The purpose of this Bill is to reform the existing guardian ad litem system which is unregulated and ad hoc. Currently guardians ad litem, or GALs, may be appointed by the court for children who are the subject of proceedings under the Child Care Act 1991.
The existing legislation is silent on a number of key issues. For example, the status, role and functions of GALs are not defined. The qualifications and experience necessary to act as a GAL are not set out. There is also no requirement on a court to appoint a GAL. This ad hoc system has led to some inconsistencies in practice and has meant that not all children receive the same service. The Bill is intended to address these issues and its main features are as follows.
A new section is being inserted into the Child Care Act to provide that in any proceedings under that Act, the court must regard the best interests of the child as the paramount consideration. Furthermore, where a child is capable of forming his or her own views in any proceedings under the principal Act, the court must determine how to facilitate the child in expressing those views. The court would be required to give due weight to any views the child wishes to express, having regard to the child's age and maturity.
The Bill also proposes to insert a new Part into the Child Care Act, specifically relating to guardians ad litem. The functions of the GAL will be to ascertain the views of the child, where the child is capable of forming his or her own views. Having considered those views, the GAL will then be required to make recommendations to the court on what is in the best interests of the child. This requirement also applies in circumstances where a child is not capable of forming or expressing views, or where the child is unwilling to express those views. GALs may also be required to perform such additional functions as may be directed by the court. The proposed new section 35E(11) explicitly confirms the discretion of the court to allow a GAL to exercise certain party-type rights where appropriate in the child's best interests.
The new Part provides that the High Court must appoint a GAL for all children in special care proceedings and creates a presumption in favour of the appointment in proceedings before the District Court. This approach is one which is supported by many stakeholders, including the special rapporteur on child protection. GALs who have been appointed in special care proceedings will automatically be entitled to legal advice and legal representation. GALs who have been appointed to child care proceedings in the District Court will have legal advice available to them on request and may be provided with legal representation. The new national GAL service will be run from an executive office within my Department. The Bill sets out all the necessary powers, including regulation-making powers, necessary to establish this office.
In terms of next steps, once the legislation is enacted there will be a significant body of work to establish the executive office. This includes the recruitment and training of personnel, the development of practice manuals and decisions regarding its physical location. My officials have commenced preparatory work in this regard.
In conclusion, the purpose of reform in this area is to regulate and expand the provision of GAL services in a consistent manner across the country. The provisions of this Bill are intended to enhance the rights of children and the capacity of the courts to make the right decisions in helping children and their families. I take this opportunity to commend the good work that many GALs have done and continue to do for children in this country. I am grateful for their continued input into creating a better service. I thank them and all the stakeholders who have contributed to the development of this Bill. I am pleased to have had the opportunity to outline the provisions of this Bill and I look forward to hearing Senators' views. I commend the Bill to the House.
