The guardians of the voice of the child

After the tragic death of Sinéad O’Connor’s 17-year-old son Shane in January, the singer publicly thanked his guardian ad litem through social media.

She said on Twitter that the guardian, Colin Hall, was "adored by Shane and me", adding ,"you did your best Colin, thank you".

It was a rare, high-profile acknowledgment of a guardian ad litem (Gal), albeit in the saddest of circumstances.

Generally, Gals are appointed by courts to represent children in State child care cases. All hearings are confidential, to protect the privacy of the minor, so the work of these guardians goes under the public’s radar. In the absence of any national oversight, too, legislative reforms are being prepared to regulate the guardian ad litem system.

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The role of a guardian ad litem is to convey the “voice of the child” to a judge but also to give a view on what they believe is in the child’s best interests. The two do not always concur. “A child might say ‘I want to go back home’. Yes, you listen to it and let the judge know, but that doesn’t mean to say I will be supporting it,” says Hall, speaking generally about the nature of his job in an interview with The Irish Times. “I might be thinking that’s not going to work; it’s going to be a disaster.”

Older children may be invited to meet a judge in private and, if a guardian has been assigned to the case, he or she would usually be present, not the social worker, he says. “It’s a great experience for the teenagers because they feel they are being listened to.”

Freda McKittrick, head of the Guardian ad Litem Service at the children's charity Barnardos, says: "The voice is the incredibly important piece but the interests is where we really make a difference." She cites a recent example of a 15-year-old girl, who had been in care for a year and, while it still wasn't possible for her to go home, the discussion was for how long a further care order should be made.

The social worker was looking for a two-year care order, says McKittrick, giving the parents time to turn around the home situation. But, as the girl’s Gal, she believed the care order lapsing at age 17 would be quite disruptive.

Whereas, “a three-year care order would have taken her up to her 18th birthday, which would have meant she had a full entitlement to after-care services”. It would also allow her to plan for the transition from school to college.

Explaining her view, McKittrick told the girl “It is up to you. You are smart, you are able, if you want a one-year care order I will say that on your behalf.

“But she went, ‘No, I want a three-year care order – I want to know where I am going to be for the next three years.’”

I always ask myself what is in the kid's best interest?

Reunification of families is always top of the agenda, but it’s not always possible, says Hall, who acts as guardian for children ranging in age from 17 down to newborns. “I always ask myself what is in the kid’s best interest? With some kids, no matter what their experience has been, a lot of them will remain loyal to their mams and dads, regardless of the horrendous things that have happened to them. Then there are other kids who make it quite clear that they don’t want to go back home.

“I have 15 and 16 year olds saying that now, for very good reasons. The judges will listen to that, and acknowledge it.”

When assigned by a court to a new case, “the first thing you would do is contact the social worker, meet up with them and review the files”, Hall says. “You would also arrange to meet the parents or the carers and, more importantly, you go to meet the child or young person. It is getting a relationship going with the kid that is most important.”

He won’t just sit in the foster carer’s house to talk to the child, but will take them on outings, say bowling, or to a fast-food restaurant or the zoo. “Then you can have your chat, when they’re relaxed and comfortable. That relationship bit is crucial. Same with foster carers. I am always there for them. It’s seven days a week.”

Like the vast majority of guardians, Hall had a long career as a social worker before setting up as a Gal, in 2013. He is attached to the independent Tigala agency, which vets and supports all the guardians on its panel, as does Barnardos with its Gal service, but they work as independent contractors.

He can get phone calls from parents, foster carers, children, at any time of day or night, which is fine with him. “My view is that life doesn’t stop when the office closes at 5pm. I’m not in the office anyway,” he says of Tigala’s base in Smithfield, Dublin.

“All people want is a bit of advice and reassurance because they are not sure of something. It is a full-on job,” says Hall, who estimates that he has at least 20 cases on his “books” at any one time.

“You have to go back into the court every 28 days to renew the interim care order. Once a case is running smoothly, so to speak, it is a matter of updating every 28 days, to let the judge know what progress is being made or whatever.”

The time it might take from a first, temporary care order being sought by the State for a child, to a full care order being granted, will depend on the circumstances. With some it might be done in six months to a year but he has seen others run for two-three years.

A parent capacity assessment might be needed to be done by a social worker or psychologist, and that can take a few months. You might have parents with addiction issues who are going in for treatment.

Acting recently on behalf of siblings aged six months and 18 months, you have got to consider “proportionality”, he says, when recommending what’s in their best interest. For children of that age, a care order might be made for two years and then reviewed. “Having said that, I have had a nine month old where the order was made until 18 for very good reasons and that was the right decision.”

You don't know what adverse experiences those parents had when they were being parented, and the cycle continues

The courts like collaboration, he says, with all sides working in the interests of the child, and the guardian can play a vital, independent role between parents and social workers. “If you have been on the other side of the fence, you know what it’s like for the social workers. They are the ones who usually get it in the neck in court. Any criticism is aimed at them rather than myself.”

Some parents do not think they have any issues with their capacity to care for a child and will minimise, say, their addictions. You don’t know what adverse experiences those parents had when they were being parented, he says, “and the cycle continues”.

Over the years he has realised that the problems are so entrenched with some parents, they just can’t be fixed. “More importantly, the kids can’t wait around for ever for their parents to be fixed. They need security and they need stability.”

When you’re working with kids who have been physically and sexually abused, “you see some horrible stuff”. Also in cases of chronic neglect. “People underestimate the damage that does to kids as well, especially the younger ones.”

Hunger drives children to go out shoplifting or rooting through bins for food. “It’s scandalous in this day and age, but that’s what happens; there are a lot of kids suffering out there.”

Addiction, whether that’s alcohol or drugs, mental health and domestic abuse are the key factors in most cases of children being taken into care. Some parents come to the realisation that it is for the best, he says, and if the care order is to be reviewed in a year or two, “that gives them hope”.

But however hard they try to tackle their addiction, a lot of them just can’t do it. “It’s sad. It comes to a choice, heroin or the kids, and heroin is going to win every day, that’s the reality. Or crack cocaine I should say now.”

Sadly, he has seen many addicts do really well, physically and mentally, in residential treatment. “Then they come out into the same rotten situation they were in before. Going back to a hostel, say, and then they are back into it [addiction] before you know it, awful.

“You have got to be so confident that if a child is going to go back in [to family], it has a really good chance of working. Otherwise, it’s in care, out of care, in care, out of care – that’s bad practice.”

There are about 6,000 children in the care of the State. Whether or not a Gal is appointed to a case is up to the individual judge. A 2015 report estimated there were 65 guardians ad litem operating around the State, either in groups or as individuals.

Gals are discharged after a permanent care order is made, but will then see the children again at 17, says Hall, to plan for after-care.

“When kids reach 18 I always make a big fuss about that. I will bring them out for dinner with the foster carers or whatever. It is a big, big moment for them. They get anxious too when they come up to 18.”

Every child in care has been through some trauma, or other adverse event, and then they have been separated from their family. No matter how awful the family is, it still hurts children to be separated from them

However, he thinks the after-care service in Ireland is “excellent.  I couldn’t fault them.” There is a vulnerability among these young adults, he acknowledges, but many continue to stay with their foster carers, while others opt to live “semi-independently” and are provided with accommodation.

Part of a Gal's role can be advocating for health services for a child. The most recent bulletin from the Child Law Project, published on February 14th, included a report on the case of a "deeply troubled", self-harming, secondary school student. The court heard that the Gal could find no evidence in her files of her having ever received any therapy. Although her GP had referred her to Camhs, she was not deemed to be sufficiently high priority to be placed on its waiting list.

Concerned that the girl had seemed to “slip through the cracks” in services, the judge directed an immediate assessment.

McKittrick welcomes new protocols between Tusla and the HSE that recognise that children who are in care have additional clinical vulnerabilities, over and above those in the community, and should be prioritised. However, “we are yet to see if it is going to work in practice”.

Every child in care has been through some trauma, or other adverse event, she points out “and then they have been separated from their family. No matter how awful the family is, it still hurts children to be separated from them.”

Unlike in child care proceedings, there is no legal provision for the appointment of Gals in private family law, where written reports on children's views can be requested. However, insufficient information is available about what is happening in practice to assess how well this works for children, says the Ombudsman for Children, Dr Niall Muldoon. He is concerned children may not be getting the opportunity to exercise their right to be heard in certain circumstances.

“The rationale for providing for child views experts in private family law proceedings and Gals in child care proceedings is not sufficiently clear,” he says. “Arguably, we should have Gals in both types of proceedings.”

System reform

Long-awaited reform of the guardians ad litem system is promised in legislation currently being drafted.

Earlier attempts fell with the dissolution of the Dáil in February 2020, but last autumn the Government approved the Heads of the Child Care (Amendment) Bill 2021. It will provide a statutory framework for the appointment and regulation of guardians, along with the setting up of a national Gal service.

“This is a really significant piece of legislation in terms of giving effect to children’s rights under article 42A of the Constitution to be heard and to have their best interests treated as a paramount consideration in care proceedings affecting them,” says the Ombudsman for Children, Dr Niall Muldoon.

“Given the serious and sensitive nature of care proceedings, the profound implications that decisions made in these proceedings can have on the children concerned, and that these children can be very vulnerable and have complex needs, it is vital that this legislation serves children well and that it progresses now without any further undue delay.”

The idea of a national agency for Gals is welcomed by Freda McKittrick, head of the country’s largest Guardian ad Litem Service, at Barnardos. While there are guidelines about the qualifications and experience people need to do this work, there is no “over-arching scheme” to monitor those who set themselves up as Gals.

Referring to the recent revelations in South Kerry Camhs, she says: “If we are to learn anything, any service for children needs structure, governance and oversight, and standards.”

Currently, a child could receive a really poor service from a Gal and “nobody would be able to do anything about it, expect to choose not to use that person again”.

What is missing is a family court welfare service, she says. Such a “one-stop shop” would allow families to access a range of services, whether they’re before the court for child care matters or family law matters.

The reform of Gal arrangements through the Child Care (Amendment) Bill is one of several really important reforms currently under way, says Muldoon. These include the Family Court Bill, which is being drafted to establish a dedicated Family Court within the existing court structures.

The Family Justice Oversight Group established by the Department of Justice has been working since early 2021 on developing a vision and associated objectives for a national family justice system. The Courts Service is working on the modernisation of family law courts structures. And the Department for Children, Equality, Disability, Integration and Youth is progressing the first comprehensive review of the Child Care Act 1991 since it was first enacted 30 years ago.

“What we need to see emerging for children from these reforms,” he adds, “is a fully child-centred system – a system that is supported by legislation, resources, co-ordination structures and data to provide an interdisciplinary, accessible, inclusive and empowering service to children.”