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

I thank Deputy Funchion for these two amendments. I will speak to both amendments because they are linked. I thank Deputy Sherlock for his contribution. I am not in a position to support these two amendments. I hope I can clarify why that is.

In terms of the amendment No. 1, my concern is that the use of the word "represent" could be interpreted as active representation. This would conflict with the policy position that a guardianad litemis not a party to proceedings in every circumstance. The Bill before us has calibrated the power of guardians ad litemto enable them to perform their functions. The formulation of the amendment goes further than the existing functions of the guardian ad litem. These are to ascertain views and make recommendations regarding what is in the child’s bests interests. A requirement on the guardian ad litemto identify the child’s bests interests in the proceedings could go far beyond informing the court of what is in the child’s best interests. It could be interpreted as meaning active representation and the power of the GAL under this Bill is not in accordance with such a function.

Under the principal Act, GALs are not a party to proceedings and they do not have the status of a party. At the court’s discretion, they have sometimes been permitted to exercise party-type rights. I am aware that during the discussions in 2019, prior to me becoming a Member of the Oireachtas, Deputies, and I am sure both Deputies present here, expressed concerns about the status of guardians ad litem in proceedings. On foot of these concerns, when I came into office and was reviewing the draft legislation, I asked my officials to revisit this issue and explore the issue of party-type rights for GALs with the Office of the Attorney General. As a result of that, a new section was added to this legislation, which is section 35E(11). This subsection provides that the court may, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interest 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. This means the court can specify that a GAL can have party-type rights and what those party-type rights are. The court my specify whether the exercise of the rights is for the entirety of the proceedings or in respect of particular issues in the proceedings.

I am satisfied that the Bill, with that addition to it, gives GALs wide-ranging powers to exercise their functions while also providing for the flexibility for the court to grant them additional party-type rights as required. I think that is the degree of latitude the Deputy was speaking to, that it gives the court the right to give party-type rights where the situation requires it. We do not believe they should be given as a basis in absolutely every type of situation, but we are giving the court that discretion now. That party-type right comes from a High Court decision from a number of years ago where a judge spoke to that, and we thought we would codify that approach. What is proposed in the legislation gives that approach and that is why I am not in the position to accept Deputy Funchion’s first amendment.

In terms of amendment No. 2 and the issue of the witness and this idea that the guardian ad litemwould be relegated to the status of the witness, that is not our intention. I hope I can provide some reassurance here, but I also have a concern that by deleting the text about witnesses, as is proposed in part of the Deputy’s amendment, we think there is a risk that what she is proposing – I imagine this is inadvertent – may result in a fact that a guardian ad litemcannot ever be called as a witness. I do not think that is what anyone intends, but that would be problematic.

The amendment proposes to delete the existing section 35E(8) and to substitute text to provide that guardians ad litemmay inform the court in relation to any matter concerning the welfare of the child. The text that is being deleted is the text that refers to the possibility of guardians ad litembeing witnesses.

I would like to clarify that the purpose of the existing wording is not to limit the role of a GAL to that of a witness. There is no intention that this would be the case. The purpose of the existing provision is to allow a guardian ad litemto be sworn in. If this provision is deleted, it could potentially disadvantage situations where it is valuable for another party to call a guardian ad litemas a witness. For example, a parent who is a party to a case may use the existing provision to call the guardianad litemas a witness and get their sworn testimony. I think most people would see that is positive.

This reference to a GAL being called as a witness does not exist in isolation. It has to be read in conjunction with other parts of the legislation, particularly Part VA. When the new Part VA is considered in the round, we would argue it is clear that the role and status of the GAL goes far behind that of just witness. For example, under section 35F, a guardian ad litemmay apply to the court to procure a report on any question affecting the welfare of the child where there is no existing report or where there is a report but the information contained within it is out of date. The GAL may also make an application to the court in relation to the provision of information from any person or in relation to any other function which relates to the guardian ad litem’s functions. The GAL may also continue to make section 47 applications. This section, which is already in the Child Care Act, allows them to make an application on any question affecting the welfare of a child in the care of Tusla.

Those are all provisions in the legislation and they demonstrate that the role of the GAL is one that is beyond a witness. I do not think the provision that is proposed to be deleted would restrict the role or status of a GAL to that of a mere witness. I would also say it is a risk to delete that section and it may limit the ability of calling GALs as witness, and there are times when it may be a good thing for a GAL to be called as a witness. I agree it is important that a guardian ad litemhas the ability to inform the court of any concern regarding the welfare of the child to whom they have been appointed.

I believe the second point and the kind of active nature of the amendment Deputy Funchion is proposing is already covered by section 35E, and in particular subsection (2)(c) which states a guardian ad litemappointed for a child shall inform the court of any additional matters, relevant to the best interest of the child, coming to his or her knowledge as a result of the performance by the guardian ad litemof his or her functions. That is a statutory obligation that is in the legislation at the moment. I just contrast that with the language used in the new text that Deputy Funchion is proposing. Her amendment states, “The court may hear from the guardian ad litemin respect of any welfare matter concerning the child.” Deputy Funchion’s provision is a “may” provision, while the existing provision is a “shall” provision. Again, the existing provision is a strong statutory obligation.

We are both looking to achieve the same goal, which is that the guardian ad litemcan input to the court about matters relevant to the welfare of the child but I believe the existing provision, section 35E(2)(c), does it better and is perhaps a stronger manifestation than the one being proposed. I am satisfied that the statutory functions of the GAL as set out in the Bill make clear that the role of the GAL is to assist and be a resource to the court.

The GALs cannot fulfil their statutory duties as set out in this Bill if their role was solely one as a witness and I hope I have demonstrated that is not the case.

We have amended this legislation from the version that was discussed in the previous Dáil to give the court a discretion in each circumstance if it is necessary for that particular case to give a GAL party-type rights and to specify what those party-type rights are. That is an advancement but it does not mean party-type rights in every circumstances. Party-type rights are not needed in every circumstance. Recognising the work the Minister for Justice is doing regarding family courts, we will have much more specialist family courts where judges will be able to recognise when such rights are needed and when they are not.

With regard to the second point, Deputy Funchion and myself are on the same page in ensuring GALs can input on issues relevant to the welfare of the child. There is a strong provision in the legislation already. We are at one in terms of a GAL not being a mere witness - that is not the case and I hope we have demonstrated that is not the case - but I have a concern about that proposal to delete the reference to a GAL appearing as a witness because that is the basis upon which the GALs can be called in cases. I would argue it would be a mistake to remove that.

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