Implementing best practice on the right of children to be heard
The proposed wording for the constitutional amendment on childrens rights provides an opportunity for a world-class system allowing children's voices to be heard
THE PROPOSED wording for the amendment to the Constitution on children’s rights includes a reference to “the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity”. This was enshrined in the UN Convention on the Rights of the Child in 1989, to which Ireland is a party.
Being afforded the opportunity to be heard by the decision-maker on matters affecting oneself is one of the cornerstones of due process, not only in criminal law cases, but also in civil law cases, such as child care and family law cases, in which children’s interests are often at stake.
While legal representation may be appropriate for older teenagers in order to be heard, most children will require help in transmitting their views to the court. In Ireland, this assistance takes the form of the guardian ad litem (guardian in law), usually an independent social worker. However, provision for the right of children to be heard through either mechanism in civil law cases in Ireland has, to date, been minimalistic and ad-hoc.
The Child Care Act 1991 permits the appointment of a guardian ad litem for a child involved in proceedings relating to care and supervision orders, where the child is not a party to proceedings. This is a matter for the discretion of the judge, and practice varies between regions and individual judges. Furthermore, the appointment is paid for by the HSE, which can raise conflicts of interest, because child care cases often involve children being taken into the care of the HSE.
The Children Act 1997 provides for the appointment of a guardian ad litem in family law proceedings. This provision has not entered into force, so it is not used in practice. The net effect of inadequate legislation in both child care and family law proceedings is that the majority of children are left unheard in matters directly concerning them.
It is useful to look at the experiences of other countries in order to consider how the right of children to be heard could be adequately provided for in Ireland. There is a strong presumption in favour of the appointment of guardians ad litem in the respective systems of England, Wales, Scotland and Northern Ireland. In fact, guardians ad litem are automatically appointed unless the court is satisfied that it is not necessary to do so. This ensures a level of consistency in appointment between regions and individual judges.
The legislative provision for hearing children in family law cases as opposed to care cases is not as strong in these neighbouring jurisdictions, but at least some systems are in place. In family law proceedings, the court may be assisted by Children’s Court officers in Northern Ireland and Family Court advisers in England, who may interview the children involved to obtain their views.
In the Scottish system, all children in family law cases receive a form from the court, inviting them to let the judge know whether they wish to express views. In any civil proceedings in Scotland, the equivalent of a guardian ad litem can be appointed by the court to protect the interests of the child (for example if there is a conflict of interest between child and parent/s).
Children are considered competent to instruct a solicitor from the age of 12, and solicitors can accept instruction from children under this age if they consider the children have the capacity to instruct.
It is useful to consider the comments of the UN Committee on the Rights of the Child on the right to be heard. The committee advises states to avoid stipulating minimum ages at which children should be heard, but instead to have processes in place for assessing the capacities of children to form views if the issue arises. The committee urges that children should have a large measure of choice about whether to speak directly to the judge or whether to be heard through a representative.
The right to be heard is interpreted by the committee as including the right of children to have their views seriously considered. Children’s views should hold a significant amount of weight if they are clear, reasonable and independent. Children should also be provided with adequate information at all stages (unless this is inappropriate), and should have the outcome of the case explained to them, including the position of their views within the process.
An important factor in proper implementation of the right of children to be heard would be the existence of a regulatory body to oversee its application in both types of proceedings. Such an organisation could administer the guardian ad litem service and provide for social reports and other means of enabling children to express views where those children wish to do so. It could also ensure that the guidance from the UN committee is put into practice.
The system in Ireland will have to be vastly improved to vindicate the right of children to be heard. The proposed constitutional amendment provides us with a chance to improve practice and to develop a world class system enabling Ireland to abide by directions of the UN committee, incorporate best practice, and surpass provision elsewhere.
Aoife Daly is completing a PhD on the right of children to be heard at the School of Law, Trinity College Dublin, and teaches a course on children’s rights at the Irish Centre for Human Rights, NUI Galway