GUARDIAN EL LITEM ASSIGNMENT

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KUYE GANIYAT ABOLAJI
STUDENT NUMBER: 36764868
DEPARTMENT OF APPLIED SOCIAL STUDIES
FACULTY OF BUSINESS AND HUMANITIES
ASSIGNMENT
Critically assess the role of Guardian ad Litem in Irish Law including:
a) a description of the legal foundation and key functions and duties of the
role;
b) an overview of the operation of the role to date;
c) a summary of proposal for reform, critiques of any such proposals and an
appraisal as to future development of the Guardian ad Litem services in
Ireland.
SOLUTION:
1
CRITICALLY ASSESS THE ROLE OF GUARDIAN AD LITEM IN IRISH
LAW INCLUDING:
(A)
Description of the legal foundation and key functions and duties of the role of
Guardian ad Litem
Prior to the early 1900s, minor children and incompetent adults had few rights in legal
actions. In 1938, the Federal Rules of Civil Procedure addressed the rights of these underserved individuals by: allowing legal guardians to sue or defend against legal action on behalf
of minor children and incompetent adults; allowing minor children and incompetent adults to
name a representative, or Guardian ad Litem, to sue for them; and encouraging federal courts
to appoint a Guardian ad Litem for children and incompetent adults not already represented in
a
legal
action.
This
is
however
based
on
the
discretion
of
the
courts
(https://legaldictionary.net/guardian-ad-litem/).
Consequently, the incidences of divorce cases, and increased reporting of child abuse and
neglect throughout the 1970s and 1980s further led to the creation of laws specifically geared
to outlining the appointment, duties, and authority of Guardians ad Litem. In view of this, the
Child Care Act 1991 introduced into Irish law the “Guardian ad Litem“ which refers to a
court appointed person to represent the child“s interests in any proceedings under the Act;
he/she is independent of both the Health Service Executive (HSE) and the child“s parents.
Despite this, there is no official definition and hence no nationally agreed standard for the
role, qualifications, appointment or training of Guardians ad Litem. At this junction, the
question therefore is: who is a Guardian ad Litem? What are the justification of their
appointment? And what are their roles as stipulated in the Irish law.
Definition
2
A Guardian ad Litem otherwise known as GALs refers to an individual appointed by the
court or judges to represent the best interests of a minor child in legal proceedings, such as
divorce, child custody, child abuse and neglect, and parental rights and responsibilities cases
(Legal Dictionary). This definition corroborated Section 26(1) of the Child Care Act of 1991
which described the Guardian ad Litem as a person appointed by a court to represent the
wishes, feelings and interests of a child who is the subject of proceedings under parts IV, IVA
or VI of the Act of 1991. This implies that, the appointment of a Guardian ad Litem is one of
the mechanisms used by the courts to ensure that the best interests, and the views of the child,
are heard in public family law proceedings.
Appointment of a Guardian ad Litem
In Ireland, a Guardian ad Litem may be appointed in private or public law proceedings,
although currently only the public provisions dealing with care proceedings are in effect
(McWilliams & Hamilton, 2010). Under Section 26 of the Child Care Act (1991) the court
may appoint a Guardian ad Litem if it is in the interests of the child and in the interests of
justice to do so. The Acts stipulates that: “If in any proceedings under Parts IV, (care
proceedings), or VI (children already in the care of the HSE), the child to whom the
proceedings relate is not a party, the court may, if it is satisfied that it is necessary in the
interests of the child and in the interests of justice to do so, appoint a Guardian ad Litem”.
Consequently, the actual proceedings that are related to the appointment of a Guardian ad
Litem in the Child Care Act of 1991 can be found in Part IV, IVA, and VI respectively. This
are highlighted as follows:
Part IV
i.
Applications for an interim care order
ii.
Applications for a care order
iii.
Applications for a supervision order
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iv.
Applications to vary or discharge any of the above orders
Part IVA
i.
Applications for a special care order
ii.
Applications for an interim special care order
iii.
Applications to vary or discharge a special care order
iv.
Applications to vary or discharge an interim special care order
v.
Appeal against the making of a special care order
vi.
Appeals against the making of an interim special care order
Part VI
a) Access applications
b) Applications to vary or discharge any access orders
c) Applications for an order directing a child to be delivered into HSE care
d) Applications for directions on the care or welfare of a child already in HSE care
In the light of this, the Children“s Act Advisory Board (CAAB) outlined that the decision to
appoint a Guardian ad Litem to a specific case may be influenced by the particulars of the
case, such as when (a) there is reduced or no parental support, (b) there are issues about a
child“s identity, (c) a child“s liberty is at issue, and (d) the child had been represented by a
Guardian ad Litem in previous proceedings.
Responsibilities of a Guardian ad Litem
A Guardian ad Litem is a person generally understood to be independent and appointed by
the courts to represent children in child care proceedings. This means that s/he must attend
court in care proceedings to make known a child“s wishes and feelings and to advise the
court on the child“s best interests (CAAB, 2009). Thus, Guardian ad Litem’s primary
responsibilities are to help ensure the best interests of the child he/she represents are met, and
to help shield the child from the distressing experience of litigation (Barrington, 2015). The
4
GAL investigates the facts of the legal case as they apply to his ward, interviews witnesses,
and gathers important information (Corrigan, 2015). The GAL then makes recommendations
to the court, often testifying at trial, on issues of custody, visitation, and other issues that
affect his ward (Corrigan, 2015).
From the foregoing, it suffices to note that, GALs are appointed by the Courts in specified
family proceedings and adoption proceedings. In this regard, Article 4.12 of the Family
Proceedings Rules (NI) 1996 outlines that the role of the Guardian ad Litem in the family
proceedings courts is to represent the child before the Court on what is his or her best
interests and to ensure that the child“s wishes and feelings are made clear to the Court (The
Northern Ireland Guardian ad Litem Agency - NIGALA, 2011). Thus, the Children“s Act
Advisory Board defines the Guardian“s role as to “independently establish the wishes,
feelings and interests of the child and present them to the court with recommendations“. In
this, the Guardian ad Litem has a dual role, to inform the court of the child“s wishes and
feelings and to advise on the child“s best interests. This role informs “ or at the very least
influences “ the appointment, qualifications and specific training of candidates for the role of
Guardian ad Litem (CAAB, 2009). This also corroborated Section 12 of the Child Care
(Amendment) Bill 2009, now lapsed which states that, where appointed, a Guardian ad Litem
shall promote the best interests of the child and convey the views of the child to the court, in
so far as is practicable, having regard to the age and understanding of the child (McWilliams,
& Hamilton, 2010).
In terms of other aspects of the guardian“s role, CAAB states that Guardian ad Litem will be
expected to meet regularly with the child; conduct a detailed inquiry into all aspects of the
child“s life and family, including conducting interviews with all relevant parties; liaise with
legal representatives (if appointed); and at the end of the case produce a written report for the
court which will contain recommendations and/or solutions to any unresolved difficulties.
5
(B) An overview of the operation of the role of Guardian ad Litem in
Ireland to date
Although, the 1991 Child Care Act provides for the appointment of a Guardian ad Litem, it
does not set out the criteria for such appointments, the qualifications required to act as a
guardian nor the role, function and status quo of a Guardian ad Litem in care proceedings or
their duties to the Court.
The role of the Guardian ad Litem was considered in the context of a special care case in
2007 (Coulter, 2015). The judgement describes the function of the Guardian ad Litem as
being twofold; firstly to place the views of the child before the court and secondly, to give the
guardian“s view as to what is in the best interests of the child.
In May 2009, the Children Acts Advisory Board (CAAB) which was established under
Section 20 of the Child Care (Amendment) Act 2007 published guidelines under the title
“Giving a voice to children“s wishes, feelings and interests“. The guidelines define the
role of the Guardian ad Litem as to “independently establish the wishes, feelings, and
interests of the child and present them to the court with recommendations“. The roles were
further streamlined under the following tenets, namely; information, consultation, advocacy,
representation, and facilitation.
Information: Under information, the role of Guardian ad Litem starts with gathering of
information about the child“s situation and giving information to the child. Explaining to the
child the court process and the roles of the professionals and the family members within it.
Explaining the Guardian“s role, the parameters of the role and the limits of confidentiality.
Reading case files, care home records, reports.
Consultation: Meeting with child and others, ascertaining a child“s wishes and feelings,
consulting with social workers, parents, careers and others regarding the child, assessment of
6
the child“s situation and position, attending case conferences and reviews and other relevant
meetings.
Advocacy: Promoting the welfare, best interests and wishes of the child, meetings in court
and at case conferences and reviews etc., as relevant to the proceedings in hand. Looking at
the needs of the child and seeking to ensure that these are met. Examining the Care Plan for
the child and its fit with their needs, for older children, looking at the arrangements in place
to support them as they leave care and afterwards.
Representation: this includes promoting the child“s wishes, interests and rights within the
court arena, attending court, ascertaining the need or otherwise of legal representation or
consultation, the preparation of reports and giving of evidence etc. Within Special Care, the
role of a Guardian ad Litem was set out by McMenamin J. in Health Service Executive v.
DK, this is the clearest judicial statement as to the role of a Guardian ad Litem to date in
Ireland. The guidelines set out at Paragraph 59 include the following:
a) The function of the Guardian is twofold:
i.
Placing the views of the child before the court; and
ii.
Giving the Guardian“s own views as to what is in the best interests of the
child.
b) The Guardian ad Litem should bring to the attention of the HSE any risks which he or
she believes may adversely affect the best interests of the child; if the Guardian is not
satisfied with the response, he/she should bring this to the attention of the court;
generally, the Guardian should cooperate and share information with other care
professionals engaged with the minor;
c) A duty of the Guardian is compliance with the minor“s constitutional rights; to this
end, the Guardian should ensure that the minor has an avenue to make his/her views
known;
7
d) The Guardian fulfils the dual role of reporting to the court regarding the child“s
welfare and representing the child in court;
e) The Guardian should meet the minor as often as necessary to be satisfied that the
minor“s wishes and views are adequately represented regarding his detention/care;
f) The Guardian should meet the minor“s family and/or carers in the community and be
familiar with their views regarding the minor“s detention and care;
g) The Guardian should make himself/herself aware of the minor“s history and the
minor“s interaction with the various social service agencies;
h) The Guardian should seek to interact in a positive way with HSE staff charged with
the minor“s care while in detention; the Guardian should express his/her views at
every case conference meeting held by the HSE to discuss the minor“s care and
should be familiar with the decisions reached at such meetings;
i) The Guardian should prepare a report specifically addressing the above issues
whenever the minor“s case is listed for hearing;
j) When the HSE moves to have a minor discharged from secure care, the Guardian
should convey to the court the child“s views (as well as the Guardian“s own
professional views) regarding the child“s onward placement;
k) Where a divergence of views exists between the HSE and the Guardian, the Guardian
should try to resolve this with the HSE; where this is not possible, the Guardian
should inform the court;
l) Where a minor absconds from secure care and the Guardian is aware of this, the
Guardian should be satisfied that steps are being taken to address the problem; if the
issue persists, the Guardian should take steps to inform the court (having informed the
HSE that they are about to do so);
8
m) The Guardian should express a view to the court as to how a case is best kept under
review after a minor is discharged from secure care; when a minor is discharged from
such care the Guardian should confirm with the court whether they are to continue to
remain involved in the proceedings.
Facilitating a child to attend court: In this role, the guardian will canvas a child“s wishes
about attending court, raise this with other parties, and advise the court that the child wishes
to attend. Section 30 (2) of the 1991 Act states: Where the child requests to be present during
the hearing or a particular part of the hearing of the proceedings the court shall grant the
request unless it appears to the court that, having regard to the age of the child or the nature
of the proceedings, it would not be in the child's interests to accede to the request. Judges
have made arrangements to see the child either in chambers or in private within the court
room. The court registrar and the Guardian will be present and from time to time another key
person such as the social worker.
However, CAAB was dissolved with effect from 8 September 2011, and thereafter, the
Department of Children and Youth Affairs was established in 2011 to compliment key areas
of policy and provision for children, young people and their families. Although the
department became responsible for policy relating to Guardian ad Litem arrangements as at
2011, the responsibility for discharging the costs associated with the service rested with the
Health Service Executive (HSE) until 2014 when the Child and Family Agency “Tusla was
established. Tusla pays any cost incurred by a person in acting as a Guardian ad Litem.
Further, on 20th February 2018, Government gave its approval to a revised General Scheme
of the Child Care (Amendment) Bill (Guardian ad Litem arrangements) and for a Bill to be
drafted along the lines of the revised General Scheme. The revised Scheme strengthens the
powers of Guardians ad litem in a number of important areas. In the interests of procedural
fairness, the Guardian ad Litem will be permitted to cross-examine parties and witnesses in
9
certain circumstances (Department of Children and Youth Affairs (2018). The Guardians ad
Government
Department of Children and Youth
Affairs
litem will also have the power to make applications
to the court on issues concerning the
-Responsible for policy setting
-Provides
funding to Tusla
welfare of the child where the child is in
care (Department
of Children and Youth Affairs
(2018). Provision is also made under the Bill for the mandatory appointment of a Guardian ad
JUDGE
Litem in all proceedings under Section 25 of the Mental Health Act, 2001 (involuntary
admission of a child who has a mental disorder toPresides
an approved
over hearingcentre). This is similar to the
provision made for the mandatory appointment of a Guardian ad Litem in special care
proceedings. The provision which allows Guardians ad litem to apply to the court to procure
Parents
Tusia
a report on a child (e.g. medical, psychological, psychiatric or other report) where no report
exists, has been extended to allow Guardians ad litem to apply to the court to procure a report
Legal
representation
Legal
representation
The Courts
where such a report already exists but is no longer relevant (Department of Children and
Youth Affairs, available at: https://www.dcya.gov.ie/documents/26092016ReformofGuardian
Appoints
Pays
Child
AdlitemArrangements.htm).
Currently, there is no national management structure or body charged with
Submits
invoicesof
oversight
to
the
Guardian ad Litem service. Reports
The arrangements in place have evolved over time in order to
to
meet the demand for the service. There are currently around 65 Guardians ad litem operating
Guardian
in the State, either working alone, as part of a group or under
a service provider umbrella (see
ad litem
Figure 1).
Service Providers
Legal
representation
Barnardos
31 guardians ad litem (approx.)
The Independent Guardian ad Litem Agency (TIGALA)
13 guardians ad litem (approx.)
Individuals and small groups
21 guardians ad litem (approx.)
10
Figure 1: Overview of the Guardian ad Litem service in Ireland
Source: Adapted from the Report on the Accounts of the Public Service 2015, p.129
C)
A summary of proposal for reform, critiques of any such proposals
and an appraisal as to future development of the Guardian ad Litem
services in Ireland.
On 17th January 2017, Government gave its approval for the publication of a General
Scheme of the Child Care (Amendment) Bill, 2017 and its referral to the Joint Oireachtas
Committee on Children and Youth Affairs for pre-legislative scrutiny. The main purpose of
the General Scheme is to replace the existing provision in Section 26 of the 1991 Child Care
Act. The overall objective is to ensure that the Guardian ad Litem service can be provided to
benefit the greatest number of children and young people, so that their voices can be heard in
child care proceedings and that this service will be of high quality and sustainable into the
future.
According
to
the
Department
11
of
Children
and
Youth
Affairs
(https://www.dcya.gov.ie/docs/Reform_of_Guardian_ad_litem_arrangements_in_child_care_
proce/3969.htm assessed 20th October, 2018), the reforms proposals include:
1. The establishment of a nationally organised, managed and delivered Guardian ad
Litem service by way of public procurement. This new national service will be
responsible for providing Guardians ad Litem to the courts, supporting the
professional practice and development of Guardians ad Litem and monitoring their
performance.
It will also be responsible for making legal advice available to
Guardians ad Litem through an in-house legal facility and arranging legal
representation for a Guardian ad Litem where it is deemed by a service provider to be
required. As good as the first proposal is in regulating the activities of the
Guardian ad Litem, it will violate the independent voice of the Guardian ad
Litem. This is because a Guardian ad Litem is intended not merely to provide
another voice in proceedings relating to a child, but to provide an independent
voice. It is generally recognised that there are four key areas relating to
independence:
a)
Independence
of
professional
opinion,
b)
Personal
independence, c) Perceived independence, and d) Administrative independence.
However, in order for any Guardian ad Litem service to be effective it must be,
and be seen to be, independent of any conflicting interest in the proceeding and it
must be efficiently and effectively managed. These requirements are
interconnected where the management of the service is not independent then
managing the service can be seen to be compromising the independence of the
Guardian ad Litem service. In fact, any new Guardian ad Litem service must be,
and be seen to be, independent while ensuring quality control and quality
enhancement. The service needs to be part of an integrated structure, which is
independent from the parties to the proceedings at all levels, while allowing for
12
management and supervision structures which continually monitor and evaluate
the service.
2. The role and function of a Guardian ad Litem in child care proceedings will be to
inform the court of the child“s views and to advise the court of what, in the Guardian
ad Litem’s professional opinion, is in the best interests of the child. There is need
for more clarification of these roles specifically the required role of the Guardian
ad Litem in ascertaining the child’s views and best interest as this the two roles
may be contradictory considering the fact that ’The child doesn’t really have a
choice if the court appoints a guardian’. Let say a child wants to go home, and
the guardian doesn’t think it is in their best interests, then the child is not going
to be happy with the guardian. This implies that the Guardian ad Litem is not
serving the best interest of the child.
3. There will be a presumption in favour of the appointment of a Guardian ad Litem in
all child care proceedings, and where the court decides not to appoint a Guardian ad
Litem, the court will be required to give the reasoning behind its decision. This
restricts the right of the child to be provided with a Guardian ad Litem because
the appointment of the Guardian ad Litem is still based on the discretion of the
judge. In fact, the adoption of the judge discretions is not sufficient enough to
meet the child’s rights. This however negates the child’s rights under Article
42A.4.2° of the Constitution; Article 12 of the UN Convention on the Rights of
the Child and General Comments No. 12 and No. 14. It may also breach Article
24(1) of the EU Charter of Fundamental Rights which states that: Children shall
have the right to such protection and care as is necessary for their well-being.
They may express their views freely. Such views shall be taken into consideration
on matters which concern them in accordance with their age and maturity.
13
Further, it contradicts the Council of Europe guidelines on Child Friendly
Justice which stipulates that, children should have the right to their own legal
counsel and representation, in their own name, in proceedings where there is, or
could be, a conflict of interest between the child and the parents or other
involved parties (Children’s Rights Alliance, 2016).
4. A Guardian ad Litem will be appointed in all High Court Special Care proceedings
(i.e. proceedings involving the detention of a child).
5. To act as a Guardian ad Litem, a person will require a qualification in social work or
psychology and have a minimum of at least five years“ post graduate experience of
working in the child welfare and child protection areas. They must also supply a
vetting disclosure as provided for under the National Vetting Bureau Act, 2012. This
can lead to skill gap or deficit. While a relevant level of qualification is essential,
appointment of Guardians should not be profession specific; rather individuals
should be selected on the basis of their skill and their ability to work effectively
with children in their own home/environment. Also, while relevant experience
specifically in child protection is important, a more significant issue is the skills
the Guardian ad Litem has in working with children and families. In view of this
Nicholson (n.d) stated that guardians should have a commitment to child centred
practice, a commitment to children’s rights, an understanding of child
development, the ability to remain focused on the child at all times and be
independent, and seen to be independent, of the proceedings. Guardian ad Litems
should also have an understanding of the current Irish legislation and the
judicial process and be committed to articulating the wishes and/or ’best
interests’ of the child in sometimes very conflictual circumstances. In all cases,
14
Guardian ad Litems should have skills in relation to communications,
investigation, analysis and presentation
6. The introduction of standardised fees for legal representation.
Table of Statutes
Ireland
Child Care Act, 1991 “ Irish Statute Book. Retrieved 18th October, 2018 from,
www.irishstatutebook.ie/eli/1991/act/17/enacted/en/print
Child Care (Amendment) Bill 2009
Constitution of Ireland - Bunreacht na hÉireann, Article 42A.4.
References
Barrington, B. (2015). Child care law“ in making rights real for children: A children“s
rights audit of Irish Law. Smithfield, Dublin: Children“s Rights Alliance, p. 200.
Children“s Act Advisory Board (2009). Giving a voice to children’s wishes, feelings and
interests: Guidance on the role, criteria for appointment, qualifications and training
of guardians ad litem appointed for children in proceedings under the Child Care Act,
1991. Conyngham Road, Dublin, Ireland: Stationery Office.
Children“s Rights Alliance (2016). Response to the Department of Children and Youth
Affairs’ consultation on the reform of the Guardian ad Litem services. Smithfield,
Dublin: Children“s Rights Alliance, p.12.
Committee of Ministers of the Council of Europe. Guidelines of the committee of ministers of
the council of europe on child friendly justice (adopted by the committee of ministers on 17
November 2010 at the 1098th meeting of the Ministers’ Deputies)
http://www.coe.int/t/dghl/standardsetting/childjustice/default_en.asp, para. 37.
Corrigan, C. (2015). The construction and impact of children“s participation through the
Guardian ad Litem in child protection cases: The views of district court judges,
guardians ad litem and children. Unpublished Phd thesis submitted to Trinity College
Dublin, pp. 260-261.
Coulter, C. (2015). Final Report, Child Care Law Reporting Project, p. 52.
Department of Children and Youth Affairs. Reform of Guardian ad Litem arrangements in
child
care
proceedings.
Retrieved
20th
October,
2018
from,
https://www.dcya.gov.ie/documents/26092016ReformofGuardianAdlitemArrangemen
ts.htm
15
Legal
Dictionary. Guardian ad Litem. Retrieved
https://legaldictionary.net/guardian-ad-litem/
18th
October,
2018
from,
McWilliams, A. & Hamilton, C. (2010). 'There isn't Anything like a GAL: The Guardian ad
Litem Service in Ireland. Irish Journal of Applied Social Studies, 10 (5), 31 “ 39.
Available at: https://arrow.dit.ie/ijass/vol10/iss1/5
Nicholson, M. (n.d). Preparing a policy approach to the reform of Guardian ad Litem
arrangements in proceedings under the Childcare Act 1991. The Irish Society for the
Prevention of Cruelty to Children (ISPCC) Submission to the Department of Children
and Youth Affairs.
Northern Ireland Guardian ad Litem Agency (NIGALA, 2011). Role and functions of the
Guardian ad Litem.
Report on the Accounts of the Public Service 2015
UN Committee on the Rights of the Child (2006) Concluding Observations Ireland,
CRC/C/IRL/CO/2, para 37(b).
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