THE NEW Child Care (Amendment) Bill 2009, could adversely affect the rights of children in the care of the State. While containing some positive aspects, including continuing provision for High Court jurisdiction placing and reviewing children in special care centres, the problems are striking.
The proposals and omissions in respect of guardians ad litem (GALs) will impact adversely on the young people they represent. GALs are independent, professionally qualified and extensively experienced professionals who are appointed by the court in care proceedings to both represent the child’s views, including their experiences of their care conditions, and report to the court on the best interests of the child. An experienced GAL plays a critical role recommending constructive solutions and ensuring a properly resourced care plan is in place for the child in accordance with the child’s statutory rights.
This is invaluable to the child, the court and the family as it ensures that notwithstanding the fraught nature of the proceedings, the GAL is clearly focused on the needs, rights and interests of the child, thus enabling the court to maintain its statutory duty to the child and make decisions in his or her interests.
In short, GALs are effectively the only independent child protection evaluation mechanism in Health Service Executive (HSE) care planning and provision, whilst simultaneously ensuring the views of the child are heard in judicial proceedings.
The Child Care Act 1991 originally provided for the appointment of GALs, but provided no guidance on training, criteria for appointment or legal representation, nor was any regulation or registration provision made to ensure quality assurance. In 2009, guidance on the role, qualifications and training of GALs in care proceedings was published by the Children’s Acts Advisory Board but the Bill now before the Oireachtas has failed to put these guidelines on a statutory footing, extend the guidance to apply to High Court special care cases or require a system of national registration of GALs be established. This is basic child protection.
In addition, the Bill proposes to limit the autonomy of the GALs and their presently unfettered access to legal representation. It seeks to give the court statutory discretion as to whether a solicitor shall be appointed for a GAL and further, if the court does appoint a solicitor, then “the court may give directions as to the performance by the solicitor of his or her duties, which may include, if necessary, directions in relation to the instruction of counsel”.
This amendment has serious implications for children and young people who rely on their GALs to bring to the courts attention, independently of HSE reports, an assessment of their needs, rights and interests. It is not unusual for a GAL to raise in court a matter reported by their client concerning a negative incident whilst in care. The GAL has a vital child protection role and accordingly should have equality of arms before the court in respect of unfettered access to legal representation.
This is all the more important in respect of the High Court cases, where children detained in secure facilities for a number of months and with a restricted visiting list have limited opportunity to report matters other than to family members, gardaí or their GAL.
This Bill has also missed the opportunity to ensure that all children who are the subjects of child protection care proceedings are provided with their own GAL.
This current Bill has also failed young people who live in states of fear in dangerous homes where domestic violence and other dangerous abuses take place through not placing the existing comprehensive, national child protection guidance, Children First, on a statutory footing.
In addition, it failed to quality-assure child protection services by not extending the powers of the Health Information and Quality Authority to inspect them. The evidence underpinning the need for this urgent amendment is provided in all the major inquiries in this State into the deaths of children dating from the 1993 Kilkenny Incest Investigation to the report on the death of TF, unofficially reported by Alan Shatter in March 2010 – 17 years later.
The Bill further fails to address the necessity of ensuring all children leaving care are entitled to both an “after care plan” and services, meaning too many young people leave care without the essential supports any adolescent needs to engage in employment and obtain safe accommodation.
The Minister has expressed concern regarding the cost of providing mandatory after care.
However, the Ministers cost-benefit analysis fails to address the huge civil and criminal cost that often extends through subsequent generations of the same family. This human and financial cost is evidenced within the populations of the criminal justice system, counselling centres, homeless hostels and mental health facilities, where disproportionate numbers are adults who left State care and where needs were not appropriately planned for and provided.
The only way to ensure a rights-based protection service for all children in this State is to provide the necessary core statutory framework and prioritise a well-resourced and multi-disciplinary network of services where the independence and autonomy of inspection systems is ensured.
There is a need for a number of rights-based amendments to address the deficiencies in the current Bill. These include putting the Children First guidelines and guidelines for the training, qualifications and role of GALs on a statutory footing; requiring the mandatory appointment of GALs for all children the subjects of care proceedings; establishing a national registration system for all GALs; the removal of interference between GALs and their legal advisers; and providing for statutory entitlement for after-care to all children leaving care.
Rose Forrest is a barrister and and established the Barnardos guardian ad litem service in 1997, working in this area for eight years