Child Care (Amendment) Bill 2019: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to speak on the Second Stage of this important legislation. The Bill provides for the reform of guardian ad litem, or GAL, arrangements under section 26 of the Child Care Act 1991. A GAL is an experienced professional who is appointed by the court to ascertain and communicate the wishes and the best interests of a child at the centre of childcare proceedings.

The publication of this legislation is delivering on commitments in both the programme for Government and in Better Outcomes, Brighter Futures, the national policy framework for children and young people. The Bill gives me the statutory basis to put in place a high quality and sustainable guardian ad litem national service within my Department. It is the most robust way to ensure that the best interests of children and young people in childcare proceedings are met and that they have the opportunity to have their voice heard.

This Bill introduces a presumption in favour of the appointment of a GAL in all childcare proceedings before the District Court. It also makes appointment of a GAL mandatory in all proceedings under section 25 of the Mental Health Act 2001 and in special care proceedings.

The children's referendum of 2012 saw the passing of the 31st amendment of the Constitution, recognising that all children have rights and pledging to protect those rights by law. With the introduction of this Bill, I aim to ensure that our legislation better reflects and vindicates these rights.

The 31st amendment further provides that in the resolution of all proceedings involving children, the best interests of the child must be of paramount consideration. Under Article 42A.4.2°, the views of the child must be ascertained and given due weight having regard to the age and maturity of the child. The Bill introduces a requirement on the court to state how it intends to hear the views of the child if it declines to appoint a GAL.

To date, the appointment of guardians ad litem has been ad hoc and largely unregulated. This Bill aims to change that. This legislation underpins the introduction of a new GAL national service which will provide a high-quality, sustainable service to children in childcare proceedings. This reform has been welcomed by children's rights campaigners and is in line with the Oireachtas joint committee recommendations and submissions received by my Department.

Section 26 of the Child Care Act 1991 provides for the appointment of a GAL in care proceedings where a child is not a party to those proceedings and where the court is satisfied that it is necessary in the best interests of the child and in the interests of justice to have a GAL appointed. Currently, if a child is made a party to proceedings, he or she cannot also have the benefit of having a GAL appointed to him or her. This Bill allows the court to appoint a GAL to a child who has been made a party.

The 1991 Act currently does not set out the criteria for GAL appointments, the qualifications required to act as a GAL or the role, function and status of a GAL in care proceedings. This Bill, together with planned regulations, will provide clarity and will put in place a structured system of appointment.

The 2015 Comptroller and Auditor General report noted a lack of transparency surrounding the selection, registration and vetting of guardians ad litem, as well as a lack of oversight regarding costs. It noted that the rate paid in Ireland appears to compare unfavourably to the contracted hourly rate of guardians ad litem in other common law jurisdictions, while further noting that although guardians ad litem in this country are currently paid a standard rate per hour, they do not necessarily deliver a standard service.

The Comptroller and Auditor General report also recommended that my Department examine options for engagement of legal representatives as the current set-up means that despite the large sums involved, there is no open competitive tendering process in place for legal representation for guardians ad litem.

This Bill is the culmination of signification consultation with relevant stakeholders during its development. I wish to acknowledge all the valuable contributions that my Department has received, which have helped to ensure that the Bill is fit for purpose and will improve the current system.

The Department held a public consultation at the end of 2015 on key areas of reform. In total, 26 responses were received from children's rights and advocacy groups, guardians ad litem, legal practitioners, the Judiciary, the Office of the Ombudsman for Children, Tusla and other State agencies. Many of their recommendations, together with those of the Oireachtas Joint Committee on Children and Youth Affairs, have been reflected in the Bill.

The general scheme of this Bill was examined by the Oireachtas joint committee as part of the pre-legislative scrutiny process in 2017. The committee made a number of recommendations. Two of the strongest recommendations were, first, that the GAL service should not be subject to a procurement process but should instead be set up under a statutory body; and, second, that Tusla, the Child and Family Agency, should not be involved in the provision of the GAL service.

In 2017, I sought and received approval from Government to establish a new national GAL service within an executive office of my Department. This office will be created on an interim basis with a view to longer-term arrangements for the office being dealt with in the context of the proposed transition to a family courts system. Tusla will have no role in the GAL office; the relevant expenditure will be moved from Tusla to the Department. This approach addresses the joint committee's two strongest recommendations and is designed to deliver an effective, quality assured, and standardised front-line service for children in childcare proceedings.

My Department will continue to work collaboratively with stakeholders in the further development of the preparatory work required to set up this new executive office.

The Bill provides for a new national and structured process for the appointment of guardians ad litem to childcare cases. While the appointment of a GAL will continue to be a judicial function, the GAL office will now be responsible for assigning a named GAL to a specific case. It specifies the role and status of a GAL and lists the factors to which the GAL will have regard in determining what is in the best interests of the child. This includes factors such as the child's age, maturity and his or her views.

In addition to providing for a presumption in favour of appointment of a GAL in all childcare proceedings before the District Court, a new provision is included in this Bill requiring the court to say how it intends to hear the views of the child if it declines to appoint a GAL.

Provision is also made for the mandatory appointment of a GAL in all proceedings under section 25 of the Mental Health Act 2001. This section governs the involuntary admission of a child who has a mental disorder to an approved centre.

There is also provision made for the mandatory appointment of a GAL in special care proceedings.

Under this Bill, guardians ad litem will be able to apply to the court to procure a report on a child where no report exists or when such a report already exists but is no longer relevant or is out of date.

The Bill provides that the Minister may make regulations on the qualifications and experience required to act as a GAL.

The Bill provides for a system of authorisation of guardians ad litem and contains provisions to allow for the immediate revocation of authorisations in certain serious circumstances, such as a serious breach of regulations or a failure to notify the Minister of a criminal record.

Provision is made for a transition period in the first year of operation of the executive office. This Bill also presents an opportunity to implement a recent Government decision to increase Tusla's board membership from nine to 11 members.

In parallel with finalising the legal infrastructure through this Bill, my Department is working to establish the new service and to have it operationalised at the earliest possible date following enactment of this legislation.

My Department is committed to working with experts and stakeholders to ensure the new GAL service is fit for purpose and enabled to provide the best service for children in childcare proceedings. We are engaging with a number of key stakeholders and experts to ensure the best possible service is established under the Bill.

I turn to the provisions of the Bill. Part 1, sections 1 to 3, inclusive, provides for the Short Title, collective citation, construction, commencement and definitions used in the Bill, as well as for the repeal of certain provisions of the Child Care Act 1991 and the Child Care (Amendment) Act 2011. The repealed provisions will be replaced by the provisions of the Bill.

In Part 2 we insert new sections into the Child Care Act 1991 to provide for the reformed GAL arrangements. Section 4 amends the 1991 Act by substituting a new section 24 for the existing section. The purpose of the amendment is to reflect the intent of Article 42A of the Constitution by confirming that in any childcare proceedings under the 1991 Act, the court must regard the best interests of the child as the paramount consideration.

Section 5 inserts a new section 24A into the principal Act. The new section provides 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.

Section 6 inserts a new Part VA, entitled, Guardian ad litem, into the 1991 Act and will create new sections 35A to 35Q, inclusive, in the principal Act. Section 35A sets out the definitions used in this Part of the Bill.

Section 35B specifies that a person cannot be appointed as a GAL for a child unless the court has made an order directing an appointment under this section. It also provides that the High Court must appoint a GAL for all children who are the subject of special care proceedings and creates a presumption in favour of appointment in proceedings before the District Court. Once the High Court or the District Court has made an order directing the appointment of a GAL, the Minister for Children and Youth Affairs, under section 35C, will be required to appoint a GAL.

Section 35D deals with the provision of legal advice and legal representation for GALs. It requires the Minister to provide legal advice and legal representation for GALs appointed in all special care proceedings. In proceedings before the District Court under Part IV, Part IVB or VI of the 1991 Act the provision of legal advice or legal representation, or both, for a GAL will be at the discretion of the Minister. The Bill sets out a list of factors for the Minister to consider when deciding whether to arrange for the provision of legal advice, legal representation, or both, for a GAL.

Section 35E sets out the core functions of a GAL. They are to ascertain the views of the child, where he or she is capable of forming his or her own views, and, having considered these views, to make recommendations to the court on what is in the best interests of the child. In performing these functions the GAL is required to regard the best interests of the child as the paramount consideration. GALs will be required to prepare a report for the court which conveys both the views of the child and the guardian's recommendations on what is in the best interests of the child. The GAL must also inform the court of additional matters which are relevant to the best interests of the child which come to his or her attention during the course of his or her performance of duties as a GAL. Having regard to the child's age and maturity, the GAL will also be required to inform the child of the recommendations contained in his or her report; the outcome of the proceedings and any other matter relevant to the proceedings which the GAL considers appropriate.

As regards the status of a GAL, the Bill clarifies that a GAL can be called as a witness by the court or any party to the proceedings. The guardian's report to the court may also be received as evidence in the proceedings. The Bill further clarifies that a GAL is independent in the performance of his or her functions and that he or she is not a party to the proceedings.

Section 35F sets out the powers of a GAL and provides that a GAL is permitted to apply to the court to request that a report be obtained on any question affecting the welfare of the child. A GAL may make an application where there is no existing report or where there is a report, but the information contained within it is out of date. Before making an application to the court, the GAL is required to consult the parties to the proceedings or the counsel or solicitor, if any, representing the parties. The section provides that a GAL may also make an application to the court in relation to the provision of information from any person or on any matter related to the GAL's functions.

Section 35G allows the GAL to make a request to Tusla for information on the welfare of the child which is necessary for the performance of his or her functions. Subject to the data protection regulation and the Data Protection Act 2018, Tusla is obliged to comply with such a request. In the event that it refuses to comply with a request from a GAL for information, the agency is obliged to provide the GAL with the reasons for its refusal. It will not be required to furnish information which would be exempt from court proceedings on the grounds of legal professional privilege.

Section 35H specifies the circumstances in which an order appointing a GAL to special care proceedings in the High Court or proceedings in the District Court ceases to have effect.

Section 35I provides that the Minister for Children and Youth Affairs will pay reasonable costs or expenses incurred by a GAL while exercising his or her functions under the Bill on or after the relevant date.

Section 35J provides that the Minister can develop and maintain a regulatory framework for the purpose of ensuring GALs are held to high professional standards when performing their functions under the Bill.

Section 35K provides that, subject to the data protection regulation and the Data Protection Act 2018, the Minister may request that a GAL provide the Minister with information on his or her functions. This provision is included in order to allow for the appropriate management and supervision of GALs.

Section 35L provides that the Minister may issue an authorisation to those persons he or she considers to be appropriate to perform the functions of a GAL. A person will not be considered as an appropriate person to perform the functions of a GAL unless he or she fulfil the requirements of regulations to be made under the section. The regulations may prescribe matters such as the particular professions from which GALs may be authorised and the qualifications and minimum levels of professional experience required.

Section 35M provides that a person who has been authorised to act as a GAL is required to notify the Minister in writing of any relevant matter which would affect his or her authorisation. Section 35N provides that the Minister may revoke the authorisation of a GAL in certain circumstances.

Section 35O sets out the circumstances in which a GAL's authorisation will cease. To avoid disruption to ongoing proceedings, the section provides that where a GAL has been issued with an authorisation for a fixed period and that authorisation is due to expire, the Minister may extend it until the conclusion of the proceedings.

Section 35P provides that the Minister may enter into a contract for services with persons and issue such persons an authorisation to perform the functions of a GAL.

Section 35Q sets out the transitional arrangements to be put in place to ensure there will be minimal disruption to existing GAL appointments in ongoing proceedings.

Section 7 makes provision for a number of miscellaneous and technical amendments to the principal Act which are set out in detail in Part 1 of the Schedule to the Bill.

Section 8 provides for the amendment of the Acts specified in Part 2 of the Schedule. The amendments to other Acts are for the purpose of inserting references to the Bill.

Part 3, section 9, provides for an increase in membership of the board of Tusla by two ordinary members. A number of consequential amendments to sections dealing with membership of the board of the Tusla Act are also proposed. The consequential amendments provide for a pro rata adjustment in the number of board members required in various scenarios arising as a direct result in the increase in membership.

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 the Bill will enhance the rights of children and the capacity of the courts to make the right decisions in helping children and their families. The Bill will also help our legislation to better reflect the ideals of the thirty-first amendment of the Constitution and, more importantly, put these ideals into practice in a very real manner in childcare proceedings.

Under the Bill, GAL provision will no longer be ad hoc and unregulated but will instead be an organised service that will benefit children, regardless of where they live in the country or where their case is heard.

The Bill also covers a crucial section of a much wider legislation, the Child Care Act 1991, which is under review in its entirety by my Department. This reform also takes place against the backdrop of a much greater programme of change, that of the planned creation of specialised family courts.

I commend the good work many guardians ad item 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 its provisions. I look forward to hearing Deputies' views on its contents. I commend the Bill to the House.

We support the Bill in principle as it seeks to establish greater consistency in the appointment and management of the guardian ad litem, GAL, service. We have, however, some concerns about some shortcomings in the Bill and are unclear on whether it complies with the Children Act. We will be bringing forward amendments on Committee Stage.

One of the core requirements under the children's referendum was for the voice of the child to be heard in all court cases affecting the child's interests. In cases where a child is too young or otherwise unable to express his or her views to the court, a guardian ad litem is appointed. This person professionally assesses what he or she believes is in the best interests of the child. The GAL becomes the voice of the child.

There are major shortcomings in this Bill. It simply does not vindicate the rights of children to be heard in court proceedings involving them and, if enacted, will represent a retrograde step in terms of how family law cases are conducted. At present, the court has broad discretion in terms of how much the child and GAL are consulted, meaning that the court can take into account the varying needs of children and allow for a greater role for a guardian ad litem. A GAL can be appointed as party to proceedings, giving considerable leeway to guardians ad litem where they believe the court is not protecting the interests of the child adequately. This is vital to protect younger or more vulnerable children.

The Bill will see the child's role in the proceedings downgraded greatly, and he or she will be relegated to being a witness. A GAL will now make a singular report to the court on the interests and views of the child, even though a case can go on for many months, during which time the views and interests of a child can change greatly. The Government must outline how this Bill is not just a mechanism for cutting back on the costs involved with the GAL system.

The Bill proposes downgrading the status of a GAL to be a witness to the case, meaning that he or she will need to be called upon to give evidence, for example, by the judge. It leaves considerable ambiguity as to the degree of involvement of the guardian ad litem in cases. A witness could also be called in for evidence and then asked to leave the court, removing the possibility to brief the child on what is happening during the court case. This is very worrying, and it is unclear how this satisfies the requirements under the Children Act, which clearly sets out that children have their own interests and are not simply an add-on to the interests of their parents or guardians.

Section 25 of the Child Care Act allows the child to become a full party to the proceedings, if that child so wishes. Section 26 of the same Act allows a guardian to be a full party, allowing the GAL to increase his or her role if he or she feels that the judge is not adequately addressing the interests of the child. Will these provisions be protected under the new Act?

A solicitor, Gareth Noble, has expressed his concerns that the Bill will leave behind children who are not capable of expressing their own views to the court, as it reduces the weight assigned to the assessment of guardians ad litem of the child's best interests. He has stated that the Bill "has had no input or consultation from lawyers acting on behalf of the interests of children on the front line".

At present, there is little clarity or consistency around how guardians ad litem are selected and appointed. The Bill seeks to address this by creating a new service that would manage the contracting of guardians ad litem. It is not clear from the Bill, however, how these guardians ad litem will be selected or whether there will be any professional or educational requirements for them. This will be under secondary legislation, which will accord entire discretion to the Minister as to how guardians ad litem will be selected. Clear parameters as to the professional requirements for guardians ad litem should be set out in this Bill.

I thank my colleague for such brevity given the limited time remaining. We welcome the Bill and its broad policies and principles. We have all been calling for this legislation for some time. The Minister has acted in haste over the summer period and we welcome that on the week the Dáil resumed, the Bill has been published and is before us.

I share some of the concerns Deputy Rabbitte outlined in respect of proceedings before the District Court, particularly in reference to the wording in section 35B where a court at District Court level "shall consider whether to direct that a guardian ad litem be appointed for a child and the court may by order so direct". If I was to read that at face value and read the wording of the Minister’s contribution, she clearly states there is a presumption in favour of appointing the GAL at the District Court level. The following section, section 4, outlines the parameters by which such a GAL is appointed.

If I was to look at it from the point of view of ensuring there is no ambiguity about whether the GAL is appointed for the child, it could be argued that the section 35B provision, especially as it relates to the District Court appointment, should be such that a GAL would de facto be appointed in all cases at District Court level. I am merely posing that to the Minister. There is a school of thought that says de facto it should always be the case.

I appreciate the point the Minister is making in respect of the need for the discretion of the courts and the guidance the judge has now by which he or she can appoint the GAL. I wonder about the Minister’s justification in leaving it open in respect of the District Court. It is one thing for the Minister to say there is a presumption in favour of appointment. That suggests to me that it may or may not happen, and that depends very much on the sitting judge on the day. If the sitting judge is hearing any other number of cases that are not necessarily family law cases or cases that require the services of a guardian ad litem or where the judge, dare I say it, does not necessarily have a specialism in this area, is the Minister leaving a gap which diminishes the right of the child? I would like more clarity on that point. I am minded to defer to the judgment of the District Court in respect of this issue and to leave it to the discretion of the judge, but I would like that point clarified, particularly before Committee Stage, because it could determine whether we would seek to amend it. I will, however, be guided by the Minister on that point.

I seek clarity also on the cost, budget and funding, because if it is the case that it is the Minister’s intention to create an executive office under the auspices of Tusla but acting separately within Tusla, within its own silo, as it were, that is to be welcomed.

The Minister has not spoken to the nature of the service. We are relying on the child care law reporting project for any utterances about the system and how it works. I have never found myself, because of the nature of the proceedings, attending any proceedings. We are therefore somewhat blind, as legislators, as to how the system works in real time. We are depending on experts such as Carol Coulter and the child care law reporting project.

There have been a number of submissions made in respect of the consultation process. I wish to quote from one such submission, which was made by a solicitor in Cork. Mr. Colm Roberts, a solicitor from The Law Centre in North Quay House, made a submission. Under the guise of the policies and principles, he states:

"the purpose of the service is to benefit the child by supporting the court to make interests of the child as the paramount consideration;"

I do not believe the principle as stated is appropriate. I say this as it is my view that the purpose of the service should primarily be for the benefit of the Court and not as worded.

The Guardian ad Litem's ... purpose must at all times be to benefit the court and its responsibility should be its primary purpose. That purpose should not become unclear or confused. It is unhelpful for the GAL to become an advocate in the adversarial process. These issues were commented on by a district court Judge in a decision reported recently in the Child Care Law Reporting Project...

When the GAL becomes too active a participant, he/she can alienate ... [himself or herself] from the parties and be perceived as becoming part of the problem rather than the solution, thus undermining its value and purpose.

It is my understanding that the GAL is appointed by the court to assist it in being fully and freely informed of the wishes of the child, the circumstances of the case and the potentiality of all viable options available in the interests and welfare of the child.

The court and not the GAL must remain the ultimate arbiter in determining the rights of children and parents in these matters to ensure compliance with its statutory, constitutional and ECHR duties.

I take that at face value because that is the voice of somebody who has been working at the coalface for many years, indeed somebody who is well known to many of us as a front-line expert.

It is my wish that there would be clarity about the exact role of the guardian ad litem, GAL, in a prescriptive way enshrined within the primary legislation. I ask the Minister to take on board views such as this because I believe that it reflects a reasonable and rational view of proceedings and it ensures that there is no ambiguity about the role of the GAL. I ask the Minister if she would take on board that particular point or at least, if it is not her view or if it is not her intention to legislate for this submission, to revert to us on Committee Stage.

Finally, we need to talk about the budget, transparency and the costs of the solicitors involved and of the GAL service. It is my party's view that this needs to be enshrined in primary legislation to the point of ensuring there is a report, for instance, laid before the Houses of the Oireachtas, to give us transparency about the exact cost of the service. We have no oversight of that. We know exactly what Tusla is spending on legal fees. Tusla and the Minister, I am sure, would have no problem in breaking down those costs. Some efforts have been made by the Joint Committee on Children and Youth Affairs to seek further information about the true costs of this service, but it would be useful for all of us to have sight of the costs as that would inform us as to whether moneys are being spent in a way that ensures the child - let us not forget this is about children and we must keep a focus on children - is getting the best possible service. Where reports are sought by the courts for access to particular services to be allocated to the child, there should be no excuse made that the services cannot be allocated because no budget is available to provide services for the child but yet the GAL - maybe I speak from a point of ignorance here - has costs for the period of the hearings of possibly hundreds or thousands of euro. A recommendation may be made that a service should be provided for the child, but the child cannot get access to the service that would have cost the same as the GAL because of resource constraints. Does the Minister see the point?

Deputy Sherlock is in full flight but I must request him to propose the adjournment of the debate.

I reluctantly propose the adjournment of the debate.

Debate adjourned.
The Dáil adjourned at 10.15 p.m. until 10.30 a.m. on Thursday, 19 September 2019.