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 under served 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 3

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

Department of Children and Youth

litem

will also have the power to make applications to the court on issues concerning the -Responsible for policy setting 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 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 Legal Youth Affairs, available at: https://www.dcya.gov.ie/documents/26092016ReformofGuardian

Pays

Appoints AdlitemArrangements.htm).

Child

Submits

Currently, there is no national management structure or body charged with oversight of the

to

Reports Guardian ad Litem service. 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

ad litem

Figure 1). 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.)

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 of Children and Youth Affairs 11

( 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

g

uardians 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 18th October, 2018 from, https://legaldictionary.net/guardian-ad-litem/ 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). 16

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