Thursday, 19 September 2019
Child Care (Amendment) Bill 2019: Second Stage (Resumed)
The Child Care Act 1991 is currently the primary legislation governing the welfare of children who are in need of care and protection. That Act recognises the principle that it is generally in the best interests of a child to be brought up in his or her own family.
We welcome the progress made with the Child Care (Amendment) Bill 2019 and the Minister's acknowledgement that the current system for the provision of the guardian ad litemservice is flawed and needs to be changed. Through this process of change, it is crucial that the best interests of a child are at the heart of any decision-making affecting him or her and that the best possible advocacy is provided for every child who is in need of representation because these children's lives will be affected by the decisions made in the courts.
The guardian ad litemsystem as it currently operates is not fit for purpose. It is completely unregulated, there is no oversight or accountability and the role of the guardian ad litemis not defined in legislation. The appointment of guardians ad litemin court proceedings is at the discretion of the judge, meaning that access to a guardian ad litemis inconsistent across the State. The provision of the guardian ad litemservice cost the State approximately €46.1 million over the three-year period from 2014 to 2016. That is a considerable amount which cannot be quantified in terms of value for money as there is no clear payment structure in place. I have no personal issue or difficulty with money being spent on the provision of services that benefit children but this system has got to change. We must be able to quantify that value for money. A regulated system can operate on a much more cost-effective basis as evidenced by similar services in other jurisdictions such as those provided by Children's Hearings Scotland.
We need a better service for the most vulnerable children in our society while being able to quantify costs. A huge amount of money is being wasted while, at the same time, an inconsistent and relatively ad hocservice is provided to our most vulnerable children. My biggest issue with and concern about the system relates to its unfortunate inconsistency.
There is much that needs to change in family law in this State and the manner in which we treat children in the courts. There are numerous points I would like to make on how positive changes could happen but, for the purpose of this debate, I will confine my comments to the relevant sections of the Bill that I feel need to be revisited and urgently addressed. I am not a fan of making technical speeches but there are times when they are needed.
Section 35B(2) has the effect that children whose cases are before the High Court and who are going to be placed in special care will always be appointed a guardian ad litem. This is the correct approach and we welcome the fact that this is standard practice. However, children whose cases are before the District Court regarding applications to place them in care - whether with relatives, in non-relative foster care or in residential units - are not automatically entitled to a guardian ad litem. That places affected children at a serious disadvantage and may be unconstitutional. All children in childcare cases should automatically be appointed guardians ad litemto ensure their wishes and feelings are heard in these important proceedings. The latest figures from the child care law reporting project indicate that guardians ad litemare presently appointed in 53% of cases. That means that children do not have that type of representation in 47% of cases. We are therefore seeking to amend section 35B(3) on this basis.
The child involved should be a party to proceedings in order to ensure that he or she has equality within those proceedings. This would be in line with practice that currently exists in Northern Ireland and England. The child's voice must be heard whatever the circumstances and as much as possible, while protecting his or her emotional and psychological well-being.
As the Bill is currently drafted, children may or may not be appointed a guardian ad litem. Subsequently, the child's guardian ad litemmay or may not be able to engage a solicitor as outlined in section 35D(2). Therefore, legal representation is not a guaranteed right for the guardian ad litem. This presents a situation where all parties are guaranteed legal advice except for the child who is at the centre of the case and who the case is essentially about. Of all parties involved, it is therefore the child who has the least representation. The child is at a serious disadvantage in proceedings as one can be assured that the Child and Family Agency will have legal representation, as will the parents if they wish to instruct a solicitor. The child, on the other hand, has a number of hurdles to overcome in order to have a guardian or legal representation. It is surely the vulnerable and innocent child at the centre of the case who should have the most representation, above everyone else, and who should be prioritised. At a minimum, the child should be treated equally. A number of children's rights solicitors have been contacted me to voice their concerns on that point and on the possibility of litigation in the future if this issue is not addressed.
In instances where parents choose not to engage in the court process, or are incapable of doing so, as is often the case, there may be no one to hold the Child and Family Agency to account and ensure that the child's wishes are being taken into account. The latter is another reason to believe that guardians ad litemshould have the right to legal representation on behalf of the children for whom they are advocating. This aspect definitely needs to be revisited.
Section 35G is ambiguous on whether guardians ad litemwill be entitled to all information regarding the case they are in charge of. This may compromise their ability to advocate fully and effectively for the child.
Section 35H should be strengthened to allow the guardian ad litemto be retained in the case of an order being discharged. The Bill is ambiguous on this. As a consequence of the high turnover of social workers, the guardian is frequently the only professional who is consistently involved in the case and who is the constant in a child's life throughout proceedings. We seek assurances around allowing a guardian ad litemto be retained in the case of an order being discharged.
We understand the Bill attempts to limit the guardians' ability to call and cross-examine witnesses. This compromises their ability to advocate fully and most effectively for the child.
In the event that the child is not a party to the proceedings, there is a legitimate argument that the guardian ad litemshould be a party to the proceedings.
If the sections highlighted are amended, this has the potential to be a Bill that could improve the protection of children. However, as it stands, the Bill would have a retrograde impact and would, in fact, weaken advocacy on behalf of, and protection of, the most vulnerable children. I emphasise the recommendation made by the Joint Committee on Children and Youth Affairs which strongly recommended that there should be no involvement of Tusla in the provision of the guardian ad litemservice. This is essential for absolute impartiality. I appeal to the Minister and all Deputies in this regard. There cannot be any overlap between this independent service and Tusla. I sincerely hope the Minister and her officials are open to taking on board our concerns and will consider our amendments in order that we can work together to improve and strengthen this much-needed Bill. Working out where the difficulties lie has always been my approach and that of my party. The Bill has potential for good but we must address these issues which had been raised not only by Sinn Féin but also solicitors working in the area of children's rights who deal with these matters daily and know exactly what they speak of. Perhaps the Minister will meet some of tho relevant groups or solicitors to discuss their concerns.
As the Chairman of the Joint Committee on Children and Youth Affairs, I am pleased to contribute to the debate on this legislation. I thank the Minister for bringing forward this Bill for discussion. This legislation, at its core, aims to reform the guardian ad litemsystem in a manner which benefits insofar as possible children and young people as possible and ensures the best interests of each child is always the foremost consideration in proceedings.
I particularly welcome the inclusion of section 5 which, taking into consideration a child's age and maturity, not only ensures that a child's views are heard, but that the court must figure out how best to facilitate that child being accommodated in giving their views. It is always of the utmost importance that a child's voice is heard in each case. This applies both in respect of the guardian ad litemsystem and all other aspects of policy which impact children and young people. We must recognise the voice of children and young people throughout Ireland, and we must listen to what they have to say. We in this House are elected to represent our constituents and we must recognise that children and young people are also our constituents, even if they are at not at an age where they have the right to vote.
I am pleased that, when examining the functions of guardians ad litemappointed for children, the viewpoint of the child is treated as a matter of paramount importance in that the guardian ad litemhas a responsibility to ascertain the views of the child and give them due consideration when making recommendations to the court. Furthermore, they are also required to keep the child informed of their recommendations and the outcomes of court proceedings, where appropriate.
I listened carefully to Deputy Funchion who rightly pointed out the concerns of some in the sector, some of which was brought to the committee’s attention in recent weeks and months. Some aspects of the Bill as drafted are appropriate, whereas others deserve discussion on Committee Stage. The Minister has always given due consideration to amendments to legislation before the Select Committee on Children and Youth Affairs, as committee members appreciate, and I am sure she will do so again in this case. Some years ago, when the Minister, who was then a Senator, and I were members of the Joint Committee on Justice and Equality, we discussed the issue of guardians ad litem. I welcome that this Bill takes on board recommendations made by the Joint Committee on Children and Youth Affairs, which were made as part of the pre-legislative scrutiny process. One such recommendation is that the guardian ad litemservice should not be subject to a procurement process. When it comes to protecting our children and young people, we should not be focused on cost saving or any similar consideration.
It is important to address the issue of who can be appointed as a guardian ad litem. I understand the Bill provides the Minister with the authority to make regulations regarding the levels of experience and qualifications required to act as a guardian ad litem. We must ensure that anyone acting in such a position acts on a strong basis from which he or she can best represent and advocate for the child or young person. I understand that it is proposed that individuals, in order to be appointed as a guardian ad litem, must hold qualifications in either psychiatry, psychology, social care or social work and have a minimum of five years' experience. This is most appropriate. Over the years, particularly during my time as a member of the Joint Committee on Justice and Equality, regulations were implemented in various areas and some practitioners, who may have been well-meaning, experienced individuals, did not have qualifications. This presented a difficulty. The bottom line is that a person must be qualified to act in the post. Although experience is an essential component of a person’s qualification, he or she must have training in the relevant sphere in order to provide the best possible service to a child or young person. We should ensure, as we have done in the past, that these requirements are absolute. I would appreciate a commitment from the Minister to ensure such a significant threshold is put in place before someone can be appointed as a guardian ad litemfor a child or young person.
It is positive that the legislation before us is clear on the circumstances relating to the appointment of a guardian ad litemfor a child or young person by the courts and ensures that several factors are taken into account. On this basis, the District Court must have regard to the best interests of the child; the age and maturity of the child; the nature of the issues in dispute in the proceedings; any report on any matter which may affect the welfare of the child; where a child or young person wishes to express his or her views and whether the appointment of a guardian ad litemwould assist the expression by that child or young person of their views in the proceedings; and any views regarding such an order expressed by the child and the parties to the proceedings or any other person to whom the proceedings relate. I listened carefully to Deputy Funchion on the requirement for guardians ad litemduring District Court proceedings. This arose during pre-legislative scrutiny and it is something which I ask the Minister to review at the next appropriate Stage should there be an amendment tabled to the legislation.
It is also positive that, where the court decides against appointing a guardian ad litem, it should give reasons for its decision, and in cases where it is satisfied that a child or young person can form and articulate his or her views in the proceedings, it should find and facilitate a means for that child or young person to do so. Notwithstanding my comments, it should be automatic for someone to be appointed to act as guardian ad litemunless there is a very good reason for not doing so. The child or advocate should not have to fight for one to be appointed.
I have placed particular emphasis on the elements of the Bill directly related to ensuring a child's or young person's views are heard in any proceedings. I cannot overstate the importance of this. Children and young people, who are among the most vulnerable persons in the system, must be heard and we, as legislators, must work to advocate for them in this House. The Bill certainly puts the best interests of our children and young people at the forefront of the guardian ad litemsystem and reflects the spirit of the children's rights referendum of 2012.
I commend the Minister and her Department on the work they have done in bringing this Bill forward. I also wish to recognise the work of the Joint Committee on Children and Youth Affairs in informing the Department's work on the Bill. I look forward to it progressing through the Houses.
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.