Guardians are vitally important to protect the interests of children in care

We urgently need a proper regulatory structure and an independent state Guardian agency with its own funding

It is not true as some commentators have suggested that anyone can become a guardian, and court applications for the appointment of a guardian are often accompanied by intense scrutiny of the guardian’s credentials and suitability (including Garda vetting) by the judge and the parties to the proceedings

It is not true as some commentators have suggested that anyone can become a guardian, and court applications for the appointment of a guardian are often accompanied by intense scrutiny of the guardian’s credentials and suitability (including Garda vetting) by the judge and the parties to the proceedings

 

Recent media coverage regarding Garda vetting of guardians Ad Litem (court-appointed guardians) again highlights the lack of a proper regulatory structure for one of the most important professions dealing with vulnerable children in state care. In care proceedings, the guardian Ad Litem advises the court of the child’s views and provides an objective professional opinion as to what course of action is in the child’s best interests.

Whilst it is of concern that the exact number of guardians operating in the state is unknown, it is important in any evaluation of the service to maintain a sense of balance and perspective.

It is not true as some commentators have suggested that anyone can become a guardian, and court applications for the appointment of a guardian are often accompanied by intense scrutiny of the guardian’s credentials and suitability (including Garda vetting) by the judge and the parties to the proceedings.

Another headline grabbing aspect of the guardian’s work is that of fees. The general view being that costs are out of control and do not represent value for money. However, quoting global figures of costs tells us little about the quantity or quality of the work undertaken by the guardian. A significant aspect of guardian fees refers to legal representation. It is not uncommon for proceedings to be extended due to difficulties in developing adequate care plans for children and the securing of necessary professional assessment and therapeutic services. Frequently the court of its own volition may adjourn or set review dates to ensure care plans are fully implemented. Naturally, this will add to costs.

Independence

Of greater concern however is that the fees of the “independent” guardian are discharged by the Child and Family Agency, the instigators of all court care applications. This may give rise to a mistaken but understandable perception on the part of parents involved in proceedings that the guardian is not really independent at all. The fact that guardian fees come from limited existing child care budgets highlights the urgent need for an independent state guardian agency with its own funding. This would also provide a structure of accountability and support for guardians.

The introduction of the guardian into Irish law provided a degree of “window dressing”, allowing Ireland to be seen as progressive and responsive to European expectations regarding the rights of children. However, the 1991 Child Care Act is silent as to the qualification, role and duties of the guardian. Frequently, guardians have tended to be social workers who have developed extensive expertise in child protection over many years either in Ireland or the UK.

The advent of the guardian has significantly changed the landscape of child care proceedings.

Previously there was little independent analysis of child care best practice in court, the conventional wisdom being that the Health Boards of the time were the experts and knew best. The guardian brought a new level of professional evaluation to critically assess care plans and reports and identify deficiencies in service provision.

Valuable service

Whilst the service developed in an ad hoc fashion, the guardian Ad Litem has consistently provided a valuable service to the Irish courts and contributed significantly to the development of improved and more consistent planning for children in care. The guardian’s independence is also an advantage, being free of agency restrictions and day to day case management responsibility.

Moving from case to case, the guardian gains important knowledge regarding uniformity of service provision nationally and useful insight into how similar problems are tackled in different locations. Unfortunately, over recent years court proceedings have become more adversarial, and as serious shortcomings in services are highlighted, an element of ambivalence and defensiveness towards guardians can sometimes be detected.

A common criticism is that guardians operate from an unrealistic “ideal world” perspective. This may be the understandable reaction of a social work profession, seriously under resourced and unsupported, unfairly blamed for service deficiencies not of their making and outside of their control. (Recent revelations in the UK about the “Baby P” enquiry suggest they may have reason to feel aggrieved).

Conversely, however, many social workers welcome the appointment of the guardian, recognising such intervention as a valuable aid in securing necessary services for the children they work with.

The establishment of a properly funded guardian Ad Litem agency in Ireland is long overdue. Fortunately, a valuable blueprint already exists in the 2009 CAAB report Giving a voice to Children’s Wishes, Feelings & Interests. However, rather than simply seeking to regulate or “control” the guardian service in the negative sense some commentators suggest, what is required is a truly independent, properly resourced service which actively supports the profession in advancing the government’s stated priority of ensuring the welfare needs of the country’s most vulnerable children. Eugene McCarthy is a barrister working in child and family law. Previously he was a social worker and guardian.

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