Removing the right of court-appointed guardians to legal representation would be a “reversal” of the constitutional rights of children and “extremely short-sighted”, two High Court judges have warned.
In a submission to the Department of Children, family law judge Ms Justice Bronagh O’Hanlon, endorsed by Mr Justice Henry Abbott, said legal representation for guardians ad litem (Gals) is “an essential component in assisting the court”.
The judges’ position is at odds with the department’s suggestion, in its consultation paper Preparing a Policy Approach to the Reform of Guardian ad Litem Arrangements, that legal representation should only be allowed in exceptional circumstances.
The department’s position is supported by Tusla, the Child and Family Agency, which has responsibility for paying the costs of Gals, and by other groups, including the Legal Aid Board and the Courts Service.
Ms Justice O’Hanlon also criticised the suggestion that Gals should have the status of “adviser to the court”.
This would effectively mean the Gal would not be party to proceedings, she said, and would not have the standing in court to “take the full range of applications in the welfare of the child”.
This would “significantly weaken the participation and representation of the child in proceedings that centrally affect them”.
“If a child, via the guardian ad litem, does not have equal standing in the case to other parties, it is difficult to envisage how their rights can be protected,” she said.
“This may engage the article-six right to a fair trial under the European Convention on Human Rights.”
She said there was a requirement that Gals be legally represented if they so wish.
“This flows from the requirement that the child’s best interests and voice be fully and effectively heard by the courts,” she said.
The judge also said, in the court list she takes on Thursdays, that there can be up to 35 cases for “intensive welfare review” and carrying out that list properly would not be possible without the engagement of legally represented Gals.
“To remove said representation would seem to me to be the reversal of the present constitutional position in terms of the rights of the children,” she said.
Appointed by judges
Gals are appointed by judges to represent the best interests of children in legal actions, primarily those involving taking them into the care of the State.
At present, Gals are not regulated. Many are former social workers and the majority work with children’s charity Barnardos or the Independent Guardian ad Litem Agency (Tigala).
Tusla has raised concerns about the costs associated with Gals, in particular payments for their legal representation, which comes from the Tusla budget. Last year, costs totalled €14.1 million, including €5.9 million in legal costs.
The judges’ submission was one of 26 received by the Department of Children as part of consultation on the future of Gals.
The department has proposed a nationally managed service that would be “as effective, efficient, sustainable, consistent and transparent as possible”.
In an addendum to the submission, Ms Justice O’Hanlon highlighted the lack of suitable secure facilities in Ireland for people, including children, who are psychiatrically unwell or have complex needs.
She said the “real and extreme difficulty” was when the child or vulnerable adult was ready to “step down and come back” to Ireland, as there was “a complete lack of appropriate step-down facilities”.
Persons could begin to regress or be at risk of regression, when no facilities were available, and this was “a futile waste of the Irish taxpayer’s money”, she added.
She said appropriate step-down facilities should be provided “ as a matter of extreme urgency”.
