Reilly to reform child court guardian system

Department of Children examining legal representation for guardians ad litem

Solicitor  Catherine Ghent: acknowledges there were “differing ideological stances” when it came to children being represented in childcare cases.  Photograph: Cyril Byrne/The Irish Times

Solicitor Catherine Ghent: acknowledges there were “differing ideological stances” when it came to children being represented in childcare cases. Photograph: Cyril Byrne/The Irish Times

Sat, Jul 19, 2014, 01:02

The new Minister for Children has said he will reform the system for court-appointed guardians. The recently appointed Minister, Dr James Reilly, also said his department was continuing to “actively examine all aspects of service provision, including the matter of legal representation for guardians ad litem”, with a view to introducing a “more regulated and sustainable provision”.

“The aim is to bring forward the necessary reform proposals as soon as possible,” he said.

His comments follow figures that show legal costs for guardians ad litem have increased sharply this year. These guardians are appointed by courts under the Child Care Act 1991 to represent the views of children in childcare cases. These cases involve the Child and Family Agency, also called Tusla, applying to court to take children at risk into State care.

Guardians ad litem, many of whom come from a social work background, report to the court and usually have their own legal representation. Barnardos, the children’s charity, is the largest single provider of guardian services in Ireland. The State pays the costs of the guardians and the cost of their legal representatives.

Last year, the State paid €4.85 million in legal costs for the service. In the first six months of this year, guardian legal fees totalled €3.14 million. This is more than the total paid for the guardians themselves so far this year, which amounted to €2.47 million.

Concerns have been raised in the Dáil about the costs, including by Tommy Broughan (Lab). He said while he recognised the importance of the service, he had concerns about the cost of the legal representation and “whether or not you are getting duplication of an important legal service”. “One difficulty is there will be different sets of lawyers in the court, for the parents, for Tusla, for the guardian and sometimes maybe separately for the child,” he said.

He suggested when there was new legislation in the area, very strict guidelines could be laid down on the legal representation of guardians ad litem.

Given the “very significant expenditure” in the area, there should be a clear legislative basis for how they were appointed, he said. He acknowledged that most worked for Barnardos and followed guidelines, but said it was still “a very ad-hoc response to a necessary and critical aspect of child protection”.

The courts have also examined the role of the guardian recently. Late last year, a District Court was asked to decide on issues including whether the guardian was a party to the proceedings or a witness. The judge said the guardian ad litem had a dual role; putting a child’s wishes and views before the court and advising as a professional about what is in the best interests of the child.

However she was not persuaded that a guardian was afforded party status in childcare proceedings either in his own right or in the context of the children’s welfare or on behalf of a child in the context of the child’s express wishes.

The ruling may have persuasive value when it came to shaping future legislation around the guardians and could mean legal representation for them will be restricted. Catherine Ghent, of Gallagher Shatter Solicitors, who represents guardians in court, acknowledged there were “differing ideological stances” when it came to children being represented in childcare cases. However, she said, it denigrated the status of a child in proceedings if the guardian was not legally representing.

She also said the different parties had different priorities and the key priorities for the agency were budgetary considerations. “Often it is the guardian who identifies the services a child needs,” she said, and if they were not legally represented, Tusla could decide not to call him or her to give evidence.

Ms Ghent also said making a child a party to proceedings instead of appointing a guardian and having them instruct a lawyer and attend court was not the answer and could create an “unhealthy dynamic”.