**CHECK AGAINST DELIVERY**
Dr Katherine Zappone, T.D., Minister for Children & Youth Affairs Barnardos
Guardian ad Litem Service 20th Anniversary Conference
Getting the balance right: Proportionality, timeliness and decision making
in child care proceedings
Tuesday 4th April 2017 at 2.00pm
Good afternoon, Chair, ladies and gentlemen.
I’m delighted to be here this afternoon to address this Conference,
which marks 25 years since the 1991 Child Care Act came into force, and
celebrates 20 years of the Barnardos Beacon Guardian ad litem Service.
I would like to take this opportunity to thank Dr. Fergus Finlay, the
Chief Executive Officer of Barnardos, for providing me this opportunity
to acknowledge and show appreciation for the valuable contribution that
the Beacon Guardian ad litem Service has provided over the past twenty
years.
I see from the programme that a very impressive cohort of speakers have
already spoken about a number of wide-ranging aspects of child care
proceedings including children’s and parents’ rights, hearing the
child’s voice in proceedings, decision making as well as challenges in
court proceedings. I look forward to hearing more about these inputs
following this event.
Tusla Child Protection Social Workers
Before I go any further, I must acknowledge the work of Tusla Child
Protection Social Workers. They have the responsibility of dealing with
an ever increasing number of concerns about children at risk, in
emergency and urgent situations, and children where efforts to work with
their family have not provided the safety and protection needed. It is
the social workers who bring the child's case to court and who will
continue to work with the child and their family long after the court
decision is made. Arriving at a decision to seek a care order for a
child is very serious, and in some situation can be fraught. At such a
time, the appointment of a Guardian ad litem, a person new to the case,
can assist all concerned.
Family support/Tusla
Family is the most important influence in a child’s life. From birth,
children depend on parents and family to protect them and provide for
their needs. Children thrive when parents are able to actively support
their positive growth and development. Sometimes parents need help,
support and additional resources to do this.
Tusla’s mandate for family support is clear and strong. It gives
expression to the bond between child and family and how the United
Nations Convention on the Rights of the Child (UNCRC) clearly maps out
the importance of the family in children’s lives and calls on State
Parties to support families in carrying out their caring and protective
functions.
Child protection
It is the duty of every individual to do their best to protect children
and young people and keep them safe. Despite our best efforts, there
will always be those who suffer abuse, and it is important to recognise
when a child is being harmed and to react quickly and decisively to make
them safe again.
The Children First Act 2015, was enacted in November 2015. Taken
together, with the Criminal Justice (Withholding of Information on
Offences Against Children and Vulnerable Persons) Act 2012, along with
the National Vetting Bureau (Children and Vulnerable Persons) Act
2012-2016, it represents a significant legislative framework to promote
and support the protection of children from abuse.
The legislation represents an important step forward in children's
rights and protections. It is fundamental to establishing a culture that
categorically proclaims that all children in this State are to be
protected, and that individuals, professionals and organisations must
all play their part in doing so.
Child care proceedings
While the 1991 Child Care Act sets out demanding thresholds that must be
met before orders can be made giving permission to Tusla to intervene in
family life, sometimes the State has to take critical steps to ensure
the care, protection, and welfare of a child. This can result in the
child being the centre of child care proceedings. These proceedings can
be distressing for children and parents alike but can be most especially
traumatic for the child who may feel vulnerable and confused.
Voice of the child
We have made great strides in ensuring that the voice of the child is
heard in various legal proceedings. Article 42A of the Constitution
recognises and affirms the natural and imprescriptible rights of all
children. It provides that in the resolution of all proceedings, the
best interests of the child are the paramount consideration. It further
provides that in as far as practicable the views of the child will be
ascertained and given due weight having regard to the child’s age and
maturity.
In private law proceedings such as custody and guardianship, provision
has been made for the appointment of Child’s Views Experts. The role of
these experts is to ascertain the views of the child and to convey these
to the court.
The Adoption (Amendment) Bill 2016 currently being progressed by my
Department also reflects the 31st Amendment to the Constitution in
relation to the voice of the child. It proposes that in so far as
practicable, where a child is capable of forming his or her own views,
the Adoption Authority or the court, as the case may be, will be
required to ascertain those views and these views will be given due
weight having regard to the age and maturity of the child.
Guardians ad litem
This brings us to Guardian ad litem arrangements in child care
proceedings. As we are all aware, there is limited provision in section
26 of the 1991 Child Care Act in relation to Guardians ad litem. This
has led to ad hoc arrangements being in place, resulting in uneven
appointment of Guardians ad litem in child care proceedings and
non-standardised practices.
In order to address the shortcomings in the current system, I am
bringing forward proposals to reform existing arrangements. I am taking
a child-centred and child-rights based approach to these reforms.
My focus is on ensuring that all children in child care proceedings get
the opportunity to have their voice heard, through having access to an
independent Guardian ad litem.
It is important to acknowledge that Guardians ad litem perform a very
important function in child care proceedings. In their recent
presentation to the Joint Oireachtas Committee on Children & Youth
Affairs, Barnardos outlined that Guardians ad litem have worked with
children who:
have been abandoned, abused or neglected
have been put at immense risk by their parents' drug and alcohol
problems
have been hurt almost beyond repair by sexual and other forms of
abuse
blame themselves for the things that have gone wrong in their lives
and are full of self-hatred, and
children who have been left alone, hungry, fearful and cold.
In such circumstances, Guardians ad litem are a great support for these
children and young people. Studies have shown that children feel they
have been heard and that they have been allowed to voice their views in
a safe and secure environment without parental influence. Guardians ad
litem are a valuable source of advice to the court as they enhance the
decision making capacity of the court by providing a detailed picture of
the child’s circumstances and views to the court. The Guardian ad
litem’s assessment and recommendations regarding what, in their
professional opinion, is in best interests are very influential in the
court’s deliberations.
I believe that the independence of the Guardian ad litem from the
parties in the case is a key factor that contributes to their
effectiveness and value to the court decision making process and
importantly to the child.
Guardian ad litem reforms – consultation
The reforms I’m proposing are informed by some 26 submissions received
from children’s rights/advocacy groups, Guardian ad litem practitioners
and service providers, legal practitioners, the Judiciary, the Office of
the Ombudsman for Children, Tusla and other State Agencies.
Key points which emerged from these submissions include:
the importance of the Guardian ad litem to the court and to the child
in care proceedings
the need for all children in care proceedings to have access to a
Guardian ad litem e.g. through the presumption in favour of an
appointment of a Guardian ad litem by the court
the necessity for the establishment of a nationally organised,
managed and delivered service to ensure a consistent and quality
assured service is provided in a transparent and accountable manner
the role, function and status of the Guardian ad litem needs to be
clearly stated in legislation as should the qualifications and
experience needed to act as a Guardian ad litem.
Proposed GAL Reforms
The reforms are a very real effort to extend the Guardian ad litem
system to benefit the greatest number of children and young people and
that the child’s right to have his or her views heard by the court is
upheld.
I would like to highlight a number key positive features of the reform
proposals:
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.
A nationally organised, managed and delivered Guardian ad litem service
will be established
This service will be responsible for providing Guardians ad litem to the
courts and will support the professional practice and development of
Guardians ad litem and monitor their performance.
The service 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.
The role and function of a Guardian ad litem and the qualifications and
experience required to act as a Guardian ad litem will be clearly
defined.
These reforms are designed to replace the existing ad hoc system with a
high quality, child-centred, cost effective national service. Crucially,
it will ensure that all children in child care proceedings, in all parts
of Ireland, get the opportunity to have access to an independent
Guardian ad litem.
Review of the 1991 Child Care Act
In conjunction with reform in this area, my Department is progressing a
review of the 1991 Child Care Act in its entirety.
This detailed review includes identifying areas which need to be revised
or updated to reflect current practices and to respond to current needs.
It also includes the examination of a number of potential new areas for
development – for example the inclusion of principles underpinning the
revised Act including explicit reference to the principle that all
those involved in child care proceedings promote and uphold the rights
of the child.
Many of the key issues that we will have to grapple with are interlinked
- not least in terms of how they develop and emerge from the legal
process.
In my mind the need to remove the adversarial nature of child care
proceedings is key. In all reality, how can we hope to live to up the
aspiration that as many children as possible are re-united with their
families when the very means by which they are separated from them in
the first place, in more cases than not, weakens the chance of a
relationship based on trust and respect being formed between the social
work teams and the families in question? Mechanisms by which a more
inquisitorial or mediated approach might be invoked, lessening the
burden on the courts, will form part of the review.
Permanency planning is another matter high on my priority list. By this
I mean reaching a decision in relation to the future of a child in care
- be that, for example, foster placement under a care order, residential
placement or supervised access - as soon as is possible. A multitude of
research has shown, and everyone in this room is aware, that the longer
the decision making process in relation to a child's care journey, the
more protracted the uncertainty for that child and, ultimately the more
detrimental to that child in terms of the potential to achieve positive
outcomes. We need to be arriving at a certainty of action as soon as
possible.
I appreciate that this will require procedural and process change - and
not just on behalf of Tusla - but to truly give our young people in care
a chance it is, quite simply, a basic necessity.
Initiatives such as the Child Care Law Reporting Project, headed by Dr
Carol Coulter and funded in part by my Department, also provides us with
empirical evidence as to what factors are in play in child care
proceedings across all domains of State Departments and Agencies. Issues
in relation to parental capacity, substance abuse, mental health and
disability are all to the fore. The physical environment in which care
proceedings are held is, in many instances, not suitable for many
reasons.
What I am highlighting is that the factors which necessitate the
instigation of care proceedings and the entirety of the process itself
needs examination - from how a new Family Court is established by the
Department of Justice and Equality to how the wider health family can
support parents in crises.
Tusla and my Department are committed to reviewing the Act and all
operational matters linked to it - but a systemic and effective reform
of care proceedings, leading to a better set of outcomes for families
and children, can only be realised with the full and committed
engagement of all stakeholders.
My Department intends to commence a comprehensive public dialogue very
shortly to inform this important review. We will be working with the
Children’s Rights Alliance in this regard.
I am seeking to ensure that this review results in a child-centred
structure, where the child’s best interests, welfare and protection are
paramount, and children’s rights are respected and vindicated and their
views are heard and given due weight.
I intend that it will also yield a structure where families are listened
to, supported and empowered to raise their children in a caring,
nurturing and supportive environment, where implementation and best
practice are supported through collegiate interagency working, based on
clear principles and robust operational protocols and systems.
Barnardos & Guardians ad litem
Finally, I would like to conclude by commending the work being done by
Barnardos. In addition to the valuable Guardian ad litem work, Barnardos
has a proven track record of working with children and families in
difficult and challenging situations. Your organisation works across
sectors to improve children’s learning and development, and in
particular their on-going emotional well-being from when they are small
children, through the middle years, to when they are young people
approaching adulthood.
Your organisation has also focussed on providing expertise to people
working with children, both in a professional capacity such as teachers
and child-care professionals, and on a voluntary basis such as those who
coach sporting activities and organise other social activities that are
so important to the development and wellbeing of our children and young
people.
Barnardos has also played a central role, since its establishment in
Ireland in 1962, in campaigning for child protection and child welfare,
and to eliminate child poverty and child homelessness, issues which are
impacting on our society now more than ever before.
From this valuable work, children are benefitting more from the
opportunities that life presents and they can better negotiate
challenges as they arise.
Working collaboratively
Finally, events such as today show how a partnership approach to work in
this important area is an effective way to bring all stakeholders and
interested parties together.
It behoves us all to work together to ensure that children are assured
that decisions are being made with their best interests at heart, even
where the decisions do not concur with their views.
We must work collectively and collaboratively to uphold the rights of
these children and to ensure their safety and welfare. We need to
optimise collaborative cross-sectoral approach to policy implementation.
I believe that we have the tools available to do this and that we share
a commitment to this task.
Once again, I would like to express my sincere thanks to Fergus, Freda
and Barnardos for the opportunity to address this conference this
afternoon, and to emphasise that I sincerely appreciate the on-going
engagement with, and collaborative working across, all stakeholders.