Reform of Guardian ad litem arrangements in child care proceedings
Current guardian ad litem arrangements
Section 26 of the 1991 Child Care Act provides for the appointment of a guardian ad litem in respect of 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 guardian ad litem appointed. The 1991 Act does not set out the criteria for such appointments, the qualifications required to act as a guardian nor the role, function and status of a guardian ad litem in care proceedings.
Consultation with stakeholders
The Department held a public consultation from 12 October 2015 to mid-December 2015 on key areas of reform. In total, 26 responses were received from children’s rights/advocacy groups, guardian ad litem practitioners, legal practitioners, the Judiciary, the Office of the Ombudsman for Children, the Child and Family Agency and other State Agencies. In addition, the Department subsequently met with a number of respondents at their request.
Key points which emerged from the consultation include:
• The importance of the guardian ad litem to the court and to the child in child care proceedings
• The need for all children in child care proceedings to have access to a guardian ad litem e.g. through the presumption in favour of an appointment of a guardian ad litem by the court
• The necessity for the establishment of a nationally organised, managed and delivered service to ensure a consistent and quality assured service is provided in a transparent and accountable manner
• The role, function and status of the guardian ad litem should be clearly stated in legislation and should focus on representing the views of the child and on providing an independent assessment and recommendation to the court on what is in the child’s best interests
• The need for clarification around guardians ad litem access to legal advice and the circumstances where it is appropriate for legal representation to be engaged, and
• Qualifications and experience required to act as a guardian ad litem should be in social work or psychology, with a minimum of five years’ experience in child welfare and child protection areas.
The consultation paper advised of the Department’s intention to publish the responses received. The responses received are available below:
Child Care Law Reporting Project, Carol Coulter, Director
Guardians ad Litem Suite 206, Capel Buildings
Irish Society for the Prevention of Cruelty to Children
Office of the Data Protection Commissioner
Catherine Ryan, Solicitor
TUSLA, The Child and Family Agency
Carol Galavan, Guardian ad Litem
Eamonn Carroll, Solicitor, Noonan Carroll Linehan Coffey Solicitors
The Independent Guardian ad Litem Agency (TIGALA)
EPIC, Empowering People in Care
Renee Hanley, Independent Guardian ad Litem
The Child Law Clinic, School of Law, UCC
The Ombudsman for Children's Office
Colm Roberts, Solicitor
Irish Association of Social Workers
Law Society of Ireland
Catherine Ghent, Solicitor, Gallagher Shatter Solicitors
Geraldine Keehan, Solicitor, Augustus Cullen Law Solicitors
The Bar of Ireland
The Legal Aid Board
Mental Health Commission
Ms Justice Bronagh O'Hanlon and Justice Henry Abbott
Children's Rights Alliance
Guardian ad litem reform proposals
On 17th January 2017, Government gave its approval for the publication of a General Scheme of the Child Care (Amendment) Bill, 2017 and its referral to the Joint Oireachtas Committee on Children and Youth Affairs for pre-legislative scrutiny.
The main purpose of the General Scheme is to replace the existing provision in Section 26 of the 1991 Child Care Act. The overall objective is to ensure that the Guardian ad litem service can be provided to benefit the greatest number of children and young people, so that their voices can be heard in child care proceedings and that this service will be of high quality and sustainable into the future.
Reforms proposals include:
• The establishment of a nationally organised, managed and delivered guardian ad litem service by way of public procurement.
• The new national service will be responsible for providing guardians ad litem to the courts, supporting the professional practice and development of guardians ad litem and monitoring 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 function of a guardian ad litem in child care proceedings will be to inform the court of the child’s views and to advise the court of what, in the guardian ad litem’s professional opinion, is in the best interests of the child.
• There will be a presumption in favour of the appointment of a guardian ad litem in all child care proceedings, and where the court decides not to appoint a guardian ad litem, the court will be required to give the reasoning behind its decision.
• A guardian ad litem will be appointed in all High Court Special Care proceedings (i.e. proceedings involving the detention of a child).
• To act as a guardian ad litem, a person will require a qualification in social work or psychology and have a minimum of at least five years’ post graduate experience of working in the child welfare and child protection areas. They must also supply a vetting disclosure as provided for under the National Vetting Bureau Act, 2012.
• The introduction of standardised fees for legal representation.
General Scheme of the Child Care (Amendment) Bill, 2017
It is intended to publish the text of a Bill as soon as possible in the second half of 2017.