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

I thank Deputies for their contributions to the debate. I join everybody in recognising the importance of the GAL system as it currently stands, particularly the work of individual GALs in supporting all children at a vulnerable time in their lives. I have listened carefully to what speakers have said and will consider the issues that have been raised in detail. The purpose of this Bill is to reform the existing guardian ad litemsystem. It provides a statutory basis for a national GAL service that will provide high quality assistance to vulnerable children and the courts.

Notwithstanding the excellent work we all acknowledge is being done by guardian ad litem, GAL, services right now, there is a clear consensus among stakeholders that reform is needed. The current system is costly, unregulated and provides no oversight of GALs. There are very disparate practices regarding the appointment of GALs throughout the State. Deputies Catherine Murphy and Murnane O'Connor referred to the problems we have with that with this postcode lottery. That is not acceptable and must be addressed. This is what we are seeking to do by bringing forward this legislation.

I want to address some of the issues that came up, in particular the issue of the appointments. Deputy Funchion, a number of her colleagues in Sinn Féin and Deputy Bacik raised this issue. This Bill provides for a presumption in favour of the appointment of a GAL in all childcare proceedings before the District Court, for the mandatory appointment of a GAL in special care proceedings, and in all proceedings under section 25 of the Mental Health Act. In those two second categories, those are situations where a child's liberty is at risk. In those situations it would be an automatic appointment of a GAL. In all other situations before the High Court, there is a presumption of appointment. The reason we have gone for presumption of appointment and not mandatory appointment is to recognise that there are children, particularly older children, who are better equipped themselves to bring their views to the judge. That was recognised not just by the Department but also by the special rapporteur on child protection in his 2020 report when he said there should be a strong presumption in favour of appointment but that there also needed to be mechanisms to recognise that some children were better equipped. Indeed, for some children to place the GAL as the mechanism for their views to get to the judge actually undermines their right to their best interest and the right to their voice. We have recognised that the voice of the child is especially important. My officials engaged with the special rapporteur around the language we have used on the points of presumption. The wording has changed from previous Bills but we will examine it. The Bill needs to be reviewed with regard to its operation, as Deputy Durkan has said. There is a three-year review period in there and I believe we can look at it. We have reached a good system here.

Deputy Funchion made the point about an appeal. There is no appeal mechanism, but in the way we have constructed this, in the vast majority of District Court cases, the presumption will be a presumption to appoint. It is not as though the judge can just say he or she does not feel like doing it today. The judge must put in writing why he or she is not appointing or not exercising the appointment. For example, if a child wanted a GAL and was not given one, the judge would have to address this in the written reasoning. It would be very difficult for a judge to abuse that mechanism or be casual in the exercise of it. I believe we have addressed this well, but we can discuss it further on Committee Stage.

With regard to the status of the GAL, the Bill provides the GALs with all the necessary powers to fulfil their role. The Bill explicitly confirms, for the first time, the discretion of the court to allow a GAL to exercise certain party-type rights where that is appropriate. 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.

The question was asked about the status of a witness. The status of a witness is still referenced in section 35E(8). This is to ensure the GAL is part of the case at all times, to ensure the GAL can be called by other parties to give witness and give evidence by other parties, and to make sure the GAL is available to all the parties of the case so that the GAL's insight can be provided. We felt that the designation as a witness was the best way to address that particular point.

A number of Deputies asked about in the appointment of a specific GAL that might be requested by a child. We looked at that and believe it may be difficult to do if the requested GAL has a very high workload and questions arise as to how that might be shifted around and so on. I will talk to the officials again to see if there is anything we can do perhaps to give judges a steer in that particular area. Giving a choice such as "I like her more than him" is hard to do in legislation, but we will have another look at it to see if there is anything we can do in that regard. I recognise that where a relationship has been built by family, it is something we could seek to build on further.

I want to be very clear that there is no interference with access to Tusla files - nothing at all. Indeed, I would say we have strengthened that position by section 35G because where there is a request to access Tusla files and Tusla rejects anything, there is now an option for the GAL to go to court to seek to overturn that. This provision was not there before. It is a fair point to raise but I want to be very clear that we see no negative impact around access to those very important files.

Deputy Murphy raised some very valid points stemming from the ad hocnature of the system at the moment, including how many GALs there are right now. We are actually not sure because there is no register. I believe there are there some 70 GALs at the moment who are actively working. The whole idea behind setting up an executive office, where there are GALs who work directly for that office, is that we will know exactly how many. Furthermore, having panels of GALs will give us that additional flexibility in case we need additional GALs in certain areas. This will allow us much more control over numbers. There will probably have to be recruitments, and we have been very clear in the legislation to widen out the range of professions that can apply to be GALs. It is not just social workers or social care workers anymore. Psychologists and psychiatrists can all apply to be GALs also. This is important.

My final point relates to an issue raised by Deputies Bacik and Murphy as to why GALs are not used in private law situations. There are real issues around the voice of the child in private law family proceedings. Addressing this is part of the work the Minister for Justice, Deputy McEntee, is doing in her wider work on family court reforms. I had a very good meeting with a coalition of groups anchored by One Family. They were raising their concerns about this and about ensuring the family law court reforms were centred on the needs of families and the needs of children. This is one issue they raised and they made reference to an agency in the United Kingdom, the Children and Family Court Advisory and Support Service, CAFCASS, which is for private law cases, to support the voice of the child in those proceedings. Private law proceedings are a matter for the Department of Justice but the issue is being reviewed in terms of the wider family law court reform process. I will continue to engage with the Minister, Deputy McEntee, on this. I am aware the draft heads of that Bill have been published and that it is a priority for the Minister.

My Department is committed to working with experts and stakeholders to ensure the new GAL service is fit for purpose and is enabled to provide the best service to children in childcare proceedings. We believe the Bill does that. It ensures our legislation better reflects the first amendment to the Constitution and, most importantly, it will put the tenets of that amendment into practice in a very clear manner in childcare proceedings. I look forward to engaging further with Deputies on the next Stages of this Bill. I welcome the very strong support that has been shown by all parties for the legislation.

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