2026-02-19

93. Deputy Claire Kerrane asked the Minister for Children, Disability and Equality the reason she will determine legal representation for guardians ad litem in childcare court proceedings; the rationale for this change under the new service; and if she will make a statement on the matter. [13521/26]

I want to raise with the Minister once again the changes being made under the new guardian ad litem, GAL, national service, and specifically the issue of legal representation for GALs in court proceedings and the change that will see the Minister determine whether such legal representation is allowed in court. Could she provide to us the rationale for the change?

The Child Care (Amendment) Act 2022, which provides for reform of the GAL system, was signed into law on 19 July 2022. This is a very important consideration. The passing of this legislation enables my Department to establish the GAL national service as an executive office. This executive office of the national service carries out functions on behalf of the Minister. A GAL is a qualified and experienced professional who meets the child, gathers their views and provides an independent report to the judge. GALs are expert witnesses in court. There is no requirement for them to automatically have legal representation in every single case. The GAL national service holds the view, supported by the Attorney General’s office, that the legal advice provided to GALs is legally privileged. Legal advice will be available to GALs through in-house legal teams or procured legal services. Legal advice will be available to them at all times. The head of legal services unit will have responsibility for ensuring legal advice and representation are provided. Section 35D of the 2022 Act sets out the grounds by which the Minister shall, in the best interest of the child, determine the provision of legal representation. These grounds include the views of the court, the GAL's intention to make an application for legal representation, and the opinion of the GAL in relation to any application made in the court proceedings. In regard to the latter, I refer to where a particular issue is being flagged or raised by the GAL. There are specific scenarios in which legal representation will be provided to a GAL, namely special care applications and applications under the Mental Health Act. GALs may also make an application to have “such rights as a party”, and legal representation will be provided in these cases. The current measure, as set out in section 26 of the Child Care Act 1991, makes no provision for legal representation for GALs. It is interesting that there has been none whatsoever up to this point.

I thank the Minister. I want to be very clear that the national service is needed. I have no issue whatsoever with it and do not believe the vast majority of GALs have either. However, with regard to what is being proposed under the national service, legal representation has been raised by GALs. I take their point because they have decades of experience in some cases. It is really important that we listen to them. I cannot understand why the provision exists. Is there an understanding that GALs are choosing to have legal representation that is not needed? Of course, it is not needed in every case, but I could not understand why a GAL would look for legal representation unless it was needed. This is all for the child; there is nothing in it for the GAL. It is all about the child and representation for the child in court. What is the rationale for what is being done now?

I reiterate that this was signed into law on 19 July 2022. At all times, legal advice will be available to GALs. If there are particular reasons for legal representation, such as its being recommended by the court or the GAL wishing to make an application where a case is particularly complex, it will be provided for. In the main, however, we have to be clear about the role of the GAL. He or she is an expert witness in the court proceedings. That is the bottom line. If, however, a GAL wishes to make an application, legal representation will be provided. It will be provided at all times outside these circumstances. It is interesting to note that until the new legislation was signed into law on 19 July 2022, there was no provision at all for legal representation. Therefore, the current provisions are actually a step forward.

I welcome the fact that the Minister is to meet the GALs next week. My understanding from engaging with them is that legal representation always existed where they needed it. They could seek it and have it, and there was no issue in that regard. Now, however, they will have to seek it through an application to the service. If GALs were choosing to have or seeking legal representation without merit, it would make no sense because there would be nothing in it for them. My concern is that a GAL who may be new to the role and who may or may not be an expert witness must face at least one at two legal representatives on the other side when in court. I raised this with officials of the national service when we met them. They were good enough to come in and brief the committee. I was told that if there is an issue in court and something happens, legal representation will be reconsidered. That is not to the benefit of the child in any shape or form. That is the concern being raised, and it is being raised in a genuine way.

I absolutely accept that this is being raised in a genuine way. I 100% accept the Deputy's bona fides and the bona fides of the GALs and everybody else. At the end of the day, everybody wants the best outcome for the child. I have no difficulty with the concerns and the issues being raised. I 100% accept that. The Deputy has made the point that, heretofore, the practice has been that when a GAL required legal representation, they always got it. That is not changing. When a GAL needs representation, in the first instance, they are an expert witness. If that changes, they need to bring an application where legal representation will be required, and legal representation will be provided for. If there is a particularly complex issue or whatever arising, and if the court or the GAL believes that the complexity requires legal representation, that will be provided for. We cannot conflate the issue that they are first and foremost expert witnesses. If there is a change in circumstance and legal representation is required, that will be provided for.