Calls for Tusla to have no role in child court guardian scheme

Children’s advocacy groups have criticised the Government for Tusla’s role in the Childcare Amendment Bill, saying the new scheme requires complete independence to ensure the voices of children are clearly heard by the courts system.

Representatives from children and youth organisations, including the Ombudsman for Children, presented their recommendations on the Childcare amendment Bill 2017 and the role of court-appointed guardians to a Joint Oireachtas Committee meeting on Wednesday.

The Bill's amendment follows a memorandum brought to Cabinet in January by Minister for Children and Youth Affairs Katherine Zappone which set out major reform of guardianship laws introduced 25 years ago.

Guardians ad litem, often called gals, are appointed by judges to communicate the views of children, and their best interests, to the court under the Child Care Act 1991. However, current legislation does not stipulate the conditions of their appointment and leaves it up to judges to decide whether they should be appointed. The new bill seeks to ensure that gal services are offered to as many children and young people as possible.

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ISPCC's director of policy, Clíodhna O'Neill said that in order to ensure "a comprehensive and independent" service, gals should be funded through the Department of Children and Youth Affairs rather than Tusla, the Child and Family Agency.

She warned that funding the gal service through Tusla could result in a conflict of interest and that an independent system was required in order to secure public trust in the scheme.

Ombudsman for Children Dr Niall Muldoon warned that children availing of the gal service were extremely vulnerable and called for "a child-centred and rights based" support service for children in the courts system. Dr Muldoon said that all children should have access to a gal service, referencing Article 42 of the Constitution which states "the right of the child's voice to be heard in any judicial and administrative proceedings affecting the child".

ISPCC solicitor Catherine Ghent voiced concern over the removal of the ability of gals to cross examine during a case and described cross examination as "a fundamental right". She said diminishing and removing cross examination would only take away from and negatively impact on children's rights.

Dr Muldoon agreed that the State would be “letting down children enormously” by removing the gal’s ability to cross examine. “The gal is the voice of the child. There is no way you or I would not be allowed into court to tell our point of view but yet the child has been kept silent for so long.”

Terry Dignan, director of Epic which supports children and young people in care, noted that gals would benefit from working in collaboration with advocates who he said engage with the child before, during and after proceedings. He said the current proposals of the amendment were at risk of "limiting the child to a witness statement" and that if the child's voice was absent from the court, it would not be in a position to make an informed decision.

Responding to questions from TDs and senators following the advocacy groups’ presentations, Ms Zappone underlined that the reformed guardian service would remain separate from Tusla and that the Child and Family Agency would not play a role in the new scheme. She added that the agency’s sole role would be in the payment mechanism process.

Asked to comment on the call for changes in cross examination, Eimear Fisher, Assistant Secretary at the department said enabling a gal to cross examine a case would be "akin to party status" and significantly change their role in the proceedings.

Ms Zappone said she expected the bill to be published by the end of the year and enacted in the Spring of 2018.