Wednesday, 25 May 2022
Child Care (Amendment) Bill 2022: Committee and Remaining Stages
I move amendment No. 1:
In page 9, between lines 19 and 20, to insert the following: “(c) to represent the child’s interests in the proceedings to which the guardianad litemhas been appointed.”.
I welcome the Bill. It is needed. We do need regulation in this area. All Members are aware of the very good work that guardians ad litemdo and the service they provide for children in care. We definitely need some sort of rules or regulations attached to that, however. The Bill is very welcome. These are the only amendments that have been tabled to it. In general, we welcome the Bill but we believe these amendments need to be factored in.
Amendment No. 1 proposes to insert in section 35E(1) that a function of a guardian ad litemshall be "to represent the child’s interests in the proceedings to which the guardianad litemhas been appointed". Deputy Sherlock is present in the Chamber. In the previous Dáil, this amendment was passed on Committee Stage in 2019 but it is not in the new Bill. At the time, we, along with Deputy Rabbitte, who is now a Minister of State, argued strongly for this amendment to be included because it is a catch-all. It ensures there are no grey areas in respect of the role of a guardian ad litem.There are serious concerns in respect of a guardian ad litem, GAL, potentially being relegated to the status of a witness.
That leads me on to amendment No. 2, which proposes to delete section 35E(8) and replace it with, "The court may hear from the guardian ad litem in respect of any welfare matter concerning the child."
There is a concern that if a GAL is characterised as a witness, it dilutes their role. They would perhaps be called for certain parts of the proceedings and would not be present for the whole proceedings. The big thing in all of this is that they are to advocate for the child and be the child’s voice. Therefore, it is very important that there are no grey areas.
It is a minor amendment, but it would strengthen the legislation. It something that was accepted in the past and it is somehow not in the new form. I hope the Minister will accept these amendments.
I thank Deputy Funchion for tabling the amendment. As she said, the committee already adjudicated on this very issue in a previous iteration of this Bill. I see no reason that there should not be continuity in that regard for the same reasons the Deputy outlined. The role of the GAL should not be overly prescribed. Should a particular set of circumstances arise, there should be a degree of latitude and understanding. Given a particular type of scenario that might arise in respect of the child, we should ensure the child’s interests are served in the widest possible means that is allowable. The amendment speaks to that need specifically and I thank the Deputy for bringing it forward.
I thank Deputy Funchion for these two amendments. I will speak to both amendments because they are linked. I thank Deputy Sherlock for his contribution. I am not in a position to support these two amendments. I hope I can clarify why that is.
In terms of the amendment No. 1, my concern is that the use of the word "represent" could be interpreted as active representation. This would conflict with the policy position that a guardianad litemis not a party to proceedings in every circumstance. The Bill before us has calibrated the power of guardians ad litemto enable them to perform their functions. The formulation of the amendment goes further than the existing functions of the guardian ad litem. These are to ascertain views and make recommendations regarding what is in the child’s bests interests. A requirement on the guardian ad litemto identify the child’s bests interests in the proceedings could go far beyond informing the court of what is in the child’s best interests. It could be interpreted as meaning active representation and the power of the GAL under this Bill is not in accordance with such a function.
Under the principal Act, GALs are not a party to proceedings and they do not have the status of a party. At the court’s discretion, they have sometimes been permitted to exercise party-type rights. I am aware that during the discussions in 2019, prior to me becoming a Member of the Oireachtas, Deputies, and I am sure both Deputies present here, expressed concerns about the status of guardians ad litem in proceedings. On foot of these concerns, when I came into office and was reviewing the draft legislation, I asked my officials to revisit this issue and explore the issue of party-type rights for GALs with the Office of the Attorney General. As a result of that, a new section was added to this legislation, which is section 35E(11). This subsection provides that the court may, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interest of the child and in the interests of justice to do so, order that the GAL shall have such party rights as it may specify. This means the court can specify that a GAL can have party-type rights and what those party-type rights are. The court my specify whether the exercise of the rights is for the entirety of the proceedings or in respect of particular issues in the proceedings.
I am satisfied that the Bill, with that addition to it, gives GALs wide-ranging powers to exercise their functions while also providing for the flexibility for the court to grant them additional party-type rights as required. I think that is the degree of latitude the Deputy was speaking to, that it gives the court the right to give party-type rights where the situation requires it. We do not believe they should be given as a basis in absolutely every type of situation, but we are giving the court that discretion now. That party-type right comes from a High Court decision from a number of years ago where a judge spoke to that, and we thought we would codify that approach. What is proposed in the legislation gives that approach and that is why I am not in the position to accept Deputy Funchion’s first amendment.
In terms of amendment No. 2 and the issue of the witness and this idea that the guardian ad litemwould be relegated to the status of the witness, that is not our intention. I hope I can provide some reassurance here, but I also have a concern that by deleting the text about witnesses, as is proposed in part of the Deputy’s amendment, we think there is a risk that what she is proposing – I imagine this is inadvertent – may result in a fact that a guardian ad litemcannot ever be called as a witness. I do not think that is what anyone intends, but that would be problematic.
The amendment proposes to delete the existing section 35E(8) and to substitute text to provide that guardians ad litemmay inform the court in relation to any matter concerning the welfare of the child. The text that is being deleted is the text that refers to the possibility of guardians ad litembeing witnesses.
I would like to clarify that the purpose of the existing wording is not to limit the role of a GAL to that of a witness. There is no intention that this would be the case. The purpose of the existing provision is to allow a guardian ad litemto be sworn in. If this provision is deleted, it could potentially disadvantage situations where it is valuable for another party to call a guardian ad litemas a witness. For example, a parent who is a party to a case may use the existing provision to call the guardianad litemas a witness and get their sworn testimony. I think most people would see that is positive.
This reference to a GAL being called as a witness does not exist in isolation. It has to be read in conjunction with other parts of the legislation, particularly Part VA. When the new Part VA is considered in the round, we would argue it is clear that the role and status of the GAL goes far behind that of just witness. For example, under section 35F, a guardian ad litemmay apply to the court to procure a report on any question affecting the welfare of the child where there is no existing report or where there is a report but the information contained within it is out of date. The GAL may also make an application to the court in relation to the provision of information from any person or in relation to any other function which relates to the guardian ad litem’s functions. The GAL may also continue to make section 47 applications. This section, which is already in the Child Care Act, allows them to make an application on any question affecting the welfare of a child in the care of Tusla.
Those are all provisions in the legislation and they demonstrate that the role of the GAL is one that is beyond a witness. I do not think the provision that is proposed to be deleted would restrict the role or status of a GAL to that of a mere witness. I would also say it is a risk to delete that section and it may limit the ability of calling GALs as witness, and there are times when it may be a good thing for a GAL to be called as a witness. I agree it is important that a guardian ad litemhas the ability to inform the court of any concern regarding the welfare of the child to whom they have been appointed.
I believe the second point and the kind of active nature of the amendment Deputy Funchion is proposing is already covered by section 35E, and in particular subsection (2)(c) which states a guardian ad litemappointed for a child shall inform the court of any additional matters, relevant to the best interest of the child, coming to his or her knowledge as a result of the performance by the guardian ad litemof his or her functions. That is a statutory obligation that is in the legislation at the moment. I just contrast that with the language used in the new text that Deputy Funchion is proposing. Her amendment states, “The court may hear from the guardian ad litemin respect of any welfare matter concerning the child.” Deputy Funchion’s provision is a “may” provision, while the existing provision is a “shall” provision. Again, the existing provision is a strong statutory obligation.
We are both looking to achieve the same goal, which is that the guardian ad litemcan input to the court about matters relevant to the welfare of the child but I believe the existing provision, section 35E(2)(c), does it better and is perhaps a stronger manifestation than the one being proposed. I am satisfied that the statutory functions of the GAL as set out in the Bill make clear that the role of the GAL is to assist and be a resource to the court.
The GALs cannot fulfil their statutory duties as set out in this Bill if their role was solely one as a witness and I hope I have demonstrated that is not the case.
We have amended this legislation from the version that was discussed in the previous Dáil to give the court a discretion in each circumstance if it is necessary for that particular case to give a GAL party-type rights and to specify what those party-type rights are. That is an advancement but it does not mean party-type rights in every circumstances. Party-type rights are not needed in every circumstance. Recognising the work the Minister for Justice is doing regarding family courts, we will have much more specialist family courts where judges will be able to recognise when such rights are needed and when they are not.
With regard to the second point, Deputy Funchion and myself are on the same page in ensuring GALs can input on issues relevant to the welfare of the child. There is a strong provision in the legislation already. We are at one in terms of a GAL not being a mere witness - that is not the case and I hope we have demonstrated that is not the case - but I have a concern about that proposal to delete the reference to a GAL appearing as a witness because that is the basis upon which the GALs can be called in cases. I would argue it would be a mistake to remove that.
I will respond to some of those points. Regarding amendment No. 1, I do not see what the difficulty or issue is with even the wording or language of that because it was passed and was allowed through in the legislation the last time around. In terms of any Attorney General's advice or anything, I assume it would have gone through all of that before the previous Dáil fell.
My concern is: what if one gets a court that is not au faitwith this? It is good, as the Minister said, that the family courts will be changed and reformed. Everybody will welcome that but in the interim, in many cases family courts, I hate to say it, in some areas of the country are genuinely not fit for purpose. If a court interprets something one way, I do not see what the difficulty is in giving the GAL that status. If it is not needed, obviously, it is not needed. Why do they have to fight for that and why is it at the discretion of the court? I have an issue with that because of what happens, as I queried on Second Stage, if there is any sort of grey area. There is not an appeals mechanism, as far as I understand it. I do not see what the issue is with adding in the phrasing that we have there.
Regarding the word "witness", my concern is that in a court situation one is calling somebody a witness. Everyone's understanding of that is that he or she comes forward, gives his or her piece, and goes again, and that is it. They are not involved. If a particular judge or a particular family court is rigid and states that this person is described as a witness, I do not see the difficulty with the language.
We have not tabled a string of amendments, which shows we are sincere in welcoming the Bill. These are just two minor amendments that, to a certain extent, we had discussed and had been decided upon. I accept the times move on, Dáileanna change and all the rest of it. Whatever about maybe them being opposed for the sake of it, I do not accept that there is any issue with the language in them because that was not flagged with us in the previous process when some were agreed.
I accept that all amendments have been tabled with good intent and I am responding to them as such.
I was not in the previous Dáil. My understanding was there was no reference to party-type rights in the original draft. The Deputy tabled an amendment similar to what she is proposing here. What we have done now is proactively recognise that the issue of party-type rights had been left hanging. It needed to be resolved. We have put in a mechanism that is flexible. I do not believe party-type rights are needed in every situation. We have put in place a mechanism that gives the court that discretion to put them in where they are needed and put in the type of party rights that are needed.
We have accepted the overall point that the Deputy and others raised in the previous Dáil that there are circumstances where party-type rights are necessary. While she is absolutely correct to bring forward an amendment, our amendment better encapsulates the flexibility that is needed in these types of situations. The provision at present states "The court or any party to the proceedings may call a guardian ad litemappointed for a child as a witness.", and the proposal is to delete that as part of amendment No. 2. That is problematic. I would like to think that I have pointed out the reasons. It is clear that the GAL is not only a witness. Indeed, the mere fact that in certain circumstances a GAL can have party-type rights is even further evidence that it is clear that the way in which a GAL is treated under this legislation is not as a witness. He or she is not a witness. It is proposed to delete that clear statutory permission to allow perhaps a parent call the GAL in as a witness and get that testimony. That would be a retrograde step.
Chris Andrews, Mick Barry, Richard Boyd Barrett, John Brady, Martin Browne, Pat Buckley, Matt Carthy, Sorca Clarke, Joan Collins, Michael Collins, Rose Conway-Walsh, Réada Cronin, David Cullinane, Pa Daly, Pearse Doherty, Dessie Ellis, Mairead Farrell, Kathleen Funchion, Gary Gannon, Thomas Gould, Johnny Guirke, Danny Healy-Rae, Michael Healy-Rae, Brendan Howlin, Alan Kelly, Gino Kenny, Martin Kenny, Claire Kerrane, Pádraig Mac Lochlainn, Mattie McGrath, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Verona Murphy, Johnny Mythen, Gerald Nash, Denis Naughten, Carol Nolan, Cian O'Callaghan, Richard O'Donoghue, Louise O'Reilly, Darren O'Rourke, Eoin Ó Broin, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aodhán Ó Ríordáin, Thomas Pringle, Maurice Quinlivan, Patricia Ryan, Matt Shanahan, Seán Sherlock, Róisín Shortall, Bríd Smith, Duncan Smith, Brian Stanley, Peadar Tóibín, Pauline Tully, Mark Ward, Jennifer Whitmore.
James Browne, Richard Bruton, Colm Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Jack Chambers, Niall Collins, Patrick Costello, Barry Cowen, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Paschal Donohoe, Francis Noel Duffy, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Joe Flaherty, Charles Flanagan, Seán Fleming, Norma Foley, Brendan Griffin, Simon Harris, Seán Haughey, Martin Heydon, Emer Higgins, Paul Kehoe, John Lahart, James Lawless, Brian Leddin, Josepha Madigan, Catherine Martin, Steven Matthews, Paul McAuliffe, Charlie McConalogue, Helen McEntee, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Hildegarde Naughton, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Kieran O'Donnell, Patrick O'Donovan, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Éamon Ó Cuív, Anne Rabbitte, Neale Richmond, Michael Ring, Eamon Ryan, Brendan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Robert Troy, Leo Varadkar.
I move amendment No. 2:
In page 10, to delete lines 21 and 22 and substitute the following:"(8) The court may hear from the guardian ad litemin respect of any welfare matter concerning the child."