COMMITTEE OF PUBLIC ACCOUNTS debate -
Thursday, 19 Jan 2017

Chapter 11 - Guardian Ad Litem Service

Dr. Fergal Lynch (Secretary General, Department of Children and Youth Affairs) and Mr. Fred McBride (Chief Executive Officer, Tusla) called and examined.

Chairman

Today we are dealing with the Comptroller and Auditor general report 2015, chapter 11, which deals with the guardian ad litem service. We are joined by representatives of the Department of Children and Youth Affairs and Tusla. Specifically, from the Department we are joined by Dr. Fergal Lynch, Secretary General; Ms Éimear Fisher, assistant secretary; Ms Lara Hynes, principal officer; and Ms Doreen Burke, assistant principal. From Tusla we are joined by Mr. Fred McBride, chief executive officer; Ms Pamela Benson from legal affairs; Mr. Pat Smyth, director of finance; Ms Suzanne O'Flaherty of legal affairs; and Ms Helena Hanna of the finance section.

I remind members, witnesses and those in the Public Gallery to turn off all mobile phones. I advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. If they are directed by the committee to cease giving the evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of that evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given. They are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members of the committee are reminded of the provisions of Standing Order 186 to the effect that the committee shall refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such a policy. Finally, members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

At this stage I will ask the Comptroller and Auditor General to give a summary of the report for context. I will then ask Dr. Lynch to give his opening statement. Deputy Madigan will be first to ask questions todays and she will be followed by Deputy Cassells and others as they indicate.

Mr. Seamus McCarthy

The appointment of a guardian ad litem is a mechanism available to the courts to ensure the views and best interests of children are independently presented for consideration in child care proceedings. Chapter 11 of the Report on the Accounts of the Public Services 2015 looks at the operation of the guardian ad litem service. In particular, the chapter reviews the process by which a guardian ad litem is appointed, the costs associated with the service and how the operation of the service compares with other jurisdictions. The figure being displayed for members seeks to summarise the current arrangements for the provision of the service. As members can see, it is a fairly complex and unusual arrangement.

Apart from the parents and children at the centre of child care cases, these arrangements involve a number of parties, including the Department of Children and Youth Affairs, which has policy and legislative responsibility; members of the Judiciary; the Child and Family Agency, Tusla; the individuals who act as guardians; and, in many cases, legal representatives hired by the guardians to act on their behalf. The examination found that no agency was charged with formal oversight of the guardian ad litem service. Although Tusla is usually a party to the child care proceedings, it also has responsibility for directly discharging guardian ad litem costs, which in 2015 totalled around €14 million.

The examination found that insufficient data were being captured to allow for effective monitoring and evaluation of delivery of the service. Appropriate performance measures are required, including the number of guardians ad litem appointed, the average case load per guardian, the average cost per case and the number of guardians engaging legal representation. The most recent information on the frequency with which guardians ad litem are appointed in child care cases comes from the Child Care Law Reporting Project, a project supported by the Department to examine and report on child care proceedings in the courts.

Data collated by the project from a sample of District Court child care cases heard in the period from December 2012 to June 2015 show that guardians ad litem were appointed in approximately 53% of the cases. To get an idea of the average case load per guardian, as part of this examination Tusla contacted the service providers known to it as at 21 April 2016 to ask for details on their current case loads. The information provided shows that, on average, each guardian ad litem has approximately ten ongoing cases at any given time. Tusla also provided the examination team with information on the hours billed by 28 guardians ad litem for the period from January to December 2015. These data show a high level of variation in the average cost per case from a low of €4,800 to a high of €28,700. Factors such as the approach taken by a guardian ad litem, the nature and complexity of the issues in the case, the number of children involved and the number of court attendances required can affect the average cost.

The absence of key data means that demand for the service cannot be reliably estimated. It also makes it difficult to reliably forecast and budget for expected costs and to assess the overall cost-effectiveness of the service. In this regard, the service in Ireland compares unfavourably with other jurisdictions where such key statistical information is more readily available. The child care law reporting project found, based on the sample observed, that guardians ad litem secured the services of solicitors in 82% of cases and of barristers in 7% of cases. The cost of guardian ad litem legal representation in 2015 was approximately €5.9 million. Approximately 95% of this comprised payments to individuals or firms of more than €25,000, which is the normal minimum level at which open competitive public procurement is required. These legal costs are not subject to competitive procurement, mainly because no single entity is responsible for procuring these services.

In carrying out our examination, we were careful not to stray into policy matters or encroach on judicial prerogative. However, the chapter makes a number of recommendations regarding operational matters, including the development of performance measures to monitor and evaluate the guardian ad litem service, the assignment of responsibility for the management and supervision of the service to a single entity and the examination of options for the engagement of guardian ad litem legal representatives by way of a competitive tendering process. The Department and Tusla have indicated that they accept all the recommendations made. I understand that some legislative changes in this respect are in train. The Accounting Officer and the chief executive officer will be able to update the committee in that regard.

Finally, I would like to draw the attention of the committee to a transcription error in paragraph 11.34 of this chapter, which is about to be brought up on the screen. For the record, the total expenditure on professional fees for guardians ad litem in 2015 was €8.2 million. The comparable figure for 2014 was €9.1 million. The amounts shown in paragraph 11.34 of this chapter were reversed in error in the version of the report that was initially published. They are shown correctly in figure 11.1 of the report. I just want to put that on the record.

Chairman

The Comptroller and Auditor General is referring to page 133.

Mr. Seamus McCarthy

Paragraph 11.34 originally stated that "as shown in Figure 11.1, guardian ad litem professional fees paid in 2015 amounted to €9.1 million (2014: €8.2 million)". It should be the other way around.

Chairman

The figures should be reversed.

Mr. Seamus McCarthy

The figures in figure 11.1 are correct.

Chairman

Where is that?

Mr. Seamus McCarthy

It is on page 1 of Chapter 11. It shows that the correct figures are €9.1 million in 2014 and €8.2 million in 2015. I just wanted to correct the record in that regard.

Chairman

I thank the Comptroller and Auditor General. I invite the Secretary General of the Department of Children and Youth Affairs, Dr. Fergal Lynch, to make his opening statement.

Dr. Fergal Lynch

I thank the Committee of Public Accounts for this opportunity to deal with the guardian ad litem service, as examined by the Comptroller and Auditor General in Chapter 11 of his 2015 report. I am accompanied by my colleagues from the Department of Children and Youth Affairs: Ms Éimear Fisher, who is an assistant secretary; Ms Lara Hynes, who is a principal officer; and Ms Doreen Burke, who is an assistant principal officer. The officials from Tusla have been introduced.

Total expenditure on guardian ad litem services by Tusla, the Child and Family Agency, was €16.5 million in 2014, €14.1 million in 2015 and €15.2 million in 2016. The 2016 figure is Tusla’s latest estimate and will be updated as soon as figures for the year have been finalised. Within these total figures, spending on guardian ad litem costs, including fees and travel, fell from €9.1 million in 2014 to €8.2 million in both 2015 and 2016. Expenditure by Tusla on legal fees, comprising those of solicitors and barristers, fell from €7.4 million in 2014 to €5.9 million in 2015 before increasing to an estimated €7 million in 2016. The Department of Children and Youth Affairs has acknowledged that the present arrangements for guardian ad litem services are in need of significant reform. Despite its importance to vulnerable children and young people, this an ad hoc service that lacks an appropriate system of organisation and governance. Neither the role and functions of guardians ad litem nor the circumstances in which they should be appointed to individual cases is defined. The service is essentially led by demand and determined by the decision of the courts on whether to assign a guardian ad litem.

From a financial perspective, Tusla has endeavoured to control spending through a series of reasonableness checks and retrospective reviews. As noted in the Comptroller and Auditor General's report, this has produced savings, most notably in relation to legal costs. An analysis of legal invoices shows that Tusla achieved negotiated savings of between €1.8 million and €1.9 million under this heading in both 2015 and 2016. The Department of Children and Youth Affairs and Tusla are committed to implementing the recommendations made by the Comptroller and Auditor General in his recent report. Specifically, we are focusing on improving the data collection systems from which performance metrics such as average cost per case, average case load per guardian ad litem and average costs per service type can be accurately generated. These metrics will build on the analyses already carried out by Tusla and will help with the identification of cases with higher than average costs that need to be pursued further. As these are initial measures, they will be advanced as part of a much wider programme of fundamental reform of the guardian ad litem system.

I am pleased to inform the committee that on 17 January last, the Government approved the draft heads and general scheme of a Bill to bring this reform about. The heads of the Bill will be published shortly by the Minister and will be submitted immediately to the Joint Committee on Children and Youth Affairs for pre-legislative scrutiny. Subject to the outcome of this process, it is hoped to publish the text of a Bill as soon as possible in the second half of this year. The proposed legislation provides for a clear structure of accountability through a nationally managed and delivered guardian ad litem service; for a system in which the role, functions, qualifications and appointment criteria of guardians ad litem are specified in law; for the regulation of the assignment of legal representation for guardians ad litem and of the fees payable for legal services; and for the monitoring of the performance of guardian ad litem services to ensure quality and cost-effectiveness. Most importantly, the reformed guardian ad litem service must meet the needs of the children and young people for whom it is intended. The key functions of guardians ad litem are to ascertain the views of children who are the subject of care proceedings, to advise the court of these views and to give their own considered views on what is in the child's best interests.

The draft legislation provides for a single national provider of guardian ad litem services, separate from Tusla, to be appointed by public procurement. The national service provider will be responsible for operating a cost-effective, well-managed and high-quality service in the best interests of children and young people and for monitoring and reporting on the performance of the service provided to the courts by guardians ad litem. The legislation will set minimum qualifications for the appointment of people acting as guardians ad litem. To ensure the voices of children are heard in court proceedings, there will be a legal presumption in favour of the appointment of guardians ad litem and the court will be required to give reasons for declining to appoint a guardian ad litem. The national service provider will have its own inhouse legal support for guardians ad litem, thereby minimising the need to appoint external legal services. However, there will be provision for a panel of solicitors and a panel of barristers from which the national service provider can draw where external legal services are required. The legislation provides for the establishment of standardised fees for these legal representatives.

The new legislation is designed to address the acknowledged deficiencies in the current guardian ad litem service. The Department will work intensively to implement it as soon as the Bill can be finalised and enacted. The Department will carry out a number of steps in parallel with the work on the Bill, including the preparation of a request for tender documentation for the procurement of a national service provider. The new service will be evaluated over time. Other options can then be examined as appropriate, including for example the question of establishing it within the existing family courts system, establishing it as a separate public body or placing it within existing statutory structures.

It is vital that we put a well-organised national system of guardian ad litem services in place as soon as possible. The Department is committed to achieving this.

Chairman

I thank the witness for a concise opening statement. At this stage, I invite Deputy Josepha Madigan to begin. She has 20 minutes.

Deputy Josepha Madigan

I thank Dr. Lynch for his opening statement, as well as the Comptroller and Auditor General. I welcome the witnesses to the Committee of Public Accounts. I do not think I have seen so many from a Department in a few months. The role of the guardian ad litem service, GALS, is extremely serious. It is a pivotal role for all of the 6,000 children currently in State care.

I wish to say at the outset that the Law Society made a submission and from Dr. Lynch's opening statement, it seems he has taken cognisance of it. The submission was made in November 2015. I am a member of the Law Society family and child law committee and I note that in the interest of transparency.

The fact that the witness has taken this matter seriously is very much something the Committee of Public Accounts welcomes. It defies all logic that this has gone under the radar for such a significant amount of time. I appreciate that Tusla only took over from the HSE in 2014. However, we must look at the amount of money involved, for example, for 65 guardians in 2014 - a figure corrected by the Comptroller and Auditor General - it worked out at about €140,000 per annum per guardian for about 1,000 hours. From my reading of it, it is two and a half times the equivalent in Northern Ireland and the UK in terms of salary. I know that will be addressed, but in terms of the oversight of the cost, how did this situation arise and why was there no monitoring or regulation of it? There was nothing in terms of the complaints structure. How did this happen?

Dr. Fergal Lynch

This emerged over a lengthy period of time. The guardian ad litem service was first put in place and provided for in the Child Care Act 1991 and gradually emerged from that point. No one would suggest for a moment that it is a satisfactory situation. As has been identified, it is very much demand-led, there is an insufficient control framework and no comprehensive oversight. This continued for a lengthy period of time, perhaps because it was part of a much wider budget, though that does not in any way justify it. For example, when it was under the Department of Health, there would have been a budget of billions upon billions of euro and this was a relatively small proportion of it. I do not suggest for a moment that is okay, but it would have been one of the reasons.

Deputy Josepha Madigan

I am sorry to cut across the witness but when did Dr. Lynch get the Comptroller and Auditor General's report?

Dr. Fergal Lynch

I think we received the Comptroller and Auditor General's report in July of last year.

Deputy Josepha Madigan

That was in July 2015.

Dr. Fergal Lynch

2016.

Deputy Josepha Madigan

Sorry, 2016. Back in February 2015, I think it was, Mr. Gordon Jeyes, then chief executive of Tusla, said that the GALS system was outrageous. That was a year earlier. Why was nothing done then? We will talk about the future, but what I am interested in is whether it was the involvement of the Committee of Public Accounts that prompted this sudden reform of the GALS system. Why was it not done before this?

Dr. Fergal Lynch

We have been working on this for some time. There was a consciousness that this was a serious problem for some time. Tusla was established in 2014. We started conversations with Tusla very early on in 2014 and 2015. We were committed to addressing the issues as quickly as possible. In fact, we started a consultation process and produced a consultation paper in October 2015. That obviously would have taken a number of months to produce. We were working on it during the course of 2014 and 2015.

Deputy Josepha Madigan

From our perspective of looking at the public purse, the timing is quite interesting-----

Dr. Fergal Lynch

Absolutely.

Deputy Josepha Madigan

-----of when there was an interest in reforming the system.

Dr. Fergal Lynch

We did work on that. We then had a consultation process that continued from about October or November 2015 into the early months of 2016. We then went to Government with proposals. We analysed the consultation papers. We published the papers on the website in September 2016, I think it was. We were working our way through a process of reform for a period of about two years from 2014 to 2016. With due respect to the report, which I think is absolutely accurate and fair, we were working on this before the Comptroller and Auditor General's report.

Deputy Josepha Madigan

It might have expedited it slightly. I welcome-----

Dr. Fergal Lynch

It certainly added great impetus to it and we welcome it.

Deputy Josepha Madigan

I welcome that and I welcome the fact that the witness acknowledged in his opening statement that the situation is dire and has to be changed.

The guardian ad litem service should never be incentivised to support a care order. That was mentioned in the Law Society submission and by other interested parties. It seems to me that when Tusla is the payer of the guardian, looking at it from an objective perspective, it is very difficult to see the impartiality there. Could the witness explain that to us? It really goes to the core of this issue and we have to ensure that it does not happen in the future.

Dr. Fergal Lynch

The Deputy makes a important point. It is not at all ideal that the pair for the system should be one of the entities involved in it, in that we are the subject of the care orders. Nobody would have any argument with that. I believe that needs to change.

Deputy Josepha Madigan

Why did that arise in the first instance?

Dr. Fergal Lynch

I think it was as a matter of administrative convenience as much as anything else. In 1991, it would have come under the health boards. It was transferred to the HSE when it was established in 2005. It was ultimately transferred to Tusla when it was established in 2014. It was essentially due to administrative convenience because both the HSE and subsequently Tusla would have had the necessary payment arrangements and systems in place to bring this about.

Deputy Josepha Madigan

It is more the system than the guardian ad litem service itself, in the sense that the system facilitates that the guardian ad litem is paid more if there are more reviews or if a hearing takes place and continues on. If we look at it from the child's perspective, I have a major issue with it. It is good that the witness is accepting that today. We have to be the voice of the child and that is very important.

Dr. Fergal Lynch

I believe it is absolutely critical. The national service provider would discharge an extremely important role in that regard and would take Tusla out of the picture by effectively negotiating with or questioning individual payments to individual guardians ad litem.

Deputy Josepha Madigan

The witness is talking about an independent body in the future that would pay-----

Dr. Fergal Lynch

Correct.

Deputy Josepha Madigan

-----as distinct from Tusla.

Dr. Fergal Lynch

Yes. Just to be clear, there would be two stages. The first stage would be the establishment of a national service provider, which would be appointed by public procurement. Ultimately, the intention is to move to a public body of some sort, be that part of the proposed court system or perhaps an existing body, for example, the Legal Aid Board, though I do not want to pre-empt anything there, or indeed it could be decided that it would be a separate public body.

Deputy Josepha Madigan

Has the witness spoken to the Department of Justice and Equality about this? It is something that could be worked on.

Dr. Fergal Lynch

Yes, we had detailed discussions. In fact, the Department was one of the first bodies we spoke to, in the context of private law as well as public law cases. Could I correct myself, Deputy? I may have said earlier that the procurement would be by Tusla. I should have said that the procurement would be by the Minister and the Department of Children and Youth Affairs. I apologise if there was any confusion there.

Deputy Josepha Madigan

Working with the Department of Justice and Equality is, in my view, important, particularly if we look at the Legal Aid Board, as the witness mentioned earlier, and how it works. In terms of guardians ad litem themselves, Northern Ireland, the UK and Wales pay a set salary, which therefore disincetivises the GALS. I am not at all casting aspersions on them individually. There are very tragic and harrowing cases and it would give more transparency. Would the witness accept that?

Dr. Fergal Lynch

The payment system for GALS certainly needs to be reformed. That is absolutely-----

Deputy Josepha Madigan

Would the witness accept the set salary system used in other jurisdictions? Does he think that is a better route?

Dr. Fergal Lynch

That is certainly one of the options that we can look at. When it is appointed, I think the national service provider will have a number of options to pay for its GALS. One option is to recruit its own staff and to have salaried GALS personnel working within its own system and to perhaps use a combination of that with external GALS if necessary.

Deputy Josepha Madigan

Would that include salaried legal representatives also?

Dr. Fergal Lynch

Indeed, there would be in-house legal representatives. Part of the proposal specifically references in-house legal personnel who would be employed internally. There is also provision for a panel for external situations and more complex cases. Both the GALS and the legal personnel could be employed internally within the national service provider. That would hopefully have a big positive impact on the-----

Deputy Josepha Madigan

I think that it would. It is being done in other jurisdictions successfully enough. It is certainly better. The Minister for Children and Youth Affairs has said that this is not fit for purpose.

Dr. Fergal Lynch

Correct.

Deputy Josepha Madigan

I appreciate that the witness accepts that. I am conscious of the timeframe of this and I know the witness is talking about the latter half of the year.

What is the specific timeframe and who is the Department consulting on this?

Dr. Fergal Lynch

Maybe I will set out the timeframe in a little more detail if that is helpful. The next immediate stage is for the heads of Bill to be published. That will happen hopefully in the next few days and the Minister for Children and Youth Affairs will then immediately submit them formally to the Committee on Children and Youth Affairs for pre-legislative scrutiny. Obviously, we are in the committee's hands as to how long it wants to take and what length of time it wants to give the heads of the Bill but we hope to be able to have that process concluded, if possible, including having the committee's report back. We would then refine the heads of Bill on the basis of the comments and suggestions from the committee and then have a full Bill - obviously, we are in the hands then of the Office of Parliamentary Counsel - as early as possible in the second half of 2017. That would then go through the Oireachtas in the normal way. At the same time, the Department would be working on a number of non-legislative components, including preparing the procurement process.

Deputy Josepha Madigan

With regard to the training of guardians ad litem, I note Dr. Lynch referred to five years of social work and psychology as being important. A number of foreign nationals end up in State care unfortunately. Does Dr. Lynch accept that some form of cultural education could be considered?

Dr. Fergal Lynch

Very much so. One of the functions of the national service body will be to engage in appropriate training. The training will not be just purely straightforward induction training but it also should be to ensure that all of the guardians ad litem the service body uses are fit for purpose, so to speak. As the Deputy stated, there is a cultural issue here, which guardians ad litem have to be very sensitive to.

Deputy Josepha Madigan

Socioeconomic training is also needed because it, too, will have a bearing.

Dr. Fergal Lynch

Very much so.

Deputy Josepha Madigan

In terms of public procurement, will the tenders be open to individual guardians ad litem as well as organisations? If they are only open to organisations, there will no change.

Dr. Fergal Lynch

The tender will be offered as a single national service provider, which means that any existing provider, group of providers, people elsewhere or people who could come together will be entitled to tender for this. However, it will be specifically for an overall single national service provider which would oversee, manage and provide the full guardian ad litem service. One would no longer have a situation, if one likes, of free-standing guardians ad litem operating entirely independently of the rest of the system, as happens currently.

Deputy Josepha Madigan

In 2009, One Child International suggested moving towards a voluntary guardian system. Such a system is used in the United States where there are, I understand, 67,000 guardians. What is Dr. Lynch's view on the benefit of such a system to the taxpayer, which is what this committee is about?

Dr. Fergal Lynch

When the Deputy uses the word "voluntary", I am not entirely clear what-----

Deputy Josepha Madigan

It refers to a voluntary guardian system. Ms Fisher is nodding.

Ms Éimear Fisher

I am aware of it, yes.

Deputy Josepha Madigan

What is Dr. Lynch's view on that?

Dr. Fergal Lynch

We are open to any suggestions that provide a good quality service. The critical thing from our point-----

Deputy Josepha Madigan

We always want quality, particularly when we are talking about children, but we also have to get value for money and we have not had that to date.

Dr. Fergal Lynch

Absolutely.

Deputy Josepha Madigan

We must ensure we get it in future.

Dr. Fergal Lynch

As the Committee of Public Accounts, it is understandable that this committee is extremely concerned about cost effectiveness. We are also concerned to make sure that whatever system is in place, it genuinely meets the needs of children and young people because, after all, they are among the most vulnerable in society. Whatever system is put in place, it is absolutely vital that both of those requirements - cost effectiveness and quality - are met and, above all, a good service is provided for children so that they can feel their voice is being heard.

Deputy Josepha Madigan

I suggest the Department have a look at the voluntary guardian system. If it ensures quality and saves money, it is certainly worth considering.

Dr. Fergal Lynch

I am certainly open to looking at that but obviously there is a key element of State responsibility given that these are public law cases. The State would have to satisfy itself that these sorts of arrangements would be appropriate. I will be honest with the Deputy - the Bill at the moment, as she will see, is very much focused on the national service provider with the structures that I have just outlined.

Deputy Josepha Madigan

Will Dr. Lynch indicate how much the top earners among guardians ad litem were paid by the State for their services in 2015 and 2016?

Dr. Fergal Lynch

Tusla may be able to help me with that. I know the range would be from Barnardos, for example, which, as the single biggest provider receives a payment - we can dig out the figure - in the region of €3 million or €3.5 million and that will go right down then to individual guardians ad litem. We can check in the table. Just to say that in terms of a group such as guardians ad litem or TIGALA, which is the independent guardian ad litem system-----

Deputy Josepha Madigan

I think there are 31 guardians ad litem with Barnardos and then there are individuals.

Dr. Fergal Lynch

That is correct.

Deputy Josepha Madigan

I understand Barnardos returns some of the money it receives. I would just like to know the figures.

Dr. Fergal Lynch

Mr. McBride may be able to help.

Mr. Fred McBride

Yes, we can help. In 2016, the range of individual guardian ad litem costs was from €40,000 to €240,000. That was the range.

Deputy Josepha Madigan

Is that for individual guardians?

Mr. Fred McBride

Yes, those are individual guardian ad litem costs.

Deputy Josepha Madigan

The difference in payments is significant, is it not?

Mr. Fred McBride

Yes, there is a very large range and actually-----

Deputy Josepha Madigan

That figure of €240,000 is more than the President's salary.

Mr. Fred McBride

In previous years, the top of the range would have been significantly higher until we started to challenge that.

Deputy Josepha Madigan

I know this is accepted by the witnesses but this is the very nature of the way the system works. I do not act in the area of child care proceedings but as a solicitor in family law, I will obviously benefit more from going to court than not going to court, and the same applies in this case. This is the biggest issue in relation to the guardian ad litem system and we must ensure it does not happen in future. We must examine the reasons the payments range from €40,000 to €240,000. Is this being monitored? I am not casting aspersions on individual guardians ad litem. If there was a set salary, as is the case in other jurisdictions, it would remove this variation and save the taxpayer more in the long run. Everyone accepts that the children in question are extremely vulnerable. They come from dysfunctional backgrounds and often want to stay in a dysfunctional family rather than be taken into care. The guardian ad litem role is extremely serious. Whether one or two guardians ad litem are being paid more or used more than others, the quality must be looked at. I am not suggesting there are cosy relationships or anything like that but we need transparency in this area.

Dr. Fergal Lynch

If I could add, it should be borne in mind that the payments included overheads, office expenses and everything connected with----

Deputy Josepha Madigan

I am aware of that-----

Dr. Fergal Lynch

Yes, and I have no argument but in fairness-----

Deputy Josepha Madigan

-----but those amounts of money are not palatable.

Dr. Fergal Lynch

-----Barnardos would say, if memory serves, that about 38% of the fee goes towards overheads, administration, office supports and everything connected with that.

Deputy Josepha Madigan

Sorry to cut across Dr. Lynch but I am conscious of my time. The Comptroller and Auditor General's report, at paragraph 11.52, notes that when an invoice fails a reasonableness test the original invoice is withdrawn and a revised invoice is submitted by the guardian ad litem. How are the reasonableness tests conducted and how were the invoiced hours verified? At paragraph 11.74, the Comptroller and Auditor General notes that reductions were negotiated in 81% of invoices tested. This suggests overcharging of the State by guardians ad litem is a common occurrence. Does the Department believe the studied sample is representative?

Dr. Fergal Lynch

We have no reason to disbelieve the representativeness of the sample but Mr. McBride may have more to say about the-----

Deputy Josepha Madigan

What plan does the Department have to tackle overcharging in future?

Dr. Fergal Lynch

The critical thing will be that under the new system, number one, the Minister will make regulations in relation to fees for both legal and guardians ad litem and, number two, by putting the national service provider in place and allowing the national service provider to have in-house legal expertise, that should greatly reduce the need to spend money on this area. What we would hope to do is rebalance entirely the mix between guardian ad litem fees and expenditure and legal. At the moment, it seems extraordinary that they are not far off 50:50, which is just not acceptable.

Deputy Josepha Madigan

This really needs to be monitored. The data available to the Comptroller and Auditor General were very limited. Does Dr. Lynch accept that?

Dr. Fergal Lynch

Absolutely. Yes, indeed. This will be very much the subject of a tight service level agreement between service providers and the Department.

Deputy Josepha Madigan

There were 7,771 care orders but we are not sure how many children were involved, as some children may have been subject to multiple orders.

Dr. Fergal Lynch

Correct.

Deputy Josepha Madigan

I know it is a highly complex area but in the absence of better data becoming available, how will forward planning be conducted?

Dr. Fergal Lynch

The data are improving - Mr. McBride may want to say more about this - and data collection has been improving, certainly over the course of last year, and will be into this year. Specifically, all legal fees are now recorded electronically on a system that Tusla operates. Half of the guardian ad litem related fees, the ones related to Barnardos, are now on that system as well.

Barnardos is now on that system as well. By the end of the second quarter of this year, all legal fees will be on this electronic system. That will collect much more detailed information and enable us to monitor and interrogate the costs to a much greater extent than has been possible previously.

Deputy Josepha Madigan

On the representation itself, in Dublin there is a higher contingent of GAL appointments than there is in the rest of the country. The presumption is correct that the guardian ad litem is appointed unless it is proved that it is not necessary. However, we do not want to neglect children down the country. I believe the numbers were 13% and 71%, which is very worrying. We really need to do better for these children. I am not being as vociferous as I might normally be because I accept we are going in the right direction. It is vital that this area is looked after more adequately.

Dr. Fergal Lynch

The system now is very much dependent on decisions of individual judges and the courts as to whether to assign a GAL.

Deputy Josepha Madigan

I know that.

Dr. Fergal Lynch

It is very striking, as the Deputy says, the difference in assignment of GALs in different parts of the country.

Deputy Josepha Madigan

There is no performance management whatsoever.

Dr. Fergal Lynch

Certainly it is extremely difficult to performance manage it at the moment because of the nature of the system. The 1991 Act simply provides for the appointment of a GAL if the judge - the court - so decides.

Deputy Josepha Madigan

I know the Chair will pull me up in a minute. What will the Department do in the interim, before the legislation is in place? Will there be any extra monitoring in the meantime?

Dr. Fergal Lynch

As the data improve we have a much better scope for interrogating them to a much greater extent. Mr. McBride may want to add something to that. Our difficulty has been extremely poor data, as has been described. As the data improve, we have much better scope for interrogating the data and asking hard questions. Mr. McBride may want to add to that.

Mr. Fred McBride

I can help with some of that. I wish to go back to Deputy Madigan's earlier question about reasonable checks. I have about a dozen bullet points here, going through how we do these reasonableness checks, but rather than read them out I can give her this. For example,-----

Deputy Josepha Madigan

An amount of €240,000 does not sound reasonable to me.

Mr. Fred McBride

No it is not, but we have limited ability to curtail that. What we do is that we look at activity billed. We look at the reasons for that. We look at the total cost billed for each invoice, total number of hours recorded, number of hours recorded on all invoices-----

Deputy Josepha Madigan

I accept that was done in the past. I am talking about before we consider a set salary in the future.

Mr. Fred McBride

Agreed.

Deputy Josepha Madigan

Will there be any regulation of this?

Mr. Fred McBride

In terms of the set salary through a national provider, I would absolutely agree with that. We currently have no powers to monitor performance and the quality of that. That is not within our remit. Under the new proposals, that would come under the remit of a national provider. The notion of Tusla bringing proceedings to court, a guardian ad litem being appointed by the court and then somehow Tusla monitoring that performance is not a system that would be sustainable. It would not make sense, I think.

Deputy Josepha Madigan

Okay.

Chairman

Before I call Deputy Cassells, I wish to clarify one item that arose. Dr. Lynch said that the legislation being drafted would provide for a single national provider and he said the Department is going through a tendering process. Has it been decided to privatise the service or should it be part of the State service if the Department is going for procurement?

Dr. Fergal Lynch

It is going for procurement on the basis that it is, I think, the fastest and most expeditious way of putting a national service provider in place. However, the Government decision also includes scope for establishing a separate public body, giving it to the new family court system when that is established or putting it in the place of an existing one. This is, if one likes, an interim measure.

Chairman

That is exactly where I thought this was leading. If the Department goes through public procurement and contracts it out to one provider, how can it come along the following year and specify in legislation that it will be incorporated in a statutory structure with people paid a salary, like the Probation Service, having just put the other in place? From the point of view of the Committee of Public Accounts, the Department will tie its hands if it appoints a national provider and then it will not have the scope to realistically examine something like the Probation Service with salaried staff. The Department would be ruling that out because the successful tenderer would have to have the contract for a period of time.

I have one further question that follows on from what Deputy Madigan said. Given that there is only one major service provider - I have no doubt it does outstanding work because it would not be doing that work otherwise - it will be very hard to have an effective public procurement tender when there is really one body out there. Will it be open to tendering from outside the State, for example, by people who do it in some nearby states and might open up a Dublin office and get the contract?

Dr. Fergal Lynch

To answer the Chairman's second question first, yes, it will be open under normal procurement rules. It will be a major tender because of the cost involved; so it will be open. It will be open to existing providers who may wish to come together or structure themselves in whatever appropriate way. It will also be open to external providers and so on.

To come to the Chairman's first question, which I think is a very important one, a contract would be awarded for a period of time. That is to be decided. It may be three years, four years or something like that. As that contract is being awarded, there would be a specific arrangement for establishing the new system. This is the first set of arrangements. Given that it is so important that we reform the system now, we wanted to move to this as quickly as we can. Then one can reform a significant component of it and keep those reforms. For example, the appointments, the recruitment system, the structuring of the system and so on can all be improved. The qualifications of the GALs, the protocols by which they would operate all of that will have be improved and the only thing that needs to be changed then is to move it from a service provider to a public entity when that public entity is ready to take it over.

Chairman

Okay.

Dr. Fergal Lynch

It is open to the service provider to be competitive, to have salaried personnel as well. I would not envisage waiting for salaried personnel until it moves to a public body.

Chairman

Dr. Lynch mentioned three years or five years. Would it be important that the contract not be so long that if there is a decision to work within the existing statutory structure, which we all think is a good idea, we do not find ourselves stuck with a five-year contract? The Department should be conscious when it goes through procurement that it does not tie its hands and end up in a situation it wants to get out of shortly after making the decision.

Deputy David Cullinane

Mr. McBride said he had the full list of the reasonableness checks. It would be important for us to have that if it could be distributed to us. It would form the basis of some of the questions I would want to ask.

Chairman

I ask Mr. McBride to provide it to one of the secretariat officials and we will photocopy it, if that is reasonable. One of our staff will make photocopies for every member. Is Mr. McBride happy to circulate that sheet of paper?

Mr. Fred McBride

Of course.

Chairman

I thank Mr. McBride. That will be done.

Deputy Shane Cassells

I welcome Dr. Lynch and the other witnesses. Deputy Madigan asked why this was not on people's radar and why no one was flagging this. We flagged this as far back as two years ago in February 2015 when our then spokesperson, Deputy Troy, introduced legislation into the Dáil aimed at tackling these exorbitant fees. We wanted to legislate for the manner in which the courts appointed GALs and the oversight of them. It was clear that within the current system scarce resources were being spent on an unregulated and chaotic system, while at the same time it was clear we did not have adequate resources to fund front-line staff in supporting vulnerable children.

As has been outlined this morning, if some GALs could earn as much as €300,000 in a single year, something was seriously wrong. Spending on legal fees increased from €11.9 million in 2013 to €16 million in 2014. To put that €16 million into context, when we introduced that child care Bill, which was eventually brought to the floor in July 2015, the previous budget had left Tusla €18 million short in meeting day-to-day running costs resulting in cuts to rape crisis centres and domestic support services in that year. It is clear that the exorbitant fees for legal representation were a gross waste of public money with Tusla facing many challenges. I am glad that the opening statements today acknowledged the need for that to be tackled.

When the Minister was questioned in the Dáil 18 months ago, he could not provide the information on exactly what had been paid out to individual GALs. The financial system of Tusla did not have the details of the number of individual GALs involved, despite the exorbitant fees being paid out under the scheme. Given all of this and to inform budgeting, how is demand for the service currently forecast?

Dr. Fergal Lynch

It is very difficult to forecast demand. It is a demand-led scheme because individual courts and judges make a decision on the circumstances in which they will assign GALs. The overall level of expenditure has not fluctuated enormously in the past three years and has been between €14 million and €16 million, but that is not to say it is okay. However, in the current environment it is very difficult to forecast future demand. Tusla can operate on the overall assumption that expenditure will broadly be the same as in the previous year and this has been the case in the past three years. The improved data being collected will enable us to improve the position to some extent, but for as long as we have a system that is demand-led, it will be extremely difficult to forecast accurately what expenditure will be. The focus has to be on managing and controlling costs as much as possible, both GAL and legal fees.

Deputy Shane Cassells

Dr. Lynch has said the scheme is demand-led. That feeds into another question. He also responded to questions about implementation and working in parallel with the legislation as it proceeds this year. If the Department forecasts the passing and introduction of legislation in the autumn of this year, will it be ready to move on the introduction of the systems to which the Chairman referred?

Dr. Fergal Lynch

We would certainly like to be able to introduce the new system as quickly as possible thereafter. The procurement process will take a number of months and cannot kick in until after the legislation has been enacted. We will have the request for tender documentation and all of the preparatory work done at the same time, but there will be a number of months under the normal procurement rules during which the process will proceed. If all goes well, implementation is expected to occur during the course of 2018.

Deputy Shane Cassells

Leaving aside the monetary aspect and focusing on the human side, the creation of Dr. Lynch's stand-alone Department was a very significant step and a bold statement in putting the rights of children of all ages first at the Cabinet table. Dr. Lynch says the scheme is demand-led and that he is working on previous years' figures. He said that, at best, there was stagnation in demand for the services, but there has been an increase in some areas. What dangers are vulnerable children facing in these cases? Is the Department playing a proactive role in trying to bring down and eliminate the numbers presenting each year and, if so, how?

Dr. Fergal Lynch

The main thing we can do is concentrate on introducing the new system. A critical difference between the existing and new systems is the uncertainty attaching to whether a GAL will be appointed under the current system, while under the new one, the legislation states there will be an assumption that a GAL will be allocated or appointed in all circumstances, unless the court determines otherwise. If it decides a GAL does not need to be appointed, it will have to give reasons in public for this. Under the new system, all vulnerable children will have access to GAL services, unless the court makes a specific decision to the contrary.

Deputy Shane Cassells

The societal issue is the dangers being faced by children in 2017. Dr. Lynch's office works with agencies such as Barnardos, Tusla and others, but, while one needs a licence to own a dog, anybody can procreate. Being a parent is one of the most demanding jobs in the world; being a Deputy is a doddle in comparison. I speak as the father of three young children. What is the Department doing to reduce the threat to vulnerable children in 2017?

Chairman

I have to ask the Deputy to stop because somebody's mobile phone is interfering with the sound recording system. We cannot hear what is being said.

Deputy Shane Cassells

If it is a demand-led scheme and the case that, at best, there is stagnation, while, at worst, the figures are going up, what is the Department doing to tackle the issues? What are its interactions with Barnardos to identify what needs to be done to bring the figures down in order that there will be no requirement for these services?

Dr. Fergal Lynch

There will always be a requirement for services of this kind. There are 44,000 referrals to Tusla every year, of which 58% are child welfare cases and 42% are child protection cases.

Chairman

For the benefit of the public, will Dr. Lynch explain the difference between child welfare cases and child protection cases? He understands the subtle differences but not everybody does.

Dr. Fergal Lynch

I will ask Mr. McBride to answer that question as he is the expert.

Mr. Fred McBride

There are referrals where there are general concerns about the welfare of children which often have to do with neglect. There are referrals of abuse cases where there is information on a specific incident which it is alleged resulted in direct harm to a child.

Dr. Fergal Lynch

There are approximately 6,400 children in care and that number has remained relatively constant. The GAL system is not the only way we support the most vulnerable children. The Department puts huge emphasis on prevention and early intervention. Tusla implements parenting programmes such as the prevention, parenting and family support programme, PPFS, which we support and is hugely important for children. We also have the Children First legislation which we are working to implement. One of the top priorities for the Department is to put in place all of the mechanisms required to implement the Children First Act 2015 which concerns mandatory reporting and related provisions. We are also reviewing the Child Care Act 1991. We are taking a much broader approach than purely the GAL system, important as it is, in order to help all children but specifically those who are most vulnerable.

Deputy Shane Cassells

We also have an ever-expanding early years education sector. It has come from nowhere in the past two decades but has come under huge pressure because of the demands of parents and pressure exerted by the Government. Schemes are being rolled out at a quick rate all over the country, but the required staff cannot be found for these services. As the Department is also rolling out the second free preschool year, can Dr. Lynch say the staff have been adequately trained to identify potential cases of neglect and abuse? Other committees have seen the extent of neglect in nursing homes at the other end of the age spectrum, but this is an embryonic system which is going through massive change.

The Department is putting serious pressure on early years centres to roll out a second year. I am asking about the quality and training of the staff in terms of identifying potential neglect and abuse. Is Dr. Lynch satisfied that the Department is giving adequate support to the private and community sectors? Dr. Lynch referred to prevention and early intervention. This is one of the greatest fears of staff when it comes to reporting problems. Mostly, it is young women in their early 20s who work in the sector. It is a major issue. There is a fear associated with reporting. There is a problem with the procedures and training necessary to identify issues.

Dr. Fergal Lynch

I think Deputy Cassells has raised an important point. We have expanded a little beyond the most-----

Deputy Shane Cassells

I am asking for some latitude. This comes to the root cause. We have a situation where the Department is before the committee with exorbitant costs associated with that. I see it straight away in terms of coming to the root cause and early intervention and we are putting serious amounts of money into that. I trust you will allow me latitude in this respect, Chairman.

Dr. Fergal Lynch

I absolutely agree with the Deputy. We lay a major emphasis on child protection and child training throughout the system. Deputy Cassells is absolutely right. The early years service is being expanded significantly. In fact, the budget for these areas has increased by approximately €85 million during the past two years. The affordable child care scheme is in preparation at the moment. A critical requirement is to have adequate and appropriate resources for training for child care providers. That is part of the package we are putting in place. We lay a major emphasis on that.

As with all other people working with children, they will be subject to the mandatory reporting system, the Children First system and so on. Fortunately, we are able to look at implementing Children First and the expansion of services now that resources have started to flow to those areas. One critical point is to ensure appropriate training for providers of services. It is not only a matter of training as support is vital as well. Those involved need to be able to deal with difficult cases. People may be unsure of the threshold of the reportability of a particular case, what steps or action they need to take and whether they should be concerned in a particular case.

Deputy Shane Cassells

Staff from the early years private sector have been protesting outside the gates of this building twice in the past 12 months. Specifically, they have been protesting about the pressures they are under and the fact that the sector is especially subject to extremely low pay. This is clear when one examines what these young professionals are being paid and the demands, in terms of the attainment of qualifications to work in the sector, now being placed on them by the Department. Something has to give. The question I am asking is whether enough support is being provided to these young professionals to get the training and go on to work in a high-stress job. The Department expects them to identify potential neglect and abuse for young children. What are they getting in return?

Dr. Fergal Lynch

Two different types of training are involved. The first is training relating specifically to child protection and supports. The second, in respect of which we are unashamedly applying pressure, relates to training to be child care specialists. I make no apology for the latter because of the importance of having appropriately qualified and trained people to work with our youngest children.

We are supporting both. In the case of child care providers, for example, we have a learner fund which we have funded in recent years as well as other supports. We have laid great emphasis on training of that kind to be given to children. This expands well beyond child protection. This is the training we need to give and should give to early years providers across the board. We have a major project in place to implement the various provisions from the budget. Specifically, these include the affordable child care scheme and the amalgamation of the existing early years payments into an affordable child care scheme. The extension of what was known as the free preschool year into effectively two years is another measure. We are not simply providing money purely for the cost of providing the service. We are also supporting other key components, including training and support. I am conscious that those in the sector see themselves as low paid, and they are low paid. A challenge for us in that context is that we are not the direct employers.

Deputy Shane Cassells

No, but the Department expects them to implement the strategy coming from the Department.

Dr. Fergal Lynch

Absolutely. What we are doing is providing as much support as we can in that regard. We are linking in with the Association of Childhood Professionals. We are linking in with IMPACT, which is beginning to represent those involved. We are doing what we can to support them in every way possible.

Deputy Shane Cassells

I thank Dr. Lynch. Thank you for the latitude, Chairman.

Deputy David Cullinane

I welcome our witnesses. Earlier, an Teachta Madigan asked about the wisdom of Tusla being the paymaster in this case. I gather Dr. Lynch said that it was not inappropriate but certainly not ideal and not best practice. That is the Department's position. Is that correct?

Dr. Fergal Lynch

That is right.

Deputy David Cullinane

Dr. Lynch also said that the reason for Tusla being the paymaster was for administrative convenience. Is Dr. Lynch telling me that administrative convenience trumped best practice?

Dr. Fergal Lynch

No, what I am saying is that we were faced with some practicalities with regard to how to organise the system and provide it in the best possible way. While it is not best practice in the sense of seeing a potential conflict of interest between the payer, Tusla, and the providers of the service, namely, the guardians ad litem, I do not think there has been any suggestion that Tusla has acted inappropriately or has deliberately restricted payments from guardians ad litem when it did not like what they were doing.

Deputy David Cullinane

Dr. Lynch has said the practice in place was not best practice or ideal. On the other hand, he offers up the excuse that the reason for this was because it is administratively convenient. It is reasonable for us to deduce that convenience came first. Dr. Lynch said, in response to an Teachta Madigan, that this happened because of a restructuring of different agencies and the Department. Who made the decision that Tusla would be the paymaster? Was it a ministerial decision, a policy decision or a departmental decision?

Dr. Fergal Lynch

My recollection is that it would have been part of the discussion in setting up Tusla and in transferring all the services and commitments of the HSE. It would have been a policy decision at the time. I recognise it is not at all ideal and it is what we are moving away from.

Deputy David Cullinane

I am just trying to establish the position because we want to learn lessons from mistakes. I welcome the response of Dr. Lynch.

Mr. McBride referred to the range of payments made to guardians in his response to questions. For 2015, we use figure 11.1. Is that the correct breakdown? We got clarification earlier. Under that figure, professional fees were €8.2 million in 2015. Is that correct? We have 65 guardians ad litem. My calculator tells me that the average is €126,000.

Mr. McBride then said that the range was from €40,000 to €240,000. That is extraordinary. Any time I see a range of that amount, alarm bells go off. The amount of €240,000 is seven times the average industrial wage. Mr. McBride also stated the figure was significantly higher in previous years. Can Mr. McBride elaborate on that and give us a breakdown of previous years?

Mr. Fred McBride

I cannot give the breakdown for previous years. The services were run within the HSE before Tusla was created.

Deputy David Cullinane

Does Dr. Lynch have the breakdown?

Dr. Fergal Lynch

No, I do not believe those figures were available at the time. I do not believe they were even collected routinely in that way at the time.

Deputy David Cullinane

We do not know-----

Mr. Fred McBride

What I stated in response to the Deputy's question was that the top of that range in 2015 was €240,000. Previously, before we started challenging that in the way we do now, the top of that range was even greater.

Deputy David Cullinane

Mr. McBride must have some idea. When he says it was greater, clearly he has some notion of what greater meant.

Mr. Fred McBride

It was over €300,000.

Deputy David Cullinane

Why has nobody got those figures? I realise it was a matter for the HSE, but the witnesses are here to respond to questions on the costs of this service and the payments made. We have figures for 2014 and 2015. If Mr. McBride is stating that the figures were significantly higher, then obviously it would be beneficial to me to have the breakdown.

Mr. Fred McBride

I am saying the top of the range was previously significantly higher. I am afraid that off the top of my head I do not know what the bottom of the range was. Anyway, that was when the services were run by the HSE. I absolutely share the sentiment and the rationale behind the question. The top of the range to us is completely unacceptable.

Deputy David Cullinane

I am reading from the reasonableness check distributed by Tusla. I have to be very frank and state it is less of a check and more of an accounting exercise. How can Tusla really verify the activity billed, the narrative provided, the time billed for activity and the total cost billed for each invoice? Mr. McBride might talk me through how it works. All Tusla is doing is a desktop calculation of what is provided by the guardian ad litem and it is almost impossible for it to carry out any checks. With respect, would Mr. McBride agree it is less of a check and more of a totting up exercise?

Mr. Fred McBride

Sitting behind those checks is a more substantial document, and the committee is very welcome to have it. It is information we now require to be submitted by guardians ad litem with their invoices. The document is three or four pages long and there are details behind the reasonableness check. We are probably operating at the limit of our powers to challenge these invoices. We have no legal authority to do so. The hourly standard rate is €125 for guardians ad litem. We were unable to set this. It had to be negotiated and discussed. We can speak about the rationale behind the figure. It was symptomatic of the lack of statutory power we have to control these matters and that is why we are faced with-----

Deputy David Cullinane

I accept this, and it is accepted by the committee that the problem is the lack of regulation and proper financial controls that were in place. It is not the fault of Mr. McBride, or a criticism of him, but it is almost impossible for Tusla to be able to carry out any reasonableness checks because by its own admission it does not have the authority to do so. While I accept it tried its best to put in place reasonableness checks, in reality as far as I can see it is more a totting up exercise, and this is problematic.

What is the range within the legal costs of €5.9 million? How many legal firms or individuals have benefited from the €5.9 million?

Mr. Fred McBride

We have a list of all of the guardians ad litem. Some are individuals and some appear to be companies.

Deputy David Cullinane

They incur legal costs so they employ barristers and solicitors.

Mr. Fred McBride

Yes, indeed.

Deputy David Cullinane

Is there a breakdown of the number of people who benefited from the €5.9 million in 2015?

Mr. Fred McBride

The number of legal firms?

Deputy David Cullinane

The number of firms and the range.

Mr. Fred McBride

We can try to get that for the Deputy. I do not have it with me, but we can get it.

Mr. Seamus McCarthy

On the screen, figure 11.7 gives a banding of the payments for solicitor and counsel fees for 2014 and 2015. We can see it was a total of 79 or 80 firms.

Deputy David Cullinane

There were three firms and practices which received between €400,000 and €600,000.

Mr. Seamus McCarthy

Yes, that is right. They received that amount each.

Deputy David Cullinane

It is a lot of money for firms. Is the number of guardians ad litem 60?

Mr. Seamus McCarthy

The figure we found is 65 in 2016.

Deputy David Cullinane

They shared an average of €126,000. As we have seen, the range is very high. Why only 60? I am also looking at the report of the Comptroller and Auditor General, which states Ireland does not compare favourably with the UK and has the lowest numbers of guardians ad litem per 10,000 children at 0.54. Is it a closed shop? It is extraordinary that it is so small in number, given the volume of children who need to be represented. Then we look at the scale of money being made. Will Mr. McBride enlighten me on why this is the case?

Mr. Fred McBride

I do not know precisely why this is the case. Given that there has been no regulation of the system and there has been no regulation of qualifications, experience and the type of people who might be suitable to be guardians ad litem, I would say perhaps the Deputy is right that the group is a closed shop. It is certainly self-selecting. They select themselves and put themselves forward to be guardians ad litem and this is simply the number who have done so. Without a proper system to determine whether they are qualified, experienced or suitable we have what we have. I agree with the Deputy's point; it is a point of major reform.

Deputy David Cullinane

It is very difficult for us because we are trying to understand why no oversight and proper mechanisms were in place, but if we ask critical questions the Secretary General will state the Department is in the process of making changes. Obviously we welcome these changes, but it is very difficult to accept anything other than an absolute failure on behalf of the Department to ensure there were any sufficient levels of checks and balances in place. It is quite extraordinary when we look at the range of criticisms, from the small number of people involved, the range of money they received, the volume of money they received, the problems relating to legal costs and the lack of appropriate tendering processes. With respect, Dr. Lynch would have to accept this was a monumental failure on the part of the Department.

Dr. Fergal Lynch

The best way to describe this is it has been an extremely difficult situation which we inherited and of which we were acutely aware from the time the Department was established. The Department of Children and Youth Affairs was established in 2011. Tusla was established in 2014. We were faced with a range of other priorities, and I do not say this by way of justification but by way of fact. When the Department was established, our first obligation was our establishment and to ensure we were properly functioning. We spent the early years putting in place the child and family agency, established in 2014. We then dealt with a wide range of other significant and costly priorities, for example, a Deputy mentioned funding for Tusla in its early years and the challenges it faced. We were looking at €600 million or €650 million worth of expenditure. Deputy Cassells mentioned the early years payments and the extent to which they have expanded. These payments are now worth more than €400 million. When we combine these two elements and the expenditure on them, we were obliged, in my view, to focus on getting those right. We were acutely aware of the unsatisfactory nature of the guardian ad litem service, but to be honest I do not feel we could have done everything at once. We started this process in 2013 and 2014, and work was being done on this throughout this period.

Deputy David Cullinane

I thank Dr. Lynch for his response. We cannot stray into policy. It is not our role to stray into what possible future changes will be made. It is a matter for the Department and the Minister. Dr. Lynch offered some possibilities of change, with regard to making this a more professional and good quality service. I fully support this. This is a vital step forward in children's rights and ensuring children have legal representation, and I fully support this. I would favour a professional good quality service that is properly regulated, whatever form it takes. I would favour having people who are salaried. I will not get into this because it is a matter of policy. The process completely lacks sanctions and having coercive mechanisms in place to deal with failures. Absolutely no sanction was in place. The Department was not even able to establish whether there was any wrongdoing. Whatever changes are put in place, will Dr. Lynch talk me through potential sanctions and oversight? It cannot just be a slap on the wrist. We have had far too much of this in the past. It must be robust. Has this element been examined?

Dr. Fergal Lynch

The key element will be a service level agreement. There will have to be a substantial, significant well worked out service level agreement between the Minister, the Department and the national service provider. This would provide for a range of issues, including the basis on which the service is provided, payments, the requirement for the service provider to provide all necessary information relating to the quality of the service, the type of service and the volume of the service. Training will be absolutely vital to the process.

There will also be a quality element built into it in terms of enabling us and requiring the service level provider itself to review its own work and to ensure that both the quality and the cost-effectiveness of it are appropriate. We will also consult with the courts. We have been talking to the Department of Justice and Equality and we have been speaking informally to the Courts Service. When one has a proper framework of legislation, the type of concerns that the Deputy has rightly described can be addressed.

Deputy David Cullinane

What happens when the service breaks down? With respect, we have had issues with service level agreements, SLAs, with the HSE in the past. The problem then was a lack of sanctions that could be put in place. What penalties or punitive action can be taken in the event of non-compliance? Dr. Lynch might not have a response but I just ask that the issue would be given due consideration. Otherwise, we will be back here again asking the same questions. I urge Dr. Lynch to bear that in mind.

Dr. Fergal Lynch

I agree with the Deputy. That would be a critical part of an SLA.

Deputy Catherine Connolly

My first question is for the Comptroller and Auditor General. Is this the first report in respect of the guardian ad litem, GAL, service?

Mr. Seamus McCarthy

It is. We examined it in the context of the 2014 statements of Tusla, which were its first financial statements or rather the financial statements of its first year in operation. We identified this as an issue in that there were control weaknesses but we needed to do more work in order to prepare the report.

Deputy Catherine Connolly

Is this the first written report? Has there not been any other report on guardians ad litem?

Mr. Seamus McCarthy

No.

Deputy Catherine Connolly

Why is that?

Mr. Seamus McCarthy

Prior to 2014, the guardian ad litem service was buried in the HSE accounts so the amount of expenditure in earlier years was, firstly, harder to see because it was not even coded as a separate service. It was distributed throughout the country. When we started to look at Tusla, we identified this line of expenditure and then we wanted to look at the controls that were in place around the expenditure. We did make recommendations in 2015 but they were in the form of points in a letter to the management of Tusla, which it acted on.

Deputy Catherine Connolly

I thank Mr. McCarthy. The witnesses are all very welcome. It is a very positive service at its best. It is a wonderful service. It is a sign of a civilised society that we are prepared to appoint guardians ad litem to children who are in very vulnerable positions. The best and most positive change is the fact that there will be a presumption on which judges will have to act. That is a huge change.

Having said those positive things I must continue in another vein. I read that we have the lowest number of guardians ad litem with the least regulation of any country. The system is ad hoc and unregulated and neither the role nor the service is defined. All the negative things have been said. The witnesses have come in here today, put their hands up and said that they accept the recommendations from the Comptroller and Auditor General, which is great. That is a good start.

Having said that, it beggars belief that there is no internal mechanism within the Department’s system to signal a problem. I fully understand that Tusla has no legal right whatsoever in regard to the service. It is simply the paymaster. What about the service's own internal system? Ultimately, we are completely reliant on the Comptroller and Auditor General to go in, identify a problem and come before us. That is a good system but where is the local responsibility and internal control mechanisms?

Dr. Fergal Lynch

Our internal control mechanisms were very conscious of this as an issue right from the beginning when the Department was set up in 2011. As the Comptroller and Auditor General said, however, the service tended to operate under the radar in terms of identifying it as a separate item of expenditure. It really came to the surface more sharply when we carved out the expenditure for children and youth affairs into a separate Vote. I accept everything Deputy Connolly said. It was extremely unsatisfactory. All I can say now is that we are working to address the issue as rapidly as possible. It is a complex system and it will take some time but we are working our way through it.

Deputy Catherine Connolly

The fact that the service is demand-led leads to problems in terms of budget prediction. We might come back to that issue. It is also a very sad situation because on the basic figures we have, as has already been pointed out, Dublin gets the best representation. We are utterly dependent on child care law reports. Dublin got 70% of the guardians appointed, Cork got 17% and Galway city got 13%. We have a large proportion of children without representation in court or without a guardian ad litem. That is the first point. Second, that has saved the bacon of Tusla and the HSE because if judges had appointed more guardians ad litem, they would have been in serious trouble because the cost would be off the chart. Is that not correct?

Dr. Fergal Lynch

That is a fair point. The demand-led nature of the scheme is such that this is what influences the costs. Under the current system, if the service had been assigned to the entire country at the same rate as in Dublin, the overall cost would no doubt have been more expensive. I stress that is under the current payment mechanism. We are now talking pretty much about having a GAL for all children whose case is the subject of a court care order hearing, which will mean far more GALs will be required, but under a different payment system.

Deputy Catherine Connolly

Unfortunately, far more guardians ad litem will be required. We must have them but it is a reflection of a breakdown in society. It is also a reflection of money going in at the end rather than the beginning. Dr. Lynch stated that the service is committed to prevention. That certainly has not been my experience. I do not blame those involved in the service in the sense that it is Government policy. For example, people in Galway are struggling at every level to provide a preventative service. We will have to put more money in at the end of the process, in court, which is very difficult while the money is not being put into the preventative sector. Perhaps Dr. Lynch would like to comment on that.

Dr. Fergal Lynch

I could to the extent of saying that one of the concerns we have is to entirely rebalance the spending between GALs and legal expenditure. I do not say that the total cost of the new GAL service under a service provider will be exactly the same as it currently is, but our aim is to rebalance the expenditure so that the total does not go up substantially in order to meet the additional GAL numbers. What we want to do is rebalance between legal and GAL costs in order that the overall cost is more manageable. I do not say it will be precisely the same figure but we will have to budget for it.

Deputy Catherine Connolly

I do not know how that will be done given the number of children without guardians ad litem.

Dr. Fergal Lynch

At present, according to the child care law reporting project, Dr. Coulter estimates that GALs are appointed in approximately 53% of all case. If one took that as a simplistic indicator-----

Deputy Catherine Connolly

Yes, and extended it throughout the country.

Dr. Fergal Lynch

-----if one said 100% instead of 53% and if one left the current system in place in terms of payments and costs, it is clear that the overall amount would be substantial. However, if we are talking about a salaried system rather than a fee-per-item model or, at least, a combination of the two-----

Deputy Catherine Connolly

Does Dr. Lynch have an estimate of the potential cost involved in the increase up to 100% of children?

Dr. Fergal Lynch

I suppose one could double the current expenditure on GALs, which is-----

Deputy Catherine Connolly

That is not acceptable because the current expenditure on GALs is totally off the deep end.

Dr. Fergal Lynch

Indeed. What I am saying is that if one uses the current system it would be double.

Deputy Catherine Connolly

No, I am asking whether Dr. Lynch has come here with a costing. Has the subject been proactively examined in view of the new legislation?

Dr. Fergal Lynch

We will do that as part of our preparation.

Deputy Catherine Connolly

Has it not been done yet?

Dr. Fergal Lynch

No, we will do it as part of our preparation for the review.

Deputy Catherine Connolly

I welcome the legislation in terms of the presumption on the part of the judge being put on a statutory footing. What I do not welcome – the Chair has touched on this – is the two-stage procedure where there will be a private service provider and then a statutory body. Why can we not do away with the first one and go straight for the second, namely, a public body with accountability? Have we learnt anything about putting things at arm's length? We have been through Console debacle. Our work programme will look at debacle after debacle as a result of the Government's policy of outsourcing.

Dr. Fergal Lynch

Our sense of it is that there is so much to be done in terms of improving the system, and changing everything else to do it, that we have got to move quickly. We think the fastest way of doing this in terms of achieving the other improvements is to make the other changes we need to make and then when they are made, include things like the qualifications and training requirements for GALs, the selection system for GALs, better data, good training and all of the other components that we have described.

If we try to do that and move to a public body immediately, I think that it would take us longer. Our sense of it was that if we could fix all those components of it, and put a service provider in place who becomes expert at dealing with all of the issues that I have just described, that faster progress would be made. I think that is what the Government has decided.

Deputy Catherine Connolly

It would probably be premature to disagree. I would have the most serious concerns about that policy. I think that Dr. Lynch is caught in a crisis and that he is reacting. There was the most serious publicity in yesterday's paper, the Committee of Public Accounts today, the report from the Comptroller and Auditor General, and his own internal analysis. I think that he is reacting to a crisis, and he is rushing in to privatise a service. From my experience on this committee, I do not think that is the right way to proceed. He is doing it in the absence of enough data.

I have a specific question about the Courts Service. Why can the judges in the court system not give Dr. Lynch the figures of how many guardians have been appointed?

Dr. Fergal Lynch

I am sure that we can seek some of that data from the court.

Deputy Catherine Connolly

Why has it not been sought? For instance, with the crisis, the Government directed the county registers that in each case of possession that came before them, they were to identify whether it was the family home. That policy direction was issued very quickly. Why has a policy direction not gone to the courts system requesting it to advise exactly how many guardians have been appointed?

Dr. Fergal Lynch

As I understand, that information is not collected in its current form at the moment.

Deputy Catherine Connolly

Why not?

Mr. Seamus McCarthy

That is correct. We asked if such information would be available and it has not been collected.

Deputy Catherine Connolly

Has the Department asked for it? Has the Government by way of a policy direction? Has the Department brought it to the attention of the Government? It is the same as the matter of orders for possession. Directions were very quickly given to the county register to come up with the data. Was it a family home that was being repossessed?

Dr. Fergal Lynch

We have not asked for the information in that source. It would have to be done through the Courts Service. It is something that we can look at.

Deputy Catherine Connolly

I am raising it and I think that it should be done. If we can do it in the cases, which was right, we should certainly have the information here.

Finally, there is the matter of the cost. There is no competitive tendering for the legal service. There is no panel. I understand that the guardian ad litem picks the solicitor. Barnardos is the biggest employer of guardians ad litem. Dr. Lynch did not look at Barnardos' system either? I am not picking on Barnardos. It happens to be the major provider of guardians ad litem. Is it right to say that they gave Dr. Lynch a narrative as to what they did?

Dr. Fergal Lynch

We have a good understanding of the nature and type of service that they provide and what they do. We know, for example, that they adhere to the guidelines provided by the Children Acts Advisory Board. It is worth acknowledging that.

Deputy Catherine Connolly

I will come back to my last question on the Children's Act Advisory Board and why it was abolished. Dr. Lynch has no sense of something, which tells me that either he is under-resourced or under pressure and reacting to a very serious situation where we have an unregulated guardian ad litem service. We are taking the narrative from Barnardos.

Dr. Fergal Lynch

In fairness, if I may say, it is not only Barnardos, with due respect to them, and I have a high regard for them. We had a major consultation process with all of the major stakeholders. We had 26 written, detailed submissions from all the stakeholders, ranging from the Judiciary to the courts system to people like the Children's Rights Alliance, to Empowering People in Care, EPIC, to a range of other providers, all involved in the service. We set out for them a range of options under each of these headings, asking what they thought we should do. We analysed the views and the submissions put forward on that basis. I do not think we are flying solo in the sense of just seeking an alternative and hoping that it will work. This has been the result of a good deal of analysis over the last while. I accept that there will be debate along the way as to what constitutes the best type of service provider, if there should always be a guardian ad litem , and if there should always be legal support. Despite everything that has been said this morning about legal support and the cost of it, some will still argue that every guardian ad litem should have legal support. We are not accepting that, and we are offering a different approach.

Deputy Catherine Connolly

On Dr. Lynch's proposal to have an in-house-----

Dr. Fergal Lynch

Yes.

Deputy Catherine Connolly

Does he envisage that in-house solicitor going to court, or just giving advice?

Dr. Fergal Lynch

We envisage both. There may be circumstances in which the panel that we referred to will be required and where somebody will be needed externally, if it is a more complex or specific case, but we would certainly envisage both, that the in-house legal personnel-----

Deputy Catherine Connolly

Would also go to court.

Dr. Fergal Lynch

Yes. That would be one of the ways of reducing the overall legal expenditure at the moment.

Deputy Catherine Connolly

My final question concerns the Children Acts Advisory Board. As with the independent monitoring group that was set up to monitor mental health and which was abolished, the Children Acts Advisory Board was abolished in 2011.

Dr. Fergal Lynch

It was abolished at the time that the Department of Children and Youth Affairs was established. I think the reason for that was that now there was a full Government Department, there was a better scope for dealing with the services and advice that the Children Act advisory board was giving out.

Deputy Catherine Connolly

Looking back, it seems to have been a very bad decision, because the Children Act advisory board at least brought in regulations. There was no statutory basis to it, but at least they were there with an advisory role to monitor. It seems to me a very bad decision to abolish that. When the Department was set up it was not in a position to take action. It was 2011 when Dr. Lynch's Department was set up.

Dr. Fergal Lynch

Correct.

Deputy Catherine Connolly

There was a big gap before any work was taken. In 2014-15 the consultation process started. I believe that the Government of the day made a very bad decision.

Dr. Fergal Lynch

It is not that we started the process of working on guardians ad litem in 2015 or 2014. Going right back, from the time the Department was established in 2011, and particularly then in our early discussions with the Department of Justice and Equality, with the Courts Service and subsequently with-----

Deputy Catherine Connolly

I do not wish to end on a bad note, but I do not entirely accept that. It has been under examination since 2011, and Dr. Lynch is still telling us that it is better to go the route of a private service provider because of the time it would take. What he is telling me is that we have been looking at this since 2011, which is six years ago.

Dr. Fergal Lynch

We started the process then, which in more detail-----

Deputy Catherine Connolly

I have a difficulty with that but I do welcome that Dr. Lynch is putting his hands up and going forward.

Chairman

Some of those comments are probably more directed at the Minister and the political heads of the Department of Children and Youth Affairs, rather than at Dr. Lynch. Some of them are on policy, but we accept that, so I do not expect Dr. Lynch to get into that argument. I call Deputy Murphy.

Deputy Catherine Connolly

It was not an argument.

Chairman

A valid point.

Deputy Catherine Murphy

Very often incentives influence behaviour. Have the witnesses done any kind of analysis on the extent to which the system is losing child protection workers to the guardian ad litem service?

Mr. Fred McBride

Perhaps I could take that. We, at Tusla, have not done that specific analysis, and as we have already acknowledged, the actual numbers of guardians ad litem are quite small. We have done analysis, of course, of our general turnover of staff, and the rate at which we need to replace them. We are conscious within that, that working at the coal-face of child protection is exceptionally stressful. In recent times, we have been looking at not just recruitment measures, but retention measures and how we can support staff to stay in practice, to stay in front-line services, particularly in child protection. However, if the Deputy's question is how many child protection workers we are losing to guardians ad litem, we have not done that specific analysis, but as we have already acknowledged, the numbers of guardians ad litem is very small in any event.

Deputy Catherine Murphy

Is Tusla likely to look at that in the context of retention of people?

Mr. Fred McBride

The Deputy poses a good question. I think that we are going to have to. If we - I have a slightly different view about this - are going to move towards a presumption of every child in court proceedings having a guardian ad litem , then clearly there are going to be more of them. Yet if it is proposed that they must have a qualification in social work, then there are only so many social workers available and only so many social workers graduate every year in Ireland. Therefore there is a real danger that we will lose these. The stipulation in the new legislation will be that they will have to be five years qualified. We will not lose them to new graduates. Eventually there is a risk that we will lose front-line child protection social workers to what is perhaps seen as an easier business.

Deputy Catherine Murphy

It could end up being counterproductive in that the whole preventative side could be weakened.

Mr. Fred McBride

I am not going to argue with the Department here, but we have only seen the high level proposals for the new legislation. There will be a pre-legislative consultation process which we will want to participate in fully. I have views about the issue of the presumption of a GAL in every case.

Deputy Catherine Murphy

We have established that it is an hourly rate as opposed to a salaried position. Who dictates the hourly rate? Is it the GAL individually or is it the Department? How is it determined?

Mr. Fred McBride

I am not quite sure how it was determined previously. My predecessor, Mr. Gordon Jeyes, negotiated a rate with GALs of €125 per hour. I do not want to be pejorative about that, but previously I think GALs were charging a whole variation of fees. Under the HSE system, as far as I know, these fees were negotiated locally with health boards and social work teams and departments. It was very ad hoc.

Deputy Catherine Murphy

With individual GALs.

Mr. Fred McBride

Yes. It was very ad hoc. At least we have tried since Tusla came into being to standardise that rate. One could argue that it is too high but we have a rationale for how it was arrived at. We were not able to set it, however, but had to negotiate it. The GALs got around a table with Tusla and negotiated and accepted a rate. We took away the hourly payment they had previously received for the time they were travelling. We negotiated a stop to that.

Deputy Catherine Murphy

A GAL is needed for as long as a GAL is needed. Having said that, the system as designed appears almost to incentivise the prolonging of the engagement. How is that going to change or is it? That really comes back to institutional design. Is that being put into the scenarios even in terms of the new legislation?

Mr. Fred McBride

I will let the Secretary General answer the question about the proposals within the new legislation. Certainly, it is one of my major concerns as is the presumption of appointing a GAL in every case. It may not be necessary. Some young people can speak for themselves perfectly well and perfectly articulately. If we can arrive at a decision without adding to the process, we should do that. My main concern and that of Tusla is that there is a child in the midst of this process who may be very uncertain about his or her future. He or she may not know whether he or she is coming or going. That is extremely damaging, potentially, to children. Therefore, our starting point from a service-provider point of view is that delays should be minimised where possible. Quite how the new proposals are going to address that, I am not sure. We need to get into some of the detail of that.

Deputy Catherine Murphy

In addition to the design of the service, Mr. Lynch said the Child Care Act 1991 was where the service originated. Was it designed? Was it thought about? What was envisaged when it was introduced under that Act? What led up to it?

Dr. Fergal Lynch

My understanding was that it was an amendment to the legislation which was introduced fairly late in the day during the debate. I was not involved in it but I could not honestly say it was designed and thought through. All that happened was that section 26 was included to provide for the appointment of a GAL where a child was not party to proceedings and where the court was satisfied that it was necessary in the interests of the child to have one. The section also provided that the costs incurred by the GAL would be paid by the then-health boards, which role has been taken over by Tusla. That, as I understand it, was the extent of the thinking that went into the legislation at the time. It was very basic.

Deputy Catherine Murphy

Obviously, there is a significant lesson to be learned from the way this has been handled from 1991 to date. The absence, according to the report of the Comptroller and Auditor General, of access to key data means the demand for the service cannot be estimated. We are talking about extending it to a wider group as part of the legislation. We compare unfavourably to other jurisdictions. If one looks at new institutional arrangements which we introduce in this country, one sees that we are very poor at it. We do not take the evidence-based approach, which is the way things work in other countries. In terms of the points Deputy Catherine Connolly has been making about pre-empting institutional design, the Department is behind the curve in terms of scenario-testing and what might be good institutional arrangements into the future given the experience of the past.

The Secretary General in his statement said the new service would be established over time and that other options can be examined as appropriate including, for example, establishing it within a proposed family court system or as a separate public body or placing it within an existing statutory structure. I would have thought at this point that the Department would have looked at those scenarios and determined a favoured approach. It appears that the Department is going to approach it in a way that is not ideal by virtue of the fact that it is not clear about the system it is designing. We could be back here in five years' time talking about the very same issue at the Committee of Public Accounts of value for money in respect of what is a very small amount of money that has to be spent. The money we spend on children is not a lot anyway but we could be back talking about the same thing if this design is not right from the word go or if there is not at least a lead in towards something that is the ideal. It does not strike me that the Department is ahead of the curve on that.

Dr. Fergal Lynch

We have done a number of things already in terms of trying to design the new system. There is no absolute agreement among the stakeholders about what the best way to go is under a number of headings. We have had to make judgment calls including in relation to the legal situation and supports, when GALs should or should not be appointed and also in respect of the type of body that should function. Our concern was to address the areas most requiring immediate reform, to put in place a nationally organised system, ensure professional practice, establish an in-house legal facility and to clarify the formal role and function in the legislation of a GAL, which last matter we have not said too much about. All the things can be put in place and need to be as quickly as possible. We will not simply rest on our laurels when that is done but will be looking at what the most appropriate body for the future should be.

We have got to this stage and I do not claim for a moment that the legislation is perfect and finalised and absolutely ready to go. However, it is a substantial step forward from where we have been. It offers a very good basis for improving the current service and allows us to move forward in relation to looking at alternative permanent structures, including a public body. There is scope to put that body within the family court system albeit the Government has not made a decision on that. The family court system is at a certain stage of development and needs further work. Rather than waiting to see if that is going to be the solution, we are anxious to move forward with everything else. This is a means to move forward with as much as we can of the reform programme. I assure the Deputy that we will be looking at the public body component as quickly as possible.

Deputy Catherine Murphy

I have just a last few questions.

I know that most people working within this system will be very well meaning and will want the best outcome for the people that they look after or represent. It does look a bit like a cartel, however, and it is very hard then to design an institutional framework coming from that scenario. Has this been looked at in relation to the challenge that will pose?

Dr. Fergal Lynch

I think Deputy Murphy makes a very important point. There are only about 65 guardians ad litem, GALs, which is a relatively small number, but I think that with a national service provider and the fact that we will be providing GAL services for more children means that we will need more GALs, and that reduces the danger of a cartel or a closed shop. The fact that a service provider will be responsible for identifying each appropriate GAL, for making sure that they are properly trained, and the fact that they have to have certain qualifications and experience, will be helpful in this regard. The last thing we want is some form of closed shop, but we do want expertise and quality. The danger at the moment is almost from the opposite direction. I am not casting aspersions on any GALs, but the danger is that given the looseness with which it is possible to appoint a GAL, it is conceivable, although I am not saying that it happens, that a GAL would not have the qualifications and experience that one would like. In the new system, they will. It is also important to say that the service provider will have to report to the Department in terms of its overall offerings, and in terms of the quality and the type of service that it offers.

Deputy Catherine Murphy

Did the €15.2 million, the total cost of the GAL service in 2016, include a supervisory cost in terms of billing, etc.?

Mr. Fred McBride

Just direct costs.

Deputy Catherine Murphy

It becomes almost a business conversation when we talk about procurement. I could envisage a situation where there would be very large operations from outside the State that have experience of this kind of thing. The Chairman alluded to this earlier, but if we are going to encourage a group of people to tender, establish an office and employ people, it then almost becomes a self-fulfilling prophecy in terms of the institutional arrangement that we will have, and we are talking about an overhead cost of something like 38%, according to Barnardos. We will end up on the reverse side of it where we will be talking about people losing their jobs, and pressure is applied. The formulation of the terms of reference for the procurement will be very important. What work has been done on that? Some of this will happen quite quickly.

Dr. Fergal Lynch

We are at the early stages of that. We have started some work. The points that the Deputy made are very important, particularly in terms of when we move to a transition from a service provider to a public body. There will be implications for everybody involved, including those employed. Whatever system we have there will always be care orders and there will always be need for a GAL service. Whether they are employed by a service provider or through some other mechanism, I do not envisage that this would involve substantial job losses for a large number of people. The expertise that the GALs have will be required in whatever structure that we use.

Chairman

I have a few questions having listened to what has been said today. In your opening statement you said that: "I am pleased to inform the committee that on 17 January the Government approved the heads of the Bill". Had that been announced before this morning?

Dr. Fergal Lynch

There was a statement by the Minister yesterday.

Chairman

It was good that was on the books before you got here today.

Dr. Fergal Lynch

It was a coincidence, Chairman, to be honest, because the timing of the Government meeting at which this was to be examined was set quite some time ago. I heard about this meeting two weeks ago. The timing was maybe fortuitous.

Chairman

We are pleased with that, in any event. Having listened to you, I am not clear on the thinking behind this. I will take two examples of what you just said and we will deal with them one by one. You said that with more GALs in the system the service could be increased and there would be no closed shop, and there will not be a cartel. You said something like that just a moment ago. However, the essence of what you are doing is creating a monopoly service by having one national service provider. It was said that there will be no cartel, but when what is being done is examined you are specifically creating a monopoly, because only one public service provider will be in charge. How can those two statements be reconciled?

Dr. Fergal Lynch

I do not think that they conflict, with respect, Chairman. It was described as a monopoly, but one of the big concerns we have is a complete absence of regulation of the current system. Whether it is a monopoly in terms of a single provider, which is a private provider, or whether we were in a position to set up a public provider, the same charge could perhaps be levelled, that the only GAL service that will be available in the future is under this body. I am not sure I accept the idea that it is a monopoly. Yes, it is a provider, but with good reason, and unless people strongly disagree, I think there is a strong argument for a single provider of this service, rather than allowing the current situation to continue, or rather than allowing, for example, five or six different firms or providers to provide this. The big value of this is economies of scale.

Chairman

I will come to the economies of scale in a moment. You gave a flavour of what will be in the legislation. The Comptroller and Auditor General's report refers to section 1 of the Children's Act, advisory board guidelines, giving advice to children's wishes, feelings and interests, of May 2009. That group was abolished in 2011. It talks about the qualifications and training for GALs. It looks as though the legislation is substantially a transcription of the document that was abolished five years ago. I find it strange in that there is a proposal from your office to your Minister to agree to the heads of a Bill when you say you have not worked out the question of whether it will be operating within the family courts, whether it will be established as a separate body, or whether it will be placed within an existing statutory structure. It is not known where this is going to go, and yet the heads of a Bill were out yesterday. I am saying that this sounds like more of an ad hoc approach in that you know the details of what a GAL should do, but we do not know the structure. That means that you will be back here. It does not look as if there is a comprehensive picture of where this is going. I would ask you to consider that. It is a slight criticism of the report.

Dr. Fergal Lynch

We are talking about a two-stage process. Rather than saying that we do not know where we want to go, we are very clear that the fastest, most efficient way of addressing the situation at the moment is through a national service provider, and the second stage would be a public body. I believe it would take longer if we wait for a public body to be set up, and if we are waiting for that, then all the other reforms that we are concerned about, such as the regulation, the selection and the quality of service, cannot be addressed either. This is a two-stage way of doing as much as we can early on.

Chairman

It sounds like a three-stage process. The first stage is the procurement, the second stage is the new legislation and the third stage is the further legislation required in relation to the structure and where it is going to be placed, be that in the Courts Service or somewhere else. That has not even been decided yet by the Government in the heads of the Bill. You are going ahead with the guidelines for recruitment and training for GALs. The big questions are unanswered. Will that be in this Bill? Will it be a two-stage process or will we be back for further legislation in relation to the statutory placing of this?

Dr. Fergal Lynch

I think when the Bill is published, it will be clear that all these other things are provided for in it, including the national service provider. The only thing that is not provided for is what public body will ultimately take over this responsibility. All the other things will be in the heads of Bill.

Chairman

I will make two observations as a practising Deputy, not so much as a Chairman. I ask the Department to do a favour, not for me, but for the children. Dr. Lynch mentioned the possibility that this service could end up within the courts system. That is no place for a structure for vulnerable children to be. It is not acceptable that before they even start the process, they are part of the courts structure. It is not child-friendly. We have talked about administrative convenience and why we are where we are regarding the payment. If the Department is here in the interests of the children, I ask it not to lob the administrative convenience system in as part of the Courts Service. It is the wrong place to tell children in a vulnerable situation where they will be going. Of course there will be interaction, but they should not be placed in the Courts Service.

I ask the Department to do us all a second favour. I ask it to give in the new legislation what it calls a guardian ad litem an English name that people can understand. I do not want to see the term "guardian ad litem" in legislation. We had a debate yesterday about guardians ad litem and guardians ad whatever. We are semi-educated people in this committee. That phrase should not be used with children. The Department should at least speak to them in their language and use an English term. It is only a small point-----

Dr. Fergal Lynch

It is a fair point.

Chairman

-----but it is an example of the thinking that is going on.

I welcome Dr. Lynch's opening statement. The only part of it I did not like was that part in which he talked about the need for significant reform, which he mentioned at the beginning of his statement. He said that one of the issues is that the service is essentially demand led and determined by decision of the courts, as if that is in some way a disadvantage. It should be demand led. The Department should not restrict the demand for services that are required for vulnerable children. Dr. Lynch has referred to this demand-led nature as one of the negatives. I thank God the service is demand led. If the Accounting Officer had control over it and it were not demand led, I would be afraid that children would just be put on a waiting list as in everything else. It must be a demand-led service. It cannot be the case, as happens in the HSE, that a person is placed on a waiting list for two years. I will come back to this in a moment. The witnesses understand my point. The demand-led nature of the service is a positive, but Dr. Lynch seems to think in his Department that because of the cost, it is a negative.

I want to ask Dr. Lynch a few basic questions about the guardian ad litem service to get the basics right, even though they might be slightly legalistic. Who appoints the individual guardian ad litem in a court in Limerick or Thurles or Galway?

Dr. Fergal Lynch

The court.

Chairman

The judge.

Dr. Fergal Lynch

Yes.

Chairman

Does he or she pick the guardian ad litem?

Dr. Fergal Lynch

Yes.

Chairman

The judges have their own local list.

Dr. Fergal Lynch

Yes.

Chairman

I know there appears to be a difficulty getting the names and I know good work has been done by other people. Does the Courts Service have a role in obtaining this? Can Dr. Lynch answer that? Is it the case that the judges, because they are operating due to the judicial independence, do not have to pass this information on? This should be well known.

Dr. Fergal Lynch

Is the Chairman asking about the list of guardians ad litem themselves?

Chairman

Yes. Dr. Lynch has done his best to identify 65, but are there more out there? Is he satisfied that the list is complete?

Dr. Fergal Lynch

Yes.

Chairman

The list of 65 is complete.

Mr. Fred McBride

Yes, at this point in time.

Chairman

I will ask Dr. Lynch another question, and this is just for public information. The opening paragraph of the Comptroller and Auditor General's report refers to the fact that the views of the child are held in public family law proceedings. Are guardians ad litem appointed in private family law cases in the family law courts?

Dr. Fergal Lynch

No, they are not.

Chairman

This is important. Will Dr. Lynch explain this to the public? I will speak as a layperson. When we hear about vulnerable children, custody battles and so on, we assume that family law courts are generally in camera and that much of the proceedings in question are held in camera. Dr. Lynch now seems to be saying this guardian ad litem service is only for the public courts service. Surely, however, there are many cases in family law courts, like those I have just mentioned, that are being held in camera and in which the child's voice should be heard as well. What happens in such cases? I ask Dr. Lynch to explain this to me.

Dr. Fergal Lynch

There are essentially two systems: public law and private law systems. In the public law system, guardian ad litem is applied. In the private law system, however, the cases are of a different type and generally involve custody, access and so on, and there is no provision in the legislation for guardians ad litem to be appointed. There is, however, provision in the Children and Family Relationships Act to appoint what I think are described as child views experts. They are appointed, in a not dissimilar manner to the idea of a guardian ad litem in a public system, to listen to the views of the child.

Chairman

Who pays for the child views expert?

Dr. Fergal Lynch

I do not think they are in place yet. There is a provision for them to be in place, but they will have to be paid for by the families themselves. There is no public provision at the moment, unless perhaps legal aid is involved.

Chairman

Dr. Lynch will understand that I am an elected politician and not an expert on this, but I am getting a little frustrated now. I am hearing that we are only talking about a segment of cases involving vulnerable children that are heard in public. There could be many a case involving a child in an in camera court, a family law court or the juvenile court. Is there a guardian ad litem appointed in the juvenile court for vulnerable children?

Dr. Fergal Lynch

No. Solicitors are appointed in the juvenile court. If I may-----

Chairman

I will ask Dr. Lynch to come back to the committee on this. Will he come back to us with a report explaining to us who looks after vulnerable children in the Irish Courts Service? That is the job of his Department and Tusla.

Dr. Fergal Lynch

It is not.

Chairman

We have had a long discussion, and I think 90% of the people had assumed we would cover vulnerable children in the courts. We are only now hearing the guardian ad litem service does not cover juvenile courts or family law courts, that these experts will be established, that families who possibly cannot afford to pay for their legal costs in the family law courts are being told to pay for these experts, and the only cases we have been talking about are the vulnerable children - Dr. Lynch used the phrase - in public. These are only the cases we know about. What about all the hidden cases? The Department is only dealing with part of the problem.

Dr. Fergal Lynch

I would be happy to give the Chairman a note on this.

Chairman

Whatever legislation the Department is bringing forward, if it does not deal with all vulnerable children before the courts, it is only part of the issue. I ask the Department to look at the bigger picture. Maybe I am getting everything wrong here, but from what I am hearing, we are only touching one aspect of this.

Dr. Fergal Lynch

I would be happy to give the Chairman a note on this to clarify where we are coming from. In the first instance, public law cases deal with care orders which make major decisions about children's futures: whether they will be given foster care orders, interim care orders and so on. In private law cases, the State is not involved directly, so it is-----

Chairman

Custody.

Dr. Fergal Lynch

They involve custody cases, access cases and so on, so there is-----

Chairman

Those issues can be as important to the children-----

Dr. Fergal Lynch

Indeed, but all I am saying is that the current system we are trying to reform relates specifically to public law cases. It is the Child Care Act which deals with public law cases, which is all to do with the intervention by the State in the future of children. It does not refer to private law.

Chairman

I ask Dr. Lynch to talk to me about the juvenile court. That involves the State. It involves the State prosecuting children-----

Dr. Fergal Lynch

Yes, they are criminal cases.

Chairman

-----in family courts.

Dr. Fergal Lynch

Yes, and they have solicitors.

Chairman

However, they are normal professional solicitors.

Dr. Fergal Lynch

Yes.

Chairman

They may not have any specialist ability-----

Dr. Fergal Lynch

That is right.

Chairman

-----to deal with children of 15 or 16 years of age. Are they not covered by the guardian ad litem service at all?

Dr. Fergal Lynch

No. We are in discussion with the Department of Justice and Equality-----

Chairman

I ask Deputy Connolly to bear with me for a minute. She understands-----

Deputy Catherine Connolly

I do.

Chairman

She is probably surprised at our level of-----

Deputy Catherine Connolly

I think the Chairman is slightly confused about the words "public" and "private". All the cases we are referring to are in camera. They are not in public.

Chairman

These public family law-----

Deputy Catherine Connolly

"Public" means the involvement of-----

Dr. Fergal Lynch

Public law.

Deputy Catherine Connolly

-----a State body, as Dr. Lynch is pointing out, meaning a public body, such as a health board.

Dr. Fergal Lynch

Yes.

Chairman

When we talk about public family law proceedings, we are not talking about cases in public.

Deputy Catherine Connolly

No.

Dr. Fergal Lynch

No.

Chairman

The committee will understand my misunderstanding. I know there are learned people who represent a small percentage within the system and who understand this, but if I as a Deputy read about public family law proceedings, I only come to one conclusion, that it is a public family law proceeding, not involving-----

Deputy Catherine Connolly

It is where the State is involved-----

Chairman

I understand that, but-----

Dr. Fergal Lynch

Could I finish-----

Chairman

-----to go back to the juvenile court, the State is involved in those cases-----

Dr. Fergal Lynch

Yes.

Chairman

-----and there is no guardian ad litem-----

Dr. Fergal Lynch

There is no guardian ad litem; there is a solicitor. Regarding public law versus private law, I take the point the Chairman makes-----

Chairman

They are public hearings.

Dr. Fergal Lynch

No, they are not public hearings. I am referring to public law, that is, cases in which the State is involved, as opposed to private law, or cases in which the State has no direct involvement. I would like to clarify that from a policy perspective, the 1991 Act is all about public law, in other words, the State's involvement with children. That is why the guardian ad litem system which emerged from the legislation deals only with public cases, that is, public law, as opposed to private law cases. I can give the Chairman a note on this. I should say the private law issue is one for the Department of Justice and Equality and I am not trying to pawn it off on that Department. We are in discussion with the Department about it. One of the observations that I think was given to us is that we need very much to join up the types of guardian ad litem or child law expert or child views expert or whoever that are put in place in the private system.

They need to be properly joined up and the regulation of them should be properly joined up. That is one of the things we are working towards. We are conscious there are different circumstances, different types of cases and probably different qualifications. For example, in a private law case involving access, one almost certainly would not need a social worker or a psychologist with five years' postgraduate experience whereas clearly one does in a care order type case. They are different types of cases and they are treated differently at the moment but I absolutely accept they need to be joined up.

Chairman

If I am a little bit confused, the public is confused. I take myself as a barometer. If I am confused in this issue, others will be. To return to the juvenile courts, they involve public law proceedings because it involves a public body. Dr. Lynch is telling me that in public proceedings, there is no provision for guardian ad litem.

Dr. Fergal Lynch

No.

Chairman

There should be.

Dr. Fergal Lynch

That is a policy issue. I can certainly look at that.

Chairman

I am just making the point that while regular solicitors are very adept, they are doing speeding fines in the morning and dealing with these cases in the afternoon. We are talking about public law proceedings involving the State and vulnerable children who are before the courts. They are probably some of the most vulnerable children yet Dr. Lynch is telling me that the guardian ad litem service, which exists to speak up for the child, does not even exist in such cases. How did the Department choose to exclude the juvenile courts?

Dr. Fergal Lynch

We did not choose to exclude them.

Chairman

But they are not included.

Dr. Fergal Lynch

We did not include them because they are part of a separate system. I absolutely accept that we need to join this up but there is a policy issue here in joining up services that are operated by the courts, the Department of Justice and Equality and that system, and the care cases that we deal with through Tusla and the child care system.

Chairman

I have a number of other points. Dr. Lynch will have to come back to us to explain the public cases or public law proceedings where the guardian ad litem procedure exists and where it does not exist. There is a presumption by anyone watching proceedings on Oireachtas TV that this covered vulnerable children in the courts and now we are-----

Deputy David Cullinane

This asks-----

Chairman

I am learning but I am a bit-----

Dr. Fergal Lynch

I will give the Chairman a note on that.

Deputy David Cullinane

I do not disagree with any of the questions the Chairman has put but I am trying to figure out if we are now straying into policy areas.

Chairman

We have a report in front of us that I thought covered vulnerable children in court. I now realise it only covers some vulnerable children in some courts. That is all I am saying. I thought I had the full picture here today. I clearly have a detailed, very thorough account which is only part of the picture. That is all I am saying. I thought I was dealing with the full picture until a few minutes ago. I am not disagreeing. Is there a statutory basis for the appointment of the guardians ad litem at the moment?

Dr. Fergal Lynch

Yes, section 26 of the Child Care Act 1991.

Chairman

When was the Act commenced?

Dr. Fergal Lynch

I will have to check the exact date but it was sometime shortly after 1991.

Chairman

On 12 April 2011, I submitted a written parliamentary question to the then Minister for Justice and Equality. It was probably around the time the legislation was going through. It was 12 April 2011. The reply I got stated, "Section 28 of the Guardianship of Infants Act 1964, inserted by section 11 of the Children Act 1997, regarding appointment of a guardian ad litem for a child and provision for separate representation of the guardian ad litem, has not been commenced. I am presently considering the possible commencement of the section". That was the position in April 2011. I want Dr. Lynch to come back and give us the exact date. It did not exist at that time. There was not-----

Dr. Fergal Lynch

That was a slightly different issue. That was a specific issue which was provided for in a subsequent 2011 Act, which was not commenced. I cannot give the Chairman the exact date on which the 1991 guardian ad litem system commenced but that section of the Act was commenced a good deal earlier than 2011. It would have been within a year or two if not earlier than that. I can check it for the Chairman.

Chairman

Have parents a right to object to the appointment of a guardian ad litem? Does that happen?

Dr. Fergal Lynch

I think it is up to the court. There is no direct provision for them to do so.

Chairman

Pardon.

Dr. Fergal Lynch

There is no direct provision for them to object because it is the judge who makes the decision.

Chairman

Who makes the case? Who will make the case in future for a guardian ad litem to be appointed?

Dr. Fergal Lynch

The legislation will provide for a guardian ad litem to be provided in all cases other than where the court decides otherwise. The court could decide, for example, to discharge a guardian ad litem or it could decide that in a particular instance a guardian ad litem is not required. The court could no doubt hear a case from parents saying they do not believe one should be provided for. Given the guardian ad litem is directed towards the child and the child's needs, as opposed to the parents' needs, the court would no doubt take that into account.

Chairman

Have there been situations where a child or a minor has had more than one guardian ad litem? Does Dr. Lynch have information on that? Does it happen?

Dr. Fergal Lynch

I do not but Mr. McBride might be able to help us.

Chairman

Can Mr. McBride talk to us about that?

Mr. Fred McBride

It can happen, particularly in protracted cases; if they go over a couple of years or more, there could be different guardians ad litem appointed.

Chairman

Is there information on that? I suggest the Department tries to get that information before passing legislation on the system. How many times do we hear in other parts of the State that somebody is assigned a social worker and the next year it is a different social worker? I am not suggesting it is happening with guardian ad litem but if it is, we want to take preventative action to ensure those types of problems do not occur.

Mr. Fred McBride

We will look at that. We do not gather that information at the moment.

Chairman

Dr. Lynch mentions with regard to the public consultation on drafting this legislation that the Department had information from all the stakeholders involved. Did the Department get much feedback from the children themselves - perhaps not a child who was placed at the time but somebody who had been through the system and was then an adult and well able to give feedback? As part of the public consultation, what kind of feedback did the Department get from the people the system is designed to serve?

Dr. Fergal Lynch

We got feedback from EPIC, Empowering People in Care, which is an organisation that represents children in care. We got a substantial submission from the Children's Rights Alliance, which represents about 100 or so organisations for children. To my knowledge, we did not get any direct submission from a person who had been in care but through this process we did.

Chairman

This sounds to me like the HSE doing a public consultation about an aspect of the health service and not talking to the patients. It is fine to talk to the consultants, professional and representative bodies, trade unions, judges, the Courts Service, Tusla and everybody involved, but how about talking to the people who have been through it? I suggest that at this stage, before Dr. Lynch does his parliamentary legal scrutiny, or whatever the next phase of this legislation is, he needs to get some honest testimonials from people. I think he will probably learn more from that than from some of the other processes. Does Dr. Lynch take my point?

Dr. Fergal Lynch

Yes. May I respond to it?

Chairman

The Department should talk to people who have come through the system or people who are still in the system. It has been said here by Mr. McBride that some of these minors are well able to speak for themselves and know precisely their views. There is a deficiency in the public consultation to date which I hope will be corrected before the legislation proceeds because I would like it to be done. There will be a glaring omission if it gets to an Oireachtas committee without that having been done. I am saying this in an effort to be helpful and to get it right.

Dr. Fergal Lynch

May I respond to that?

Chairman

Yes.

Dr. Fergal Lynch

There is an important consideration here. First, there is an ethical issue and one of sensitivity relating to children who have been in care. They have been through quite an adversarial and traumatic experience. That has to be handled very sensitively. That is why we went through EPIC, the Children's Rights Alliance and organisations like that. We regularly and extensively consult many children about many things. It has to be handled extremely sensitively. That is why we did it that way.

Chairman

If the Department asks, some might come forward.

Dr. Fergal Lynch

We had the findings of a report by Dr. Carmel Corrigan from Trinity College who did a very good thesis on the voice of the child through the guardian ad litem system in child care proceedings and gave us a very good piece of qualitative research. She directly interviewed children and young people and that informed the Department's thinking on areas of reform. While we could not at the time consult directly with children, we do a lot of consultation as a Department with children. We have a participation unit that does that. We used Carmel Corrigan's work and we were also very conscious of the contacts we had with organisations that deal directly with children.

Chairman

I thank Dr. Lynch for that. He might not have thought some of it was directly related but it has followed through everything we have discussed here in public session. I learned something here today about who is eligible for guardian ad litem, or GAL, as Dr. Lynch refers to it, which is a term I hope I do not see in the new legislation, as I have said.

Dr. Lynch will send the note to us. It is a benefit to the public as it presumes that we are dealing with all vulnerable children in the courts. Pardon my ignorance, but it is a good day when we learn something new. Are there other questions?

Deputy Catherine Connolly

I have a question for Mr. McBride, who stated that he expressed concerns about the new presumption that will be built into the legislation. Will he elaborate on that?

Mr. Fred McBride

I do not want to use comparisons with other jurisdictions but the presumption is really the other way. Safeguarders, as they are called in other jurisdictions, are appointed for specific reasons, usually where it is deemed there is a conflict of interest. Otherwise, they are not. All I was really saying is that I have some views based on comparisons with other jurisdictions where there is not a presumption that a safeguarder or guardian ad litem would be appointed in every case because it may be deemed unnecessary or not proportionate to the issues being discussed.

Deputy Catherine Connolly

Is that for the judge to decide?

Mr. Fred McBride

It is.

Deputy Catherine Connolly

The judge would have to give reasons for not appointing a guardian ad litem. The judge would have to outline reasons with the proposed legislation as well.

Mr. Fred McBride

That is correct.

Deputy Catherine Connolly

Is that not a safeguard? The judges will not appoint somebody in every case.

Mr. Fred McBride

I was making the comparison where the-----

Deputy Catherine Connolly

I thought the witness said it would delay matters. That is what concerns me.

Mr. Fred McBride

It could potentially delay matters.

Deputy Catherine Connolly

It is public law and in these cases, children are often being taken into care. There is a need for a voice for the child.

Mr. Fred McBride

Absolutely.

Deputy Catherine Connolly

If the witness is worried it would cost more money, that is not a very good reason.

Mr. Fred McBride

My concern was partly to do with delay in decision making for the child. It was not to do with money.

Deputy Catherine Connolly

I am concerned about that. Perhaps I do not have time to elaborate. I am not really sure what the witness is saying about his concern. If a judge decides that a guardian ad litem is vital, it would be for the good of the child, particularly as his or her welfare must be paramount.

Mr. Fred McBride

Yes.

Deputy Catherine Connolly

It is not about cost.

Mr. Fred McBride

It has nothing to do with cost. That is currently the case. Judges throughout the country currently choose not to use guardians ad litem for their own reasons. I was just commenting on the potential proposal within new legislation that there would be a presumption that a guardian ad litem or whatever we end up calling them would be appointed in every case unless the judge decides there are reasons not to do so. I was making a comparison with the opposite.

Deputy Catherine Connolly

Is the witness unhappy with that presumption? Does he have concerns?

Mr. Fred McBride

I am slightly uncomfortable with it.

Deputy David Cullinane

Like the Chairman, I have asked for further information so I will clarify what I am seeking. I can seek the breakdown in the Comptroller and Auditor General's report on the solicitor and counsel fees. Could we have the same for the professional fees paid to guardians? Could we write to the Health Service Executive or whatever body was responsible for payment in previous years? The Chairman sought a note from the Secretary General on exactly what services were provided.

Chairman

The whole picture.

Deputy David Cullinane

That would be useful. I have a final point, which relates to one of the bittersweet exchanges we have had today. There was an appalling lack of checks, balances and controls in place for far too long so it is good we have shone a spotlight on that. There will be opportunities with the new legislation and I welcome much of what has been said. I would like clarification on one issue. I have no difficulty with a single service provider in principle and much of the padding around that which has been discussed is good as well. What is the problem with establishing it as a separate public body? This may have been asked as I had to step out to a different sectoral committee. Why is it so problematic and why does this not form part of the legislation?

Dr. Fergal Lynch

The response I gave was that we were trying to fix a number of different elements at once and there was a concern that setting up a public body or assigning it to an existing public body would be difficult in the first instance.

Deputy David Cullinane

Why would it be difficult?

Dr. Fergal Lynch

We need to reform the system first and then assign it rather than assigning it to a public body and then trying to reform it in that context. The approach being taken is to do the major reform, get a service provider to assist in doing so and then moving to a public body.

Deputy David Cullinane

It is a policy matter, I suppose, but I do not really see the problem.

Deputy Bobby Aylward

Will there be a new public body or will an existing body assume responsibility?

Chairman

It is yet to be decided and we will watch developments carefully. Subject to the supply of the information, we will conclude our discussion in good faith. We assume it will come in the next week or two and I hope the witnesses will not leave it too long. Is it agreed to dispose of chapter 11 of the Comptroller and Auditor General report? Agreed.

On behalf of the committee I thank all our witnesses from the Department of Children and Youth Affairs and Tusla, particularly as this exchange was beneficial and educational for us. I thank them for participating and supplying the material that we have and will receive. I also thank the Comptroller and Auditor General, Mr. McCarthy, and his staff.

The witnesses withdrew.

The committee adjourned at 1 p.m. until 9 a.m. on Thursday, 26 January 2017.