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.
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.
The Government approved a revised General Scheme on 20th February 2018. See below for further detail and link to revised General Scheme.
Pre-legislative scrutiny of the General Scheme by the Joint Oireachtas Committee on Children and Youth Affairs
Government approval to establish a national Guardian ad litem service within an executive office of the Department of Children and Youth Affairs
The General Scheme of the Child Care (Amendment) Bill 2017, which provides for the reform of the Guardian ad litem service, was examined by the the Joint Oireachtas Committee on Children and Youth Affairs as part of the pre-legislative scrutiny process earlier this year. The Joint Oireachtas Committee submitted its report to Minister Zappone in May 2017, making a number of recommendations for her consideration.
Two of the Committee’s strongest recommendations were that the Guardian ad litem service should not be subject to the procurement process, which was provided for in the General Scheme, but instead be set up under a statutory body and secondly, that there should be no involvement of Tusla in the provision of the Guardian ad litem service. These recommendations prompted reconsideration by the Minister and the Department of how best to establish a national Guardian ad litem service.
As a result, the Minister sought, and received, approval from Government on 5th December to establish a new national Guardian ad litem service within an Executive Office of this Department. This will be done 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. An advantage of setting up an Executive Office within this Department is that Tusla will have no role once the Executive Office is established as the relevant expenditure will be moved from Tusla to the Department.
This approach addresses the Joint Committee’s two strongest recommendations and will deliver an effective, quality assured, and standardised front line service for children in child care proceedings. It will provide the best foundation for a permanently settled service by ensuring the prompt and efficient establishment of the new service and will provide a high quality service to all children who require it. Other recommendations of the Joint Oireachtas Committee are being considered and it is intended that a decision on any outstanding matters will be made shortly.
The Minister will bring the General Scheme, as amended, to Government in the coming weeks with a view to publication.
Finally, and importantly, the Department will continue to work collaboratively with stakeholder interests in the further development of this important legislation and in the preparatory work on setting up the new Executive Office.
Revised General Scheme (February 2018) of the Child Care (Amendment) Bill 2018
On 20th February 2018, Government gave its approval to a revised General Scheme of the Child Care (Amendment) Bill (Guardian ad litem arrangements) and for a Bill to be drafted along the lines of the revised General Scheme.
The revised General Scheme reflects Government’s decision in December 2017 for a new Guardian ad litem service to be established within an executive office of the Department of Children and Youth Affairs. It also addresses further recommendations of the Joint Oireachtas Committee for Children and Youth Affairs on the General Scheme as published in January 2017.
The revised Scheme strengthens the powers of Guardians ad litem in a number of important areas. In the interests of procedural fairness, the Guardian ad litem will be permitted to cross-examine parties and witnesses in certain circumstances. S/he will also have the power to make applications to the court on issues concerning the welfare of the child where the child is in care.
The professional qualifications to act as a Guardian ad litem have been broadened to include social care and psychiatry. This addition will help ensure that the new service is diverse and responsive to the different needs of children involved in child care proceedings.
In addition to providing for a presumption in favour of appointment of a Guardian ad litem in all child care proceedings, a new provision is included in the revised General Scheme requiring the court to say how it intends to hear the views of the child, if it declines to appoint a Guardian ad litem.
Provision is also made for the mandatory appointment of a Guardian ad litem in all proceedings under Section 25 of the Mental Health Act, 2001 (involuntary admission of a child who has a mental disorder to an approved centre). This is similar to the provision made for the mandatory appointment of a Guardian ad litem in special care proceedings.
The provision which allows Guardians ad litem to apply to the court to procure a report on a child (e.g. medical, psychological, psychiatric or other report) where no report exists, has been extended to allow Guardians ad litem to apply to the court to procure a report where such a report already exists but is no longer relevant.
A list of factors that the Guardian ad litem will have regard to in determining what is in the best interests of the child is also included. This list reflects the list of factors which are set out in the Children and Family Relationships Act 2015 and which must be considered when the best interests of children are being adjudicated upon in private family law matters.
A link to the revised General Scheme can be found here.
Work on drafting the Child Care (Amendment) Bill 2018 is being progressed with a view to finalising the Bill as soon as possible in 2018.
In parallel with finalising the legal infrastructure, the Department is working to establish the new service and to have it operationalised at the earliest possible date following enactment of the legislation.
Informing the new service’s systems, procedures and protocols
The Department is committed to working with experts and stakeholders to ensure that the new Guardian ad litem service is fit for purpose and is enabled to provide the best service to children in child care proceedings. The Department intends that the engagement process will be methodical, thorough and efficient.
The Department will engage with a number of key informants across the Department, wider Government Departments and Agencies, children’s rights groups/bodies and other key experts as detailed below:
• Engagement within the Department of Children and Youth Affairs
The Child Care Legislation and Children’s Rights Policy Unit will consult and liaise with relevant Units within the Department whose assistance will be required in informing and establishing the new executive office.
• Engagement with Government Departments and Agencies
The Department will consult and liaise with officials of relevant Government Departments and agencies to inform and assist the setting up of the new office with regard to logistical matters and operational systems, procedures and protocols.
• Children’s rights groups/bodies
In tandem with the above, the Department will consult with child’s rights advocacy groups and bodies to ensure that a holistic, child-centred, child-rights approach is maintained throughout the deliberative process and forms the cornerstone of the new service. These will include the Office of the Ombudsman for Children, the Children’s Rights Alliance and EPIC.
• Children and young people
The views and opinions of children and young people who are or who have been involved in child care proceeding are crucial to informing the shape of the new service. It is intended, with the assistance of relevant stakeholders such as Tusla social workers and EPIC, to consult with children and young people on the type of Guardian ad litem service to be provided.
• Expert Reference Panel
The Department will establish an Expert Reference Panel to provide additional specialised advice and opinion to the Department on a number of key operational aspects of the new Guardian ad litem service. These expert inputs will be used to inform an operational framework to assist the service in meeting its responsibilities as a service to children, young people, their families and to the courts as required by legislation.
Members of the Panel will include:
• International Guardian ad litem service providers (NIGALA, CAFCASS)
• Current providers of Guardian ad litem services in Ireland (groups/services and individuals)
• Representative groups: Irish Association of Social Workers, The Law Society
• Other experts: Child Law Clinic, UCC.
Further experts may be invited to join the Panel as may be deemed appropriate and necessary.
The Department is commencing this engagement process immediately and will be in contact with various stakeholders and interests over the coming weeks.
It is anticipated that the various elements of the framework will be progressed concurrently and that the engagement process will take up to 18 months to complete.
Secondment to GAL Project Team for Establishment of Executive Office
The Department recently advertised a secondment opportunity to the GAL Project Team for the Establishment of an Executive Office. The Project Team is working towards the establishment of the new nationally managed Guardian ad litem (GAL) service.
The Department is pleased to announce that Freda McKittrick has been appointed as the secondee to the GAL Project Team.