General Scheme of Child Care (Amendment) Bill 2017: Discussion (Resumed)

We are now in public session. On behalf of the joint committee, I welcome the Ombudsman for Children, Dr. Niall Muldoon, and Ms Naomi Kennan, policy officer at the Office of the Ombudsman for Children; Mr. Terry Dignan, CEO and Ms Karla Charles, policy officer at Empowering People in Care, EPIC; and Ms Cliodhna O'Neill, director of policy and Ms Catherine Ghent, solicitor, from the ISPCC. Ms Carol Anne Coolican and Mr. Keith Walsh from the family and child law committee of the Law Society of Ireland will be joining us. I thank all the witnesses for attending today and extend a welcome to their colleagues in the Visitors Gallery.

I draw the attention of witnesses to the fact that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and 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 are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I ask all members and witnesses to turn off their mobile phones or switch them to flight mode, as they interfere with the sound system and make it difficult for the parliamentary reporters to report the meeting, as well as adversely affecting television and web streaming. Any submissions or opening statements made to the committee will be published on the committee website after this meeting. I understand the witnesses will make a short presentation, which will be followed by questions from members of the committee on the heads of the Bill.

I invite Dr. Muldoon to make his opening statement. We will then take opening statements from EPIC, the ISPCC and the Law Society of Ireland in that order.

Dr. Niall Muldoon

I thank the Chairman for the invitation to present to the committee this morning. Today we are discussing an extremely important piece of legislation that will have a major impact on the experiences of thousands of vulnerable children and young people in Ireland. Before outlining the view of my office in respect of the general scheme, I would like to briefly outline the work of the Office of the Ombudsman for Children, OCO.

The OCO is an independent human rights institution established under the Ombudsman for Children Act 2002 to promote and monitor the rights of children in Ireland. We examine and investigate complaints made by, or on behalf of, children about the administrative actions of public bodies. We are independent and impartial, acting neither as an advocate for the child nor as an adversary of the public body; we respect and promote local complaints procedures, and we aim to achieve systemic change that addresses the root causes of complaints.

In my work, I am statutorily obliged to consider the best interests of the child and to give due consideration to the wishes of the child, in accordance with age and understanding. I also have a statutory remit to promote and monitor the rights and welfare of children. This involves a number of actions, one of which is to advise on legislation, as I am doing today, and my advice is always informed by my obligation to promote children’s rights.

Since our office was established, some of the most powerful and effective work we have done has been in hearing the voice of young people through consultations. We carried out the "Big Debate" around the children’s constitutional referendum, and we created A Word from the Wise, a collection of personal stories based on complaints we received and which we then presented to the UN Committee on the Rights of the Child. Only last month, we published a report on scoliosis which included the powerful testimonies of three young people who had experienced significant delays before undergoing scoliosis surgeries. What we have learned in our work is that young people have a lot to say, they can have great insight, and most important, their views about decisions that affect them almost always add to the success of the outcome.

I very much welcome the general scheme because the establishment of a nationally organised and managed guardian ad litem, GAL service at a statutory level is a crucial step towards ensuring that children and their rights are placed at the centre of judicial proceedings affecting them. However, in order to ensure that the national GAL service is child-centred, independent, accessible and transparent, I am recommending a number of amendments to the scheme as it stands.

Legislation that informs reform of the current system needs to be underpinned by recognition of guardians ad litem as being first and foremost a service for children to give effect to their constitutional and international rights. It appears that the general scheme is based on an understanding of guardians ad litem as being primarily a service to the courts, with the function of providing support to the courts when they deem it necessary to inform their decision making. This in no way reflects the reality that implementing the rights of children in judicial proceedings is not a choice for adults, but an important legal and constitutional obligation that must be fulfilled. We must ensure that access to a GAL is first and foremost the right of a child affected by judicial proceedings, and then secondarily a service for the courts.

It is our view that the optimal approach to putting in place a national guardian ad litem service is to establish and properly resource an independent statutory body. Such a body would be given powers to establish a panel of guardians ad litem who can be appointed by a court in proceedings covered by the legislation. A single, State-funded agency would ensure greater consistency across Ireland. It would be independent and would provide a means to recruit, train and select GALs.

This system would allow for GALs to be employed on a salary and the legal costs of solicitors representing GALs to be better controlled. It would also provide a means for quality control and oversight of the service. This is in line with practices in England and Wales, where guardian ad litem services are managed by a non-departmental public body, which is accountable to the Secretary of State for Justice, known as the Children and Family Court Advisory and Support Service, CAFCASS.

The establishment of an independent statutory body is important as the general scheme, as it currently stands, would allow for the procurement of a national service by a private body and would largely result in the maintenance of the status quo for a long period of time, with all rather than the majority of GALs operating under the auspices of one external agency. The establishment of an independent statutory body with the broad responsibility for providing children with access to independent representatives would also future proof the legislation, which is crucial. It would ensure that it has the capacity to work towards fulfilling Ireland's international obligations to promote the rights of children involved in all judicial proceedings, not just in child care proceedings. Although the process of setting up an independent statutory body will clearly involve challenges, these can be overcome by forward planning and engaging with all the necessary stakeholders. We should also make use of the learning available from Northern Ireland, England and Wales regarding the establishment and operation of such a model. We can even improve on that.

In commenting on the general scheme, it is also important that I add my objection to those already made regarding Tusla continuing to fund the GAL service. It is essential that this service remains fully independent as GALs will be working closely with Tusla and we cannot allow a risk of blurred lines to exist. In legislating for a statutory GAL service we must ensure that it is done correctly from the beginning. The highest standards of governance should be targeted and achieved.

I have touched on the main recommendations of the Ombudsman for Children's office, but we have also made a detailed submission to the committee. Members will see that our contribution is driven by the need to remember, at all times, that the children who are availing of GAL services can be extremely vulnerable. The proceedings themselves can be long and complex, and the decisions made have profound and lasting implications for the young people involved. A guardian ad litem can play an important role in arguing for the necessary supports and therapies for children. However, there is currently no consistency in the appointment of GALs or in the extent to which courts hear the voice of the child in child care cases. The Child Care Law Reporting Project found that of 1,194 District Court cases reviewed over the period from December 2012 to June 2015 on average a guardian ad litem was appointed in 53% of cases. A GAL was appointed to children in 79% of cases in Louth, but only 13% of cases in Galway. The lack of transparency and structure is an issue. The role a GAL plays must be set out clearly.

This legislation is very welcome but it must provide a child centred and rights based service. In drafting this long called for and extremely important legislation it is essential that we bear in mind Ireland's obligation in respect of children's rights and the progressive realisation of those rights. It is particularly relevant this year, the 25th anniversary of Ireland's ratification of the UN Convention on the Rights of the Child, and also in light of the children's referendum which recognises children's rights at constitutional level and clearly establishes the duty of the Government to protect and vindicate those rights through its laws. Of particular relevance in this context are Articles 42A.4.1 and 42A.4.2, which provide that in the resolution of child care proceedings brought by the State and proceedings concerning adoption, guardianship, custody and access the best interests of the child must be the paramount consideration and the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child. In its concluding observations on Ireland's children's rights record in 2016 the UN Committee on the Rights of the Child, CRC, recommended that measures should be taken to ensure that the effective implementation of legislation recognises the right of the child to be heard in relevant legal proceedings. This legislation is a vital opportunity to do that. There are approximately 6,500 children in care at present. We must strive to ensure that the views of all those young people are properly represented and that we push forward to consider the opinions of all young people involved in legal proceedings.

Finally, in drafting this legislation the rights of children with disabilities, children with mental health issues and the rights of children of all ages and of all abilities must be considered. The CRC highlights that non-verbal forms of communication, including play, body language, facial expressions, drawing and painting, should be used so children can avail of the opportunity to demonstrate understanding, choices and preferences. I thank the committee for inviting me to address it today. I am hopeful that, following consultation with the relevant stakeholders and with a clear focus on the rights of the children involved, this can be a very progressive legislative measure to provide for some of Ireland's most vulnerable children.

Thank you, Dr. Muldoon. I invite Mr. Terry Dignan from EPIC to speak.

Mr. Terry Dignan

I thank the committee for inviting us to address it today. EPIC, Empowering People in Care, is a national advocacy organisation that works with children and young people in care with care experience. The work of the advocate is to support the child, to allow the child to understand issues affecting him or her, to access information and to access the entitlements they have. All of our advocates are professionally qualified and experienced child care professionals.

We welcome the opportunity to discuss the critical issue of guardians ad litem with the committee in the context of the Child Care (Amendment) Bill 2017. EPIC’s position is that every child involved in legal proceedings requires a guardian ad litem. It is a crucial aspect of the system that the child’s best interests are represented in any court proceeding that will have an impact on the child’s life. It is important to note that such proceedings can be very intimidating and confusing to a child. This is especially true for children in care, for whom court proceedings can determine their separation from their parents, siblings, community and the extent of their contact and access to their birth family. EPIC believes it is crucial that all children involved in legal proceedings have a right to have their voice heard and have their best interests represented. We also recognise that guardians ad litem can be appointed for a limited period of time. Children involved in care proceedings should have the support of both a guardian ad litem and, where possible, an independent advocate with whom they have had time to develop a trusting relationship. We are encouraged that the joint committee has dedicated time to examine the importance of the voice of the child and we are grateful for the opportunity to put forward the opinion that children with care experience or in care must have entitlement to both a guardian ad litem and, where possible, an advocate.

Guardians ad litem and advocates provide different yet complementary support to children in care. While guardians ad litem will outline the child's wishes and feelings and defend the child’s best interest, the role of the advocate is solely to support the child in having his or her voice heard. This is a particularly significant distinction given how disempowered children can feel in care proceedings where decisions are being made about their interests and future. Due to the difference in their role, guardians ad litem in some cases may only have had the opportunity to meet the child on a limited basis and only when proceedings are in being. Guardians ad litem might have a trusting relationship with the child in some instances, but not all. This is especially significant for children in care, which is why we are drawing the committee's attention to the importance of having an advocate who will have the opportunity to engage with the child before, during and after the court proceedings.

Children in care are a particularly vulnerable cohort. They often struggle to build relationships and trust with adults. Advocates will always have the opportunity to build a relationship with the child over an extended period of time and position themselves as a medium to long-term support on whom the child can count. An advocate will encourage the child to speak where possible or will accurately represent their views in care proceedings. The relationship between the child and the advocate is further strengthened by its voluntary nature. The child chooses to work with the advocate, whereas in many cases the guardian ad litem is court appointed. We have successfully supported children and young people with care experience in large part because of the time, effort and expertise that advocates devote to developing this trusting relationship. In EPIC’s opinion, guardians ad litem and the guardian ad litem system would benefit significantly from working in collaboration with advocates, where possible, when representing a child in care proceedings. Furthermore, it is the child at the centre of these proceedings who will ultimately benefit from a closer collaboration between an advocate and a guardian ad litem.

We welcome that the best interests of the child are highlighted as paramount in child care proceedings. EPIC’s opinion of the proposed legislation is twofold. First, we welcome the regulation of the GAL service to ensure consistency in practice, adequate oversight and structured complaint procedures. This is especially welcome given that there are currently significant geographical inconsistencies in a child’s access to a court appointed guardians ad litem and such a lottery is unacceptable. Further, it is our duty to promote the right of the child to have their voice heard in matters that affect them. The proposed regulation of the GAL in head 5, subhead (1), insists that “while the Guardian ad litem will hear the child’s views, and have regard to them, in formulating his-her report for the court, the GAL will advise the court ... on what is in the best interest of the child. S/he is not constrained by the views of the child ...". While we understand that this is consistent with the guardian ad litem’s mandate, children, and especially children in care, would benefit in some cases from having access to both a guardian ad litem and an advocate in court proceedings. Our opinion is that it would be beneficial to both the child and the court if a formal structure was put in place to enable better collaboration between the child and the court through having a relationship between the guardian ad litem and advocates, where possible. This collaboration would be facilitated by the establishment of a single guardian ad litem service that would be open to the possibility of advocates being appointed alongside guardians ad litem for children in care.

To conclude, EPIC believes that the legislation is a positive development. However, the current proposal is in danger of diluting the voice of the child by limiting the child to a witness status. This does not, in our opinion, give appropriate or adequate weight to the voice of the child in respect to court proceedings in a manner that is consistent with Article 42A of the Constitution, which states: “in all proceedings ... in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.” It is our contention that the key to ensuring the child’s voice is heard is through structured collaboration between guardians ad litem and advocates. The voice of the child must be central to that process and must inform court decisions during child care proceedings. If the voice of the child is absent, the court will not be in a position to make a fully informed decision. We feel this is critical to the vulnerable cohort of children in care.

Ms Cliodhna O'Neill

I thank the committee for having us back so soon. We sent some follow-up information after our last appearance on cybersafety that I hope members found useful.

We are delighted to be here to discuss this important and long-awaited legislation. The ISPCC has been calling for reform of the guardian ad litem service for a number of years. We have many concerns, some of which are addressed in the heads of this Bill and some of which are not. I want to briefly refer to these. What the legislation should do is give effect to the constitutional amendment which recognised and affirmed the natural and imprescriptible rights of all children and, in this case, particularly in a situation where they are vulnerable. To some extent, it does this and to a large extent it does not. Our primary concern in calling for reform over many years is that the current system is unregulated and while there are many examples of good practice among existing guardians ad litem, there are no recognised professional standards to which all guardians must adhere. Further concerns have been that the current system lacks statutory guidance on function, eligibility criteria and payment structures, to the detriment of children. The new Bill must address these deficits and, to some extent, it does so, and these are the positive aspects of the Bill. However, some of the proposals still fall short of best practice standards and there are key improvements we feel are needed to ensure that children's voices are heard and their rights truly vindicated, which is the purpose of the legislation.

We make several recommendations. We recommend that the reformed guardian ad litem system requires a shift in focus from that outlined in the new legislation, that is, from assisting the court in decision making to clearly meeting the State's obligation under Article 42 of the Constitution and Article 12 of the UNCRC to ensure children's rights are vindicated within the courts system, particularly in child care proceedings. The State, through legislation, must ensure appropriate measures to allow the guardian ad litem to ensure full participation and realisation of a child's constitutional rights. This is a concern we have in regard to the heads of Bill, as outlined. We do not believe the right of the child to be provided with a guardian should be restricted, and I would echo the comments of my colleague from EPIC, who said all children should have access to a guardian. We believe a comprehensive and independent service cannot be achieved if it is funded through Tusla and that an alternative mechanism should be followed.

We welcome the establishment of a single national service, the proposals on management and structure and the fact the role of the guardian ad litem will be defined in legislation. We are less thrilled at how the role of the guardian ad litem is defined in legislation, and my colleague Ms Catherine Ghent, a solicitor who has advised the ISPCC on this topic, will speak shortly on that. To give a little more detail, while we believe the establishment of a national guardian ad litem system is to be welcomed, it must achieve what is outlined in Article 42A and the voice of the child must be heard. In order for the voice of the child to be heard in our courts system, however, it must be effectively advocated for within the courts system. This can only be achieved where the status of guardian ad litem in proceedings is equal to that of others who are appearing in court.

I was at the excellent Barnardos conference yesterday and it must be congratulated for holding such an excellent event. It was remarkable how many people who work within the courts system, including judges, spoke of their concern in regard to this item within the legislation whereby the role of guardian has been restricted to that of a special type of expert witness who advises the court on a child's interests and views but who is not party to proceedings. It was notable how many people talked about the removal of the ability to cross-examine, which is a diminution of service to children when compared to the existing system. It is a crucial role for guardians and their legal representatives to be able to question what happens in court. To remove that in this legislation would, we believe, be a retrograde step. Ms Ghent will address this shortly.

As EPIC has said, every child should have a guardian ad litem. With regard to the funding structure, for the purposes of independence we do not believe this national system should be funded through Tusla. We believe there is a conflict in this regard and we believe it should be taken out and funded through a separate mechanism.

Ms Catherine Ghent

To pick up on that point, it is very important to ask what is the role of the guardian and what we do when we go into court. I am a solicitor who represents guardians and sometimes children. A guardian is the representative of a child before the court. It is not just someone who goes to the child and says "What do you think about this?" That is a role that would not be appropriate. Children need advocates before the court and we all know the effect when they do not have one. They need regulated professionals who have expertise and who will say: "I am determining what is in your best interests. I am going to promote and listen to what you say. I am going to put that before the court and I am not going to put it in a passive way. I am going to advocate for you."

The constitutional amendment recognised children as rights holders on their own behalf and it did not diminish or specify any limits on the children's rights. In fact, for the first time, it gave constitutional backing and a constitutional impetus for children's rights to be the paramount consideration. That has been recognised in the key judgment given by Mrs. Justice Baker last year in regard to what this actually means, where she said that even within the existing statutory framework, the guardian is the representative of the child.

In that judgment, she also said the child was entitled to the full panoply of rights in terms of fair procedures. What does "fair procedures" mean? This was established in the re Haughey case, where someone went before a tribunal and what was at stake was that person's reputation and reputational damage. Within that context, which we also see in the Charleton inquiry, people are entitled to cross-examine and to put their client's case before the decision making body. What I am really worried about is that in diluting and diminishing, and in the extraordinary step of removing the right to cross-examine, we take away from children the rights which have been constitutionally identified as pertaining to people, not just in court proceedings, but before tribunals where reputational damage is involved.

Mr. Justice McMenamin has acknowledged the fundamental impact of a care order on a child. That is what we are talking about. He said that in cases where the decision and the consequences are so profound for the child, we need to protect their constitutional rights. I am an advocate for the child before the court and, therefore, I need to cross-examine on their behalf and I need to be able to bring appeals on their behalf. Mrs. Justice Baker said those rights as previously identified in terms of fair procedures are actually enhanced. I question how the removal of the right to cross-examine, which is a fundamental right which applies to other citizens, is compatible with the key decision as to what representation for children looks like, even within the limited statutory provision as it stands. In fact, I think they are not compatible.

I was involved in a case a number of years ago where a father was subsequently convicted of rape of his child. When we went into the court in the care proceedings, he looked for access. The judge told us that he had a right of access to his child and, despite the fact his very young child was saying “I am terrified of him, I do not want access”, the judge granted it. The HSE at the time did not appeal that. We appealed it on behalf of the child. The Circuit Court judge expressed her serious concern and stopped what could have been a really abusive process for the child. Recently, there has been a case where the parents fled from another European jurisdiction.

There are legal remedies in a European context under regulations. The Child and Family Agency, CFA, did not spot that this was a case where the child should have been returned to the jurisdiction which had most information in regard to the child. A guardian ad litem was appointed. The guardian ad litem instructed me and I immediately highlighted that this was not the right jurisdiction to deal with this. That became very clear. The case has become very sad and difficult and the level of tension is very concerning. The child now has a sibling born in a different jurisdiction in respect of whom proceedings are in being. The sibling could be adopted in that jurisdiction and the child in our jurisdiction may not have any contact with them. We are seeking to stop siblings being split up. In circumstances where the CFA did not do that, the ISPCC is that child's only voice.

We have cases before the courts at the moment. There has been a certain limited backlash to the referendum. Certain judges have taken the view that they are at the vanguard of parents' rights and they have to protect parents' rights. At times, it is quite difficult to get the voice of the child heard before the court. For example, in cases where a child has been beaten to the extent that injuries are apparent, where they have scars or have been scalded, certain judges determine that this is severe physical chastisement and that the child has not been assaulted. If those cases were before the criminal courts judges would have to find that assault was committed. Where would those children go if they did not have the ISPCC to tell the judge that that is unacceptable and that the judge has a responsibility to vindicate and promote children's welfare?

That is the seriousness of what we are dealing with and that is why I am asking the members of the committee to question if the provisions of this Bill are constitutionally compatible. How do they give effect to specific identification of the constitutional rights, which we all said was appropriate and necessary? In terms of looking at the constitutional rights and giving effect to Article 42A, it is not passive. It should not be allowed to sit there. There is an obligation to promote. How can that be promoted if the child is given a lesser status in proceedings than parents or the Child and Family Agency? We have serious concerns in that regard which I would like to be addressed.

Mr. Keith Walsh

The Law Society is grateful for the opportunity to present its views on the general scheme to the committee. The Law Society's function is to assist, advise and use its experts and expertise to get the best legislation and to provide the best outcomes for children. Its members appear on every side of the argument in the District, Circuit and High Court in regard to child care matters. A considerable amount of expertise and time has gone into this submission.

My name is Keith Walsh. I am chair of the society’s family and child law committee and a family law practitioner based in Crumlin. I am joined by my committee colleague, Ms Carol Anne Coolican, who is managing solicitor of the Legal Aid Board in the law centre in Tralee and has extensive experience in the subject under discussion this morning.

The Law Society family and child law committee is composed of experts in the family law area who are dedicated to improving the practice of family law for the public and those involved in the family law system. I would like to recognise the dedication of a number of our committee members who have contributed to today's paper and who are here today: Sinéad Kearney from Byrne Wallace Solicitors, Denise Kirwan from Comyn Kelleher Tobin in Cork, Geraldine Keehan from Augustus Cullen Law in Wicklow and Dublin and Cormac Ó Culáin from the Law Society.

Our submission, as drafted by our committee, has been furnished in advance to committee members and provides further details and recommendations in respect of some of the heads proposed in the Bill. The society is available and interested to engage with the committee and Department officials in improving the Bill.

At the foremost and core of consideration of the general scheme is the amendment to the Constitution in respect of the voice of the child in legal proceedings. All considerations must flow from this simple tenet. Rather than provide a section by section commentary on the scheme, we wish to highlight three issues that impact on the intention of the scheme.

The first point is that there is a constitutional right for the child's voice to be heard. That means the current scheme will need to be amended so that there is an obligation on the courts to appoint a guardian ad litem. The scheme, as drafted, gives a discretion but not an obligation to the Circuit and District courts on such appointment.

The second point is that it is imperative that an independent agency manage the guardian ad litem service. This should be an independent non-departmental body which is also independent of the parties, including Tusla. This is the approach adopted in our neighbouring jurisdiction.

The third point is that the scheme as drafted would be greatly enhanced by the specific inclusion of the criteria to be assessed in determining the best interest of children. This is set out in section 31 of the Guardianship of Infants Act 1964 in regard to cases involving children in private law matters.

The society has made 12 recommendations in regard to the general scheme, relating to some of the following points: the necessity for a national guardian ad litem service; the necessity for greater clarity of roles in respect of service providers; a recommendation for comprehensive criteria for establishing the best interests of the child, head 5; and a strengthening in regard to the qualification of the guardian ad litem, head 7. The society recommends the introduction of a fee structure for both guardians ad litem and their legal representatives; regular audits of files and accounts and clarity on the discretion of the courts, head 8; and finally, the society is advocating for careful consideration in relation to the provision of information to the guardian ad litem and reports prepared by the guardian ad litem for the courts, heads 10 and 12.

The society and practitioners working at the coal face of child and family law welcome the Bill. However, the test of the commitment will be the degree to which resources and professionalism are brought to the guardian ad litem infrastructure and that the policy objectives are appropriate from the outset.

Ms Coolican and I are happy to answer any questions the committee may have.

I agree with every single word that has been said here this morning. I fully endorse that this should not be attached to Tusla. That would be a very dangerous step. I made it quite clear when Barnardos attended this committee that we would be making a very serious mistake by having this service attached to and monitored and funded by Tusla. We would be creating more problems than we would be eliminating.

I agree that to remove the ability for someone to cross-examine would be another very serious issue for our children.

What is meant by the qualifications of the guardian ad litem? Are they legal qualifications or other qualifications? How would the process of creating that monitoring board who will take on the guardians be undertaken? Who will form the initial body that is going to monitor, examine and oversee these guardians?

I agree with Senator Freeman that it is very apparent from today's meeting and the previous one that everybody is in agreement that this must be fully independent of Tusla. That is being echoed by all parties.

What are the qualifications of guardians ad litem who are currently working in the service? I ask so that we have an understanding of where we are coming from and what we are trying to achieve. I would like to hear what the Ombudsman for Children thinks about the role of the advocate in their collaboration with guardians ad litem.

At the moment it is a geographic dolly mixture, if one is fortunate enough to get a guardian ad litem. It is not a statutory obligation and it depends on where one is located. I am concerned about the role of advocacy. One only gets to meet one's guardian ad litem prior to a court proceeding. Would it not be important for the guardian ad litem to have built up a relationship with the child in advance so that there is trust? I would like to hear the views of others in that regard.

In terms of the role of Article 42A and expanding the voice of the child, in what respect is that not addressed in the Bill? Where should it be addressed? I am looking for recommendations in that regard.

I thank the witnesses for attending. It is an interesting area of law. I wish to clarify a few issues. In some cases the guardian ad litem is the only voice for the child and it is most important that the child's voice is heard on all occasions. The criteria for the appointment of a guardian ad litem are outlined. They include education, experience and professional qualifications. Transparency in terms of the appointments is important. In 2016 we spent €16 million, which is a significant amount, and we need value for money given the view of the public about gravy trains and the cynicism people rightly have in some respects. The current ad hoc arrangement must be put on a statutory basis.

The witnesses might not have the answers to the questions I wish to pose in two areas. The Assisted Decision-Making (Capacity) Act has been enacted and further elements of it remain to be introduced by the Minister. It provides a statutory framework. As I understand it, the legislation concerns adults. Is there any possibility of expanding the legislation to include children or are we double-jobbing? If it is not broken, why fix it? Could we not add to that legislation rather than starting over again?

It is extremely important that we have the capacity to care for all children, especially given the cases of Grace and Mary and what has emerged in that regard recently. We believe those children do not have the capacity to express their views but I suspect they would if we gave them an opportunity. That ties in with the Assisted Decision-Making (Capacity) Act as well. We talk about giving children a voice and a child who is capable of forming his or her own views. What does that mean? Is it a criterion of intellectual ability and does it include verbal and non-verbal communication? Some children who did not have a voice have been let down horrifically by society but we probably need to delve deeper, give them a voice and listen to them a bit more.

I am involved in a case currently concerning six children, of whom we know, with mental health issues, who were sent abroad in recent years. They were seriously disturbed young children. Is it intended that a guardian ad litem would be assigned to them to represent them in mental health tribunals? I am not sure whether that would be the case as such tribunals are very rare for children but to represent their views in general. What has happened has been horrific. The children have not been kept safe. They have not received treatment but have been incarcerated. That is something I am investigating further. There does not seem to be any oversight from the Mental Health Commission or any statutory body in this country when we export children because we do not yet have the facilities here. Would guardians ad litem be appointed in such circumstances? If children go outside the State what would the remit be of the guardians ad litem? What would their responsibility be in such situations or are they allowed to take responsibility for children in this country who have been sent abroad for treatment of significant, difficult and challenging mental health issues? I thank the witnesses for their contribution on this interesting area concerning children.

Deputy Rabbitte has to leave the meeting at 10 a.m. so perhaps the witnesses would address her questions first. They were the current qualifications of GALs, the role of the advocate - the Ombudsman for Children should reply to that - and the gaps in Article 42A.

Dr. Niall Muldoon

From our point of view, we are not necessarily prescribing the qualifications, but we do think it is too limited to restrict it to social work and psychology. Our whole idea is that every child should have a GAL available to him or her. Therefore, one is looking at someone who needs to have expertise in infant observation, mental health issues and a range of issues. Keeping the qualifications open is important. That is something that needs to be discussed in terms of how one would allow that but, for example, there are fantastic barristers who were formerly teachers and a range of youth workers could also be involved. We must look at the issue on a wider scale.

The way we see it in terms of linking it with advocacy is that a GAL is somebody who will hear and listen to the voice of the child, respect that voice and present it as the advocate for the child. The GAL is crucial. If there is an independent advocate such as EPIC, Empowering People in Care, that adds to the situation enormously but the idea is that one would have somebody who would automatically ask the child where they are coming from and what they want and then allow that to be represented in the court system so that there is an absolute certainty that the child has their voice heard.

Ms Ghent touched on the issue, in the sense that there is no way the Deputy or I would not be allowed into a court to give our point of view. We would have representation, including a barrister and all sorts of support yet the child who is at the centre of all those issues has been kept silent for so long. There is always the possibility that a child will come back at a later stage and say they were not represented, that their voice was not heard and those responsible are culpable because the child was sent to a secure care facility or was not sent to a foster home. We are really letting down children enormously in this situation. The idea is that the GAL is that voice, but it is the voice of the child through the GAL in the courts system and they have to be able to be represented at the court table exactly as every other party in that system is. At the moment the system is set up for adults not for the child, and the child is passive. The idea is that children should not be passive. We need to give children a voice and hear it. That is the way I see it at this moment in time. I will ask my colleague to respond about the question on Article 42A.

Ms Naomi Kennan

To pick up on the main discrepancies between the general scheme and Article 42A, one of the key ones is that Article 42A says that the court "shall", so it is not "may". In some cases it says the court shall ascertain the views of the child and give the child who is capable of forming views a voice. We could all agree that very young children, including infants and children with disabilities, are capable of forming views. It is not about whether they are capable of expressing views. We need to support them to find their voice through both verbal and non-verbal methods. It is not a discretionary constitutional obligation, it is a constitutional imperative to listen to all children in court proceedings that affect them. It is not resource dependent; it is a right that children have at a constitutional level to which we must give effect.

Ms Carol Anne Coolican

I wish to add to that. The Law Society is adamant that one cannot pick and choose between children whether in private or public law and one cannot pick and choose between the various courts. There is a constitutional imperative that the voice of the child must be heard and, according to our submission, head 8 must be amended so that there is not a discretion but a mandatory obligation for the appointment of a GAL.

Ms Cliodhna O'Neill

I agree. On the qualifications piece, we did not speak to that specifically but in relation to the wider scale we are open to that in terms of it being broadened but the key thing for us is that there will be professional standards and there will be membership of a professional body. What is listed in the heads at the moment is CORU, the Health and Social Care Professionals Council, which is appropriate. Continuous professional development, CPD, standards do not exist at the moment. If somebody is employed within Barnardos, for example, it has standards in place for the service but none of that is on a statutory footing, which is the key issue.

In response to the question on the role of advocacy, especially in terms of what is in and what is not in, I will refer to Ms Ghent, but our primary concern relates to head 5.

Ms Catherine Ghent

Absolutely. If one looks at head 5.1 where it talks about informing the court of the child's views and advising the court on what is in the child's best interests, I was disappointed at the absence of advocating on the child's behalf and in order to give proper expression to that it would be required in there.

In respect of head 5.2, the notion that the child's participation would depend on questions a judge would ask, which would be at the discretion of the judge, does not give effect to Article 42A and needs to be considered. One cannot and would not have that limitation in respect of any other party. I did not say that if a child was a party in his or her own right, there would be no question but that those rights applied and the limitation of the role in head 5 and the issues in head 6 would not arise. That is important if a comparison is being made.

Ms Cliodhna O'Neill

I would like to qualify something I said. I referred to someone being employed by Barnardos. There are standards in place in some of the other organisations, and I did not mean to imply that there were not.

Mr. Terry Dignan

I concur with what has been said, particularly about the qualifications of guardians ad litem. They should be broadened to include a wide range of potential qualifications.

On the role of the advocate, we are simply saying that in these proceedings we have one opportunity to hear the true voice of the child. We have referred to the fact that this is a very alien and intimidating environment for children where their voice may not come through the guardian ad litem. It is our duty to the child to make sure we hear absolutely what his or her view and opinion is. In those cases where it may be difficult to do this, the advocate can play a supporting role in ensuring the child's views and feelings are heard and made known.

It might be interesting to introduce the voice of the child to the proceedings of the committee. I would like my colleague, Ms Charles, to give the views of one child who was sent out of the State through court proceedings. The child did very well, but these were their views on being involved in the case.

Before we do that, I would like to clarify the issue raised by Senator Máire Devine and guardians ad litem abroad.

Ms Catherine Ghent

We had these concerns in a case where children were being placed in a psychiatric hospital abroad. When we asked what happened to the usual rights they would have if detained under mental health legislation here, namely, access to a tribunal and having the decisions reconsidered, we were informed that the institution abroad could dispense with them. We raised serious concerns about this, which resulted in our advocating on the child's behalf for a reference to be sent to the European Court of Justice. That had not been done and both the Attorney General and the Child and Family Agency opposed it. Through that reference, the European Court of Justice set down certain conditions that had to be fulfilled. The system is not perfect. The issues that have emerged in the case of St. Andrew's have caused huge concern, but we would have even less regulation if we had not insisted on reference to the European Court of Justice, which indicated that the concerns we had raised were also concerns for it.

A child sent abroad would have a guardian ad litem here. The decision would be taken on this side.

Ms Catherine Ghent

The child would have a guardian ad litem, but the European Court of Justice referred to an intensive welfare review. The way that is carried out needs to be reviewed. There are issues in respect of High Court costs and barristers. I do most of my own advocacy work in the High Court and bring in barristers when I need them. The children I represent need that facility. The cost issue in the High Court is and should be a concern.

It is prohibitive.

Ms Karla Charles

I thank the joint committee for taking the opportunity to hear us. The discussion is very interesting and I concur with everything that is being said by my colleagues.

The Barnardos conference yesterday on guardians ad litem is to be commended. The Minister has said she is taking a child-centred approach to these reforms. We have a couple of quotes from young people involved in court proceedings where guardians ad litem have been appointed, particularly from a child who was sent overseas.

One of the key points is that we want children to be part of the decision-making process, not passive recipients. Where possible, we want to hear directly from the child. Where it is not possible for a child to speak directly, or through a guardian ad litem, other means should be used such as play, as the office of the Ombudsman for Children stipulated.

One child said when they were told they were going to court: "I thought we were in big trouble." That is a key indictment of the scary situation and intimidating process a young child faces on hearing the word "court". Any previous experience he or she has had has probably been very negative. It is an intimidating process for an adult, let alone a child. Another child said she had been told she was going to court but "it was never me, it was always them." The child was not part of it. The adults were speaking around her, at her and to her. The person who was sent abroad was a very talkative, chatty individual but said very little because she was unprepared.

I kept my mouth shut. That was not like me. I did not say a word. I felt completely silenced. I should have been able to say what I needed to say but I couldn't. Take the time because that could make the difference between feeling silenced or having my voice heard.

These quotes give the committee a flavour of what young people are going through. We would be very happy to follow up on it. We could even arrange for some young people who have experienced guardians ad litem to meet directly with committee members. We would have no problem doing so. We would like to keep this conversation open.

Who would like to answer Senator Joan Freeman's question about the board created to monitor guardians ad litem?

Ms Catherine Ghent

It has to be an independent body. Tusla cannot do it, as that would be a complete conflict of interest. It needs to uphold standards. Solicitors are accountable to the Law Society of Ireland. Everyone is accountable to his or her professional body, which is absolutely appropriate and has to be done. Standards have to be set. We would really welcome it because I have experienced different standards.

What Ms Charles says about the voice is the guardian ad litem's job, to explain to the child and reassure him or her. I had a conversation with a guardian ad litem on that issue, saying a child thought courts had judges who dealt with baddies and jail sentences. She had to say to the child in question that it was about hearing the child, that the child should not feel under pressure and that if the child did not feel they could go, they could write a letter or tell the guardian ad litem who would do it. That reflects the need for standards, preparation and accountability in order that if a child has a bad experience, the question of why it happened will be raised and examined by a regulatory authority. There is a complaints mechanism, oversight and regulations, which is very important.

Ms Cliodhna O'Neill

Children tell us they want to be listened to. They understand their opinion will not necessarily be the arbiter of the final decision, but they want to be listened to. My quote is, "I felt like I mattered," because the child was listened to.

I want to clarify that my question was how the body would be created and who would create the body to oversee guardians ad litem.

Ms Cliodhna O'Neill

Does the Senator mean under the current heads?

No, in the future.

Ms Cliodhna O'Neill

What is outlined in the Bill is that it will be done by ministerial order, as I understand it.

If we do not want it to go through Tusla, how will it be done?

Ms Catherine Ghent

The Ombudsman for Children made a suggestion.

Dr. Niall Muldoon

We agree that it should be an independent statutory body formalised under the Department of Children and Youth Affairs, rather than the Department of Justice and Equality, to make sure children will be at its core. We need to discuss the format to bring it about. That is the way we see it happening.

It comes under the justice department in the United Kingdom.

Dr. Niall Muldoon

It is, but we have a constitutional obligation. That is where we need to focus, otherwise there would always be the concern that it would become a utility for the judges as opposed to the rights of the child. Bringing it under the Department of Children and Youth Affairs sends the proper message.

I will allow the members who have not spoken to contribute.

Can I get an answer to my question on the Assisted Decision-Making (Capacity) Bill?

I apologise to the Senator. I shall set aside time for the reply in the next round. Perhaps one of the witnesses might take note of the need to address that.

I apologise to the witnesses for my late attendance. We have asked questions about the type of training that a GAL should have. Am I correct in saying that Ms Ghent is a solicitor by trade?

Ms Catherine Ghent

Yes.

I will not allow answers now. Members have raised the legitimate issue and I have allowed the Deputy contribute before other members who indicated.

Deputy Chambers could not have indicated her intention to speak until she arrived.

I appreciate that. I will allow everyone to contribute and I urge Deputy Lisa Chambers to be brief. I cannot allow a two-way interaction.

I did not intend to jump ahead of anyone. I took my cue from the Chair.

Sorry, that was my fault and I appreciate the comment.

I apologise to the other members. I am happy to wait my turn if the Chairman wants to call someone else.

No, it is all right. It is all the same whether one goes left to right or vice versa.

Do the witnesses think it would be a good idea for the Law Society of Ireland, the Bar Council or one of the universities to provide a specific course for GALs in order to ensure that they might have specific qualifications in respect of the work they do? There has been some discussion regarding the need to provide a consistent service and the fact that certain standards and practices should apply. I would be interested in hearing the views of Ms Ghent and the witnesses from the Law Society of Ireland on how this might work.

In terms of the regulatory authority, how would a complaints mechanism work? To whom would people complain? Who would adjudicate on complaints made against a GAL and the independent service to which reference has been made?

Ms Charles spoke about the experiences of children in court. Does she have any thoughts on how we might make the experience of being in court less scary for children? A courtroom is a daunting place for any individual let alone a child. Should there be special types of court settings? I know that I have gone a bit off topic by raising this issue.

Ms Ghent mentioned what judges deem to be severe chastisement. I tried to write down her comments and listen at the same time. Can she provide a quick synopsis in respect of the matter?

I agree with Deputy Lisa Chambers that a court is an intimidating place for a child in terms of the air of ceremony that obtains and so on. Sick children are afraid of hospitals and people use play therapy to help them view their time in hospital in a more positive light. Have play therapy or other methods been explored to enable children have a more positive experience in court? Therapy could be provided over three to five weeks, particularly as cases can take some time to reach the courts. I would appreciate any thoughts on the matter.

I thank all of the witnesses for their useful presentations. The Minister will be coming before us after this session and we will put some of the points raised to her. We have reached the stage of discussing the heads of the Bill. We hope that the points that have been made will influence the direction of the legislation. That is the point of pre-legislative scrutiny.

Dr. Muldoon suggested that amendments might be tabled. Do the witnesses wish to suggest specific amendments? Ms Ghent recommended inserting in head 5 a measure that would allow someone to advocate on a child's behalf, for example. Any recommendations would prove useful to us as they would allow the legislation to be strengthened on later Stages.

From what the witnesses said, I understand that there are constitutional issues with the heads, as drafted. I mean that they do not fulfil the rights of a child under Article 42A in that the word "shall" rather than "may" is used in respect of hearing the voice of the child.. I shall pursue the issue of ensuring that all children have access as opposed to leaving the matter to the discretion of the courts. I would like to hear how we can strengthen the position in that regard.

Dr. Muldoon made a point about non-verbal children and those with disabilities, as did Senator Devine, and Deputy Neville spoke about using play therapy, etc., to alleviate the stress associated with going to court. Will Dr. Muldoon elaborate on how the court might hear the voices of children who are not in position to express their views verbally. Obviously, communication would take place via the GAL who, I presume, would have some way of communicating with the child. Do we need to include anything in the legislation in this regard?

I want to discuss with the witnesses, mainly with those from EPIC, the benefits of having an advocate as opposed to a GAL. At a previous meeting, we heard from Barnardos about a child and it seemed that the GAL did an awful lot more than sit in court. He or she explained things to the child and there was an element of the GAL advocating on the child's behalf. Can a GAL fulfil the role of an advocate? Is there a need to have an advocate? Perhaps the other witnesses can answer my questions.

In terms of heads 3, 5, 6 and 8, there are specific things that we, as a committee, should recommend in order to ensure that the legislation is as strong as possible. We would welcome the help of the witnesses in terms of these matters.

I thank all of the witnesses for their presentations. We have had a very good discussion. I shall make three observations on specific heads and then I shall make some general observations.

In terms of head 6(6), we have had a lot of discussion on the cross-examination of parties. There is a clause to the effect that the GAL may not request specific professional assessments for the purposes of preparing a report. This seems to place a restriction on GALs, which should not exist. It may well be the case that a GAL could believe that a professional assessment is required but it would not be in the best interests of the child. I ask the witnesses to address the matter.

I shall not go into great detail on head 7 because it has already been discussed. This proposed provision needs to be improved. Perhaps the list of professions could be broadened. We should also tighten up of the manner in which the persons involved in the carrying out of GAL obligations and work are regulated, monitored and trained.

I am curious as to why head 8 is weak and thin when it comes to children who are subject to voluntary care orders. Perhaps this is an oversight or a weakness in the legislation. Such people are also in need of representation by guardians ad litem.

On a more general note, both today and perhaps a month ago, during pre-legislative scrutiny, the strongest message to come back relates to the need for an independent statutory body that would not fall under the remit of Tusla. As much as an actual conflict of interest, the perception of a conflict of interest is important. We must ensure that children and their advocates had confidence in the system that they encounter. I understand that Tusla is not particularly enthusiastic about the idea of monitoring or managing this service. I understand that Tusla recommended in its submission that the service could be located in the Department of Justice and Equality. My instinct is that it would be better to locate the unit in the Department of Children and Youth Affairs. I am interested in hearing the comments from the witnesses on the matter.

I support some of the observations made, particularly those from the Law Society of Ireland. All of the contributions shared the theme of calling for a stronger obligation to provide a guardian ad litem to represent a child. The Law Society of Ireland made the very strong point in paragraph 2.2 of its submission that family should include people who act in loco parentis. The committee should consider that issue.

In terms of EPIC and advocacy, should the role of advocate have a legal basis? Is the role an operational matter relating to how the GAL service should be structured? Should the committee insert a definition?

My final points are on cross-examination. How can we resolve matters in this regard? Should we remove the proposed section? Should we remove the prohibition on cross-examination? Can the matter be resolved through the use of the tandem model that exists in the UK?

Is there any possibility that if we remove the section there will be a conflict between legal representatives and the guardian ad litem? Could they be at cross-purposes? I am keen to get a sense of it. If the provision is faulty or may create difficulties, how do we resolve it?

I thank the Deputy. I wish to make some comments before the deputations come in again. When answering the questions, please keep specifically to this legislation as opposed to straying into other legislation, something we could tend to do.

I wish to make three brief points. As I said the last day, I have a major issue with the costs. The costs are astronomical. Can anyone before the committee set out the number of children who have availed of guardian ad litem services in the courts last year? Is it possible to get a figure? A total of 6,500 children are in State care but the vast majority have not have availed of the service. I am unsure of the answer. Can the deputations direct me? How can I find out how many children have received the service?

The cost is €15 million per annum. By comparison, the cost of running the Office of the Ombudsman for Children is in the region of €2 million and it gives a voice to hundreds of thousands of children, potentially. The other service gives a voice in the courts but it is extraordinarily expensive. That is a major issue. It goes back to the issue of qualifications that has been addressed by many members.

The representatives from EPIC suggested we should have both. Perhaps we can turn that on its head. A good advocate would give the child adequate voice. Does a child need to have a barrister-at-law representing him in the courts? I am not so sure. I am not convinced of that. As I said the last day, we are giving a voice to children in court when we cannot get speech and language therapy for these same children who are in the care of the State. Trying to get speech and language therapy is an uphill battle, although that gives them a voice in everyday living. I appreciate the importance of giving them a voice in court, but we have to keep it in perspective in respect of the cost.

Another issue relates to the numbers. Someone referred to the children in voluntary care. Many children are in voluntary care. If a mother puts her child in the care of the State, there is no court case or at least it is not contested. That is one situation. In other situations where children are given to care until they are 18 years of age, that does not arise. I am curious about the real numbers as opposed to the broad numbers being put about.

Mental capacity has been addressed by several people. I have some first-hand knowledge of this. Some children in the care of the State can be up to seven or eight years of age and may have no ability to speak for themselves or explain what would be in their best interests. That issue has to be addressed and recognised in this legislation. We need to consider the age factor in respect of when a child can make an input into what is best for him or her. Would an advocate work in that case? How important is it to have legal representation? Will the deputations explain why barristers are involved in so many of these cases? That is what is driving the costs up to what I consider to be extortionate rates. The total cost is €15 million, which is an extraordinary figure by any standard. I look forward to the responses. Does Dr. Muldoon want to start? We will continue along that way. Please be conscious that these will probably be your closing comments.

Dr. Niall Muldoon

Deputy Chambers referred to specific training.

Ms Naomi Kennan

I wish to pick up on what the Deputy said. Our view fits into the adaption of the broader system in the sense that all professionals working with children should be specialised and trained in children's rights. In particular, this means a knowledge of children's rights and the legal context within which they are working. It also means knowledge of areas such as child development, skills-based training in communicating with children of different ages and maturity as well as listening to children.

Reference was made to in-depth legal training. We need to maintain the focus on the fact that guardians ad litem are not acting as lawyers when they are in the court. They are not acting as social workers either. We are keen for this to be recognised as an individual specialised profession and for those involved to receive training to be guardians at litem. Part of this involves understanding the legal context within which they are working.

We need to see a broader adaption of the judicial system. The need for this is recognised internationally and within Ireland. Yesterday, Freda McKittrick from Barnardos called on all stakeholders to establish an expert group to look at how all judicial proceedings in which children are involved could be made more child-centred, in particular to ensure the views of children are heard. That is something we really need to look at. We need specialised courtrooms and professionals as well as a general adaption of procedures and practices and a recognition that this is necessary to ensure they are not intimidating or excluding children, whether in practice or reality.

Dr. Niall Muldoon

I will answer some of the other questions. I think we can go a long way to make it easier for children. That is a key point. Yesterday, Fred McBride of Tusla said he would engage with the inter-agency working group. The judges are happy to do that as well. We can find many ways to do it. Examples in medicine show how we have come a long way in allowing children to find comfort in difficult situations. We can make our court systems and environment better. We can ensure the professionals who work there are better equipped to work with children.

Reference was made to non-verbal expression. That is part of the reason we are keen for a wider expanse of professionals. We can hear the voice of a child, no matter what the age or disability and no matter what issues are going on, once the right person is working with him or her. It may take a little longer and it may take some time, but I believe it is worth it. Often, we have seen cases where it can take six or 12 months of being in and out of court. During that time we can really get a chance to work with and learn about a child and bring forward the voice in a proper way.

A question was asked about numbers. I believe there is a shortage of data in that respect. The transcript from two weeks ago suggests 1,600 guardians ad litem were available to the children not in voluntary care. That leaves approximately 6,300 in care. Approximately 50% of them have access to a guardian ad litem. The figure that seems to be abroad is 1,600. Again, that is a guess. This is one of the benefits that will come from the new independent agency. We will be able to know who got the service, why and when.

Our vision is that this agency will be built up. If we set ourselves a target of putting forward the best possible agency, we can make it available for all the children with issues across court services. Non-voluntary care would be available to them. It would help children who have mental health issues and children with disabilities. It would operate across the range. We have a range of opportunities now. Other Bills have mentioned special reporters or experts. This service could provide all of these in one setting. There is a great opportunity to be a world leader in this field.

Deputy O'Sullivan referred to specific amendments. They are in our submission.

I agree with Deputy Ó Laoghaire in respect of the comment on a conflict of interest. The perception is crucial. It is the most obvious thing. Let us suppose we came back in ten years to look at a case and a child made the case that he was not looked after properly. The first question is who the paymaster was and whether there could have been a conflict of interest. It would be difficult to prove that there was not if the two representatives in court are paid by the same paymaster, though Tusla. That would make it difficult to have a perception of fairness. It is not impossible, but it would make it extremely difficult. If we can fix it now, it makes more sense to go in a different direction.

Reference was made to high costs by comparison with speech and language services. Undoubtedly, we need to work on both areas. We need to ensure resources are available for all the children who need speech and language support as well as any advocacy within their world. Children in foster care have extraordinary advocates working for them, whether parents or foster parents. They fight hard for the rights of the children. They need to be assisted through economic social and cultural rights becoming part of our constitutional rights. We need to know that children in foster care have an advocate, voice, parent, foster parent or social worker who can help them. The children in the Courts Service need guardians ad litem now. It should not be a case of either-or. We need to find a way to make it work better. This new system should allow the money that is being spent to prevent further cases. It should allow children to have a better voice and provide better solutions for them.

This is the whole idea. We bring them into the system ant they give us their sense of it. In that way we will improve the outcome for them. That is the essence of this. That, in turn, should reduce the long-term harm done to children by listening to adults talk about what the child needs.

Thank you. We have to keep moving because we are under time pressure.

Mr. Terry Dignan

I will start with the point made about the guardian ad litem versus the advocate. I want to make our position clear. We believe that the experience and qualifications of the advocate can be an additional resource for the guardian ad litem, especially when it is time specific. Guardians ad litem are appointed at the beginning of care proceedings. The advocate may have a long relationship with the child and family and may be able to give insight into the background of the child or issues relating to or affecting the child. This can allow the guardian ad litem to move out of the blocks more quickly in terms of representing the child as a guardian ad litem.

The Chairman raised a point about the legal representative. There are cases - it is always case specific - where the advocate may be more than adequate.

There have been situations where a guardian ad litem is representing in one case and an advocate in another so there is the potential to do that. Ms Charles will speak to the fact that as it stands, all children are required to be made aware of EPIC as an advocacy service for them. We welcome that and want it to continue.

In respect of training, we agree with the Ombudsman for Children and the other speakers here that it should be broadened to look at a range of opportunities to bring people in from education, social care and so forth. We feel that once those people come into the service there should be training that is specific to the requirements of that particular role. We would recommend that an advocacy module be part of that, which would overcome that.

In respect of the perception of conflict of interest, we feel the voice of the child and what is in the best interests of the child are often not the same thing. Where the best interests of the child lie in taking the child out of the home, the child may want to be with his or her parents for whatever reason. That needs to be addressed to see how that could work. Again, a guardian ad litem advocate could work on that, as can the legal profession in terms of determining the outcomes of that.

Ms Karla Charles

I will not repeat what Mr. Dignan has said. I will deal with the structures at which the Courts Service of Ireland is looking. The service took submissions last year or possibly the previous year regarding structures and ways of making a court setting more child-friendly. That is in motion and we are involved in that process separately. This is something we can discuss at another stage. It is an intimidating process that can be much improved.

I will not repeat what Mr. Dignan said about the advocate versus the guardian ad litem. I would add that it is the current right of every child in care to be made aware of our service but it is a voluntary involvement on the part of child and involves requesting an advocate. An advocate would never be appointed where a child did not want one. In respect of the ability of an advocate versus a guardian ad litem, sometimes there may be a need for both while at other times there may only be a need for an advocate. It is very much case dependent. It should be part of the remit of the independent body to look from a cost perspective and in conjunction with the child at the best way to represent that child in court proceedings.

Ms Cliodhna O'Neill

We will try to get through as much as possible. To be honest, I have lost track of who has asked what so I will just go for it. In respect of the independent body, the key point is that form should follow function. We need to look at what this independent body needs to do and then determine the best mechanism to achieve that. What everyone believes this body needs to do has been pretty clearly described here today in terms of professional standards, regulation and keeping the independence, so it should be looked at in that context.

In respect of the Chairman's point about costs, I should have mentioned at the outset that the ISPCC does not provide any services related to this and our interest in it purely relates to the policy in law and strategic matters. I concur with the Chairman about costs and concerns about costs. It is great that this committee and other committees keep an eye on that in respect of value for money for the taxpayer. It is important to remember that value for money is not just about money. It is also about value and what value is got for children in respect of particular services. I have no doubt that costs could be contained better in a new system. However, it is not so much about questioning the role of the lawyers but ensuring there is equality of status for children in court proceedings so the children have the right to be represented and that right exists. That would be one of our concerns regarding the independence of the function. It is very important it never comes down to cost. It does not come down to cost for adults so why should it be the case with children? That is an important point to make.

In respect of the Assisted Decision-Making (Capacity) Act, I am not the world's leading expert on the topic but my understanding is that this legislation is about determining decision-making on the basis of the functional approach. It is quite a specific approach and that is supported by the National Advocacy Service. It is quite a different mechanism and I am not sure how useful it is in this context. There are some parallels but this service must be a specialist service, particularly for children, for the reasons my colleagues have outlined. Ms Ghent has some points she wishes to raise.

A number of people raised a point about cross-examination. It might be worth mentioning that under head 6, which states that a guardian ad litem may not cross-examine parties or witnesses, it is our understanding that this means the guardian ad litem or his or her legal representative, so there would not be a conflict between the guardian ad litem and the legal representative. Where required by a guardian ad litem, a legal representative is instructed by the guardian ad litem on behalf of the child so there would not be a conflict there.

Ms Catherine Ghent

I would love the committee to sort out legal costs because the fact that a few have driven up costs extensively impacts on the perception of the kind of work I do and the kind of guardians I represent who are not getting paid that kind of money. If I wanted to do that, I would go off and do commercial law, so I would really like that to be sorted out.

In respect of qualifications, I am not qualified to attend a child in care review, look at documents and say what I think is best for a child. I am not qualified to go to a child who has been abused and approach them in a way that would not trigger trauma for them. My function as a lawyer is to take instructions and advocate before the court, but I really feel that I need someone who is properly qualified. In respect of very young children who cannot verbalise or children with disabilities who cannot verbalise, I would like someone who is qualified to interpret that. Clearly, that qualification exists. In respect of the point about getting reports, sometimes we have sought reports to see how we can best elicit the views of that child. It is very important that this function continues.

I accept the point about trying to get resources. It should not be a conflict because what is at stake in child protection is the fact that children could be sent home. They could be left in a situation where they continue to be abused or neglected. We know that ongoing abuse and neglect has consequences. It generates mental health problems and involvement with the criminal justice system, and that generates costs for us all. It needs to be run in parallel. We have gone into court saying that the child I represent needs this service and I make no apology for this. The issue relating to voluntary care is that there are no court proceedings in respect of it. We have seen the devastating consequences for people who are in care and are left for years with nobody looking at their case and nobody advocating for them. I take the point about resources, but we as a society need to say that we are going to provide resources, that where the risk is that a child could go home to suffer abuse we will make sure this child has the best possible chance, or where there is a proposal to take the child away from their parents when they should be at home, that they need somebody to advocate for that.

In respect of cross-examination, as I said at the outset, I represent the child through the guardian. If that was brought into the legislation in terms of the child being a party through the guardian, we would not have that discrepancy in terms of the child and parties having those full constitutional rights. They could not be denied if that was the case. In any event, the judgement of Ms Justice Baker, which said very clearly that they are entitled to those fair procedure rights, must be taken into account. We definitely welcome the greater certainty and would certainly be willing to work with any members afterwards to try to address this problem.

In respect of severe chastisement, clearly, the Oireachtas did significant and very valuable work in removing the defence of reasonable chastisement. This was in the context of an assault on a child. You could deal with a judge who does not have that experience or who has never had it happen to them and he or she cannot go there. Sometimes it is really easy to feel sorry for a parent because his or her circumstances may have led him or her to become a parent who cannot engage with his or her children in an appropriate way. This is why it is very important that we are able to come in on behalf of the child and say that.

We must move on because we are eating into the time we have with the Minister. We have only limited time with the Minister up to 12 p.m. to get that on board so I must get the balance right. Does Mr. Walsh wish to comment?

Mr. Keith Walsh

Ms Coolican will speak.

Ms Carol Anne Coolican

I will be brief as I do not want to discommode the Minister in any way.

The Law Society welcomes this long-awaited legislation. We are very happy to engage and make further submissions if required. We would have a concern that, as drafted, the Bill is open to constitutional challenge or even referral by the President. I refer in particular to head 8, which I spoke about previously, that deals with the discretionary and mandatory remit of the courts in the appointment of a guardian ad litem.

In terms of head 3, we have some reservations that, as drafted, there are proposals in the short term to appoint a certain agency and other options may never fully be explored. We have a concern about that particular head, as articulated in our submission.

In terms of the qualifications, we have specifically mentioned that we believe the guardian should have seven years' postgraduate experience, five of which would be in child protection, and preferably with management experience. The role of the guardian ad litem is a dual one, first, to establish the views of the child and, second, to indicate clearly to the court what is in his or her best interests. The best interest principle is enshrined in private law proceedings for cases of custody, access, guardianship and adoption, and the children in those very vulnerable situations should also have those rights. It should not be a case of making flesh of one and fowl of another. The best interest principle set out in the private law legislation should also be set out in the public law legislation. We will make further submissions to the committee.

I thank the witnesses. The clerk has advised me that a report was made to the Committee of Public Accounts on the guardian ad litem service. The Comptroller and Auditor General did a lot of work on the breakdown of the costs. The report is available for information purposes. In summary, a total of 1,600 children availed of the service last year at a cost of €16 million which works out at €10,000 per child to give them a voice in court. Many of the children only had one court case. I do not say children should not have a voice in court but the costs are not proportionate. That is the final word of the Chair. I thank the witnesses for their attendance today and their participation at the meeting. I also thank members for their co-operation. We will now suspend the meeting to allow a changeover of witnesses for the next session with the Minister.

Sitting suspended at 10.40 a.m. and resumed at 10.50 a.m.

I welcome the Minister for Children and Youth Affairs, Deputy Katherine Zappone, and her officials, Ms Eimear Fisher, assistant secretary, and Ms Lara Hynes, principal officer. I thank them for appearing before the committee. I ask members and the Minister to turn off their mobile phones as they interfere with the recording equipment and make coverage of the meeting difficult.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

Any submission or opening statement made to the committee will be published on its website after the meeting. I understand the Minister will make a short presentation which will be followed by questions from members. I invite the Minister to make her opening statement.

I am delighted to be here and have the opportunity, with my officials, to engage with the committee on this matter. The general scheme of the Bill provides for the extensive reform of existing ad hoc guardian ad litem arrangements in child care proceedings. Before going into the detail of the general scheme, I want to highlight a number of the key positive aspects and features of the reform proposals.

First and foremost, there will be a presumption in favour of the appointment of a guardian ad litem in all child care proceedings. Where the court decides not to appoint a guardian ad litem, it will be required to give the reasoning behind its decision.

A nationally organised, managed and delivered guardian ad litem service will be established. The service will be responsible for providing guardians ad litem for the courts and will support the professional practice and development of guardians ad litem and monitor their performance. It will also be responsible for making legal advice available to guardians ad litem through an in-house legal facility and arranging legal representation for a guardian ad litem where it is deemed by a service provider to be required. The role and functions of a guardian ad litem and the qualifications and experience required to act as a guardian ad litem will be clearly defined. These are major changes in parts of the reform process.

In conjunction with reform in this area, my Department is progressing a review of the 1991 Child Care Act in its entirety. The detailed review includes identifying areas which need to be revised or updated to reflect current practices and respond to current needs. It also includes the examination of a number of potential new areas for development, for example, the inclusion of principles underpinning the revised Act, including explicit reference to the principle that all those involved in child care proceedings should promote and uphold the rights of the child. My Department has been engaging with Tusla and intends to commence a comprehensive public dialogue very shortly to inform this important review. It will be working with the Children's Rights Alliance in that regard.

With regard to the importance of guardians ad litem to the court and children, it is important to acknowledge that they perform a very important function in child care proceedings. They are an invaluable source of advice for the courts and also a great support for the children and young people involved in these proceedings.

I am taking a child-centred and a child rights based approach to the reform of current guardian ad litem arrangements. My focus is on ensuring all children in child care proceedings will have the opportunity to have their voice heard through having access to an independent guardian ad litem. The emphasis in these cases is on what is in the child's best interests. The first area of focus is on hearing the views of the child. One of the key objectives of the national strategy for children and young people’s participation in decision-making published by my Department is that young people will have a voice in the courts and the legal system. One such mechanism for hearing the views of the child in public law cases is the appointment of a guardian ad litem. Under current arrangements, the appointment is made where the court considers this to be necessary in the interests of the child and justice. This is entirely at the discretion of the individual judge. As this approach has resulted in the uneven appointment of guardians ad litem across geographical areas, I want to ensure an end to inconsistency. The approach I am taking is that there will be a presumption in favour of the appointment of a guardian ad litem for all children in child care proceedings. Where the court decides not to appoint a guardian ad litem, it must openly state its reasons for not appointing one, which might include choosing to hear the voice of the child through a direct meeting between the child and the judge in chambers. This presumption in favour is not intended to be a criticism of the judges per se but to enable consistency for children throughout the country. This approach will help to ensure more children across the country will have the services of a guardian ad litem.

As members are aware, the second key reform is the establishment of a nationally organised, managed and delivered guardian ad litem service, separate from Tusla. The purpose of the service will be to enhance the decision-making capacity of the courts by operating a well-managed, high-quality and cost-effective service in the best interests of children and young people. The new service will be established initially by means of public procurement to facilitate speedy reform. I will be the contract holder for the service and my Department will closely monitor its effectiveness and efficiency so as to inform its further development and final positioning in a new or existing reformed public body. Although I will be the contract holder for the new national service provider, Tusla will make periodic block payments to it for guardian ad litem costs in accordance with the terms of the contract. Care has been taken in the general scheme to ensure the independence of the service and its guardians ad litem from Tusla by stating explicitly that the guardian ad litem is independent in the exercise of his or her functions and that Tusla will not exercise any governance or oversight of the service provider or the performance of individual guardians ad litem. This will limit any perception of a conflict of interest or lack of independence on the part of guardians ad litem or the national service.

The role and functions of guardians ad litem will be clearly set out. They will have two functions, first, to inform the court of the child’s views and, second, to advise the court of what, in the professional opinion of the guardian ad litem, is in the best interests of the child.

The current absence of formal qualification requirements and experience standards for those who wish to act as guardians ad litem is being addressed. Those who wish to work as guardians ad litem in the future will have to have qualifications in social work or psychology and at least five years' experience in the area of child welfare and child protection. They must also supply a vetting disclosure document as provided for under the National Vetting Bureau Act 2012.

Under the proposals, access to legal representation will be more transparent and formalised. The national service provider will be required to provide in-house legal advice for guardians ad litem and will organise legal representation with expertise in care proceedings for guardians ad litem where the service is satisfied that the circumstances of the case warrant it. This approach will not remove the ability to engage legal representation which will be paid for by the State but which will regulate it in a way that is more cost effective, while still providing for the child’s rights to be vindicated. While this proposal will enhance governance, it is not a cost-saving exercise. It is about providing the best service for the courts and children to ensure that the child’s best interests will be served and children’s views will be taken into account in child care proceedings. We hope the intended approach will result in an increase in the number of appointments of guardians ad litem, with an attendant increase in expenditure on guardian ad litem fees and expenses and a reduction in spending on external legal advice. My aim is to refocus current expenditure in order that resources will be available to meet the increased guardian ad litem costs by reducing the current spend on legal costs. I anticipate that the reforms will lead to substantially reduced legal costs. This will come about through the provision of in-house legal advice by the national service provider and the introduction of standardised legal fees for a national panel of legal representatives for those cases in which legal representation for guardians ad litem is required.

While every effort will be made to introduce these reforms within existing resources, I acknowledge that some expenditure could be required. Should this happen, any additional funding required will be quantified and sought by me in the context of the Estimates process.

My Department is carrying out a number of steps in parallel with the work on this Bill, including the preparation of requests for tender documentation for the procurement of a national service provider. It is intended that the new service will be evaluated over time. Other options can then be examined, as appropriate, including, for example, establishing the service within the proposed family court system or as a separate public body or placing it within existing statutory structures.

The proposed legislation has been designed to address the deficiencies in the current guardian ad litem service that have been acknowledged by all interests. It is vital that we put in place a well organised quality-assured cost-effective national guardian ad litem service as soon as possible and I am committed to achieving this. My Department and I will work intensively to implement it as soon as the Bill is finalised and enacted.

I look forward to our engagement which my officials will support. I know that the committee has listened carefully to other representatives and taken their views into account in its analysis. I assure it that it is my absolute intention in the light of our ongoing discussions to have the best Bill and service possible in the most efficient and speediest manner.

I will begin by qualifying what I intend to say. There are a great many positive things in this legislation. In many ways, it will leave the area far better regulated and monitored. However, our responsibility in this committee is to try to work with the Minister to improve it. The concerns we have heard today and last month from several organisations are in two or three primary areas. The first concern relates to where the service will be located and how it will be managed and funded. I recognise the point made by the Minister to the effect that it will be separate from Tusla. However, it will still be funded from it. The Ombudsman for Children was before the committee earlier and made the point clearly that it was not only about a conflict of interest but a perceived conflict of interest. The specific difficulty relates to a party being unhappy with a set of proceedings and knowing that there is the same paymaster for legal representation on both sides. It is a question not only of Caesar's wife being beyond reproach but also being seen to be beyond reproach. That is an important point.

I am also somewhat concerned about the process of tendering for a national service provider as opposed to a permanent statutory or public body. Corresponding examples include the civil legal aid provided by the Legal Aid Board and so on. I am concerned that if we were to operate on the basis of tendering, over the course of a decade or beyond we could potentially have a second competition involving a tender followed by a different service provider. We could see a loss of institutional memory and all that goes with it. My instinct is that we should have a permanent body funded directly through the Department of Children and Youth Affairs. I see no reason we should not have such a body. If Tusla can fund such a body, why can the Department not do so? It should be permanent.

A second major issue arises. Catherine Ghent from the ISPCC was before the committee earlier. She expressed reservations about the constitutionality of the legislation, specifically the fact that there was no automatic right to have a guardian ad litem to represent the voice of the child. While I recognise that there may be circumstances in which a judge might decide that it is not necessary, the decision should be one for the child and whether he or she wishes to have a guardian ad litem. Allowing for discretion in the hands of the judge rather than the child may not be in line with the spirit, whatever about the letter, of Article 42.

Another major issue relates to head 6, to which there are several aspects, the first of which is the ability to cross-examine. All speakers expressed strong views on this point and suggested the proposal presented a difficulty that needed to be addressed. I also believe the fact that the guardian ad litem cannot request a professional assessment is an issue. It may well be in the best interests of the child.

My final point relates to a point well argued by EPIC on the potential enhancement of the guardian ad litem service under this legislation. The role of advocates as chosen by children through EPIC and other organisations needs to be safeguarded. It is not the same as that of a guardian ad litem; it is different in that there is a closer relationship with the child. It is the view of EPIC – one I support – that we need to be certain that the new dispensation ensures both advocates and guardians ad litem will be in a position to work hand in hand in court proceedings.

I want to ask one question for the purposes of clarification. Deputy Donnchadh Ó Laoghaire referred to the ability to cross-examine and referenced a request for a professional assessment. I did not understand what he said.

It is under head 6. The relevant line states a guardian ad litem may not request professional assessments.

I am sorry. From the way the Deputy said it, I thought he meant that it was related to guardians ad litem. That is fine.

I thank the Minister. It is useful that she has come after we have heard the various voices. Some of her officials were in the Visitors Gallery and would have been able to take notes.

Deputy Donnchadh Ó Laoghaire has covered several of the issues involved. I will return to the question of separation from Tusla. The various groups which appeared before the committee advocated strongly on that point. I will try to summarise what they sought. They called for the Department to be the funder rather than Tusla. They believe this is necessary and Deputy Donnchadh Ó Laoghaire outlined the reasons well. Since we are only at the stage where we are considering the heads, we are calling on the Minister to consider that suggestion.

The issue of the constitutional position was raised in the context of there being a presumption a guardian ad litem was needed. The court will have to explain why it would prefer not to appoint one. We need to come at it from a constitutional perspective. Representatives of the Law Society of Ireland quoted Article 42A and made reference to how the views of the child "shall" rather than "may" be ascertained. This was inserted into the Constitution following the recent referendum. It should not necessarily be at the discretion of the court. If a child believes he or she needs a guardian ad litem or a voice or needs to have his or her voice expressed through a guardian ad litem, that should be the priority rather than the views of the court on the matter. In other words, the guardian ad litem should be there for the child rather than the court. It is a fundamental shift in the emphasis on how decisions are made with regard to a guardian ad litem.

I wish to follow up on another point made by Deputy Donnchadh Ó Laoghaire. It relates to the ability to cross-examine. Ms Ghent said this was taking away a right. Perhaps it might not apply in all circumstances, but if there is such a right, perhaps the Minister might reflect on whether it is being taken away. I do not know. I am referring to the right to cross-examine. Obviously, Ms Ghent has considerable experience of such cases.

There was a suggestion that under head 5 one of the functions of a guardian ad litem should be to advocate on behalf of a child and that an extra function should be included in head 5.

There was a considerable discussion about non-verbal children and children who found it difficult to express themselves. The point made was that a wider range of professionals should be referenced in the head dealing with professionals.

Perhaps the Minister should consider the inclusion of a wider range of professionals on the list of approved guardians ad litem to ensure, for example, that a guardian ad litem would be able to communicate with a child who had a difficulty communicating.

I am delighted to see the Minister here again. I am also delighted to hear she will have a child-centred approach to every aspect related to the child, which is terrific. I am equally delighted to learn that she will be contract holder for this service and will have control over what will happen in this area.

I reiterate that my one concern relates to any involvement of Tusla in this service, and I have said that publicly on a few occasions. Although the Minister has said that it will have no involvement in the overseeing or management of the service, the fact that it will provide funding is like it having a power trip. I would like to know what Tusla's criteria will be to make payments. In the context of this power control aspect that it and the HSE have, and from having been involved for many years, it nearly comes down to the personality, not to what the child or what the service needs. That is my serious concern about any involvement of Tulsa in this service. Who will oversee the creation of this national service? The Minister said that she will be the contract holder. Will she have a sub-committee that will oversee this, or how will it work?

I apologise for being late. During the past two days we heard presentations from various groups who have an involvement with and a good understanding of our most vulnerable in society. I would like to pick up on two points. A representative of Empowering People in Care, EPIC - I cannot remember the gentleman's name -spoke about the role of the advocate. The Irish Society for the Prevention of Cruelty to Children endorsed and echoed what he said, namely, that a relationship is sometimes built up between the children and the advocate. The role of the guardian ad litem is to inform the court while the role of the advocate is to be the voice of the child. While there are two voices in term of those roles, they possibly have two different levels of engagement, with one being at the level of the Courts Service when a child is in a court environment. I do not know if the role of the advocate is set out in the Bill. What does the Minister envisage to be the role of the advocate, if, for example, a court decides there is no need for a guardian ad litem to be appointed? It is at that point that the role of the advocate would be involved?

I wish to ask an awkward question. All the groups who came before us expressed the wish that the service would not be part of Tusla and they made strong representations in that respect. They also expressed the wish that Tusla would not be funding mechanism for the service or have overarching responsibility for it. Tusla is tasked with recruiting our social care workers. Its was formed to deal with child protection issues. Why have all the representatives who appeared before the committee in recent weeks said that they do not want Tusla involved in this service? I did not see its involvement in this service prior to today, but today it is clear it will be involved. Why has there been that shift? Why do we not have a belief that Tusla should be given that role? I know it is a difficult question but it is one that needs to be asked. It is tasked with the role of protecting all children in our society. That is its role and it is the umbrella organisation in that respect.

The answer to the Deputy's question is that we believe Tusla cannot be trusted. That is the short, unscientific answer.

I thank the Minister for coming to the committee again today. I raised earlier the matter of ensuring this service will provide for the needs of children with disabilities, be they intellectual or physical. The children who may be represented in court may not have the verbal skills of their counterparts who run around the playground with them every day and they may also be more disadvantaged. The service will need to be able to interpret children's wishes, desires and their story of what is going on in their family or the care institutions. Does the guardian ad litem service require a subsection, as it were, to provide for the interpretation of a child with disabilities who has poor or no verbal skills? We referenced previously the horrendous cases of Grace and Mary who did not have a voice.

I gather that the Minister will quickly set up the procurement process and tender for a service provider to deliver the service. Those interested, which I imagine will be child agencies such as Barnardos, will respond and submit their costs. Is there a time limit for that process? In the interests of the children and the smooth running of the service, it would appropriate that the service would come back under a statutory body and it would preferable if it were set up in that way initially. Is there a time limit for the procurement process in terms of tendering, the receipt of applications, the selection process and there being a review or an assessment of the service within, say, five years? Will that process work? Will we be able to bring the service back under a statutory body within the remit of Government and good governance in terms of it being a public service?

All those are excellent questions. Many of the members have focused on similar issues and I might deal with the issues as distinct from responding to individual members' questions unless a member asked a unique question. Deputy Ó Laoghaire commented that ideally it would be better ultimately if this service provision was located within an independent body as distinct from there being a tendering process for a national service provider in light of all the arguments he made for that. Deputy Devine also referred to this issue. While ultimately that may be the case, and I accept the point in terms of institutional memory and all that would need to be assembled to perform these functions and this service for the children, largely the decision to move in the direction that we are going is to ensure we enable as speedy a reform as possible. Effectively, it is a pragmatic decision. There is also the opportunity built into this approach of reviewing the process after a number of years. The officials might identify that period but I will deal with the members' questions first. When this service is in operation, there can be a close review and monitoring of it to determine if this is the best way to deliver the service. We are in a position where extensive reform is required and it is happening on an ad hoc basis. We all know what the issues are. We are trying to put in place the provision of a top-class set of services for our children and young people but we may not be able to get to that point as our starting point. I still believe that this is the best way to proceed in terms of the establishment of a national service provider through a tendering process as distinct from the establishment of a separate body immediately. Members will be aware that current Government policy is that we must be careful about establishing any further public bodies, but that is not the best reason for not doing it because Government policy can always change.

On the question of Tusla's role in this regard in terms of the operation of a guardian ad litem national service, I appreciate the members' concerns and questions and also those of the advocates in terms of Tusla.

Let me say a couple of things in that regard and then we can have a further exchange on it. I emphasised in my opening remarks that I as the Minister am the contractor. As I understand it, all of the responsibilities and so on that come with that role, including the funding, fall on the Department. The Department ultimately provides the funding but Tusla administers it. That is the way I would describe it. Perhaps officials can help to finesse the detail of that. Tusla is not funding the service. The Department for Children and Youth Affairs is funding the service. Tusla does not have any role, for example, in reviewing invoices in terms of the work or the fees for the guardian ad litem, or the establishment of fees for the legal representatives. The service provider does that. The decision is that in the interests of efficiency and to fund the service effectively, the Department provides Tusla with the moneys to administer the services but it does not in any way make decisions on the oversight or dealing with individual invoices and so forth. A member said the Department needs to be clear and to spell out exactly what Tusla is doing and not doing in this regard. The perception probably needs to be sorted, and what that means is there is no role for Tusla except to administer the funding which the Government provides.

I will ask Ms Fisher to explain it.

Ms Éimear Fisher

Many members have raised questions on this issue. I think some of the issues have been raised because the general scheme does not cover some of these issues. Some of the issues raised were in regard to the detail of the service level agreement and the contract that will be conducted between the Minister and the national service provider. Obviously we can revert to the committee in assisting it in understanding that. By its nature it cannot be in the general scheme because that would be very prescriptive and we want to be flexible.

On the question of the payments mechanism, a payments mechanism process of the sort that would be required for something at this level does not exist in the Department. There is a payments mechanism process in Tusla. It is akin to a banking system that is not responsible for the actual daily invoices and looking at the quality of the work that is being carried out by the different guardians ad litem or the amount of time they were in court or the actual substance of the invoice. The substance of the invoice and the financial management of that would be a matter for the service provider, which would be monitored by the Department, and that would be very closely monitored under the service level agreement. We are in consultation at present with the Office for Government Procurement in regard to how best to set it up, and it is advising us very closely on that. What we have tried to do, as the Minister has been pointing out, is to distance Tusla from the process of being in contact with individual guardians ad litem themselves from the point of view of maintaining the independence of the individual guardians ad litem, while at the same time, given the necessity to speed up and improve the current system as urgently as possible, which we all recognise has deficiencies, to have that payment mechanism, that banking system in Tusla so that it can process the payments. The service level agreement with the service provider will provide more detail on that and we can come back to the committee as necessary.

I thank Ms Fisher. I will deal with the issue of whether the child has an automatic right to a guardian ad litem, and that being raised in the context of the constitutionality of it. As I understand it, and I can ask officials to support me, the major shift in the Bill is that there is a presumption that the child ought to have a guardian ad litem. Describing it in that way as distinct from another is because it could be the case, given the child's ability in terms of his or her age to make a decision, that the child may not be able to express a preference whether he or she wants a guardian ad litem. That is a concern, because in light of the child's age, the child may not be able to make that decision. To put it in the context of the presumption, if the judge makes a decision not to use the guardian ad litem and instead wishes to have a direct exchange with the child on the child's view as distinct from an exchange with the guardian ad litem, that is also taken into consideration. I think, and I will ask the officials to elaborate, that the shift is largely that the presumption is effectively the most pragmatic way to ensure the child has that right.

Ms Éimear Fisher

I would like to draw the committee's attention to head 15 because that might reassure members. While the general scheme provides for a presumption in relation to the appointment of a guardian ad litem, the general scheme itself provides in subhead 1 that in any proceedings before the court under this Act in respect of the protection of a child, the court shall in so far as is practicable give due consideration, having regard to his age and maturity to the views of the child. That is very strong. While there is a presumption in relation to the appointment of a guardian ad litem, and that is one thing, in terms of actually hearing the voice of the child, this amendment of section 24 of the Act says the court shall in so far as is practicable give due consideration to the views of the child. One way of giving consideration to the views of the child is through a guardian ad litem and there is a presumption of appointment of the guardian ad litem. The court has to consider the most appropriate means for hearing the child's views. If in the view of the court the child is of such age, maturity and level of articulateness that it does not believe that a guardian ad litem should be appointed, then the court will have to give reasons that cannot be done. There is the prescription in respect of hearing the views and then there is the question of how they should be heard. If there is a presumption of the guardian ad litem being appointed and the guardian ad litem is not appointed, the court has to give the reasons. I hope that clarifies the matter.

I thank Ms Fisher. She will also address the question in respect of the guardian ad litem's ability to cross examine.

Ms Éimear Fisher

In relation to the ability to cross-examine, we took on board many of the views that were expressed during the consultation and also the various pronouncements made in judgments throughout the years. Allowing the guardian ad litem to cross-examine was seen by one eminent judge to give the guardian ad litem a status akin to a party in the proceedings. That was changing the role of the guardian ad litem significantly from being a person appointed to express the views of the child, pass on his or her feelings, wishes and views and give assistance to the court in its professional assessment to having a separate role as a party to the proceedings. It was seen, if I am correct in this, and we considered in depth something that was said by the President of the District Court, that this was akin to giving the guardian ad litem party status. In such circumstances, giving such status was moving too far away from the express purpose of the Bill of giving effect to the voice of the child.

There always has been since the 1991 legislation a provision to provide for the child to be made a party to proceedings. As Carol Coulter said in her Child Care Law Reporting Project, this provision is rarely used. That provision will continue through this Bill as well and the child can be made a party to the proceedings. Where this happens and legal representation is appointed, the cross-examination will take place. Given the concerns have been raised and having listened to the various interventions this morning, that is perhaps too nuanced and we may need to clarify that more. We can talk to the Parliamentary Counsel on that. We were concerned that the purpose of the guardian ad litem might be diluted, which I totally understand.

Deputy Ó Laoghaire made a point about professional reports. The matter may need to be considered. The professional reports in the particular head he mentioned relate to the production of the GAL's report to the court. Where those reports on the child had previously been acquired by Tusla, for example, it was felt that it would be unfair to have the child be the subject of further reports. There is a head that allows for any issue to be brought to the attention of the court and for the court to request any report that it deems necessary. Perhaps the provision may be too nuanced. We need to consider the provision again but we will take on board the views expressed by members.

I thank Ms Fisher.

There were a couple of questions on the professional qualifications for GALs in the context of non-verbal children. We are open to specifying a wider range of professionals. We will consider the matter.

Senator Freeman asked who oversees the tendering process. We follow normal Government procurement rules. The tendering process will be overseen by the Office of Government Procurement.

A couple of members asked for a timeline. We hope to publish the Bill by the end of this year and have it enacted in the spring of 2018. The tender process will take approximately three months once it is sent out. Is that right, Ms Fisher?

Ms Éimear Fisher

Yes.

The service provider will need between three to six months to prepare.

Ms Éimear Fisher

A decision has not been made on the length of the contract. We need to talk to the Office of Government Procurement about that matter. We are alive to the points made by Deputy Ó Laoghaire about a need for consistency and avoiding the loss of corporate memory, etc. We are talking to the Office of Government Procurement about the matter.

I presume it will last a couple of years.

Ms Éimear Fisher

Precisely.

It will be four years initially.

I thank the Minister.

A couple of questions were asked about the role of an advocate and how it fits with the role of a guardian ad litem. Ms Fisher will comment on that.

Ms Éimear Fisher

The proposed new system will differ from the existing system in one significant way. The child may become a party to the proceedings and may retain his or her guardian ad litem. In that scenario, there are two advocacy elements. We can consider adding to the head a different subhead that deals with advocacy but we need to discuss it with the Parliamentary Counsel.

Ms Éimear Fisher

Of course, we are open to making the addition.

Ms Éimear Fisher

We must discuss the matter with the Parliamentary Counsel to see what impact the provision will have and check whether there are unintended consequences. We have heard what members have said about the matter.

Under the proposed new system, the child can be a party and can have legal representation, which is a route to advocacy. The whole point with regard to the proposed new system is for it to be different from the current system and to provide clarity in respect of the role of the GAL. First, it will outline what is the role of the GAL and, second, it will indicate where advocacy begins and ends in the context of the GAL. We must decide whether it would be better if the GAL was not expressly given the power of advocacy and whether it would be better for that power to be bestowed on a legal representative who would be trained to act as a professional advocate in court. A firm line on this has not been established. We must discuss where advocacy starts and ends with the Parliamentary Counsel. We must have clarity because there is inconsistency when it comes to the function and roles of GALs. We want to pin all of that down and there may be a way to do so.

There are no more questions on my list but I may have missed one.

I will allow members to comment again but I urge them to stick to asking questions. I propose to call on Deputies Rabbitte, Jan O'Sullivan and Ó Laoghaire to speak in that order.

One question was missed. Senator Devine gave me the answer but I would like the Minister to reply. Why has the Department chosen not to include Tusla in this scheme? Tusla was initially established as the sole provider of child protection governance.

The Deputy wants the Minister to clarify whether the Department has changed the role of Tusla.

I do not think so, no.

Ms Éimear Fisher

When care proceedings are taken in court, they are taken by Tusla in order to take the child into State care. It is considered more appropriate to have an independent person to speak as the voice of the child in such proceedings. It would not be appropriate for Tusla to play the role because it will have instigated proceedings. The whole point of having a guardian ad litem separate from Tusla is to provide an independent voice to challenge, reason in respect of and analyse the decision. Were the guardian ad litem to be part of Tusla, then the provision would dilute and almost submerge independence. The whole point of a GAL is to be separate, challenging and independent. Have I answered the Deputy's question?

The matter has been clarified.

It has been said that there is a provision in law to make the child a party to the proceedings. Who decides? How is the decision reached that the child can be a party to the proceedings?

I return to my point about constitutionality. Let us say someone took a case on the basis that a judge exercised his or her discretion not to appoint a guardian ad litem. Five or six years later, because he or she was not offered the services of a guardian ad litem, the person might return to court and claim that his or her rights under Article 42A were not vindicated. What defence could be offered in such a case? I accept the point with regard to head 15. The provision could have existed before the referendum. I refer to the words, "in so far as practicable, give due consideration, having regard to ... age and maturity, to the views of the child." The level of due consideration fundamentally changed after the constitutional referendum. I am of the view, therefore, that a question still arises in this regard.

On Tusla, the Minister stated that there is an awful long distance to travel. If we to undertake a fundamental reshaping the entire area, then I do not see a reason not to include the establishment of a body. This is the appropriate occasion on which to do so. I still have reservations about using a tender process because I do not believe that this can provide for the permanency and consistency required.

It is obvious that many of us, and certainly the public, have lost confidence in Tusla. Does the Department have confidence in Tusla?

Yes, we have confidence in Tusla and I suppose that is on the basis of the ongoing work. I have quarterly meetings with Tusla and at times in between. There are huge challenges in terms of the work of the organisation. Lots of things have come out, and more things will come out, in terms of past practices, etc. Tusla has embarked on a major programme of reform. The Department and I will oversee and monitor this. I appreciate that the public has major concerns in light of different things that have happened. A lot of these relate to legacy issues, as well as to systemic issues in the past couple of years. A reform programme has been put in place. I have also launched a special HIQA investigation. There is ongoing HIQA monitoring and reports are being compiled throughout the country in terms of where Tusla operates. We receive these reports and respond to them. I appreciate that the more general concern has an impact on what we have discussed here.

In addition to being very clear about what Tusla is doing in this regard, there might also be an important communications piece on behalf of the Department as we move to this new way of provision. I accept Deputy Ó Laoghaire's view that perhaps the tendering process might not be the ideal way to go. However, from a pragmatic perspective, it is the speediest way. We require reform and we are building a way of monitoring and evaluating that will bring us to where we wish to go.

Ms Éimear Fisher

With regard to section 25 and the appointment of the child as a party, that decision is made by the court. The GAL could ask the judge to make the child a party. Deputy Ó Loaghaire referred to due consideration. That is to provide some latitude. It is written in that way for the purpose of saying that, with regard to certain circumstances, it might be quite clear to the court that it is difficult for the child to provide his or her views. Due consideration is something that would have to be weighed by any appeal court or any other mechanism. Due consideration is almost intangible; it is almost subjective. I accept that there might be difficulties in that regard but, at the same time, the purpose of this is to provide a situation where the court shall take account of the views of the child and to provide for that with as much prescription as possible, bearing in mind that there will be difficulties for the child to give those views in particular cases.

Is the Deputy's question also about whether this is constitutionally compliant?

Yes. That question has been raised by speakers previously. Is it open to constitutional challenge and what would be the defence to a constitutional challenge on that basis?

Ms Éimear Fisher

I realise the Deputy is aware of this but following this process we will be raising these points with the Office of the Parliamentary Counsel and also with the Attorney General. We have had discussions with the various legal advisers along the way and we will continue to have them. Before a Bill is tabled, it is checked for constitutionality but, of course, those questions can arise again. We will have particular regard for that, especially in light of the questions raised by the Deputy.

I believe a compulsory GAL would be very dangerous territory. It would be appointing a GAL for every child for the sake of appointing one, because there are numerous cases where it is not necessary to have a GAL. There has to be a level in that regard. This is all about giving effect to the voice of the child. There is one issue that often confuses me. In court cases involving a child in care, the person who knows the child best, arguably, is the care giver, who is the foster carer. Let us say that it is four years later and the court case comes up again to review the child's care order and whether it continues. There is no means for the care giver to contribute. Given that this legislation is about giving effect to the voice of the child, have you given any consideration to allowing that for a care giver? I have not come across where it occurs.

That is an excellent question.

Ms Éimear Fisher

There is a head in the general scheme - I am not sure what the number is - which provides for any information to be brought by the GAL to the court. If it would assist the court and the child for the views of the foster carer to be taken into account, that can be provided to the court through the GAL.

Is the foster carer specified?

Ms Éimear Fisher

Under head 5(3), in exercising his or her function the guardian ad litem may make inquiries of any person as may be appropriate in order to determine the best interests of the child and make recommendations to the court.

That includes the foster carer.

Ms Éimear Fisher

They can make inquiries of any person.

Is it possible to specify it further? As I understand it, they are not consulted in any way in the vast majority of cases. Foster carers will tell one, and I am trying to depersonalise this, that they have no role in this and that they are told it is a matter between the State and the child. It is my experience that there is a clear and deliberate intention to exclude foster carers from the deliberations regarding care orders. This might present an opportunity to deal with that.

Ms Lara Hynes

If I might make a point in that regard, there is provision within the scheme for the Minister to make regulations in respect of best practice. That could be set out by ministerial regulation regarding best practice or it might be addressed through the service level agreement with the service provider in terms of the best practice guidelines the Department would like to have implemented by the service provider.

It is something we should examine.

In most cases the foster carer is the person who knows the child better than anybody else, be it his or her social worker, the judge or the GAL, yet they do not have any role. It is something that might be considered for the legislation, notwithstanding that it could be done by way of regulation. This might be an opportunity to give it a stronger effect.

I thank the Chairman.

I thank the Minister and her team for their contributions and their time. I also thank the members for their co-operation.

The joint committee adjourned at 11.45 a.m. until 10 a.m. on Wednesday, 3 May 2017.