Amendments Nos. 1 and 2 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Child Care (Amendment) Bill 2022: Committee and Remaining Stages
Sections 1 to 6, inclusive, agreed to.
SECTION 7
I move amendment No. 1:
In page 9, between lines 19 and 20, to insert the following:
“(c) to represent the child’s interests in the proceedings to which the guardian ad litem has been appointed.”.
This amendment was previously passed in 2019. We believe it should go back in because it is explicit in the context of the role of the guardian ad litem, GAL. I would welcome the Minister's response.
We are not going to be in a position to accept the two amendments being put forward. With regard to amendment No. 1, our position is that the use of the word “represent”, which the Senator seeks to insert through the first amendment, could be interpreted to mean active representation by a GAL. This would conflict with the policy position that a guardian ad litem is not a party to the proceedings. The functions of the GAL, as set out in the Bill, are to ascertain the views of the child and to make recommendations to the court regarding what is in the child's best interests. A requirement on the guardian to represent the child's interests in the proceedings could go far beyond that function and could be interpreted as meaning active representation. The powers of a GAL under this Bill do not align with such a function. Under the existing legislative provisions, GALs are not a party to proceedings and they do not have status of a party. At the court's discretion, they have sometimes been permitted to exercise party-type rights. The Bill does not propose to alter this position.
Concerns were expressed during the 2019 Committee Stage debate on this Bill regarding the status of GALs in proceedings. On foot of those concerns, I instructed my officials to revisit this issue and to explore the issue of party-type rights for a GAL with the Attorney General.
As a result, section 35E(11) has been inserted into this iteration of the Bill.
This new subsection provides that the court may, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interests of the child and in the interests of justice to do so, order that the GAL shall have such party rights as it may specify. The court may specify whether the exercise of these rights is for the entirety of the proceedings or in respect of particular issues in the proceedings. It is a new section and a new power being given to the courts to recognise that there may be circumstances where party-type rights would be granted to the GAL, but it would not take place as a matter of course.
I am satisfied that the Bill, as drafted, gives GALs wide-ranging powers to exercise their functions, while also providing flexibility for the court to grant them additional party-type rights as required. For these reasons, I am not in a position to accept the amendment.
Amendment No. 2 proposes to delete the existing subsection (8) of section 35E and to substitute text to provide that the GAL may inform the court in relation to any matter concerning the welfare of the child. The text that is proposed to be deleted provides that the court, or any party to the proceedings, may call a GAL appointed for a child as a witness. The purpose of the provision proposed to be deleted is to allow a GAL to be sworn in. If this provision is deleted, it could potentially disadvantage a parent who wants to call a GAL as a witness.
I am aware that there are concerns that the status of the GAL is being somehow diminished by the provisions of this Bill. I would like to clarify that the purpose of the existing wording is not to limit the role of the GAL to that of a witness. There is no intention that this would be the case. This reference to a GAL being called as a witness does not exist in isolation and must be read in conjunction with the whole of the Bill. When the provisions of the Bill are considered in the round, it is clear that the status of the GAL goes far beyond that of a witness. For example, under section 35F a GAL may apply to the court to procure a report on any question affecting the welfare of the child where there is no existing report, or where there is a report but the information contained within that report is out of date. The GAL may also make an application to the court in relation to the provision of information from any person or in relation to any other matter that relates to the functions of the guardian ad litem. GALs may also continue to make section 47 applications. This section, which is already in the Child Care Act, allows them to make an application on any question affecting the welfare of a child in the care of Tusla. A GAL could not fulfil his or her statutory duties as set out in this Bill if his or her role were that of a witness. I hope that allays some concerns that were spoken about previously.
The amendment proposes to substitute the existing text with a provision that will permit the GAL to inform the court of any matter concerning the welfare of the child. I agree it is important that a GAL should have the ability to inform the court of any concerns regarding the welfare of the child to whom he or she has been appointed.
The existing section 35E of the Bill sets out the functions of the guardian ad litem, and section 35(2)(c) provides a GAL appointed for a child shall "inform the court of any additional matters, relevant to the best interests of the child, coming to his or her knowledge as a result of the performance by the GAL of his or her functions." Therefore, the Bill already confers guardians ad litem with the ability to inform the court of any welfare concerns that may arise in respect of the child. The Bill actually goes further than the amendment proposes as it places a statutory obligation on the GAL to inform the court of any issue affecting the best interests of the child. The current text of the Bill states "shall", which is mandating, whereas the amendment proposes the addition of a "may" clause. I am sorry Senator Higgins is not here to see me accepting a "shall" in this situation.
There is always once.
We can send her the clip.
She might rush up now. Be careful.
It is an important distinction.
It is.
Be careful what you wish for. She might walk in the door any second.
It is important in this situation too.
I am satisfied that the statutory functions of the GAL, as set out in the Bill, make clear that his or her role is to assist the court and to be a resource to it. I am unable to accept this amendment because it would have a detrimental effect on parents who want to call a GAL as a witness and on the basis that the substituted text is already provided for – to a stronger degree, I would argue – and therefore unnecessary.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 10, to delete lines 21 and 22 and substitute the following:
"(8) The court may hear from the guardian ad litem in respect of any welfare matter concerning the child.".
Amendment, by leave, withdrawn.
Section 7 agreed to.
Sections 8 to 13, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take the next Stage?
Is that agreed? Agreed.
Bill received for final consideration.
When is it proposed to take the next Stage?
Is that agreed? Agreed.
Question, "That the Bill do now pass", put and declared carried.
Cuireadh an Seanad ar fionraí ar 1.57 p.m. agus cuireadh tús leis arís ar 2.07 p.m.
Sitting suspended at 1.57 p.m. and resumed at 2.07 p.m.