Dáil debates

Thursday, 28 April 2022

Child Care (Amendment) Bill 2022: Second Stage


2:45 pm

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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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.

3:05 pm

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I welcome the opportunity to speak on this Bill. It is good legislation. The Minister outlined the ad hocnature of the current system. The work that guardians ad litemdo is an important service. Where it works well, it works really well. However, we must always look at situations where it may not work well or is a little ad hoc.

I have a few questions that the Minister might answer in his response. I welcome the presumption of the appointment of a guardian ad litem. I see the point on the potential difficulty of a mandatory situation. I strongly feel that there is not much point in a mandatory situation if it is not working well and is not fit for purpose. In such circumstances, it becomes a tick-box exercise. I know there is a presumption that a guardian ad litemwill be appointed. Is an appeals mechanism available in cases where someone believes he or she should have been appointed a guardian ad litemand none was appointed?

For me, the crucial element is the status of the guardian ad litem. I am open to correction but I understand that guardians ad litemare sometimes referred to in this legislation as "witnesses". Maybe that has been changed but it is important that the language makes clear that they are representatives because that is exactly what they are. They represent the child's voice and it is really important that they do that, particularly for vulnerable children but also in general. We have had a lot of discussion, particularly in the last few days, around language and its importance. Last night, the House discussed the Birth Information and Tracing Bill. It is important that they guardians ad litemare referred to as representatives rather than witnesses. As I said, I am open to correction in that regard. I was a member of the Joint Committee on Children and Youth Affairs in the previous Dáil which carried out pre-legislative scrutiny of the Bill, and I know some significant changes have been made to the legislation since then. I will admit that it is a change that may have been made of which I am not aware. Are guardians ad litemlisted as representatives? If not, can that be changed on Committee Stage? It is important that guardians ad litemare not relegated to the status of a witness, who have a much different status in court proceedings than someone who is a representative has.

I understand the guardian ad litemis currently entitled to access the full Tusla file.

I notice there is reference to it possibly being able to apply to the court for a file or for a report. However, are they not given that as an automatic right? If not, is that something we could consider changing on Committee Stage?

The three key concerns are whether there is any sort of appeals process if a person feels he or she should be appointed a gaurdian ad litem, GAL, and has not been, the status of the GAL vis-à-viswhether he or she is a representative or a witness and then the matter of accessing the full Tusla file, as currently. Maybe that is still going to be the case and the Minster is referring to potential additional information. The Minister might clarify those two points when he responds.

In general, I welcome the Bill. It is good. As I said, we had it in the last Dáil and it never progressed further so it is good to see it at this Stage. It is important the area is regulated. With anything relating to the voice of vulnerable children, it is important we have it 100% above board.

3:15 pm

Photo of Denise MitchellDenise Mitchell (Dublin Bay North, Sinn Fein)
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I welcome the opportunity to speak on this Bill. I hope it results in the proper regulation of guardian ad litemgoing forward. These reforms should be of real benefit and should bring Ireland in line with best practice. The work of the guardian ad litemis vital. They represent the voice of children in some very complex cases. The voice of children in these cases cannot be lost and it is important their views are front and centre when considering a case that could potentially impact the next few years of a child’s life. I know from my own personal experience the key role GALs play. Children build up excellent relationships with their GAL and there is a real sense of trust. For many kids GALs are a stable and positive influence in their lives and the importance of that cannot be overstated. With the passing of this Bill, GALs will now be properly regulated and this will ensure they are accountable on behalf of the children they represent.

The committee on children conducted pre-legislative scrutiny in February. It had six recommendations and they need to be addressed in this Bill. One recommendation was that a judge would have the ability to appoint specific GALs, especially where the GAL is already involved with siblings of the child. This makes an awful lot of sense given the child will already be familiar with the GAL. I hope the Minister takes that on board. We need to ensure that the role of the GAL is adequately recognised by the courts and as pre-legislative scrutiny recommended, that needs to include the District Court. Dr. Conor O’Mahony spoke about this Bill in recent months and had concerns with the wording around the appointment of GALs. He wanted the Bill to include an automatic entitlement to a GAL. This was also a recommendation of the committee in its PLS report. I hope this is something we can revisit on Committee Stage.

I welcome sections 4 and 5 of the Bill which ensure the best interests of the child are paramount in considering any actions by the court and that the views of the child are properly heard while keeping in mind the child’s age and maturity. Section 7 relates to the regulation of GALs and is quite detailed. It outlines the role of a GAL and the functions he or she needs to allow him or her act in a way he or she believes is in the best interests of the child. This is all really welcome but it is important that the ability for a GAL to challenge proceedings is included and that the GAL has access to Tusla files relating to a child and is protected.

We need to ensure we get this Bill right and that the best interests of children are reflected in every area of it. It has the potential to reform how the voice of a child is heard for years to come and ensure that the child is recognised and prioritised in court proceedings. My colleague, Deputy Funchion, intends to amend parts of this Bill on Committee Stage. I hope the Minister can listen to the concerns that have been raised and that we can all work together to ensure the voice of the child is heard. I hope we work together to make an impact that will really improve their lives.

Photo of Réada CroninRéada Cronin (Kildare North, Sinn Fein)
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I too am happy to speak on this Bill. Like my party colleagues, I am happy to support it in general terms. Guardians ad litemhave at times been a source of public interest and contention when the eye-watering fees paid to a number of them were published. For example, during 2018 guardians ad litemwere paid €8.44 million in fees by Tusla. The legal fees they incurred amounted to a further €6.21 million that year. The guts of €15 million is a lot of money by any standards. In 2017 the Committee on Public Accounts heard the average GAL income was €126,000 the previous year, with one GAL being paid almost €250,000, which the Minister of State, Deputy Madigan, correctly declared to be more than the President of Ireland. The average GAL income of €126,000 was based on 1,000 hours work, which was said to be two and a half times what similar practitioners in England, Scotland and Wales were getting. I am glad to see the Minster is willing to address that here. Then came the necessary reform of the law governing guardians ad litemin the Bill that fell with the dissolution of the previous Dáil.

The current Bill sets out to reform the existing ad hocGAL arrangements for children who are the subject of court proceedings. A key aim of the Bill is to ensure the GAL informs the court of the views of the child where that child is deemed both capable and willing to express his or her views. It also allows the GAL to make recommendations to the court on what is in the best interest of the child, after considering the child’s view. It also sets out to provide for mandatory GALs in all special care proceedings.

On the best-interest-of-the-child principle, I wish to broaden my remarks because this principle has become a kind of holy of holies that some people believe applies to all matters involving children in this State and of course, to our great discredit, it does not. It must and it should. In fact, in the broader State responsibilities, it is simply a mantra that allows for all the feels and statements about upholding the rights of children. It is as if we are saying look at us and how great we are, but it is nothing more than optics. This nonsense is why we have 732 children in special education without a designated school place last year and why we have children's spines turning into S bends while they await spinal surgery. It is why we have children living in log cabins, on their granny’s sofa, in a prefab or in the recent case of a child in my constituency, a caravan. The child was afraid the caravan would blow away in one of the recent storms. The Minister might therefore forgive me for noting much talk of the lauded and much-promoted best-interest-of-the-child principle is galling for those people who I hear and listen to every day.

The voice of the child is indeed critical and it must be heard. In the context of the family law courts I am aware of a number of section 47 cases where the children told me their voices were not heard at all. I welcome any move that strengthens this provision for our children involving the family courts. While we welcome the Bill, we will be proposing a number of amendments on Committee Stage because it needs further strengthening. For example, we want to ensure the role of the GAL is fully recognised in the eyes of the court and to ensure there will no watering down of GAL access to Tusla files. We cannot hide behind GDPR on that. GALs must have the information they need to give children the best voice, opportunity and protection to which they are entitled.

Photo of Patricia RyanPatricia Ryan (Kildare South, Sinn Fein)
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The need for reform of the law governing the guardian ad litemsystem is long overdue. Guardians ad litemare appointed by the courts to make sure young and vulnerable people have a voice in court when life-changing decisions are being made about them. They advise the courts about the wishes and needs of young people and need to represent the interests of young people in the highly stressful atmosphere of a court.

The current Act, as the Minister mentioned, is over 30 years old and does not set out the qualifications required to act as a guardian ad litem. It does not set out the criteria for their appointment, nor does is it define their role or powers. Sinn Féin will be supporting this Bill. However, we will be proposing a number of amendments on Committee Stage to strengthen it. These amendments will ensure the role of the guardian ad litemas an advocate is fully recognised by the court.

At present, the GAL is entitled to the full Tusla files and we are concerned that access to this could be watered down. Deputy Cronin previously mentioned that.

In 2009, the Children Acts Advisory Board published guidance on the role, criteria for appointment, qualifications and training of GALs. This guidance has become a reference point and must now be placed on a statutory footing. As the Minister mentioned, a previous Bill that sought to address this fell with the dissolution of the Dáil in February 2020.

I visited the Tiglin service at Jigginstown Manor two weeks ago. Tiglin provides a full holistic service for care leavers. It has a warm and friendly person-centred approach which supports the educational, training, employment and social needs of residents and this will be offered to all. Its aim is to empower each resident to achieve independence and to become a valued member of the local community. I cannot speak highly enough of its work and I wish it every success. However, it is scandalous that it receives no Tusla funding because Tusla believes there is not sufficient demand. Tusla needs to revisit this decision because the number of care leavers I have assisted over the past two years would have filled this place twice over.

3:25 pm

Photo of Ivana BacikIvana Bacik (Dublin Bay South, Labour)
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I am glad to speak for the Labour Party in support of this important Bill and to welcome its introduction today. As others have said, it is hugely important that we see regulation in place on the principle and the practice of GALs. Indeed, this is a Bill that has had a long genesis. The Minister alluded to that. A previous iteration of it fell in 2020. It is long overdue.

I should say that I am somebody who, in practice as a barrister, represented GALs in quite a number of cases. I came to know several GALs very well and was hugely impressed by the way in which they carried out their work and by the enormous merit of the GAL process. All of us are conscious that GALs have been operating in an unsatisfactory legal context. There was little set out in law on their role or functions, and yet the seasoned and experienced GALs with whom I worked performed hugely important work in a very traumatic context.

The State exercises one of the most extreme forms of State power when it takes a child into State care and away from his or her parents, who are often themselves in deeply traumatic circumstances and contexts. Obviously, huge issues have to be in place before the State would contemplate this. In these scenarios, GALs often act as an important bridge between parents and social workers. Indeed, they fulfil the important mechanism of conveying to the court what is in the child's best interests or, where the child is old enough, the child's own views. They provided a way of expressing those views and the voice of the child to the court in the years even before we passed the referendum to insert Article 42A into the Constitution, which now requires the voice and the views of the child to be heard. Therefore, GALs have been hugely important.

In my experience, there has been greater concern in many child care proceedings where GALS have not been appointed. This can make court proceedings more difficult and often more protracted. I have seen GALs - sometimes this point is missed - perform a valuable function not only in the substantive conveying of the interests of the child and ensuring the child's interests are protected, but also in enabling the more efficient and effective functioning of child care courts. It is a much better way for a judge to come to make a decision where he or she is presented with a report from an experienced GAL and where the GAL is intervening to assist in the making of very difficult decisions around care proceedings. I say all of that not only to commend GALs but also to defend the system that is operating in spite of this legal vacuum without adequate legislative governance. I welcome the new provisions that will give us for the first time a proper statutory framework for the exercise of GAL powers because these are weighty powers and proceedings where we are talking about children being taken into care.

I am conscious that this is not the final stage in regulating the practice of GALs. This morning, the Joint Committee on Gender Equality heard from the Minister's colleague, the Minister for Justice, Deputy McEntee, who discussed with us the new proposals around the family courts system in the context of measures to address the needs of survivors and victims of domestic, sexual and gender-based violence. There is a real awareness among NGOs and any of us who have worked in the courts system of the current problems that arise where there is insufficient co-ordination between criminal courts and family courts. I refer, for example, to circumstances in which domestic violence issues are before the criminal courts and at the same time there are parallel proceedings in the family courts involving private family matters around custody of and access to a child. It is essential that there would be greater co-ordination in such circumstances. We should have a family court system that can deal with all of these questions together in a unified and co-ordinated fashion that is in the best interests of the survivors of abuse but also, of course, of children who are involved in such proceedings.

I am conscious that, as the Minister has said, there will be fuller legislation coming forward, not only on the basis of the review of the childcare legislation that is being carried out but also on the basis of the overall reform of the family court system. The Minister, Deputy McEntee, has talked about family hubs. In that context, it is worth mentioning one area where GALs are not involved. In private family disputes, we have often extremely protracted, difficult and traumatic proceedings going on around contested custody, guardianship, care and access arrangements in respect of a child. These are scenarios where many practitioners, judges, social workers and, indeed, parents might be of the view that it would be helpful to engage an independent impartial advocate for the child. Judges may, of course, seek reports, such as private reports and written reports, on children's views but it is very different from the GAL process. The Ombudsman for Children, Dr. Niall Muldoon, has expressed concern that children in private family law cases may not be getting the same opportunity to have their views expressed in court as children who are represented by GALs. Therefore, the question of extending a similar mechanism arises. Ms Freda McKittrick of Barnardos, which, of course, runs the country's largest GAL service, has spoken about the need for a family court welfare service - a one-stop shop - which would allow families to access a range of services and thereby enable more joined-up co-ordination when there are a number of different issues before the courts dealing with one particular family. This is part of the broader reform that the Ministers, Deputies O'Gorman and McEntee, have spoken about but it is an important context in which we are debating this particular legislation.

As the Minister stated, the legislation has been welcomed by NGOs and experts alike and there will be longer term arrangements made to ensure the establishment of the new executive office, and this legislation is enabling the Minister to do that.

Looking back at our recommendations from the pre-legislative scrutiny from the joint Oireachtas committee, I will address a couple of those points. Like Deputy Funchion, I was interested to hear what the Minister said about introducing a presumption rather than a mandatory appointment in all proceedings. I take the Minister's point that it may be a better way to ensure the voice and views of the child are heard but we will need to consider that further on Committee Stage because the GAL should be, and normally is, the best way of expressing a child's view. There may be cases, of course, where the child is an older teen and where that is not necessary. The way the Minister has framed the legislation means that the presumption will be displaced where the court is satisfied that it can determine other means by which to facilitate the expression by the child of his or her views. It may be necessary to spell out in a little more detail how that decision is to be made by a judge and that may be part of a broader reform involving more of an overarching family court welfare service.

Another of the concerns the committee had and that we will need to address, perhaps on Committee Stage, is the appointment of a specific guardian ad litem. Other speakers have raised this issue. Where a guardian has been involved in respect of a child's siblings, for example, or has knowledge of a particular family, there should be a facility whereby the court can appoint that specific guardian.

The issue of the access of the guardian to information from Tusla was raised at the committee. Section 35F gives the power to the court to order a report on the application by a guardian for same. Section 35G gives the guardian the power to request information from Tusla. I see there is a mechanism for the court to adjudicate when there is an issue about access to information. My own experience, and this is self-evident, is that the guardian process is at its most effective when full information is provided and, indeed, that is the practice because without that, the guardian cannot give a full report, particularly if the child involved is very young.

I welcome the Bill. There is a lot of technical material in it that will be better dealt with on Committee Stage. However, I repeat that the guardian ad litemprocess, as it has evolved, has been significant in providing a better mechanism for children's interests to be represented before the court than any previous process. We have, of course, become cognisant of the need to ensure there is better governance of guardians ad litemand I welcome, therefore, the technical provisions around how to authorise guardians and the sorts of qualifications required. I know a lot of the detail will be dealt with by ministerial regulation rather than via the primary legislation, as is appropriate. It is also appropriate that we see clearer provisions around the appointment of legal representation to guardians because like the guardian practice itself, that has been ad hoc until now. I have seen that myself. It will be a welcome change to ensure we have proper regulation of all of these areas.

I welcome the legislation and commend those who are currently involved in providing the important services guardians ad litem provide. I look forward to further debate and discussion on Committee Stage.

3:35 pm

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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I am pleased to have the opportunity to contribute to the debate on this important Bill. The Child Care (Amendment) Bill 2022 incorporates some welcome policies and provisions that have been a long time coming. We are all glad this legislation is finally before us.

The Child Care Act 1991 is currently the primary legislation governing the welfare of children and young people in need of care and protection. It provides for guardian or guardian ad litemappointments in care proceedings where children or young people are not party to the proceedings or where it is in the best interests of a child or young person, and in the interests of justice, to have a guardian ad litemappointed. As it currently operates, the guardian ad litemprocess is not fit for purpose. It is unregulated, unaccountable and opaque. In fact, the Act fails to outline how a guardian ad litemis appointed or how one even qualifies to become a guardian ad litem. In addition, the 1991 Act fails to outline the functions and powers of the guardian ad litemin proceedings. My fundamental concern is that it does not support the 2012 children's referendum which the previous Minister for Children and Youth Affairs, former Deputy Frances Fitzgerald, brought before the people of Ireland and which I, like so many others, campaigned for in order to ensure the rights of children were strengthened and protected. It is high time the 1991 Act was amended, as has been asked for by many people with direct experience of the system and organisations representing them, including the likes of Barnardos.

The courtroom is not a natural place for a child or young person to be. It can be a scary and intimidating process to go through for an adult, never mind a child. While the courts make great efforts to accommodate young people in a child-friendly manner, there is much room to improve. Introducing this Bill will ensure that our legislation better acknowledges and maintains the rights of the child.

I thank the Minister and his Department for their commitment to addressing the disparities of guardians ad litem in the 1991 Act and I welcome this reform as it will be beneficial to all children and young people subject to care proceedings. The welfare of the child is central to court proceedings and it must be. The courts must regard the best interests of a child in all proceedings relating to care and protection, and I welcome the provision for courts to consider children's views, where they have chosen to express them, and to consider those views in light of a child's age and maturity, as well as any special circumstances or harm that the child is, or potentially could be, suffering from. That is important. It is fundamental that the court considers the child's environment and gives weight to any views expressed by that child. It is necessary that a child's views are heard and that a court must determine the best method for a child to be accommodated in expressing his or her views.

I am pleased to see that provisions have been made for the mandatory appointment of a guardian ad litemto replace the previous ad hocnature of the appointment and, principally, to extend and regulate the guardian ad litemsystem so that it benefits the greatest possible number of children and young people. It will provide high-quality service to children and young people in care proceedings and as public representatives, all of us must listen to and respect the views of children and young people. We have a duty to serve them as well as those who vote for us.

This Bill has great potential to transform the 1991 Act. We must legislate for a system that is adequate, modern and fit for purpose. We must create flexible and adaptable legislation because society flexes and adapts. Society continues to change and to hold different principles and perspectives.

The best interests of children must always be at the core of any decision-making affecting them. The best support must be granted to every child requiring representation. Each child will be affected by a court's decision and so I welcome the provisions in this Bill and look forward to seeing it progress and improving the court process for young people.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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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.

3:45 pm

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I have spoken to guardians this week and they told me how delighted they are to see this legislation being brought back better in this Dáil term. As previous speakers said, this seems to have been going on for years and it is good that this legislation will soon be passed in this Dáil. I see the changes the Minister has made. I know he made them because he listened to stakeholders but, most important, he has listened to children on this - the children who never have a voice.

Our current guardian system has huge issues. One issue we have been aware of is that some guardians can earn much more than others depending on where they are. For example, depending on the District Court area, children can be represented in court by a guardian in 90% of cases but in another area it might only be in 10% of cases. This is unacceptable and for this reason, I support the proposal that within District Courts judges shall appoint a guardian unless two criteria are met. Hopefully, this will go some way towards addressing the significant differences in the use of guardians in District Courts in Ireland. It is important that there be a greater degree of consistency in the appointment of guardians across the State. Children cannot continue to be better represented in one area than another. We must have equality across the State.

While I am hugely supportive of giving children better representation in these cases, I have concerns and I believe there are opportunities to improve and strengthen the legislation. There is still an imbalance whereby parents and Tusla are parties to proceedings and represented by lawyers, while the child is not a party despite the proceedings being focused on the child’s safety, welfare and development. It is unfortunate that the opportunity has not been taken to place the status of the child in these proceedings on a par with parents and Tusla. Section 35D provides legal advice and representation to guardians but this would not be needed if they were put on the same ground as parents and the State. Guardians should, on behalf of the child, have the same ability as the other stakeholders to inquire of the court, to challenge something important for the child's interest in the course of the proceedings and, where necessary, to make an application to the court. This is especially important considering the acceptance in the Bill of the need for guardians to make recommendations in the best interests of children in cases where the children are unable, for whatever reason, to express their views directly.

Given that many children going into care are very young, non-verbal or struggle to communicate, I would go further and suggest we need to ensure guardians have a wide range of expertise, especially as we now live in a changed Ireland where we must have sensitivity around cultures, traditions and languages, in cases where English is not the child's first language. There is a lot of noise in these cases and it is the judge's job to separate this out. A guardian having equal footing with the parent's representative and the State representative is in the best interest of the child. A judge should be able to request the appointment of a named guardian in specific circumstances where particular expertise is required, such as a translator or someone with cultural expertise or where a guardian is already involved with the siblings of a child. The Minister might take these matters into consideration for the next Stages of the Bill.

As we move to having a more transparent and accountable society, it is welcome to see in this Bill that when information is sought by a guardian from the Child and Family Agency and the agency refuses to comply, the guardian ad litem, GAL, may now apply to the court for a decision. This adds an extra layer of support for a child. I am all for that. As previous speakers said, I really welcome this. Timing is important. I have spoken with the Minister about this and know he is committed to it.

3:55 pm

Photo of Chris AndrewsChris Andrews (Dublin Bay South, Sinn Fein)
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I welcome the opportunity to speak on this Bill. Reform is long overdue and has to be welcomed. The issue has been going on for a long time. An especially important element is the law covering the guardian ad litemsystem, which is long overdue for reform. In the last Dáil, we saw the Child Care (Amendment) Bill 2019, addressing guardians ad litem, which sought to address these inadequacies but fell with the dissolution of the Dáil in January 2020, which was unfortunate. With this Bill, we will see the much-needed reform of the existing ad hocGAL arrangements for children who are the subject of public law childcare proceedings. The Bill will amend legislation to ensure that the GAL informs the court of the views of the child, where the child is capable of and willing to express his or her own views. The GAL makes recommendations to the court about what is in the child's best interests after considering the child's views. The Bill provides for mandatory appointment of GALs in all special care proceedings.

This Bill will amend section 26 and insert a new part into the 1991 Act. Overall, I welcome and support this Bill, but I would like to see aspects of it strengthened. I would like to see more to ensure the role of the GAL as an advocate and representative is fully recognised in the eyes of the court. I am concerned that access could be watered down by this Bill. At present, the GAL is entitled to the full Tusla file. These points aside, Sinn Féin will support the Bill and will table a number of amendments on Committee Stage to help to strengthen the Bill.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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This is particularly sensitive and important legislation. It is long overdue to be updated. It needs to be carefully weighted, as has been done, to take into account the views and protection of the child, who may have hidden special needs. A serious problem has arisen in the past where decisions have been made by people who claimed to have the best interests of the child at heart, although it was not necessarily so. We have to wait to see what happens with the operation of the legislation to ensure that this is to the fore.

Deputy Catherine Murphy mentioned some situations where a clash of interests may occur. The family, a family friend, a carer or a particular person may have views that clash with the interests of a child. Care needs to be taken to ensure that the situation is carefully examined to be certain that the person chosen by the child, particularly in the case of an older child, is the appropriate person. We have all dealt with situations in the past where people pretending to be the appropriate person put themselves forward and went into court to challenge the parent, in some cases, on the basis that they were the suitable person for the care of the child in a situation where the child was deemed to be vulnerable. That is not necessarily always the case. The interests of the child have to be borne in mind but they have to be tested carefully to ensure that the interests of the child are really being borne in mind and it is not being done for a variety of other reasons.

We have seen horrendous cases all over the country in recent years where appalling things have happened to children. There have been no means whereby an intervention could take place. My constituency colleague, Deputy Catherine Murphy, referred to the caseload of social workers. The caseload and experience of social workers has to be borne in mind. If there is an exceptionally heavy caseload and the social worker or social workers concerned are overwhelmed with work, they will not and cannot give it their best. It is important that the number of social workers and anybody else involved or referred to in the course of the application of the law is in a position to be able to devote sufficient time to deal with the situation, to fully examine it and come to a judgment.

We have all, in following up cases from time to time, found reason to ask why more was not done more quickly and why care was left to an individual, including in one or two cases where we, as laypersons, would not give the individual in question any control over anybody whatsoever. We have to be careful that the legislation which we are passing is sufficiently robust to be able to ensure that whatever is necessary in its application in the future is available to the courts, Judiciary and the person in charge, where there could, for example, be a conflict of opinion between separating couples. Things can and do go awfully wrong in those situations. The legislation is important to update. It needs to be monitored carefully in its application as time goes by. There is no way that we can ever walk away from any situation where we have passed the legislation and say that we have done all that can be done and that it will do the intended job. There will be times when it has to be revisited. That can only be done following strict monitoring of the legislation and how it deals with the situation it was intended to deal with.

This is a significant improvement. I hope it is sufficiently strong in its application to work in the interests of the vulnerable and of children of all ages. There have been some appalling cases in this jurisdiction and in the adjoining jurisdiction which are frightening when one thinks about the degree to which small children have been neglected and ultimately have ended up in court. We must put ourselves in the shoes of the child, who might be vulnerable by virtue of age or disposition. The child might feel alone or frightened, may not know what to expect, and may not know what is or is not normal. The child may not know who the perpetrators might be, who he or she should be defended from and who he or she should trust. The child does not have enough experience of that. We need to look carefully at the way the legislation is operated. Hopefully, it will do the intended job.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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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.

Question put and agreed to.

4:05 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I thank all Members. I am struck by how language changes. If Doris Day were listening to this, her concept of GALs would be quite different from what we have been hearing today.