Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I thank the Minister of State for taking this matter. A well-intentioned local solicitor opted to raise concerns with me regarding the appointment or assignment of guardians ad litem. Guardians ad litem are typically, but not necessarily, legal people, such as barristers or solicitors, and are appointed by judges to represent the interests of children in care. Their key functions are to ascertain the views of children who are the subject of care proceedings and to advise the court of these views as well as giving their considered views on what is in the best interests of the child.

Many in the House will remember the flurry of interest and concern about the appointment of what are colloquially known as GALs in 2017. It featured at the Committee of Public Accounts and likely precipitated the Child Care (Amendment) Act 2022, which provided for reform of the guardians ad litem system. I have sought details of the cost of assignment of GALs via a parliamentary question but, to date, have only been furnished with the cost for barristers alone and not solicitors or any other individuals. In 2022, 30 barristers were assigned guardian ad litem appointments at a cost of €636,000 or an average cost of €20,000. Last year, 40 barristers were assigned at a total cost of €946,000 or an average cost of €23,600. That is a significant increase year on year. I have not been furnished with the requested cost for solicitors.

Of course, we can put no price on the well-being and security of any child, but that well-being and security should not come doused in profiteering. By way of example, it would be helpful to revert to my local solicitor, who has voiced understandable concerns. This solicitor was assigned as a GAL by a District Court judge in a case where a 12-year-old child was being taken into care because of experiencing neglect and possible abuse in the home. The practice of appointing GALs is generally positive but there are concerns that the 2022 legislation has not delivered on the promised transparency on cost. This child already had a team of social workers attending to the matter, ensuring his or her welfare and also providing support, education and development for the mother. It is questionable whether there was a need for the appointment of a separate GAL in this case. Nonetheless, a solicitor was assigned in mid-2022 and provided representation for approximately 16 months and until such time as that child was discharged from his care, with the establishment of a full-time care order earlier this year. In total, this solicitor attended the District Court on nine occasions and ultimately submitted a bill to the HSE for €6,000 plus VAT, or an average bill of €666 for each of those nine brief court appearances.

On the day Tusla made an application for a full care order, a barrister also attended and issued a bill for €1,600 plus VAT for that one court appearance. Without question, there are circumstances where a guardian ad litemis needed and is beneficial for the child and family. However, the practice has to be regulated and the cost of assignments such as the one I have outlined needs to be examined. The example given is just one of many available nationwide. It is worrying that Tusla was unable to give a county-by-county breakdown of the cost of GALs on foot of my parliamentary question. Is the Minister of State satisfied that the 2022 legislation is adequately and effectively regulating the assignment and cost of guardians ad litem?

Mary Butler (Waterford, Fianna Fail)
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I thank Deputy Flaherty for raising this important issue and for offering me the opportunity to respond on behalf of the Minister, Deputy O'Gorman. I hope the statement I have will answer some of the questions he has raised. The unregulated nature of the provision of guardian ad litem services has been a matter of concern for some time. Currently, guardians ad litem, GALs, are appointed by the court for children who are subject of childcare proceedings under the Child Care Act 1991. GALs have an important role in that they are required to ascertain the views of the child and communicate these to the court. They are also required to make recommendations to the court as to what is in the best interests of the child.

This is an important role which gives a voice to vulnerable children during care proceedings. However, the current system of GAL appointments and the related appointment of solicitors and barristers to represent guardians ad litem is unregulated and ad hoc. The existing legislative provisions do not set out the criteria for appointing guardians ad litem or legal representation to a guardian ad litem. Tusla is obliged to pay GALs and their legal fees but has little oversight of how these roles are fulfilled. All GALs operating in the courts are self-employed individuals with many supported through network arrangements in relevant organisations. In the current system, many children do not benefit from GAL support during their court proceedings.

The main purpose of the Child Care (Amendment) Act 2022, which provides for the reform of the guardian ad litem system, is to enable the establishment of an executive office and, with that, a national GAL service within the Department of Children, Equality, Disability, Integration and Youth. Reform of the current model of GAL provision, which will be driven by the commencement of this legislation, is intended to ensure universal access to a GAL for all children so that their voices can be heard in childcare proceedings and to provide a high-quality service that is sustainable into the future. It is planned to move towards a largely salaried staff, supplemented by a panel as required.

Under the 2022 Act, GALs are not party to proceedings and thus the provision of legal representation will be a decision for the new national service. The new service will have its own in-house legal services and, as such, a guardian ad litem will have access to legal advice and representation when needed. Where GALs are subject to special care cases, they will have an automatic entitlement to legal advice and representation. Where GALs are appointed in proceedings before the District Court, they will have an automatic entitlement to legal advice whereas legal representation will be discretionary, subject to the child’s best interests. The in-house legal team will be salaried staff of the service, supplemented by a panel of solicitors and barristers. This will provide a clear fee structure for legal representation.

The Department is continuing to work towards the establishment of the guardian ad litem national service to enable the full commencement of the Child Care (Amendment) Act 2022. To assist these preparations, a consultant, Anthony Douglas CBE, was contracted by the Department in September of last year. The outputs of this consultancy will provide the operating model, practice manuals and workforce strategy for the new service. The development of these documents has involved significant engagement with relevant stakeholders to encourage their continued input in the shaping of the new service.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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The response from the Minister, Deputy O'Gorman, is somewhat alarming. His written response reads:

The existing legislative provisions do not set out the criteria for appointing GALs or legal representation to a GAL. Tusla is obliged to pay GALs and their legal fees but have little oversight of how these roles are fulfilled. Currently all GALs operating in the courts are self-employed individuals with many supported through a network arrangements in relevant organisations. In the current system many children do not benefit from GAL support during their court proceedings.

When the Child Care (Amendment) Act 2022 was passed, we understood that many of the issues I have spoken about were to be addressed. It is clearly evident and somewhat disturbing that this has not been the case. Part of that legislation provided for a transitionary period in the first year of operation of the new executive office to provide for a seamless transition from the current system to a new model of provision. Despite this, the Minister tells us today that the Department is continuing to work towards the establishment of the guardian ad litem national service to enable the full commencement of the 2022 Act.

The response today is deeply troubling. It does not give me any reassurance. There is an onus on us to refer this to the Committee of Public Accounts and the Comptroller and Auditor General. Based on Tusla's inadequate responses to my parliamentary questions and the Minister's reply today, it is clear that we have little oversight, if any, of the operation of this scheme. We certainly have no indication of the true scale of the costs.

Mary Butler (Waterford, Fianna Fail)
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The Deputy has raised a really important issue. The Department is continuing to work towards the establishment of the guardian ad litem national service to enable the full commencement of the Act. As I have said, a consultant, Anthony Douglas CBE, was contracted to support preparations for the establishment of the GAL national service. The outputs from this consultancy include the development of the operating model, practice manuals and workforce plans for the service, including a transition plan to facilitate the building of the new service. Building on the extensive previous consultation that informed the development of the legislation, Mr. Douglas has met with a variety of relevant stakeholders such as GALs, senior management in Tusla and members of the Judiciary to encourage their continued input into the shaping of the service.

Under the November 2022 family justice strategy, the Department of Children, Equality, Disability, Integration and Youth committed to establishing a working group to decide on the most suitable future institutional location for the GAL service and to prepare for the opening of the guardian ad litem office. This group has been convened and will continue to meet to progress this work.

The Department has received approval from the Department of Public Expenditure, NDP Delivery and Reform for the director post in the service. It is anticipated that the role will be advertised in the coming weeks. There will be further engagement in respect of additional staff over 2024.

I reiterate that the unregulated nature of the provision of guardian ad litem services remains a concern for the Department but I am pleased to confirm that significant process has been made in addressing the issue, as I have outlined. I have no doubt but that the Deputy will keep a close eye on this to make sure it progresses as quickly as possible.