Childcare advisers face huge legal bills under new laws, warns board

THE statutory body which advises on the appointment of legal advisers in childcare proceedings has claimed new legislation could saddle Guardian ad Litems with massive legal bills.

The Children Acts Advisory Board (CAAB), which is to be subsumed into the Office of the Minister for Children, has said legislation proposed by that office would also reinforce many of the current flaws in the system.

The criticism comes as Barnardos, which operates its own Guardian ad Litem (GAL) system, revealed that the number of referrals has soared this year.

GALs are appointed by the court and, independent of all agencies involved with a child who is the subject of child care proceedings under the Child Care Act 1991, represent the interests of the child during proceedings, which are often instituted by the HSE where there are concerns for the safety, welfare or protection of a child.

They can also be appointed in family law cases in which a child is involved and in either type of case the court has discretion in appointing a GAL.

The Barnardos figures show that between January and September this year there were 88 referrals to its GAL service regarding 156 children, as opposed to 53 referrals for 97 children in the same period last year.

CAAB advisory officer Jim McGuirk said there are a number of concerns over the current system and legislation contained in the Child Care (Amendment) Bill published last month fails to address these.

“There is no legislative or regulatory criteria for appointing a Guardian ad Litem which means that virtually anyone can be appointed irrespective of whether they are deemed qualified or not, have the necessary experience or not or have been subject to garda vetting,” he said.

Mr McGuirk said the Child Care Act 1991 directs the HSE to pay the GAL’s fees and where a barrister or solicitor is appointed to represent the Guardian ad Litem, the HSE is also responsible for their fees.

“The HSE is invariably a party to child care proceedings and the fact that it is responsible for paying the Guardian ad Litem’s fees may create a perception that the Guardian ad Litem is not completely independent,” he said.

Listing other “anomalies”, he said there was a possible issue over the storage of files for independent GALs, while “disparate provision of services has lead to difficulties in setting fees and in standardising service provision”, and that as typically self-employed service providers, they are paid on a case-by-case basis which is not cost effective and would be better handled if there was a national Guardian ad Litem agency, as there is in the North.

“In addition legal charges may be incurred during the course of a case resulting in added cost,” he said.

As for the recent bill, he said it may provide “a challenge in any discussions the minister for children may have with his ministerial colleagues regarding the future funding of Guardian ad Litem services as it re-states the responsibility of the HSE to pay Guardian ad Litem fees”.

In particular, he said, there was a fear that the HSE could refer legal costs directly to the GAL in some circumstances, leaving them to pay the bill.

One of the CAAB’s responsibilities is to publish guidance on the role of GALs appointed in proceedings under the 1991 Act, but there is no agency in place to ensure compliance with the guidance.