Guardian ad litem reforms 'a step backward' says Council of the Bar of Ireland

The Government’s plans to reform the guardian ad litem (GAL) system constitute a “step backwards” and raise serious concerns around compliance with “constitutional and international standards”, the Council of the Bar of Ireland has warned.

GALs represent the wishes and best interests of children in court proceedings, but the system is currently unregulated.

Costs associated with GALs have brought the issue to the fore in recent years.

In 2014, the Child and Family Agency spent €16.5m on GALs, €6m for their solicitors, and up to €1.5m for their barristers.

In its consultation paper on plans for reform, the Department of Children and Youth Affairs states that it is seeking to set up a national service either through a dedicated body, or “utilising existing structures”.

It says “the approach being considered is that the status of the GAL would be that of a court-appointed adviser”, and that “the appointment of a GAL would be at the discretion of the court”.

The paper sets out the set of circumstances when a GAL might be appointed — essentially complex or disputed cases — and states that GALs would only to have access to legal advice/representation as an “exceptional matter”.

The Bar Council of Ireland contends that all children should be appointed GALs, unless there is a reason why they do not need one.

“The appointment of a GAL at the discretion of the court is not in line with the Article 42A protections and international human rights law,” a strongly-worded submission to the department says.

Children’s rights are now enshrined in the Constitution.

The amendment, carried in 2012, but only signed into law this year, states that provision be made by law for “securing, as far as practicable, that in all proceedings in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child”.

“Each child in care, and certainly those in respect of whom proceedings have been instituted, must have a GAL appointed to them in order to give effect to their right to participate in proceedings affecting them.”

The Bar Council said it is “keenly aware” of the need for reform, but that it is “utterly wrong” to select a child’s fundamental right to a GAL and legal representation as an issue that can be reduced to its monetary value or cost.

Cork-based family law expert Eamonn Carroll, who acts for children and GALs, said what is being proposed essentially downgrades GALs and is more restrictive and less resourced than what is currently available.

“The Government is proposing laws that run contrary to the constitutional amendment on children’s rights and are out of sync with our international obligations,” he said.

Mr Carroll said that regulation of GALs is needed, but if the state has created the right for children to have their views heard, how can it now legislate to restrict those rights?

“It appears that the consultation paper is presented not as part of an overall assessment of the delivery and representation of children’s views in court proceedings, but rather in response to concerns on the financial cost of GALs,” he said.