While the UN Convention on the Rights of the Child does not form part of the domestic law of the State, the substance of many of the rights set out in the Convention (including the child's right to have their views heard and the child's right to non-discrimination) are protected by the Irish Constitution and by legislation such as the Guardianship of Infants Act 1964 (as amended by the Child and Family Relationships Act 2015) and the Domestic Violence Act 2018.
Article 42A of the Constitution obliges the State to make provision in law that in the resolution of relevant proceedings brought by the State, the best interests of a child shall be the paramount consideration. It also requires that provision be made in law for securing, as far as practicable, that in 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.
I plan to shortly seek government approval for the general scheme for a new Child Care (Amendment) [Guardian ad litem] Bill. This Bill, similarly to the Child Care (Amendment) Bill 2019, which fell with the last government, will introduce amendments to the wider Child Care Act 1991 in addition to the sections specific to guardian ad litem reform.
1. It will put new obligations on the Court to consider the best interests of the child. It will amend the 1991 Act by substituting a new section 24 for the existing section. This new Section 24 will focus on the child’s rights. The purpose of the amendment is to reflect the intent of Article 42A of the Constitution by confirming that in any child care proceedings under the 1991 Act, the court must regard the best interests of the child as the paramount consideration.
2. It will also insert a new section 24A, providing that where a child is capable of forming his or her own views in any proceedings under the 1991 Act, the court must determine how to facilitate him or her in expressing those views. It will be required to give any view the child wishes to express due weight, having regard to his or her age and maturity.
Providing for a more widespread appointment of guardians ad litem is also part of this response. Guardians ad litem are a tested and known methodology for ensuring that the voice of the child is heard in court. However, they are not the only way to do this. Under the Review of the Child Care Act, currently being undertaken by this department, we are also looking at how we can encourage the more direct participation of children.