ad litem.

Section 12 amends Schedule 2 to the Children First Act 2015, which sets out a list of mandated persons under that Act. Its purpose is to ensure that guardians ad litemcontinue to be included in the list of persons who are obliged to make mandated reports to Tusla.

Section 13 is a standard provision that provides for the Short Title, collective citation and commencement of the Bill.

Deputies will have noted that the Bill does not explicitly provide for the establishment of the guardian ad litemexecutive office. Instead, it gives the Minister all the necessary powers, including regulation making powers, to establish the office. It also provides for a transitional period in the first year of operation in order to ensure that there is a seamless transition from the current system to the new national guardian ad litemservice

Before I conclude, I draw the attention of Deputies to one final matter. The Government wants to ensure that Ukrainian children have a right to access subsidised childcare services under the Childcare Support Act 2018 via the national childcare scheme, NCS. Working with the Attorney General, we are considering whether this requires a small amendment to primary legislation. I am mentioning this issue as, depending on what the advice is, I may need to bring an amendment to the Childcare Support Act on Committee Stage of this Bill.

The purpose of reform in this area is to regulate and expand the provision of GAL services in a consistent manner across the country. The provisions of the Bill will enhance the rights of children and the capacity of the courts to make the right decisions in helping children and their families.

The Bill will help our legislation to better reflect the ideals of the thirty-firstamendment of the Constitution and, most important, it will put these ideals into practice in a very real manner in childcare proceedings. Under this Bill, GAL provision will no longer be ad hocand unregulated, but will instead be an organised service that will benefit children regardless of where they live in the country or where their case is heard.

This Bill covers a crucial section of much wider legislation, the Child Care Act 1991, which is currently under review in its entirety by my Department. This reform also takes place against the backdrop of a much greater programme of change, namely, the planned creation of specialised family courts. I look forward to bringing forward that significant amendment Bill to the Child Care Act 1991, probably in the next year, and I look forward to working with the Joint Committee on Children, Equality, Disability, Integration and Youth on progressing significant reforms and modernisation in that area.

I commend the good work that many guardians ad litemdo across this country, supporting children in very vulnerable situations around public law childcare proceedings. We are grateful for their support and work to create an even better service for all children in every part of the county. I thank them and all the stakeholders who have contributed to the development of this Bill. I am pleased to have had the opportunity to outline its provisions and I look forward to hearing Deputies' responses. I also thank the joint committee for its very swift work in bringing forward its recommendations. I commend the Bill to the House.

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