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Select Committee on Justice, Home Affairs and Migration debate -
Tuesday, 9 Jun 2026

Guardianship of Infants (Amendment) Bill 2026: Committee Stage

An Cathaoirleach

Apologies have been received from Deputy Catherine Callaghan. A number of items in the Dáil are clashing with this and I am told some members may have to come and go. I remind members to turn off their mobile phones or switch them to flight mode. This select committee has been convened to commence Committee Stage of the Guardianship of Infants (Amendment) Bill. I welcome the Minister, Jim O'Callaghan, and his officials to the meeting and I also welcome those in the Public Gallery. I particularly welcome David French, who has been instrumental in bringing this legislation to this point. Tá fáilte roimhe. It is important to note that to participate in any division in committee, members must be physically present. They cannot vote from a remote location.

I advise the committee that as I have tabled amendments to this Bill, I will at some point need to vacate the chair when they are under consideration. We now proceed with consideration of the Bill. Does the Minister have any opening remarks?

Minister for Justice, Home Affairs and Migration (Deputy Jim O'Callaghan)

I thank the Chair and the select committee for convening this meeting to hear Committee Stage of the guardianship of infants Bill. It got universal support in the Dáil on Second Stage. My priority is to try to expedite the enactment of it and I know that is the objective of this committee too. Like the Chair, I welcome David French and commend him on the excellent work he did in pointing out to policymakers the fact there was a major gap in the legislation that needed to be corrected. It is because of his narrative and the commitment he has given to the memory of his sister, Valerie, that this legislation is so important for policymakers.

NEW SECTIONS

An Cathaoirleach

Amendments Nos. 1 to 3, inclusive, and 9 are related and may be discussed together.

Deputy Jim O'Callaghan

I move amendment No. 1:

In page 3, between lines 9 and 10, to insert the following:

“PART 1

PRELIMINARY AND GENERAL

Short title, collective citation and commencement

1. (1) This Act may be cited as the Guardianship of Infants and Child Care (Amendment) Act 2026.

(2) The Child Care Acts 1991 to 2024 and Part 3 may be cited together as the Child Care Acts 1991 to 2026.

(3) This Act, other than Part 3, shall come into operation on such day or days as the Minister for Justice, Home Affairs and Migration, after consultation with the Minister for Children, Disability and Equality, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.”.

Amendments Nos. 1, 2, 3 and 9 are technical amendments aimed at ensuring there is full clarity on the policy intent of the legislation in respect of the appointment of guardians ad litem and the provision to them of legal representation under the guardian ad litem national service. It is proposed to restructure the Bill into three parts. Preliminary and general provisions will be set out in Part 1, provided for by amendment No. 1, which inserts a new section 1, providing for a revised Short Title and collective citations referencing the amendments to the Child Care Act 1991. It will also provide for Part 3 of the Bill and amendments to relevant provisions of the Child Care Act 1991 to commence on enactment, while the remaining sections will commence by order. This will replace the existing section 4.

Amendment No. 2 will replace the existing section 1 and insert a new section with definitions for the Act of 1964 and the Act of 1991. The existing sections 2 and 3 will be in Part 2 of the Bill setting out the amendments to the Guardianship of Infants Act 1964 that were debated on Second Stage.

Amendment No. 3 updates the reference to the principal Act in the existing section 2 to the Act of 1964. Similarly, amendment No. 9 updates the reference to the principal Act in the existing section 3 to the Act of 1964.

Amendment agreed to.

Deputy Jim O'Callaghan

I move amendment No. 2:

In page 3, between lines 9 and 10, to insert the following:

“Definitions

2.In this Act—

“Act of 1964” means the Guardianship of Infants Act 1964;

“Act of 1991” means the Child Care Act 1991.”.

Amendment agreed to.

Section 1 deleted.

SECTION 2

Deputy Jim O'Callaghan

I move amendment No. 3:

In page 3, line 13, to delete “Principal Act” and substitute “Act of 1964”.

Amendment agreed to.

Deputy Gary Gannon took the Chair.

An Cathaoirleach Gníomhach (Deputy Gary Gannon)

Amendments Nos. 4 and 5 are related and may be discussed together.

Deputy Matt Carthy

I move amendment No. 4:

In page 3, to delete lines 27 and 29, and in page 4, to delete lines 1 to 12 and substitute the following:

“12C.(1) Where a person (in this section referred to as the ‘convicted guardian’) who is a guardian of a child is convicted in the State of the murder or manslaughter of a person who was, at the time of the commission of the offence concerned, another guardian of the child concerned the Child and Family Agency shall, as soon as practicable but not later than 3 months after the conviction or any extension of that period under subsection (2), apply to the court in that behalf for an order under subsection (3).”.

I thank Deputy Gannon for taking the Chair. I did not think it would move as quickly. Amendment No. 4 seeks to strengthen section 12C by requiring the Child and Family Agency to apply to the court in every case following a conviction. As it currently stands, 12C(1)(b) introduces a discretionary test that could limit applications where reasonable cause is not established. That contradicts the Minister's stated intention that applications would be made in all cases. A conviction for the murder or manslaughter of a core guardian is, in itself, sufficient evidence of a fundamental breach of the duty to the child. No further threshold should apply. Removing discretion ensures consistency, protects the child and avoids the risk that the legislation becomes ineffective in practice. I hope therefore that the Minister will accept the amendment. The amendment should be read in conjunction with amendment No. 5, which introduces an exception to the provisions in relation to the restriction of guardianship rights where a conviction for manslaughter arose from self-defence or domestic violence. It ensures courts can consider context, protects victims of abuse from unjust outcomes and prioritises the child's best interests and welfare.

These amendments go the heart of why we need Valerie's law in the first place. I spoke to the Minister on a number of occasions about the concern that Tusla might consider that it has competing priorities in terms of family union and also then the provisions of this legislation. It is imperative, as a general rule, that Tulsa brings an application under this Act to the courts, which will ultimately decide. Amendment No. 5 creates a provision that deals with the anomaly that the Minister raised during previous discussions, which is the concern that perhaps somebody who was a victim of domestic violence or who was acting in self-defence could fall under the scope of this law, which has never been the intention.

Deputy Jim O'Callaghan

I thank Deputy Carthy for both these amendments. I fully appreciate he, like everyone in this room, is trying to ensure that the legislation we enact is as effective as possible from the perspective of ensuring that the welfare of children is prioritised if they find themselves in the awful position where one guardian has been convicted of the murder or manslaughter of another.

In amendment No. 4, Deputy Carthy proposes two substantive changes. First, he suggests that the period of six months that is in the Bill, which was approved on Second Stage, is changed to three months and, second, he proposes that 12C(1)(b) be deleted. I will return to that presently. In respect of the period of three months, Deputy Carthy will be aware that the requirement in the legislation at present is that the application be made by the Child and Family Agency as soon as is practicable. The statutory obligation is for the agency to bring the application as quickly as possible. The legislation states not later than three months after the conviction, or an extension of that period.

I am going to stick with six months because the statutory requirement will still be there to move as quickly as possible, but it will also be the case that in some cases time will be required to put together papers, to ensure that necessary reports are available, and to ensure that the application process to the District Court is commenced within the period set out. On advice and on the basis of the nature of the applications being made, it is preferable that when the application is made in the first instance it continues, as opposed to an extension being applied for by Tusla in order for it to get further time. I cannot accept the first part of amendment No. 5, which is to reduce the period from six months to three months but I agree, and I hope Deputy Carthy recognises, that the primary statutory obligation on the Child and Family Agency is to ensure that the application is brought as soon as is practicable.

The second proposal put forward by Deputy Carthy in amendment No. 4 is that he suggests the removal of 12C(1)(b). That is the part that states:

the Child and Family Agency has reasonable cause to believe that the convicted guardian has failed in his or her duty towards the child concerned to such extent that the safety or welfare of that child is likely to be prejudicially affected if an order under subsection (3) is not made by the court

In bringing forward legislation, I have to be conscious of challenges that may be made to the legislation. When we are in the statutory business of trying to remove or restrict guardianship rights from an individual, we can be fairly sure that people will seek to challenge it. The reason paragraph (b) is included is based on the constitutional threshold for State intervention in the family. This is important for both of the amendments in this group. The second part of amendment No. 4 removes this test before Tusla brings an application. I have been advised that the requirement that Tusla considers whether it is reasonable to believe that the convicted guardian has failed in his or her duty towards the child is essential to ensure that the Bill is sufficiently robust to withstand a constitutional challenge. It is important that Tusla believes that there is a reasonable prospect of the court making an order prior to bringing an application for that order. In circumstances where Tusla were to bring an application without being satisfied that there is reasonable cause to believe that a failure of duty had occurred, which the court must be satisfied of before making such an order, such an application would be likely to fail.

I am not going to accept the proposal from Deputy Carthy to delete paragraph (b). It would expose the legislation to a constitutional challenge. I am conscious that we cannot be certain as to what the outcome of any court analysis would be, but I would be concerned if it were simply the case that Tusla was not required to consider the impact, or the fact that it would be detrimental to the interests and welfare of the child. If that is not considered by Tusla, it will then just be presented as an extra penalty that has been added on a person who is convicted of the killing or manslaughter of the other guardian of the child.

As has been repeatedly stated by David French though, any person who is responsible for killing their child's other guardian has committed an act that is detrimental to the welfare and interests of the child. That statutory test is a very low statutory test that will be overcome. Deputy Carthy mentioned the example of someone who in self-defence, or as a result of prolonged subjection to domestic violence, may find themselves in the situation where they are convicted of the manslaughter of their partner. There could be situations where Tusla then says that this is not the type of case where it is appropriate to seek to remove the guardianship from that woman because in general that would be the case. I cannot accept amendment No. 4 and the two proposals in respect to it.

With regard to amendment No. 5, I fully appreciate what Deputy Carthy is seeking to do. He is trying to deal with a situation that could arise where, and let us be frank about it, it could be the case where a mother has been repeatedly subjected to domestic abuse and violence, and in an act of self-defence or due to provocation, she finds herself being found guilty of the manslaughter of the person who was perpetrating domestic violence upon her. There may be situations in that scenario where it is not appropriate to remove the guardianship rights from the mother. However, and I say this with the greatest of respect for Deputy Carthy, rather than trying to set out a strict statutory test, it is preferable to leave the discretion to the court, so that a judge will know the circumstances of what has arisen. Tusla can take into account paragraph (b) in terms of bringing the application, but it is much preferable that we leave that broad discretion to the courts.

For instance, in amendment No. 5, one of the requirements has to be that the act giving rise to the conviction was committed in self-defence. If somebody is found not guilty, or if a woman is found not guilty because it was self-defence, the issue will not arise. She will not be brought before the court. How is the District Court going to look at this and say the mother has been convicted of manslaughter, the jury rejected the defence of self-defence but we still think there is a self-defence element to this? These are very hard procedures to set out in a rigid statutory test and that is why I think it is preferable to leave it the way it is, where the court will take all the circumstances into account, predominantly with regard to the best interests of the child. If it is a case where a mother has been convicted of the manslaughter of the other guardian of the child or children, that is a factor that can be taken into account by the court, or indeed Tusla in bringing the application. Notwithstanding the sound reasons for Deputy Carthy wanting to advance this issue, I think a rigid statutory test is not the way to go and we are better off to leave it as it is.

Deputy Matt Carthy

I want to put on the record at this point that I welcome the progression of this legislation, which is aimed at restricting guardianship rights in situations where somebody has murdered the other parent of their children. Most people would see that as common sense. Mr. David French, as was mentioned, has done society a great service by highlighting the deficiency in the law. He has done Valerie's memory proud in everything he has done in ensuring there is legislation enacted that will protect the best interests of children whose parent has killed by another parent.

The insights that Mr. French brought to this committee during the pre-legislative scrutiny process have to be the guiding lights that we follow when pursuing this legislation. We also have to be mindful of the evidence and the legacy we have seen in regard to how Tusla approaches these cases, and then acknowledge that this legislation leaves huge authority, discretion and decision-making in the hands of an agency that never saw the need for this legislation in the first place. The Child and Family Agency, in my view, should have been the people campaigning for this, not a bereaved family. We cannot ignore that and, yet, the legislation is creating a space between a grieving family and the courts for making an ultimate decision. Everything the Minister has raised by way of questions are ultimately decisions a court should be deciding in respect of guardianship rights. That is the purpose of this legislation. The difficulty is that only Tusla, under this legislation, can actually bring the application to the courts, not a grieving family, the Garda or the prosecuting solicitors - only Tusla. I will not say Tusla does not agree with this legislation but it has not embraced it by calling for it in the first place. Therefore, the instances in which Tusla would not bring such an application to the court should, in my view, be absolutely minimal. Amendment No. 4 seeks to address that by actually placing an incumbency on Tusla to bring such an application for the courts to ultimately decide.

The Minister has said he has been advised that this amendment is not the correct way. Can I ask if that advice was received from the Attorney General's office? Is it the Attorney General who has given legal advice that this amendment would be unconstitutional? My take is that it is not unconstitutional because it is in no way infringing on the ultimate arbiter of these matters, which is an appointed judge. The judge will still make the judgment based on the law and the Constitution, as is the case.

There is an urgency in these cases and that is why we have proposed reducing the timeframe in which Tusla would act, or reducing the maximum timeframe from six months to three months. If the Minister were to accept the second aspect of the amendment, which is to remove what I would consider to be the discretion that Tusla has, I think all Members of the Opposition would be open to that type of a compromise if the Minister said that the six months is really important to ensure that these things are dealt with appropriately. The more important aspect is the removal of the discretion that Tusla currently has. I think that is critically important because that is the evidence this committee heard at pre-legislative scrutiny. The concern that was raised was that Tusla, in some instances where it might be deemed by most reasonable people to be the appropriate thing to do, may not bring forward an application.

In respect of amendment No. 5, what I have tried to do in this amendment is ensure that, in regard to the anomalies that could arise where somebody has, perhaps, been convicted of manslaughter and that conviction arose out of a situation of domestic violence, there would be a provision in law for the judge to take that into account when making a decision. If the Minister or his Department have a better frame of wording for that, we would absolutely be open to accepting that on Committee Stage. With those couple of questions, I would ask the Minister to approach amendment No. 4 in particular from a different perspective.

An Cathaoirleach Gníomhach (Deputy Gary Gannon)

I thank the Deputy. Before I go to the Minister, do any other members wish to ask questions or make comments? No. If that is the case, I will ask a quick question.

How exactly was the six-month period in amendment No. 4 determined and was Tusla involved in the operational advice on that six-month period? On amendment No. 5, I listened to the Minister's comments about not having a rigid statutory test for judges. Is the opposite of that not a worse outcome, in a sense, where judges do not actually have any guidelines from the Oireachtas, as we present the legislation, as to how they would come to a determination on such a serious issue?

Deputy Jim O'Callaghan

I thank the Cathaoirleach Gníomhach and Deputy Carthy. I will deal with Deputy Carthy first. On the first point he raised, I think he is critical of Tusla. I will not make any comment in respect of that other than to say that Tusla has, I think, one of the most difficult statutory jobs that any statutory agency has. It is appropriate that this is a public response to an event that has occurred and that is why it should be a public entity that brings the application. The alternative is that we just leave it as a remedy that can be brought by a family member. Not every family has a David French or somebody with that level of commitment. They could find themselves in a situation where it is clearly in the best interests of the child for the surviving convicted guardian to removed or restricted but members of the family decide not to bring the application. We cannot have a situation where it is just a discretionary remedy available to a family to bring. If it is going to be a public body or statutory agency, the only appropriate statutory agency is, I think, the Child and Family Agency. There is no other statutory agency available. I am not going to start setting up another statutory body to deal with statutory applications that we hope will be and, realistically, will be very minimal in respect of the numbers that are brought. That, I think, deals with the issue of why Tusla and why not the family members.

In regard to the provision in paragraph (b) about there having to be a test to ensure Tusla believes it is in the best interests of the welfare of the child that the application be brought, I wish to let the Deputy know that the Attorney General's office has advised strongly that the failure of duty test is essential to ensuring that the Bill is constitutionally robust. Nobody is ever completely and definitively black and white about whether something is constitutional, except on an issue like counselling notes, to be frank with the Deputy, which is another issue. However, in regard to issues like this, you go from areas of dark into light going through grey, but clearly, the advice here is that if you want to protect the constitutionality of it and ensure it is robust, then at that stage, you need to include paragraph (b).

Otherwise, a court looking at it might ask what it is about and where the reference is to it being in the best interest of the child. As David French has repeatedly said, what is essential in the legislation is that its primary purpose is to promote and protect the best interests of children who find themselves in that unfortunate situation.

Deputy Gannon raised two issues. The first was the six-month period and engagement. There was engagement with the Department of children and Tusla on the matter, since Tusla is the statutory entity moving it. I do not think there was any major debate or issue or a definitive stronghold about it being six months. I think it was just agreed by me and the Minister, Deputy Foley, and in discussions with Tusla that six months is appropriate. However, the test is that the application be brought as soon as reasonably practical - that is what is set out - and certainly no later than six months.

Deputy Gannon also asked about the rigid statutory test and there not being any guidelines. I will refer to some of the issues raised by Deputy Gannon. If we look at the amendments, there is a problem with Deputy Carthy's amendment No. 5. The proposed new subsection (8)(a)(i) states "the act giving rise to the conviction was committed in self defence". We would then have to get into a situation where, if the person was not acquitted, how we could say there was a determination that the act was committed in self-defence. That would engage all sorts of questions for a court to determine. It is better for a court to look at what is in the best interests of the child. For example, in circumstances where a mother has been convicted of the manslaughter of the male other guardian, a court will take all the factors into account and may say it is in the best interests of the children that the mother remain. However, once we start to set out the strict, rigid statutory test, we will tie ourselves up in knots. There is a benefit in giving courts that discretion.

I heard what Deputy Gannon said about there not being any guidelines. There is a clear guideline in the Guardianship of Infants Act. It is designed for the purpose of ensuring the best interests of children. That is the only guideline the court needs. That guideline is preferable to a rigid statutory test.

Deputy Matt Carthy

The Minister was loath to criticise Tusla and I agree with him on the point that the organisation has some of the most onerous responsibilities of any State agency. My difficulty is that it fails in a number of those responsibilities, largely due to resource pressures it is under. However, there have been occasions when Tusla has made determinations many others would not have considered to be in the best interests of the child. The difficulty is that Tusla has a framework in which it operates and the starting point is to try to keep families together. The difficulty with that perspective in cases like this is that it creates a huge anomaly, where a parent who has murdered the other parent is the legal guardian. There could be a logical view, from one perspective, that the parent should maintain guardianship of the child. Therefore, an application is not even brought to a court. Any duty for tests that will be applied will still apply. No one is suggesting that a failure of duty test be ignored, but it should be the courts that make that adjudication. It was possible to have legislation that did not put the onus on the family, An Garda Síochána or the prosecution, but allowed them the option to bring applications in the event Tusla decides not to do so.

I will ask a question about the six-month rule because the legislation the Minister has written allows this discretion to be applied. Essentially, it is analysed over six months by Tusla. What happens if there is an administrative error, something happens or it gets lost in the back cupboard and six months elapse? Is the Minister satisfied that a late application can be brought under this legislation? It is important to provide clarification on that.

Does the Minister accept the concern that, if a discretion is in place, ultimately, it could come down to someone who is not a judge to make what might be life-changing decisions in respect of children and their guardians? Does the Minister accept that the entire premise and spirit of this legislation could count for naught if the wrong approaches are taken by the wrong people at the wrong time?

Deputy Jim O'Callaghan

To answer Deputy Carthy's first question, section 12C(2) provides:

The court may extend the period for the making of an application ... where it is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) it is in the best interests of the child concerned to do so.

Therefore, to take into account the Deputy's example of a file slipping through the net, where people did not make the application within six months, there is clearly a statutory provision that allows for the extension of time, so it is covered.

The second issue the Deputy raised was whether a person who is not a judge will be making the determination. That is on the basis of paragraph (b), with which Tusla has to comply before an application is issued. I am not concerned about that. It is clear what the Oireachtas is putting in place. Any court looking at it will be clear. Tusla will be clear. It is to apply in circumstances where there has been the conviction for manslaughter or murder of one guardian of the other and it is in the best interests of the child for the application to be made. People are clear, and it is evident from what we are doing here, about what the purpose of this legislation is.

That also relates to the Deputy's last point about the spirit of the legislation. When the courts come to interpret legislation, they adopt a purposive approach and look at the words - the most important thing is the words - and interpret them and say it is clear what the Oireachtas is trying to do here. There is no doubt here. It is in the guardianship of infants legislation, which provides, when there is a conviction for murder or manslaughter, for the consideration of whether it is in the best interests of the child for the guardianship to be removed. Then an application has to be made and the court can determine whether to restrict the powers of the guardianship or to remove them.

It is my view that we are much better off giving broader powers to a court, which, unlike us, is able to look at the real, actual circumstances of these tragic cases, take into account all the individual circumstances and come up with an order that reflects those individual circumstances.

On the issue of Tusla deciding not to bring an application, obviously people can bring judicial review proceedings if it were ever to arise that the performance of Tusla was completely unreasonable. I do not believe it will ever come to that. Fortunately, the number of these murders, although they have an appalling impact on the families, is small. Therefore, when it occurs, I expect focus will be on them, applications will be brought promptly and proper judicial consideration will be given to them.

Amendment put:

The Committee divided: Tá, 4; Níl, 5.

Tá

Carthy, Matt.
Gannon, Gary.
Kelly, Alan.
Kerrane, Claire.

Níl

Brabazon, Tom.
Dolan, Albert.
O'Callaghan, Jim.
O'Sullivan, Pádraig.
Roche, Peter.

Amendment declared lost.

Deputy Matt Carthy

I move amendment No. 5:

In page 5, between lines 24 and 25, to insert the following:

“(8) (a) Notwithstanding subsections (1) to (7), this section shall not apply, or shall apply with such modifications as the court considers appropriate, in a case where the convicted guardian was convicted of manslaughter and the court is satisfied that—

(i) the act giving rise to the conviction was committed in self defence, or

(ii) at the time of the commission of the offence, the convicted guardian had been subjected to domestic violence (within the meaning of the Domestic Violence Act 2018) by the deceased guardian, and the offence occurred in circumstances materially connected to that history of domestic violence.

(b) In determining whether paragraph (a) applies, the court shall have regard to—

(i) any findings of fact made in the criminal proceedings,

(ii) any evidence of domestic violence, including patterns of coercive control, and

(iii) the best interests of the child concerned.

(c) Where paragraph (a) applies, the Child and Family Agency shall not be required to make an application under subsection (1), unless the Agency is satisfied that, notwithstanding those circumstances, there is a risk to the safety or welfare of the child concerned.

(d) Nothing in this subsection shall prevent the court from making an order under subsection (3) where it is satisfied that such an order is necessary and proportionate to protect the safety or welfare of the child concerned.”.

Amendment put and declared lost.

Deputy Matt Carthy

I move amendment No. 6:

In page 11, lines 9 to 12, to delete all words from and including “(1) An” in line 9 down to and including line 12 and substitute the following:

“(1) An application to the court for an order under this Part shall not be made in relation to the child concerned other than on notice to—

(a) each guardian of that child (including a victim guardian within the meaning of section 12D), and

(b) the next of kin of a deceased guardian of that child, where that deceased guardian died as a result of an offence referred to in section 12C(1), provided that a person shall not be regarded as next of kin for the purposes of this paragraph if that person has been convicted of that offence.”

This amendment ensures that all relevant parties are notified of court applications affecting a child, including the next of kin of a deceased guardian. Most people would recognise that as an important distinction - that the family of the guardian who has been killed is made a notice party in these proceedings.

Obviously, they have a clear and legitimate interest in the child’s welfare. That role should be recognised, respected and reflected in the process. This goes to the heart of the experiences that we have heard from Valerie’s family and others in respect of their rights and respect that should be afforded to the family of the person who has been killed in this instance. This amendment ensures they would be, at a minimum, informed of any proposed proceedings arising from this legislation.

Deputy Jim O'Callaghan

I thank Deputy Carthy for his amendment. Looking at what is contained within section 12I, we can see that the procedure requires that the people who are put on notice of the application are the guardians. Obviously, in the case of murder or manslaughter, the victim guardian is no longer alive, so that would not arise. As the Deputy knows, however, the legislation can also be triggered in circumstances where a serious offence has been perpetrated on the surviving guardian. In that instance, the convicted guardian and the surviving guardian would both be served with notice of the application being brought by Tusla. In section 12I(2), I have also provided that a relative of the child may “seek leave to be joined as a notice party”. The Deputy will see that I have provided a broad definition as to what a relative is in subsection 12I(3). For example, if a brother of the deceased wished to play a part in the proceedings, there is a statutory mechanism for him to make an application to the court and say, “I want to be heard in respect of this”.

The amendment that Deputy Carthy has put down requires that the application would be notified to the next of kin of a deceased guardian of the child. The reality in a particular family may be that the next of kin of the deceased has no relationship with the deceased or their child. In some circumstances, it may be difficult to identify or locate such people. This would pose a barrier to bringing in applications in a speedy manner if we are not able to serve the next of kin. It does not really provide any additional benefit for the child concerned. I am satisfied that section 12I, which I have just read, is sufficiently wide to facilitate the appearance in the court of family members in certain circumstances. I am satisfied that the provisions of that section permit a relative, which the Deputy will see is very broadly defined, to seek leave to be made a notice party to proceedings. That will provide relatives with an interest in proceedings to be involved to the extent appropriate and in the best interests of the child. That is more appropriate than ensuring that all relatives are notified. We cannot have a situation where all relatives are notified.

We also need to appreciate - this is part of the reason I took the responsibility away from family members to bring the application – that there is not always consensus in the aftermath of tragedies like this as to what should occur. I do not wish to put in place legislation that is going to have the effect of putting family members in conflict with each other when the sole and primary purpose is to do what is in the best interests of the child. For that reason, I will not accept the amendment.

Deputy Matt Carthy

I am disappointed with that response. I thought this would be the amendment the Minister would have most easily accepted, and that he would have recognised this is to ensure there is not an anomaly when a proceeding in respect of a child is brought forward where one of the parents of that child is deceased as a result of the crimes involved, but their family is not informed for whatever reason, be it oversight or otherwise.

The primary issue the Minister raised was about potential difficulties. There is a lot of provisional law he could bring forward in that regard. He could have brought forward an amendment to this amendment to insert a “where practical” clause. I would have happily accepted that. All the other arguments do not stack up. This is not an amendment saying that every family member should be informed. Rather, it is an amendment saying that the next of kin should be informed. If the next of kin either does not have a relationship or an interest in the child’s well-being, they will not show up. It is as simple and obvious as that. I will be pressing the amendment.

An Cathaoirleach Gníomhach (Deputy Gary Gannon)

Before I call the Minister, do any other members wish to make any comments or ask questions? No.

Deputy Jim O'Callaghan

Let us use the example of how this most probably will occur - a husband convicted of murdering his wife. Under the amendment put forward by Deputy Carthy, there would be a requirement for Tusla to put on notice the next of kin of the wife in respect of that application. First, we would have to determine who the next of kin is and how we would identify that. People provide their next of kin when they are going into hospital or when they do something dangerous, such as a dangerous sport or something. In general, however, we do not have a consistent person identified as a next of kin. To go back to the example, if it is a woman who, say, had three sisters and a brother, how would we identify who the next of kin is? Would we notify all of them? Would we notify her parents? If there is another child in the marriage over the age of 18, is that child a next of kin?

Deputy Carthy said that if they do not turn up to court, they do not turn up, but that is not how courts operate. If there is a statutory requirement for someone to be on notice of an application, the first thing the court will ask is whether the next of kin has been notified. It will ask for proof in that regard. The court will adjourn if the next of kin has not turned up on a specific day. Applications would be made saying that a next of kin is not available for another couple of weeks and so forth. We are broadening this out beyond the primary focus, which is for the court to focus on the best interests of the children.

In the case where there is a relative, or to use the Deputy’s term of “next of kin”, who is passionately interested in the outcome, such as David French, of course they can come along, make the application and say, “I am the brother of the deceased guardian. I would like to be heard and put on notice in respect of this application.” Reasonable requests like that will be considered by the court and most, presumably, will be granted. That is the better way to deal with it, rather than saying to Tusla that it must go off and notify whoever the next of kin is, something which is not specified, or any relative. That will just make it much more complicated.

I appreciate what the Deputy is trying to do. I know he used the word “disappointed” but it is not about me or the Deputy being disappointed. Rather, it is about doing what is in the best of interests of this statutory scheme so it works effectively. While I do not mean this to be disrespectful, I do not think that provision will improve the statutory scheme. It will make it worse and will disadvantage the hearing of the application.

Deputy Matt Carthy

I will press the amendment because the Minister, whether he intends to or not, is being a bit facetious. The next of kin is identified in every road traffic accident in the State fairly easily and obviously by An Garda Síochána. It is identified by other State agencies in other similar instances. I will press the amendment.

Amendment put and declared lost.

Deputy Matt Carthy

I move amendment No. 7:

In page 11, between lines 34 and 35, to insert the following:

“(1A) Where a guardian ad litem of the child, another guardian of the child, or a relative of the child (being a person who would be entitled to notice of proceedings under this Act) is of the opinion that an application under subsection (1) ought to be made in the best interests of the child, he or she may request the Child and Family Agency to make such an application.

(1B) The Child and Family Agency shall consider any request under subsection (1A) and, where it decides not to make an application under subsection (1), shall, on request, provide reasons for that decision to the person who made the request.”.

This is my final amendment. Again, it relates to page 11. Obviously, as has been discussed, the section as it stands gives the Child and Family Agency full discretion in dealing with convictions that occurred before the Act commenced. Without strengthening this provision to include other parties, as this amendment seeks to do, there is a risk that applications may not be brought in respect of legacy or historical cases. The amendment recognises that guardians ad litem, other guardians and relatives should have a role in prompting action where it is in the child’s best interests.

Given Tusla's own concerns around resourcing and identifying historic cases, as related to the committee, it is essential that those closest to the child can actually bring matters forward and ensure appropriate applications are made to the court.

Deputy Jim O'Callaghan

My response is very similar to previous responses. What the Bill seeks to do is put in a public law determination of what is the best interest of the child. That is the paramount consideration. I am concerned that delegating responsibility to certain other family members or giving them a say makes it a private matter to be determined by the family, which puts a lot of pressure on families as well.

As I said at the outset, Tusla is the State body with the function to promote the welfare of children, to identify children who are not receiving adequate care and protection, and to have regard to the rights and duties of parents, whether under the Constitution or otherwise. Family members are, of course, not precluded from engaging with Tusla. I accept that the Deputy is seeking to ensure that family members have a means to challenge a decision of Tusla where they determine that they should not make an application in retrospective cases. My problem with the approach is that it would potentially displace the procedure that exists for complaints about the actions of Tusla under the Child and Family Agency Act 2013. I would also have concerns that a duty to give reasons here and to a very broadly defined category of relatives may place Tusla in the position of having to provide information about the circumstances of a child which that child would not want disclosed to a particular relative. Where Tusla fails to appropriately exercise its discretion, however, those affected will have a remedy under judicial review. It is important that their standing to bring such a review would be based on the fact that they are affected rather than merely their relationship to the child.

Deputy Matt Carthy

This deals with convictions that occur before the Act has commenced. This is someone who, I would assume in most cases, would be serving a custodial sentence for the killing of the other parent and, under the law as it stands, they are considered to be guardians of the child whose mother, in most instances, has been killed. This allows family members of the mother to engage with Tusla and to prompt – not to direct or demand – Tusla to move on such instances. It does not confer an obligation or responsibility on them but gives them an opportunity to have their voices heard. I do not think it is an appropriate alternative that families who have been through all that would go to the expense and ordeal of seeking a judicial review.

An Cathaoirleach Gníomhach (Deputy Gary Gannon)

I am conscious Tusla has expressed some concerns about being given some form of litigation role in this area. It seems prudent there would be some sort of mechanism for families to have a voice. That is more of a statement than a question.

Deputy Jim O'Callaghan

I thank the Acting Chair and Deputy Carthy. The provision in 12J is a very significant provision. It creates a power for Tusla to bring an application, that we are only commencing some time this summer, for the purpose of bringing an application against persons convicted prior to the commencement of the legislation. The fact it is retrospective is very significant. A lot of consideration was given to it. I wanted it in the Bill and I think it is appropriate.

I would think it inevitable that any family member who finds themselves in a situation after this legislation is enacted where they would like to see Tusla bring an application will write to Tusla and ask it. I am not being dismissive of it but all Deputy Carthy’s proposed amendment says, in subsection (1A), is that he or she – the family member – or guardian ad litem may request Tusla to make such an application. That is something that is going to happen anyway and you do not need a statutory provision to give effect to that and say “By the way, under the law, I can ask you to do something”. You can ask it to do something anyway.

All (1B) says is if Tusla decides not to make an application, it will provide reasons. If it is the case that somebody, a relative, wrote to Tusla and said they wanted it to bring an application in respect of a person who was convicted two years ago of the murder of their sister, for example, I have no doubt that Tusla would respond to that person. We do not need a statutory scheme to say it should respond. Any courtesy will require it to respond to the letter. There is a benefit in people contacting Tusla to say they think it should bring an application, set that out and ask for consideration to be given to it. I am trying to ensure that it is the public body that brings the application, but certainly in terms of retrospective applications where there is a discretionary power on the part of Tusla, that will not preclude family members from contacting Tusla and asking it to invoke its powers under section 12J of the Guardianship of Infants Act.

Deputy Matt Carthy

There is a contradiction between the Minister's first and second responses. On one hand it is too burdensome and onerous to put this obligation on Tusla to have to respond in writing and then, subsequently, we do not need this at all as it will happen anyway. It cannot be both so therefore I will press the amendment.

Amendment put and declared lost.

Deputy Matt Carthy resumed the Chair.

Deputy Alan Kelly

I move amendment No. 8:

In page 11, after line 40, to insert the following:

“Report on operation of Part

12K.The Child and Family Agency shall, not later than 18 months after the coming into operation of this Part, report to the Minister on the operation of this Part and the Minister shall cause copies of the report to be laid before both Houses of the Oireachtas.”.”.

This is a very simple amendment, which is to insert a provision in page 11, after line 40, that there be a report on the operation of this Part. It provides that, "The Child and Family Agency shall, not later than 18 months after the coming into operation of this Part, report to the Minister on the operation of this Part and the Minister shall cause copies of the report to be laid before both Houses of the Oireachtas." I hope the Minister will accept this amendment. It seems really sensible that there be a reporting mechanism 18 months after the operation of this Part and that it would be laid before the Houses, given the legislation we are now discussing. The benefit of it coming from the Child and Family Agency might foment our thoughts regarding the legislation and any unintended issues or issues we may need to iron out.

Deputy Jim O'Callaghan

I thank Deputy Kelly for his amendment. I understand the purpose of it, but I remind him and other colleagues that, under the Standing Orders of Dáil Éireann, there is a requirement for a post-enactment report, "Twelve months following the enactment of a Bill, save in the case of the Finance Bill and the Appropriation Bill, the member of the Government or Minister of State who is officially responsible for implementation of the Act shall provide a report which shall review the functioning of the Act and which shall be laid in the Parliamentary Library." I know Deputy Kelly may say that is a provision that is breached more than it is complied with-----

Deputy Alan Kelly

It is, absolutely.

Deputy Jim O'Callaghan

-----but I can tell him that we do those post-enactment reports in the Department of justice. Sometimes it takes a bit longer than the 12 months but we do them and it is important to comply with Standing Orders. I do not think the Deputy’s amendment is necessary. However, I think it is important that, rather than giving the function to a statutory agency such as Tusla, it remain with the Minister responsible for the legislation to be the person to produce the report. Obviously when the post-enactment report is being prepared in respect of this amendment to the Guardianship of Infants Act, there will have to be engagement with Tusla. I do not know how many cases there will have been in the first 12 months but there will certainly have to be engagement with Tusla. I am concerned about giving that important statutory role to a statutory agency as opposed to the person who should be responsible, which is me or the Minister, Deputy Foley. Therefore with the greatest of respect, I am not minded to accept this amendment.

Deputy Alan Kelly

I am glad that for once we have a Minister who says he will completely adhere to Standing Orders. Every piece of legislation has to have a report done. However, in the majority of cases it does not happen. It does happen with the Department of justice. They are always late, but it does happen. We have raised it here a number of times. I am glad the Minister is going to prioritise that and do it hopefully within the year.

The reason why I said the Child and Family Agency is I thought it was appropriate. Given the fact that the Minister would have to adhere to Standing Orders to do his own report, we would have other eyes on it. That is why I put this in, but I will not be pressing the amendment.

Amendment, by leave, withdrawn.

Section 2, as amended, agreed to.

SECTION 3

Deputy Jim O'Callaghan

I move amendment No. 9:

In page 12, line 2, to delete “Principal Act” and substitute “Act of 1964”.

Amendment agreed to.

Section 3, as amended, agreed to.

NEW SECTIONS

Deputy Jim O'Callaghan

I move amendment No. 10:

In page 12, between lines 3 and 4, to insert the following:

“PART 3

AMENDMENTS TO CHILD CARE ACT 1991

Amendment of section 35C of Act of 1991

4. Section 35C of the Act of 1991 is amended by the substitution of the following subsection for subsection (3):

“(3) The power to appoint a guardian ad litem under subsection (1) includes the power to appoint a guardian ad litem for the child concerned in place of—

(a) a person who stood appointed for the child and whose appointment in relation to that child ceased in accordance with section 35O(2),

(b) a person who was deemed under section 35Q(1) to be appointed for the child and the order pursuant to which he or she was appointed ceased to have effect under paragraph (b)(ii) or (c)(ii) of section 35Q(2),

(c) a guardian ad litem who stands appointed for the child and is unable to perform his or her functions in respect of that child due to the absence or incapacity of the guardian ad litem, or

(d) a guardian ad litem who stands appointed for the child (in this paragraph referred to as the ‘relevant guardian ad litem’) where it appears to the Minister that there are good and sufficient grounds to so appoint for one or more of the following reasons:

(i) a complaint that relates to the performance by the relevant guardian ad litem of his or her functions under this Act is the subject of an ongoing investigation;

(ii) child safeguarding concerns arise in relation to the relevant guardian ad litem where there has been a report, under section 14 of the Children First Act 2015 or otherwise, of harm (within the meaning of that Act), or the risk of harm, being caused, or having been caused, to a child;

(iii) the child has requested that a different guardian ad litem be appointed for him or her;

(iv) the relevant guardian ad litem has requested that a different guardian ad litem be appointed for the child;

(v) the relevant guardian ad litem, having regard, in particular, to his or her obligations under section 35E(5), agrees that a different guardian ad litem be appointed for the child.”.”.

This is in respect of amendments to specific sections in Part VA of the Child Care Act 1991. This is not related to the guardianship of infants issue, which we were discussing. These technical amendments are aimed at ensuring there is full clarity on the policy intent of the legislation in respect of the appointment of guardians ad litem and the provision to them of legal representation under the guardian ad litem national service. Amendment No. 10 introduces a new section to amend subsection (3) of section 35C of the 1991 Act. The changes provide further clarity on the circumstances under which a guardian ad litem appointed for a child may be replaced and the procedures for their replacement. This provision addresses the administrative necessity to meet the requirements of a court order and appoint a replacement guardian ad litem for the child where the person appointed is no longer available or suitable for any of the reasons given. That is all in respect of amendment No. 10.

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 11 and 12 and amendment No. 1 to amendment No. 11 are related and may be discussed together.

Deputy Jim O'Callaghan

I move amendment No. 11:

In page 12, between lines 3 and 4, to insert the following:

“Amendment of section 35D of Act of 1991

5.Section 35D of the Act of 1991 is amended—

(a) in subsection (2)—

(i) in paragraph (a), by the deletion of “and”,

(ii) by the substitution of the following paragraph for paragraph (b):

“(b) shall provide, or arrange for the provision of, legal representation to the guardian ad litem—

(i) where the court making the order under section 35B(3) or 35H(3)(b) expresses the view—

(I) at the time that order is made, or

(II) at any time after that order is made,

having regard to the nature of the case, that it is necessary and in the best interests of the child and in the interests of justice that such representation be provided,

(ii) for the purposes of the guardian ad litem making an application under this Act in relation to the child, or

(iii) where an order has been made under section 35E(11), and”,

and

(iii) by the insertion of the following paragraph after paragraph (b):

“(c) may provide, or arrange for the provision of, such legal representation as the Minister considers appropriate to the guardian ad litem, having regard to all of the circumstances of the case, including the matters set out in subsection (3).”,

(b) by the substitution of the following subsection for subsection (3):

“(3) Without prejudice to the generality of paragraph (c) of subsection (2), the matters referred to in that paragraph to which the Minister shall have regard include:

(a) the views of the guardian ad litem having regard, in particular, to his or her obligations under section 35E(5);

(b) the nature of additional functions (if any) that the court, under section 35E(2)(d), has directed the guardian ad litem to perform;

(c) the nature and complexity of the evidence that the guardian ad litem may be required to give in the case;

(d) whether the court has made an order under section 25(2) appointing a solicitor to represent the child in the proceedings;

(e) whether the proceedings relate to an application on consent or otherwise;

(f) the nature and complexity of the proceedings.”,

and

(c) by the insertion of the following subsection after subsection (3):

“(4) Where under subsection (2)(b)(i) the court expresses the view that legal representation be provided to the guardian ad litem that view shall—

(a) where clause (I) of that subsection applies, be recorded in the order under section 35B(3) or 35H(3)(b), as the case may be, and

(b) where clause (II) of that subsection applies, be recorded in an appropriate form.”.”.

My amendments are technical amendments aimed at ensuring there is full clarity on the policy intent of the legislation in respect of the provision to guardians ad litem of legal representation under the guardian ad litem national service. Amendment No. 11 introduces a new section amending section 35D of the 1991 Act. This gives more detail of the circumstances and procedures for the provision of legal representation to guardians ad litem appointed to a child during the course of childcare proceedings. Paragraph (b) of subsection (2) sets out the situations when legal representation will be provided or arranged as a matter of course. Paragraph (c) also provides that legal representation may be provided in additional circumstances having regard to all the circumstances of the case, including the specific matters set out in subsection (3).

Amendment No. 12 is a further consequential amendment. The Long Title is updated to refer to the amendment of Part VA of the Child Care Act 1991 in respect of the appointment of and legal representation for guardians ad litem.

I will deal with Deputies Kerrane and Wall's amendment to amendment No. 11. I thank them for their amendment. I am not in a position to support it. I hope I can clarify why this is so. We are looking to achieve the same goal, which is delivering a consistent high-quality and child-centric guardian ad litem national service that strengthens children's rights and ensures their voices are central in court decisions in child care proceedings. The guardian ad litem national service is being established to ensure that children's voices are heard and their best interests independently presented in childcare proceedings by a guardian ad litem appointed by the Minister for children on foot of an order of the court. Guardians ad litem remain independent in the performance of their functions under the 1991 Act and the Minister will provide for objective legal advice and representation to be available to them as needed, which is legally privileged.

Subsections (1) to (3) of section 35D already establish a framework for the Minister to make available to the guardian ad litem such legal advice and representation as they will require. The amendments to subsections (2) and (3) of section 35D, which I am proposing on the initiative of the Minister, Deputy Foley, will embed into this framework a greater insight into the circumstances and procedures under which legal representation will be made available as a matter of course to guardians ad litem, and the factors that will be considered in other situations where legal representation may be provided having regard to all the circumstances of the case. I am satisfied that the resulting provisions in section 35D provide a more transparent, stronger and responsive framework of legal support to guardians ad litem, subject to legal privilege, than what is proposed in this amendment. This provides a significant safeguard to the guardian ad litem's independence. The provisions in subsections (1) to (3) already allow the Minister to arrange for the provision of legal advice and representation. A panel of solicitors will be in place on the commencement of the amendment Act 2022 to provide legal advice or representation as necessary. The purpose of the proposed amendment is not clear and does not appear to be necessary in the context of what is currently proposed in section 35D. It already provides clarity for the circumstances in which objective legal advice and representation is provided for guardians ad litem whereas this amendment does not provide such clarity. The approach to subsections (4) to (7), inclusive, would appear to provide an alternative avenue for access to legal advice and representation that does not apply the considerations set out in subsections (2) and (3). It is not clear how the proposed additions would align with the provisions in subsections (1) to (3) in any form with either the existing text or text as proposed to be amended by amendment No. 11. They do not appear to complement the existing framework. My concern is that the addition of subsections (4) to (7) may undermine the policy intent to address governance and accountability requirements across the guardian ad litem system. For these reasons we cannot support this amendment. However, I hope I have assured the Deputies that section 35D, incorporating the Government's intended amendments fulfils the needs of guardians ad litem for objective legal advice and representation to perform their function in respect of the children concerned.

Deputy Claire Kerrane

I move amendment No. 1 to amendment No. 11:

In section 5, to delete all words after “is amended” in the first line and substitute the following:

“by the insertion of the following:

“(4) The Minister may make a scheme for the provision of independent legal advice and legal representation for guardians ad litem appointed further to the provisions of this Part. The scheme shall regulate the fees payable in respect of such legal advice and representation.

(5) The guardian ad litem may obtain independent legal advice from such solicitor and, if necessary, having regard to the circumstances of the case, counsel in relation to proceedings to which the guardian ad litem is appointed, subject to the acceptance by the said solicitor and counsel of the scheme referred to in subsection (4).

(6) The guardian ad litem may instruct a solicitor to represent him or her in respect of the proceedings to which he or she is appointed and if necessary, having regard to the circumstances of the case, may instruct counsel in respect of these proceedings, subject to the acceptance by the said solicitor and counsel of the scheme referred to in subsection (4).

(7) Any costs incurred by a person providing independent legal advice or representation under this section shall be paid by the Minister in accordance with the scheme referred to in subsection (4).”.”.

Before I speak to my amendment and that of the Minister, I acknowledge David French and thank him for what he has done in bringing us to this day. My amendment speaks to an issue I have raised many times with the Minister, Norma Foley. The amendment as outlined in the Minister's name still does not answer the question I have asked many times. Why do we need to remove guaranteed legal representation for the guardians ad litem? I will refer to them as GALs for the remainder of my contribution. Why do we need to remove guaranteed legal representation for them? They are the voice of the child in a court of law - a court some of them may never have stood in in their lives. They will typically face a parent who will have legal representation and Tusla, which will have legal representation. We face a situation where the person who is the voice of the child is standing in the court and may have no legal representation. The Minister may say that will not happen. In that case, there is no point changing the current situation, which is guaranteed legal representation. That is whether or not the GAL sees fit or not to have that legal representation. I have engaged a great deal with AGALI, which represents the majority of practising GALs in our State, along with Judge Dermot Simms, who has raised issues about what is proposed under the new national service. He appeared recently on the "RTÉ Investigates" programme. If we were to take any positive out of that programme, it was how powerful the voices of the GALs are and how important they are in speaking for the child. In every reference to this, it has been said that the best interests of the child are centred. I do not understand how removing guaranteed legal representation for the person who is the voice of the child is any way, shape or form, in the best interests of the child. Nobody in the months I have been raising this has been able to tell me how that is so.

I put on the record one instance a GAL has given to me, and I think it works as a prime example of the importance of legal representation:

I was a GAL for three siblings. They had been in care in different foster families for three weeks while Tusla tried to find them a permanent foster family. Tusla found a potential foster family that I was able to visit. The foster family were delighted to be able to offer a home for all three siblings.

I went to court the next day. When I got into court the Tusla solicitor announced that the foster family had been approved but it had only been approved to take two of the three siblings. The youngest would have to go somewhere else - another foster placement in a different county and a different province. I consulted there and then with my solicitor and they agreed that we would lodge a section 47 application. This specifically asked for the Tusla foster care committee to present to the judge the reasons why they only approved two of the three siblings. My solicitor called to give evidence to the judge.

So she was called to give that evidence. Since they had met them, the GAL could say that the foster family had fully committed to taking all three children. The GAL was able to tell the judge how capable and committed these foster parents were, having visited in their own home, and the three children could proceed to that family. The court adjourned for the evening. The next morning, the GAL said that Tusla had told her and the others that it had decided to approve the foster family for all three children due to the issue being raised by the GAL and the lodging of the application by their legal representative.

The result of this was all three children remained together and they continue to grow up together today. If there was no legal representative in the court that day, the situation would have been very different and the two children would have been separated from their youngest sibling. When I met the head of the national service, I asked her what the effect would have been if there had been no legal representation on the day. She responded that if they did not have legal representation in court on one day, she would look at it for the next day. The consequence in this case is that it would have been far too late. The youngest sibling would have been separated from the other two. I do not know if not having legal representation relates to saving money or what is at the back of it. Nobody has been able to tell me. For the sake of whatever money it costs to have legal representation, there is no comparison between it and separating children, in particular siblings in the care of the State. They are our most vulnerable children.

I am concerned, too, that we have a new national service now that from the look of it will not have as many GALs as are practising now. There will be a lot of new people in there and many of them will not have stood in court before. We will have a situation where some of them may be left without legal representation. I make the point again that I cannot understand how it is in the best interests of the child to have them with a GAL in a courtroom without legal representation and facing maybe two or three barristers, depending on the parties involved. That is not in the best interests of the child.

Deputy Jim O'Callaghan

I thank Deputy Kerrane very much. I am conscious that her level of expertise in this area is considerably greater than mine, since I am not the Minister for children. The amendments that are proposed to section 35D provide further clarity around the circumstances and procedures for the provision of legal representation to guardians ad litem appointed to a child during the course of childcare proceedings. These are: where a guardian ad litem is making an application under the Child Care Act; where an order is made under section 35E(11) granting the guardian ad litem such rights as a party; and where the court has indicated that legal representation is required for the guardian ad litem. It is introducing consistency. Certainly, legal representation would be granted in most instances. The provision of legal representation to guardians ad litem is not limited to the above circumstances.

Section 35D amendments also provide clarification regarding other circumstances where the Minister has discretion to provide legal representation to a guardian ad litem, setting out factors to be considered by the Minister, having regard to all the circumstances of the case and determining whether representation should be offered. These are: whether the guardian ad litem is of the opinion that the circumstances are such that legal representation is required; where there is any issue with the guardian ad litem exercising their functions or having been given additional functions or in giving evidence; whether the child is a party to proceedings and has been appointed a solicitor; whether applications are being made by other parties and the nature of such applications; and, finally, the nature and complexity of the proceedings in general and whether they are contested. They are the bases for the amendments. If the Deputy looks at the new section 35D, it sets out very clearly the basis upon which legal representation will be provided to the guardian ad litem.

Deputy Claire Kerrane

There is a significant difference between a framework for why and when a GAL would have legal representation and the situation right now where they have guaranteed legal representation. I take the Minister's point. Perhaps it will transpire that in the vast majority of cases the GAL will get legal representation, but what are the consequences if they do not? I have just read out a case concerning three young children. The plan was that the youngest sibling would go to a different county in a different province. That is what was happening. It was only because the GAL in court had legal representation that the motion was filed and the three children live together today. If the children had been separated, the impact on them would have been lifelong. To me, there is no price that is not worth paying for that. I presume the issue here is cost. I do not know what it is. I have been asking for months why this is being done. Neither the Minister for justice nor the Minister for children can answer why we are removing guaranteed legal representation for GALs, who are the voice of the child. It is fine to say that in most cases it is provided and we will see. It is not good enough for the head of the service to say to me that if it does not go right the first day and they do not have legal representation, they will look at it the next day in court, if that ever happens. We are putting at risk children who are in the care of the State, who are the responsibility of the State when they are in care. I do not see how the best interests of that child or children are being met by stripping away and removing legal representation for no reason that can be given to me today or in recent months.

Deputy Jim O'Callaghan

Looking at the new section 35D that will be put into the 1991 Act, it specifies the circumstances where legal representation would be provided to the guardian ad litem. One of the requirements and grounds upon which that legal representation is provided is that it is necessary and in the best interests of the child, and it is in the interests of justice that such representation be provided. To use the example Deputy Kerrane gave, I certainly would have thought that was an example of where the best interests of the child merited the grant of legal representation to the GAL.

My understanding is that the purpose of it is not to reduce costs but to try to improve consistency. I believe it will improve consistency. For that reason, the main amendment is being pressed. Unfortunately, I am not in a position to accept Deputy Kerrane's amendment to amendment No. 11.

Deputy Claire Kerrane

The case I cited could very well have been a case where a GAL did not have legal representation. It was a very straightforward case. They did not know going into court what Tusla was going to say. The GAL had already visited the foster family and they were very happy to take the three children, so if there had been an option to have legal representation. they would probably have said that there was no need for it. It was not until they went into the court the next day, there and then, that Tusla said the foster family it had approved was going to take two of the three children and the youngest child was going somewhere else. That makes no sense. That would have been one of those cases where the foster family was approved and it was a case of proceeding. Had there not been legal representation there and then, those three children would not be together today. Again, I can only presume it is due to cost. To me, there is no cost that is not worth paying to keep children together, because when they are separated, it ruins their lives and damages them, probably for the rest of their days.

I will leave it at that. Given what we are here for today, I am very conscious of that. I have not been given a reason for why guaranteed legal representation has to be removed. I do not understand why it is being done. To date, nobody has been able to tell me. I do not think that is good enough.

Amendment to amendment put and declared lost.

Amendment No. 11 agreed to.

Section 4 deleted.

TITLE

Deputy Jim O'Callaghan

I move amendment No. 12:

In page 3, line 8, after “paramount consideration;” to insert the following:

“to amend certain provisions of Part VA of the Child Care Act 1991 in relation to the appointment of, and legal representation for, guardians ad litem;”

Amendment agreed to.

Title, as amended, agreed to.

An Cathaoirleach

Pursuant to Standing Order 194(3), the clerk will report specially to the Dáil that the committee has amended the Title.

Bill reported with amendments.