Guardians ad Litem

Purpose of the 2022 Act

Guardian ad litem [GAL] appointments for children who are the subject of public law child care proceedings are currently provided for under the Child Care Act 1991. Child Care (Amendment) Act 2022  provides for the appointment of a guardian ad litem where a child is not party to the proceedings and where the Court is satisfied that it is necessary in the best interests of the child and in the interests of justice to do so. The 1991 Act was  silent as to the status of a guardian ad litem in child care proceedings; the role and functions of a guardian ad litem are not defined, nor are the qualifications and experience required to act as a GAL set out.

The  Child Care (Amendment) Act 2022 insert a new Part VA into the 1991 Act which will replace the existing ad hoc system of guardian ad litem appointments. The principal objective of the Act is to extend and regulate the guardian ad litem system so that it benefits the greatest number of children and young people. Its provisions are intended to ensure that a high quality service is provided to children and young people in care proceedings.

The core functions of the guardian ad litem will be to inform the court of any views which the child wishes to express and to advise the court on what, in his or her professional opinion, is in the child’s best interests. It is intended that the guardian ad litem will enhance the decision- making capacity of the court in child care proceedings.

The national guardian ad litem service will be provided by an Executive Office within the Department of Children, Equality, Disability, Integration and Youth. Costing projections indicate that the proposed guardian ad litem service can be provided within existing resources and the restructuring of the service will provide scope to extend the service to all children who are the subject of child care proceedings within the current expenditure envelope.

Best Interests & Views of Child

The purpose of this amendment is to reflect the intent of Article 42A of the Constitution, which was inserted into the Constitution by the Thirty-First Amendment of the Constitution (Children) Act 2012 (the “Children’s Referendum”). In any proceedings before a court in relation to the care and protection of a child, under the Principal Act, including proceedings before the High Court in relation to special care, the court shall regard the best interests of the child as the paramount consideration.

Where a child is capable of forming their own views in any proceedings before a court under the Principal Act, including proceedings before the High Court in relation to special care, the court must determine how to facilitate the child in expressing their views, and, to give any views that the child wishes to express due weight having regard to the age and maturity of the child.

Appointment

The Minister may grant an approval to an official which will enable that official to attend proceedings under Act. An approval may be granted if the Minister is satisfied that attendance by an official would assist in the promotion of good practice by guardians ad litem or, where such attendance would assist in the review of the operation of the Principal Act.

Approvals granted are required to specify a number of matters, including the purposes for which information obtained during the attendance will be processed, and will set out requirements in relation to ensuring that parties to the proceedings, or any child to which the proceedings relate, cannot be identified. Order directing appointment of guardian ad litem

A person is not appointed as a guardian ad litem for a child unless an order directing such appointment has been made under this provision. It provides that the High Court will appoint a guardian ad litem for all children in all special care proceedings and creates a presumption in favour of appointment of a guardian ad litem in proceedings before the District Court.

Where the District Court decides not to make an order appointing a guardian ad litem, the court will be required to give the reasons for its decision in writing. This section further provides that following the making of an order appointing a guardian ad litem, the court will make directions in relation to the provision of documents relating to the proceedings on the Minister and the guardian.

The Minister is to appoint a person to act as a guardian ad litem when an order in relation to such an appointment is made by the High Court or the District Court, or if the court has made a direction to keep proceedings under review. The Minister is required to inform the court of the making of an appointment as soon as is practicable. The Minister’s powers of appointment include the power to appoint a different individual to act as guardian ad litem for the child in place of a guardian ad litem who stands appointed.

Legal advice and legal representation

Where an order is made appointing a guardian ad litem for a child who is the subject of special care proceedings, the Minister is required to arrange for the provision of legal advice and legal representation to that guardian.

Where the District Court makes an order appointing a guardian ad litem under certain provisions, the Minister will be required to arrange for the provision of legal advice to that guardian at their request. The Minister may also provide, or arrange for the provision of, legal representation to a guardian ad litem if the Minister considers it in the best interests of the child to do so, and having regard to the list of factors set out .

Functions of guardians ad litem.

A guardian ad litem is required to ascertain the views of the child, where the child is capable of forming his or her own views, and, having considered these views, to make recommendations to the court on what is in the best interests of the child. The requirement to make recommendations to the court regarding what is in the best interests of the child also applies in circumstances where a child is not capable of forming or expressing their views, or where the child is unwilling to express their views.

The guardian ad litem is required to furnish a report to the court which conveys the views of the child on the matters to which the proceedings relate, and which contains the guardian ad litem’s recommendations on what is in the best interests of the child. The guardian ad litem is required to state the reasons for his or her recommendations.

Having regard to the child’s age and maturity, the guardian ad litem is also required to inform the child of the recommendations contained  in his or her report. The guardian must also inform the child about the outcome of the proceedings and any other matters relevant to the proceedings which he or she considers appropriate.

The guardian ad litem must also inform the court of any additional matters which are relevant to the best interests of the child, which come to their attention during the course of the performance of their duties.

Guardians ad litem may also be required to perform such additional functions as may be directed by the court. When determining whether to direct the guardian ad litem to perform additional functions, the court is required to have regard to the nature of the case and to consider whether directing the guardian to perform additional functions is necessary and in the best interests of the child.

A guardian ad litem is independent in the performance of their functions, and that in performing these functions, the guardian ad litem will regard the best interests of the child as the paramount consideration. In determining what is in the best interests of the child, the guardian ad litem must have regard to all the circumstances that he or she considers relevant to the child, including those matters listed.

Relationship with Court

A copy of the report prepared by a guardian ad litem will be made available to each party to the proceedings, or their counsel or solicitor, if applicable. The report may be received in evidence in the proceedings and a guardian ad litem can be called as a witness by the court or by any party to the proceedings. Where it considers appropriate, the court may order that the report be redacted in part.

A guardian ad litem is not a party to the proceedings, the court may, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interests of the child and in the interests of justice to do so, order that the guardian ad litem shall have such party rights as it may specify, either for the entirety of the proceedings or in respect of particular issues in the proceedings.

A guardian ad litem may apply to the court to procure a report on any question affecting the welfare of the child where there is no existing report, or where there is a report, but the information contained within that report is out of date. The court, when deciding whether to grant such an application, will have regard to the wishes of the parties to the proceedings. Before making an application to the court in relation to procuring a report, the guardian ad litem is required to consult with the parties to the proceedings, or the counsel or solicitor (if any) representing the parties.

Following an application from the guardian ad litem, the court may direct the Child and Family Agency to procure a report from a person nominated by the court on any question affecting the welfare of the child. A copy of a report prepared will be made available to the guardian ad litem, any party to the proceedings or, if appropriate, their counsel or solicitor, and this report may be received in evidence in the proceedings.

The court may, where it considers appropriate, order that such a report will be redacted in part. The court will determine which party or parties to the proceedings will pay the fees and expenses of the person who prepared the report. The author of a report which was prepared  may be called as a witness by the court, the guardian ad litem or any party to the proceedings.

The guardian ad litem may also make an application to the court in relation to the provision of information from any person or in relation to any other matter which relates to the guardian ad litem’s functions. The court may, by order, direct a person to provide specified information to the guardian ad litem or make directions as the court considers appropriate.

Where the court has made an order directing the provision of information to the guardian ad litem, the person to whom the direction applies is obliged to comply with the direction. A person will not be required to provide the guardian ad litem with any information which is subject to legal professional privilege.

A guardian ad litem may request the Child and Family Agency to provide information in relation to the welfare of the child which the guardian considers necessary for the performance of his or her functions. Subject to the Data Protection Regulation and the Data Protection Act 2018, the Agency is obliged to comply with such a request. In the event that the Agency refuses to comply with a request from a guardian ad litem for information, the guardian may apply to the court for a determination on the dispute. The Agency will not be required to furnish information which would be exempt from court proceedings on the grounds of legal professional privilege.

Child Care (Amendment) Act 2022  specifies the circumstances in which an order appointing a guardian ad litem in either special care proceedings in the High Court, or proceedings in the District Court, ceases to have effect. It further provides that where a court has ordered proceedings to be kept under review, the court may direct that the order appointing the guardian ad litem ceases to have effect until the review is due to take place. Prior to the date of the review, the court may direct the re- appointment of the guardian ad litem.

Where a child, for whom a guardian ad litem has been appointed, becomes a party to the proceedings, the court shall determine when the order appointing the guardian ad litem ceases to have effect.

Minister & Guardians

The Minister will pay any reasonable costs or expenses incurred by a guardian ad litem while exercising their functions under the Act on or after the relevant date. The Minister may apply to the court to have the amount of these costs or expenses measured or taxed. Following an application from the Minister, the court may order a party to the proceedings to pay any costs or expenses payable by the Minister.

The Minister may develop a regulatory framework for the purpose of ensuring that guardians ad litem are held to high professional standards when performing their functions under the Act. A list of the matters which the regulations may provide for is set out.

The Minister may ask a guardian ad litem to provide information relating the guardian’s functions, including information relating to the proceedings in which the guardian ad litem has been appointed. Subject to the Data Protection Regulation and the Data Protection Act 2018, a guardian ad litem is required to comply with such a request. The Minister may use information provided u, as the Minister requires in relation to the performance of his or her functions.

Authorisation

The Minister may issue an authorisation to those persons that he or she considers appropriate to perform the functions of a guardian ad litem. A person will not be considered as an appropriate person to perform the functions of a guardian ad litem unless they fulfil the requirements which are to be set out in regulations to be made.

In the interests of promoting high professional standards and good practice, the regulations may prescribe matters such as the particular professions from which guardians ad litem may be authorised and the qualifications and minimum levels of professional experience required. When considering whether to issue an authorisation to a person, the Minister may request information from that person for the purpose of informing the Minister’s decision on whether or not to issue such an authorisation. A person who wishes to be authorised as a guardian ad litem is obliged to comply with such a request. Where a person fails to comply with such a request, the Minister is entitled to have regard to this refusal when deciding whether to issue an authorisation.

A person who has been authorised to act as a guardian ad litem is required to notify the Minister in writing of any relevant matter which would affect his or her authorisation within the timeframe specified. ‘Relevant matter’ is defined as a criminal record within the meaning of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012

The circumstances in which the Minister may revoke the authorisation of a guardian ad litem are set out..The circumstances in which a guardian ad litem’s authorisation will cease to have effect are also set. It further provides that where an authorisation which has been granted for a fixed period is due to expire before the conclusion of proceedings in which the guardian ad litem has been appointed for a child, the Minister may extend the authorisation until the conclusion of those proceedings.

Various

The Minister may enter into contracts for service with persons whom the Minister considers appropriate to perform the functions of a guardian ad litem if the Minister considers necessary to do so for the performance of his or her functions The Minister may issue an authorisation to a person with whom the Minister has entered into a contract for services.

In proceedings before the District Court relating to the detention of a child, the court must appoint a guardian ad litem for that child and furthermore, the guardian ad litem is entitled to both legal advice and legal representation for the proceedings.

The National Vetting Bureau (Child and Vulnerable Persons) Act 2012 apples to  guardians ad litem appointed which sets out relevant work or activities relating to children.