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Speech

Speech by Minister Katherine Zappone on the Second Stage to Dáil Éireann Child Care (Amendment) Bill 2019 – Guardian Ad Litem Reform

Published: 18 September 2019
From: Department of Children and Youth Affairs and Minister for Children and Youth Affairs Katherine Zappone TD

Check against delivery

The Bill provides for the reform of guardian ad litem (or GAL) arrangements under Section 26 of the Child Care Act 1991, which is currently under review in its entirety by the Department of Children and Youth Affairs.

This Bill gives the Minister for Children the statutory basis to put in place a high quality, and sustainable Guardian ad litem national service within the Department of Children and Youth Affairs.

The Bill is the most robust way to ensure that the best interests of children and young people in child care proceedings are met and that they have the opportunity to have their voice heard.

To date, the appointment of GALs 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 child care proceedings.

The provisions of this Bill will enhance the rights of children and the capacity of the courts to make the right decisions in helping children and their families.

Under this 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 this country, or where their case is heard.

Introduction

A Cheann Comhairle, I move that the Child Care (Amendment) Bill 2019 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 best interests of a child at the centre of child care 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.

This 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 child care 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 child care 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 the 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 GALs 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 child care proceedings.

This reform has been welcomed by children’s rights campaigners and is in line with Joint Oireachtas Committee Recommendations and submissions received by my department.

Current GAL arrangements

Section 26 of the 1991 Child Care Act 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 they cannot also have the benefit of having a GAL appointed to them. 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 nor 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 & Auditor General Report noted a lack of transparency surrounding the selection, registration and vetting of GALs 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 GALs in other common law jurisdictions, while further noting that although GALs in this country are currently paid a standard rate per hour, they do not necessarily deliver a standard service.

The C&AG 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 GALs.

Consultation

This Bill is the culmination of signification consultation with relevant stakeholders during its development. I would like to acknowledge all of the valuable contributions that my department has received.

They have helped to ensure that the Bill is fit for purpose and will improve on 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, GALs, 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 Joint Oireachtas Committee on Children and Youth Affairs have been reflected in the Bill.

Executive Office of the Department

The General Scheme of this Bill was examined by the Joint Oireachtas Committee on Children and Youth Affairs as part of the pre-legislative scrutiny process in 2017.

The Committee made a number of recommendations.

Two of the strongest recommendations were, firstly, that the GAL service should not be subject to the procurement process, but should instead be set up under a statutory body; and secondly, 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 child care proceedings.

My department will continue to work collaboratively with stakeholders in the further development of the preparatory work required to set up the new Executive Office.

Child Care (Amendment) Bill 2019 – Overview of the Bill

The Bill provides for a new national and structured process for the appointment of GALs to child care 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 that the GAL will have regard to in determining what is in the best interests of the child. This includes factors such as the child’s age, maturity and views.

In addition to providing for a presumption in favour of appointment of a GAL in all child care 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 GALs 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 GALs and contains provisions to allow for the immediate revocation of authorisations in certain serious circumstances, such as a serious breach of regulations, or 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 9 to 11 members.

Next Steps – Informing the New Service

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 that the new GAL service is fit for purpose and is enabled to provide the best service to children in child care proceedings.

We are engaging with a number of key stakeholders and experts to ensure the best possible service is established under this Bill.

Provisions of the Bill

I now turn to the provisions of the Bill.

In Part 1 of the Bill, sections 1 to 3 inclusive provide 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.

These repealed provisions will be replaced by the provisions of this Bill.

Part 2 of the Bill inserts 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 this 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.

Section 5 inserts a new section 24A into the Principal Act. The new section provides that where a child is capable of forming their own views in any proceedings under the 1991 Act the court must determine how to facilitate the child in expressing those views.

The court will be required to give any views that the child wishes to express due weight, having regard to the child’s age and maturity.

Section 6 inserts a new Part VA, titled ““Guardian ad litem” into the 1991 Act and will create new sections 35A to 35Q in the Principal Act.

Section 35A sets out the definitions used in this Part of the Act.

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 provides that the High Court must appoint a GAL for all children who are the subject of special care proceedings and it 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 to 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, to 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 or not to arrange for the provision of legal advice, legal representation, or both, to a GAL.

Section 35E sets out the core functions of a GAL.

These are to ascertain the views of the child, where the child is capable of forming their 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 any additional matters which are relevant to the best interests of the child, which come to his or her attention during the course of the performance of his or her 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 matters 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 by 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 that report is out of date.

Before making an application to the court, the GAL is required to consult with the parties to the proceedings, or the counsel or solicitor (if any) representing the parties.

This 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 which relates to the GAL’s functions.

Section 35G allows the GAL to make a request to Tusla for information in relation to 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 Tusla 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.

Tusla 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 any reasonable costs or expenses incurred by a GAL while exercising their functions under this 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 that GALs are held to high professional standards when performing their functions under this Bill.

Section 35K provides that, subject to the Data Protection Regulation and the Data Protection Act 2018, the Minister may request that a GAL provides the Minister with information in relation to their 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 that he or she considers 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 they fulfil the requirements of regulations to be made under this 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 their 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 GALs authorisation will cease. To avoid disruption to ongoing proceedings this 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 that authorisation until the conclusion of those 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 that there is 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 those Acts specified in Part 2 of the Schedule. These amendments to other Acts are for the purpose of inserting references to this Bill.

In Part 3, section 9 of the Bill 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 Tusla Act are also proposed.

These 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.

Concluding Remarks

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 will enhance the rights of children and the capacity of the courts to make the right decisions in helping children and their families.

This Bill will help our legislation to better reflect the ideals of the 31st Amendment of the Constitution, and more importantly, it will put these ideals into practice in a very real manner in child care proceedings.

Under this 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 this country, or where their case is heard.

This Bill covers a crucial section of a much wider piece of legislation, the Child Care Act 1991, which is currently under review in its entirety by my department.

This reform also takes place against the backdrop of a much greater programme of change – the planned creation of specialised Family Courts.

I would like to take this opportunity to commend the good work that many GALs have done, and continue to do for children in this country, and I am grateful for their continued input into creating a better service.

I would like to 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 Deputies’ views on its contents.

I commend the Bill to the House.

Thank you.

ENDS

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