Call to extend new guardian ad litem service to all areas of the law 

The new regulated guardian ad litem service is due to commence in June

'For children in particular who come before the courts, it can be hard for them to appreciate the seriousness of it all, to understand precisely what is going on.'

There is scope to extend a new guardian ad litem service to other areas of law, a barrister has said, as the country's first regulated body in the area is due to begin its work.

A guardian ad litem is a qualified and experienced professional appointed by the courts to represent a child involved in care proceedings. They meet with the child and provide a report to the court, offering recommendations on what they believe to be in the child’s best interests.

A national guardian ad litem service is now being established under the Department of Children and is due to come into operation on June 23. The service aims to ensure every child’s voice is heard and their best interests are independently presented to the courts in care proceedings countrywide.

A total of 65 guardians will be available for appointment at the direction of the courts, marking the first time the role will be regulated and supported on a national basis.

Drawing on his experience of court proceedings involving children, Limerick barrister Liam Carroll said it could be difficult for them to fully understand what is happening.

'When they were before the court about to enter their guilty plea, it was only at that stage they realised that they actually hadn't appreciated that once they had done so, they might find themselves going into custody immediately.' File picture: Larry Cummins

The Child Care Amendment Act 2022 provides the statutory basis for the guardian ad litem service. Mr Carroll said extending the service to other areas of the law would be beneficial.

“For children in particular who come before the courts, it can be hard for them to appreciate the seriousness of it all, to understand precisely what is going on," said Mr Carroll.

"It can also be difficult for them maybe to convey to their legal representatives or others in the system what their views are, what their wishes are, what their desires are.

“If there was a professional instructed to engage with them who might have more time to sit down with them and adequately trained to establish what precisely they want to achieve out of the matter before the courts, and then help them convey that to their lawyers, it can only be of benefit,” he told the Irish Examiner.

While he has worked extensively on family law cases, Mr Carroll said instances occurred during criminal proceedings where a child might not understand the “risks of the process”.

There have been occasions certainly where I was acting for a child and felt there might be an issue insofar as how they were able to understand what I was saying.

“A young teenager whom I had had an extensive conversation with had indicated they wished to enter a plea of guilty in respect of a particular charge. 

"When they were before the court about to enter their guilty plea, it was only at that stage they realised that they actually hadn't appreciated that once they had done so, they might find themselves going into custody immediately,” explained Mr Carroll.

At the time, Mr Carroll said he had to ask the court to step into a consultation room with the child, alongside his solicitor and family.

“It actually took an extensive period of time to convey that to the child so that they understood the seriousness of what was about to happen.

“A practitioner could find themselves in a very unfortunate situation whereby they think they have explained something adequately to a client, but due to limitations on the part of that client, and in terms of their ability to understand what has been said to them, they may not know what the risks are in any given particular process,” he said.

Adapting language

Limerick barrister Liam Carroll. Picture: Brendan Gleeson

A parent himself, Mr Carroll makes a point to adapt his language during consultations, so children can better understand what they may face.

“I make attempts to do that. Most lawyers I know will make attempts to do that, but people are different, clients are different, and no two 12-year-olds are the same."

Mr Carroll said it could be difficult to get instructions from children. “Children, like all of us, are emotional, but anybody would accept that children, by virtue of the fact they haven't yet reached full maturity, tend to be more emotional.

“That emotion can come out in different ways. It can be sadness, it can be anxiety, it can be aggression. Perhaps even more problematic than all that is that children in this environment can sometimes shut down. 

They can become silent, be reluctant to trust, to express their views, their opinions or their thoughts. They may also be socially awkward given their age, and all of those things inhibit the ability of a lawyer to take instructions.

While children are provided with anonymity and see the court “emptied whilst their case is dealt with”, Mr Carroll said the guardian ad litem service would “make our lives easier”.

“As practitioners, we take whatever steps we have to try and ensure that their youth does not stand in the way of them accessing justice. My role in that system is to take the client's position, take their instructions, and then on the basis of those instructions, secure the best possible outcome for them.

“I'm talking in the context of family law cases. But ultimately, having a professional who is able to take the time to speak with those children, who is adequately qualified to assert what their desired outcomes are, can only be of benefit.” 

Operating structure

Patrick Bergin was appointed director of the guardian ad litem service in January 2025 to put a formal structure in place for the existing service.

The legislation was first introduced in 1991, allowing courts to appoint guardians for children during care proceedings. At the time, such appointments were intended to apply only in exceptional cases.

Earlier this year, the Association of Guardians ad Litem of Ireland expressed concern the changes to the system, to be introduced in June, would fundamentally undermine the constitutional rights of children.

'The legislation we have at the moment is very specific to childcare proceedings, so it doesn't extend into the criminal, courts. That's not to say there is not a need there.'

The association represents 92 of the 96 practitioners working in Ireland. The association chair, former district court judge Dermot Simms, said it was “vital” guardians remain independent. In February, the group threatened High Court action over plans to regulate the service.

He said the system had evolved over the past 30 years. "The view from the courts and those involved with children in care was that this was a good measure,” Mr Bergin told the Irish Examiner.

In 2024, a guardian ad litem was appointed to 3,500 children who were known to the care service.

“We looked at how many guardians were currently delivering that role, and roughly 100 people were identified.

“The majority of those people were and are independent sole traders. They're not really aligned to one organisation.“ 

Mr Bergin said a decision was made for better governance, better accountability, and professional standards.

The court is looking for a view from a guardian around what the child's thoughts are in relation to what's going on and also looking for an independent expert or professional to provide their views around what's in the best interest of child. 

"So that system and process have evolved and we're looking to ensure it meets high-quality standards, but it's also consistent for all children right across the country,” he said.

'There's always a challenge'

So far, 40 guardian ad litem roles have been offered across the country.

“There are other scenarios where children are before court, normally in criminal scenarios. There’s always a challenge in the context of them understanding what's happening," said Mr Bergin.

“The legislation we have at the moment is very specific to childcare proceedings, so it doesn't extend into the criminal, courts. That's not to say there is not a need there,” he said.

“There's a possibility the structure that we have in place might extend into other areas. However, I suppose the legislation has to be there to do that, and the funding.” 

Mr Bergin said there had also been discussions regarding whether a guardian ad litem should be appointed to adoption cases.

“In essence, the view is they are being appointed at this point in time, but they don't fall within our legislation or our current structure. That's not to say that in the future Government policy may change to say the service can extend to support other elements of other services, so that's a matter for Government in the future.” 

As of now, the service will be “in a position to have a detailed overview” of activities across the country. “We’ll be able to identify what's working in the West of Ireland, the South, and Dublin. 

"What are the challenges that children are experiencing? What are the challenges that courts are experiencing? Be able to report on that, whereas at the moment, the way the service is currently structured, that information is not there.”