Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

Reform of the guardian ad litemsystem is welcome. It is an issue with which I have dealt over the years. I have engaged with youngsters and guardians ad litemwho represented particular children.

Guardians ad litemare important in childcare cases; there is no doubt about that. Their role is to convey the voice of the child to a judge to ensure the child's own opinion is heard regarding his or her welfare. That is essential. The age of the child will matter in that regard but the ability to listen and understand what the child requires is important. Guardians ad litem have the option to form their own view about what they think would be in the interests of the child and that does not always match up with the opinions of the child. It is incredibly important to have an expert in these situations who can truly listen to a child and make him or her feel heard and included in these procedures. It is important that children understand the procedures and how decisions will be made on their behalf. Guardians ad litem need to have emotional objectivity. That is also important.

There are approximately 6,000 children currently in the care of the State. I did not hear all of the debate so this may have been said already, but in childcare cases, it is currently up to the individual judge as to whether a guardian ad litemis appointed and the frequency varies by region. As the Minister is aware, a study on childcare proceeding in three counties between 2011 and 2015 found there was complete inconsistency in the appointment of guardians ad litem. In one county, it was the exception rather than the norm, while in another, they were appointed in the majority of cases. The Child Care Law Reporting Project 2013-2014, which collected data on 486 childcare proceedings, found that guardians ad litemwere appointed in only 18% of cases in Clonmel and 80% of cases in Dundalk. Guardians ad litemwere more likely to be appointed in Dublin than in most other cities, with 68% of cases having guardians ad litem. There may be other factors relating to courts that influence those figures but it is important to know that there are differences in the frequency with which guardians ad litemare appointed. It is essential that we remove any kind of postcode lottery in these proceedings. Children should get the same standard of care in court proceedings in Clonmel as they do in Dundalk, Dublin or anywhere else.

There is no definitive published information relating to the frequency of the appointment of guardians ad litemin public childcare cases. This issue is not unique to childcare. We are not very good at collecting data and the absence of those key data makes it difficult to estimate what the demand for the service will be. This legislation makes a welcome shift towards presuming guardians ad litemwill be appointed in all cases, with some exceptions. I recognise the need for exceptions. There will of course be cases where the services of guardians ad litemare not needed, but I wonder whether the exceptions are a little too broad. We have seen the interpretations by judges. Section 35B refers to where “the court is satisfied ... that the best interests of the child can be determined without such appointment being made". I could foresee a situation where a judge would make that judgment call and presume it should be the exception when that is not the case. I am concerned that that provision is a little too open. Given that the current allocation of guardians ad litemfluctuates massively, we need to make sure that discretion is not misunderstood.

The Child Care Law Reporting Project recorded 1,194 District Court childcare cases between December 2012 and 2015. While we can only guess how many of these cases would have required a guardian ad litemunder the conditions outlined in this Bill, it raises some alarm bells about the capacity of the system. The latest estimate I have seen for the number of guardians ad litemin the State comes from a 2015 report, which stated that there were only 65 in the country. One would have to wonder about caseloads. We are deplorable at enacting legislation and not considering its impact on resources, or not pre-empting the requirements with training and so on. Does the Minister have an update on the number of guardians ad litemin the State? Does he have any estimate of the capacity that will be required? Unless that number has increased significantly, it is clear there will be a need for a recruitment drive and training processes if the legislation is to be meaningful from the get-go.

This Bill allows the Minister to set out the requirements to qualify as a guardian ad litem, which were not set out in previous legislation. Setting out this detail clearly will be very welcome, but I have some concerns about previous proposals that guardians ad litemmust have a qualification in social work. While social work qualifications would be incredibly advantageous for this role, we only have so many social workers in the country. We already know about the caseloads in Tusla. Very often, the workload is just not manageable. Social workers become burned out but it also results in queues and that is not satisfactory for anyone. Assuming guardians ad litemwill be required to have a number of years' experience in the sector, I foresee a danger that we will lose badly needed front-line people in the child protection area, particularly social workers. There will be very tough cases and cases that are not so tough and they may well fall into the latter category. We need to ensure the preventative side of child protection is not weakened as a result of a recruitment drive for guardians ad litem.

It is not clear to me why there is no legal provision for the appointment of guardians ad litemin private family law cases. These cases often require written reports on the child’s view. Again, there seems to be very little data about exactly what is happening in practice and how well this system is working for children in that context. If we have come to the rightful conclusion that guardians ad litemare necessary in childcare cases from a children’s rights perspective, it seems a bit out of step to make a distinction when it comes to private family law cases. Was this looked at when the Bill was being developed? If so, I ask the Minister to outline the reasoning for not including it in the Bill.

Overall, setting up a national agency for guardians ad litem is incredibly welcome. While there are some guidelines for guardians currently, there is no oversight or monitoring so this agency is obviously very welcome and much needed. In light of the Kerry CAMHS case and countless others, we need to ensure services for children and vulnerable people have strong governance and oversight structures. This Bill is a part of a wider range of reforms we need in the family court system, where we need to ensure a truly child-centred system is put in place. I welcome that we are dealing with this Bill. I remember speaking on something like this in 2016 or 2017. It seems to have taken a very long time to get to this point but it is welcome that we have got here. I ask the Minister to respond to the points I have made.

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