Kathleen Funchion urges clearer role for guardians ad litem

Thanks very much, Cathaoirleach. First of all, I want to say I do welcome this bill and I think it is needed. I think we do need regulation in this area and we all know the very good work that GALs do and the service that they provide for children in care. But I do think that we definitely need some sort of rules or regulations attached to that as well. So, the bill is very welcome. And actually, these are the only two amendments that we have tabled in relation to it. So, in general, we welcome it. However, we do feel that these need to be factored in. So, the first one is to insert in section 35 E1, a function of a guardian ad litem shall be to represent the child's interests in the proceedings to which the guardian ad litem has been appointed. Now, this actually, and Deputy Sherlock is here, back in the previous Dáil in 2019 at committee stage, we actually had this amendment passed at committee stage and it is not actually in the new bill. And we kind of argued very strongly at that time for that, along with now Minister Rabbit for this to be included, because it really is kind of a catch-all. It ensures that there are no grey areas as to what exactly a GAL can sort of the role of the GAL and there is serious concerns in relation to potentially a GAL being relegated to the status of witness. And which leads me into the second amendment, which has removed section 35 E8 or to amend it so that the court may hear from the guardian ad litem in respect of any welfare matter concerning the child. So, there is a concern that if a GAL is characterised as a witness, that it dilutes their role and that they are maybe just called for certain parts of the proceedings and that they wouldn't actually be present for the whole proceedings. And the big thing in all of this is that they are to advocate for the child and be the child's voice. So, it is really important that there is no grey areas. You know, to me, it is a minor amendment, but I think it would actually really strengthen the legislation. And it is something that was accepted in the past and is somehow not in the new form. So, I would hope that the Minister will accept these amendments. Thanks very much, Chair. Thanks to Deputy Funcion for these two amendments. I will speak to both amendments because he said they are linked, and Deputy Sherlock for his contribution. And I will say that I am not in a position to support these two amendments and I hope I can clarify why that is. So, in terms of the first amendment, my concern with this amendment is that the use of the word represent could be interpreted as active representation. And this would conflict with the policy position that a guardian ad litem is not a party to proceedings in every circumstance. And the bill, as we have before us, has calibrated the power of the guardian ad litem to enable them to perform their functions. And the formulation of the amendment goes further than the existing functions of the guardian ad litem. And these are to ascertain views and make recommendations regarding what is in the child's best interests. A requirement on the guardian ad litem to identify what are the child's best interests in the proceedings could go far beyond informing the court of what is in the child's best interests. It could be interpreted as meaning active representation and the power of the GAL under this bill is not in accordance with such a function. Under the principle act, GALs are not party proceedings and they do not have the status of a party. At the court's discretion, they have sometimes been permitted to exercise party type rights. Now, I'm aware that during the previous discussions, prior to me being in the Oireachtas in 2019, deputies, and I'm sure both deputies here present, expressed concerns about the status of guardians ad litem in proceedings. And on foot of these concerns, when I came into office and was reviewing this legislation, the draft of legislation, I asked my officials to revisit this issue and explore the issue of party type rights for GALs with the Attorney General's office. And as a result of that, a new section was added to this legislation, that is section 35 E 11. And this subsection provides that the court may, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interest of the child and in the interest of justice to do so, order that the GAL shall have such party rights as it may specify. So the court can specify a that a GAL can have party type rights and what those party type rights are. And the court may specify whether the exercise of these rights is for the entirety of the proceedings or in respect of particular issues in the proceedings. So I'm satisfied that that and the bill as it is now drafted, with that addition to it, gives GALs wide-ranging powers to exercise their functions while also providing for the flexibility for the court to grant them additional party type rights as required. And I think that's the degree of latitude you were speaking to, Deputy, that gives the court the right to give party type rights where the situation requires it. We don't believe that it should be given as a basis in absolutely every type of situation, but we are giving the court that discretion now and that party type right actually comes from a court decision, a high court decision from a number of years ago, where a judge spoke to that and we thought we would codify that approach. So I believe what is proposed already in the legislation gives that approach and that's why I'm not in the position to accept Deputy Fungeon's first amendment. In terms of the second amendment then, in terms of the issue of the witness and this idea that the guardian ad litem would be relegated to the status of the witness, that is not our intention and I hope I can provide some reassurance here. But I also have a concern because by deleting the text about witness as is proposed in part of Deputy Fungeon's amendment, we actually think there's a risk that what Deputy Fungeon is proposing, and I imagine this is inadvertent, may result in the fact that a guardian ad litem would be relegated to the status of the witness. And I don't think that's what anyone intends, but that would be problematic. So the amendment proposes to delete the existing subsection 8 of section 35E and to substitute text to provide that guardians ad litem may inform the court in relation to any matter concerning the welfare of the child. So the text that is being deleted is the text that refers to the possibility of guardians ad litem being a witness. So I'd like to clarify that the purpose of the existing wording is not to limit the role of a gal to that of a witness. There is no intention that this would be the case. The purpose of this provision, so the existing provision, is to allow a guardian ad litem to be sworn in. And if this provision is deleted, it could potentially disadvantage situations where it is valuable for another party to call a guardian ad litem as a witness. For example, a parent who is a party to this case may use this provision, the existing provision to call the guardian ad litem as a witness and actually get their sworn testimony. And I think most people would see that that is positive. So this reference to a gal being called as a witness does not exist in isolation. And it has to be, I suppose, read in conjunction with other parts of the legislation, particularly part 5A. And when the new part 5A is considered in the round, I think it is clear and we'd argue that it is clear that the role and the status of the gal goes far beyond that of just witness. So for example, under 35F, 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 gal may also make an application to the court in relation to the provision of information from any person or in relation to any other function which relates to the guardian ad litem's functions. And the gal may also continue to make section 47 applications. And this section, which is already in the Child Care Act, allows them to make an application on any question affecting the welfare of a child in the care of Tusla. So those are all provisions that are in the legislation. So I think they demonstrate that the role of the gal is one that is beyond the witness. And I don't think the provision that's proposed to delete would restrict the role or the status of a gal to that of a mere witness. And I would also say it's a risk to delete that section and it may limit the ability of calling gals as witness. And there are times when a gal, it may be a good thing for a gal to be called as a witness. So I agree that it's important that a guardian ad litem has the ability to inform the court of any concern regarding the welfare of the child to whom they've been appointed. And just to kind of the second point and the kind of the act of nature of the amendment that Deputy Function is proposing, I believe, is already covered by section 35E and in particular subsection 2C. And this says a guardian ad litem appointed for a child shall inform the court of any additional matters relevant to the best interests of the child coming to his or her knowledge as a result of the performance by the guardian ad litem of his or her function. So that's a statutory obligation that's in the legislation at the moment. And I just contrast that with the language used in the new text that Deputy Function is proposing. She says the court may hear from the guardian ad litem in respect of any welfare matter concerning the child. So first of all, Deputy Function's provision is a may provision while the existing provision is a shall provision. And again, the existing provision is a strong statutory obligation. So I think we're both looking to achieve the same goal, which is that the guardian ad litem can input to the court about matters relevant to the welfare of the child. I just believe that the existing provision, 35E2C, does it better. And it is perhaps a stronger manifestation than the manifestation being proposed. So I'm satisfied that the statutory functions of the gala set out in the bill make clear that the role of the gala is to assist the court and to be a resource to the court. And the gala cannot fulfil their statutory duties as set out in this bill if their role was solely one as a witness. And I hope I've demonstrated that that's not the case. So just to conclude in terms of the two amendments, we have changed this legislation from the version that was discussed in the previous Dáil to give the court a discretion in each circumstance if it is necessary for that particular case to give a gal party type rights and to specify what those party type rights are. And I think that's an addition and advancement, but it doesn't mean party type rights in every circumstance and party type rights aren't needed in every circumstance. So I think we give the courts and, you know, recognising that when the work Minister McEntee is doing in terms of family courts, we will have much more specialist family courts where we have judges who I think will be able to recognise when they're needed, when they're not. And in terms of the second point, then, I think myself and Deputy Function are on the same page in terms of ensuring that gals can input on issues relevant to the welfare of the child. There is a provision, a strong provision in the legislation already. We're at one, I think, in terms of a gal not being a mere witness. That is not the case. And I hope we've demonstrated that that's not the case. But I would have a concern about that proposal to delete the term, the reference to a gal appearing as a witness. Because that is the basis upon which the gals can be called in cases. And I think I'd argue it would be a mistake to remove that. Deputy Function. Just to respond to some of those points, I mean, in relation to the First Amendment, I don't see what the difficulty or issue is with even the wording or language of that, because it was passed and was allowed through in the legislation the last time around. So in terms of any AG advice or anything, I'm assuming it would have gone through all of that before the last doll fell. But my concern is that what if you get a court that isn't very au fait with this? And that's great to say that the family courts are going to be changed and reformed and everybody would welcome that. But in the interim we don't have, in lots of cases, family courts, I hate to say it, but in some areas of the country that are genuinely fit for purpose, we don't have that. And if you have a situation where a court interprets something one way, I don't see what the difficulty is by giving the gal that status. And if it's not needed, well, obviously, then it's not needed. But why would you, why do they have to kind of fight for that? And, you know, and why is it at the discretion of the court? I would have an issue with that because what happens and we, I asked it at second stage, what happens if there's any sort of a, you know, kind of a grey area and there isn't an appeals mechanism as far as I understand. So I just, I don't actually see what the issue is with adding in the phrasing that we have there. And in relation to the word witness, my concern is that when you have in a court situation, you're calling somebody a witness. Everyone's understanding of that is that they come forward, they give their piece and they go again and that's it, they're not involved. And again, if you have a particular judge or a particular family court situation where they're not maybe, you know, where they're very rigid and say, well, this person is described here as a witness. I don't, I don't see the difficulty with the language, to be very honest. I think there, we haven't put in a whole string of amendments, which shows, you know, we are sincere in welcoming the bill. But these are just two very minor amendments, in my opinion, that to a certain extent we've already discussed and had been decided upon. I know the times move on and dogs change and all the rest of it, but I just think that whatever about maybe them being opposed for the sake of it, but certainly I don't accept that there's any issue with the language of them because that wasn't flagged with us in the last process when some of these were agreed. Thanks. I wish to further respond, Minister. Thanks. Thanks very much. Well, look, no, absolutely. Look, I accept that all amendments are brought on with good intent and I'm referring, I'm responding to them as such. In terms of the situation, and again, obviously I wasn't there in the last haul, my understanding was there was no reference to party type rights in the original draft. I think you yourself brought in an amendment in terms of similar to what you're proposing here. What we've done now is, you know, proactively on the government side recognise that the issue of party type rights had been left hanging. It did need to be resolved and I think we've put in a mechanism that is flexible. I don't believe party type rights are needed in every type of situation. I think we've put in place a mechanism that gives the court that discretion to put them in where they're needed and put in the type of party rights that are needed. So I think we've accepted the overall point that you and others raised in the last haul, that there are circumstances where party type rights are necessary. And I think, whereas, you know, you're absolutely right to bring forward an amendment, I think our amendment better encapsulates the flexibility that is needed in these types of situations. But just to recall, the provision at the moment is the court or any party to the proceedings may call a guardian ad litem appointed for a child as a witness. And the proposal is to delete that as part of amendment two. And I do think that is problematic. I'd like to think that we've pointed out the reasons why it's clear that they aren't just a witness. And indeed the mere fact that in certain circumstances a guardian ad litem can have party type rights is, I think, even further evidence that it is clear that the way in which a guardian ad litem is treated under this legislation is not a witness. But that clear statutory permission to allow maybe a parent to call the guardian as a witness and get that testimony, it's proposed to delete that. And I just think that that would be a retrograde step.