‘For us as a nation, these are all our children’: Court-appointed guardians fight for services for youth in care

Rats scattering from uncollected refuse at an emergency centre housing a vulnerable child in care has stuck in the mind of former social worker Freda McKittrick for more than two decades.

The boy was moved urgently to the facility – a closed down children’s home – amid a shortage of child care placements 23 years ago, she said.

The placements crisis Tusla currently faces is “not quite there yet, but we are getting there”, added McKittrick, who now leads Barnardos’s guardian ad litem (GAL) service.

The GALs, who are appointed by judges to act as the “voice” of children in State care during court cases, see first-hand the day-to-day effects of Tusla’s difficulties recruiting and maintaining social workers, foster carers and residential care workers.

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Only Tusla can find and allocate placements for children, but GALs can bring a child’s situation to the attention of the District or High Court and request orders relating to a child’s welfare or for someone who has been without a social worker for some weeks.

A judge hearing care proceedings brought by Tusla can appoint a GAL to meet with a child and social workers, to review the child’s circumstances and to report back to the court the child’s wishes and feelings. A GAL, who acts independently from Tusla and other parties in a case, will also advise what he or she believes is in the child’s best interests. The GAL typically meets with the child wherever they are, be that in their placement or at home.

GALs may also be appointed during proceedings where a child is detained under the Mental Health Act.

Tusla is responsible for discharging GAL fees, which vary widely, but it has no role in the GAL’s appointment or oversight. The existing system, which ran at a cost of €14.1 million in 2020, comprises independent professionals and firms.

The Minister for Children is in the process of introducing reforms, having identified that the “status, role and functions” of the GAL are “not defined” and their appointments during cases are “ad hoc and inconsistent”.

“Quite often the social workers are dissatisfied with the placement,” said McKittrick. They might encourage GALs to bring court applications seeking services they were struggling to secure for children due to “red tape”.

Going to court is a “last resort”, she said, as guardians always strive to work collaboratively with Tusla and other agencies.

There were 5,597 children in care as of last January, of whom about 90 per cent were in foster homes, according to Tusla.

[ Courts note increase in new childcare cases since 2019 — up more than 45% ]

While residential care is “absolutely needed for some children”, as their difficulties are too much for foster parents, McKittrick said children who should be in a family environment are instead dealing with multiple workers who change shifts.

“We are hearing of nine-year-olds going into residential care as opposed to foster care.”

But in residential care, too, there is a scarcity of resources, and Tusla has increasingly had to house children via unapproved “special emergency arrangements” (SEAs) in rented accommodation, such as hotel rooms and B&Bs, with staffing from third-party providers.

Tusla has identified its use of SEAs as one of its key risks.

A spokeswoman said they are most often required for minors with complex needs and challenging behaviour due to trauma, substance misuse or mental health issues. She stressed the use of SEAs is not due to lack of funds but ”rather we are challenged to source a placement that can meet the specific needs of these children and young people”.

The young people in these arrangements, which are primarily single occupancy, have a dedicated social worker, care plan and a staffing ratio of at least two-to-one, she said.

[ Almost two-thirds of children in care in parts of southeast not allocated social worker ]

Tusla’s interim chief executive, Kate Duggan, said last month there were 145 young people in SEAs the week of July 19th, 90 of whom arrived in Ireland as separated children seeking international protection.

This is amid “unprecedented demand” for Tusla services and a significant shortage of social workers graduating each year, she said.

The SEAs, said McKittrick, are intended to be an immediate place of safety for young people who experience a break-down in their situation but GALs are seeing children remain there “for too long”.

She has significant concerns about the standards at the unregulated arrangements and believes some staff are “ill-equipped” to look after the most challenging children who arrive.

Some staff do not know how to set boundaries, she said, giving the example of one child who was allowed to eat a family-sized fast-food bucket every night. Some children miss out on “the very basics”, such as access to healthy foods, she said.

Tusla’s spokeswoman said the agency’s practice assurance team visited all SEAs last year and 112 so far this year. To date the team has formally escalated 12 safeguarding issues for immediate action, she said.

‘The whole of Government needs to look at whether we are treating these children in a way we treat our own, because anything less is not good enough’

—  Freda McKittrick

“Every effort“ is made to ensure minors are in SEAs for the shortest period possible, with 78 per cent less than 12 weeks and 42 per cent lasting under four weeks.

The longest recorded SEA is 713 days, but continuation of this placement was based on the best interests of the child who was “responding positively to a stable placement with stable staffing by a community and voluntary provider”, she said.

“Operational teams will take prompt action to address the identified safeguarding issues and ensure the immediate safety of the young person.”

McKittrick said GALs agitating for a child to be moved or to secure better services can be “a little bit uncomfortable” knowing there are children in care who have not been appointed guardians and who do not have their voice represented in court proceedings.

“You think maybe our children got pushed to the top of a queue ahead of children who do not have GALs.”

This sentiment is echoed by child protection solicitor Gareth Noble, who regularly represents GALs in court cases.

“There is almost a two-tier system at the moment because having a guardian is not a requirement. There are children in these hostels and hotels who have no voice, so they are less of a priority because the courts can only make directions for those children who have a voice,” he said.

The addition of article 42a to the Constitution in 2015 affirmed children’s natural and imprescriptible rights, as well as the State’s duty to uphold these. The rights apply in all court proceedings concerning adoption, guardianship, custody and access, with children becoming entitled to have their views ascertained and considered by the courts.

Judges are not obliged to appoint GALs, and different approaches are taken by courts across the country, said Noble.

[ Reports on children in care a ‘matter of deep concern’, says Taoiseach ]

The Child Care Amendment Act of 2022, once commenced by the Minister for Children, will create a presumption in favour of appointing a GAL in District Court proceedings and makes it mandatory in special care cases before the High Court. District Court judges opting against appointing a GAL will have to explain their reasoning in writing, which could be amenable to legal challenge, Noble said.

The GAL’s role “cannot be diminished”, added Noble, who believes the State has exposed itself to future legal actions from any children who feel they were denied a voice in court. A child might wonder: “Why did nobody ask me my interests when my father who abused me had a full right of audience,” he said.

The Department of Children is progressing its plans to establish a new national GAL service within an executive office of the department to replace the current system of independent providers.

A department spokeswoman said a working group has been established to determine where the service should be based and to prepare for the opening of the GAL office.

Noble, McKittrick and other GALs The Irish Times spoke to agree social workers are overworked and underappreciated. The churn of staff means GALs are now often the more constant presence in a child’s life and the “elder statesman” in a case, said Noble.

Marie Gilmartin, a GAL with Tigala, said social workers she meets daily go “above and beyond” and work way beyond their contracted hours. The profession must be recognised “as the specialism it is”.

Gilmartin, a former social worker, said she only brings a court application concerning a child’s placement or welfare when other options have been exhausted. Often the move to court comes after a social worker has “made all the requests, filled in all the forms and done all they can on the ground”.

Noble said many social workers find it “incredibly frustrating” that each decision relating to a child must “go up the chain and down and around about”.

Most court applications brought by GALs are unopposed, with social workers often “very supportive” of the moves that frequently lead to issues being resolved faster, he said.

More difficult to solve through the courts are problems securing services from other State bodies, such as the Health Service Executive and the Department of Education, as court orders in these child care cases can only be made against Tusla, he said. Tusla is “on the hook for a lot of things that are not its responsibility”, while agencies like the Child and Adolescent Mental Health Services are essentially “untouchable” to the courts, he said.

[ How has Tusla found itself at crisis point in its care of vulnerable children? ]

McKittrick believes social workers have “an almost impossible task” and the issues are wider than Tusla.

“It is the system that gets to them. It is the frustration of seeing what a child needs and not being able to get it.”

Former social workers joining Barnardos as GALs “tend to stick with us because it is the reason they came into social work: to work with families and to make a difference”.

For McKittrick, it all comes back to valuing social work as a profession and believing that all of the State’s children should be properly cared for.

“For us as a nation, these are all our children. We are responsible for them.

“The whole of Government needs to look at whether we are treating these children in a way we treat our own, because anything less is not good enough.”