Thursday, 14 July 2022
Child Care (Amendment) Bill 2022: Second Stage
The purpose of this Bill is to reform the existing guardian ad litemsystem which is unregulated and ad hoc. Currently guardians ad litem, or GALs, may be appointed by the court for children who are the subject of proceedings under the Child Care Act 1991.
The existing legislation is silent on a number of key issues. For example, the status, role and functions of GALs are not defined. The qualifications and experience necessary to act as a GAL are not set out. There is also no requirement on a court to appoint a GAL. This ad hocsystem has led to some inconsistencies in practice and has meant that not all children receive the same service. The Bill is intended to address these issues and its main features are as follows.
A new section is being inserted into the Child Care Act to provide that in any proceedings under that Act, the court must regard the best interests of the child as the paramount consideration. Furthermore, 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 would be required to give due weight to any views the child wishes to express, having regard to the child's age and maturity.
The Bill also proposes to insert a new Part into the Child Care Act, specifically relating to guardians ad litem. The functions of the GAL will be 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 will then be required to make recommendations to the court on what is in the best interests of the child. This requirement also applies in circumstances where a child is not capable of forming or expressing views, or where the child is unwilling to express those views. GALs may also be required to perform such additional functions as may be directed by the court. The proposed new section 35E(11) 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 new Part provides that the High Court must appoint a GAL for all children in special care proceedings and creates a presumption in favour of the appointment in proceedings before the District Court. This approach is one which is supported by many stakeholders, including the special rapporteur on child protection. GALs who have been appointed in special care proceedings will automatically be entitled to legal advice and legal representation. GALs who have been appointed to child care proceedings in the District Court will have legal advice available to them on request and may be provided with legal representation. The new national GAL service will be run from an executive office within my Department. The Bill sets out all the necessary powers, including regulation-making powers, necessary to establish this office.
In terms of next steps, once the legislation is enacted there will be a significant body of work to establish the executive office. This includes the recruitment and training of personnel, the development of practice manuals and decisions regarding its physical location. My officials have commenced preparatory work in this regard.
In conclusion, 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 this Bill are intended to enhance the rights of children and the capacity of the courts to make the right decisions in helping children and their families. I take this opportunity to commend the good work that many GALs have done and continue to do for children in this country. I am grateful for their continued input into creating a better service. 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 the provisions of this Bill and I look forward to hearing Senators' views. I commend the Bill to the House.
The Minister is welcome to the House. I will not speak for too long but I really welcome the Bill. It is important we work to enact this Bill to address the significant inadequacies outlined by the Minister. Fantastic effort is made by so many of our GALs around the country in looking after children who need that care. It is important to empower both the child and the guardian ad litemto ensure an enhanced decision-making capacity in the court and that the child's views are always front and centre in making the best recommendations for those children. There are amendments to the Bill but time is of the essence. I will listen to the Committee Stage proceedings.
I very much welcome the legislation. I will give the Minister the opportunity to address some of the matters raised in pre-legislative scrutiny. Overwhelmingly we welcomed the legislation and the reform and putting in place of supports for the guardians ad litem. Observations that arose out of submissions, such as the Barnardos submission to the pre-legislative scrutiny in the children's committee, indicated that many proceedings involve everything to do with a child's life. If the process is before the District Court, a child is not automatically entitled to having a GAL in place.I assume the Minister has addressed that. It is about ensuring the child has their voice heard, which is at the core of all of this.
There are other matters. In some of those instances, a child is not a party to the proceedings. Does the GAL have the right to cross-examine on behalf of the child and to ask questions and raise issues? Does the GAL have a right to legal advice in the circumstances? It is about ensuring all of that is in place and that the structures are focused on what is in the best interests of every child when they are so powerless in many proceedings, in particular family court proceedings. These are important aspects, although they may be the subject of guidelines as opposed to specifically and expressly putting them in legislation.
Another feature that came up and was very well heard was this idea that, at times, a GAL with specific expertise may be needed. Therefore, from a judicial decision-making position, can particular individuals with that expertise be appointed, which would be very important? Again, that may be the subject of guidelines as opposed to express provisions within the legislation. I very much commend the legislation and thank the Minister for his work.
I welcome the Minister and I welcome the Bill. When it is anything to do with vulnerable children, it is important that we have it 100% above board. That is why we welcome that regulation is coming into this area. It is good legislation and we welcome it. We have a couple of amendments that we will get through in no time. The work that people do in this area is an incredibly important service. This Bill came before the Dáil in the previous term and it is good to see the Minister is progressing it and has made it a key part of his work. We welcome that.
I welcome the Minister. I welcome the legislation and the support and consistency it provides for children and families in regard to GALs. I want to put on the record my eagerness to see the results of the full review of the Child Care Act as a whole. There are some parts of it that I would be eager to see advanced in respect of independent advocacy, beyond what is accounted for within this legislation, in regard to special care proceedings or involuntary admissions under the Mental Health Act. Overall, as we know, it is welcome legislation but it definitely is just one part of that jigsaw puzzle that needs to work in tandem with a wider review of the Child Care Act and also the development of the family courts. The legislation makes positive reference to children's voices, children's rights and children's best interests, which is very welcome.
As an add-on to what Senator Seery Kearney said regarding the expertise of GALs, we should also be making a great effort to look at the diversity that exists with regard to GALs’ cultural background and experiences so we can begin to have some of these professions and positions reflect some of the experiences and understanding of the young people who will require them. There should be that real emphasis on diversity. We know it needs to exist more within social work and it would also be great to see much greater diversity efforts in regard to GALs. I look forward to the review and I welcome the legislation.
I will respond briefly. I am conscious that we have some amendments to dispose of, and I would like to have the opportunity for them to be discussed. This legislation is very important.
The GALs provide an important service, but the big problem with them right now is the inconsistency in their appointment. I have seen the figures, and I am sure they were shown during the pre-legislative scrutiny phase as well. There is a geographical lottery in terms of whether someone can get a GAL appointed to them. That is untenable in the context of the important service GALs provide in childcare proceedings. There was debate on this matter in the past. This legislation came through in the previous Oireachtas but was not passed. I am very hopeful we will get it passed today, which will be an important step forward. One of the topics of debate related to whether there should be mandatory appointment of GALs. What we have done in the Bill is provide a strong presumption in favour of appointment, but this can be overturned by a written explanation by a judge as to why a GAL is not being appointed in a particular situation. The special rapporteur noted that there are some children who are 17 and do not need somebody to interpret for them, and who are very capable of sitting with a judge or writing to a judge and indicating their views. It is only right to recognise the agency of young people. The judge has to put in writing that he or she has confidence that the child can convey their views and how those views will be conveyed to the court.
In special care proceedings, appointment of a GAL is mandatory. As a result, that has been set out separately. GALs can receive legal advice and they will be enabled to do so by the executive office that we are setting up under this legislation, a special executive office that will streamline but support the appointment of GALs in all parts of the country.
I saw the piece on specific expertise and a named GAL being appointed. We decided not to include a legislative provision on that. We can look at it in terms of the guidelines on that point but it may not be possible to appoint X, and for the legislation to allow that could be problematic.
Like Senator Ruane, I am eager for that review to be completed. I understand that I should be able to bring the general scheme – the initial proposals - to Cabinet before the end of this year in order that it can go to pre-legislative scrutiny. I will engage with the team and see if we can propel that because it is very important. Again, it is a good piece of law but 1991 is a long time ago. We need to be able to make some changes to it. We will legislate for it next year and I will look to expedite that process. However, I do not expect it to be done this year as it is a comprehensive piece, so I want to be realistic.
I thank Senators for their support so far. I look forward to tackling some of the issues in the amendments.