The Department recognises the importance of records generated by Guardians ad litem, both in safeguarding children’s rights and in preserving their voice in proceedings affecting them. The current system in place for Guardians ad litem up until now has meant that each Guardian ad litem have always been independent data controllers. The establishment of the Guardian ad litem National Service will mean that from 23 June there will be a central repository where the records of authorised Guardians ad litem will be safely stored and managed in line with GDPR.
The issue raised by the Deputy concerns the potential transfer of pre-existing records into the National Service, including current and archival files generated by Guardians ad litem, as independent data controllers, prior to commencement.
The Service operates under a distinct statutory framework, with the Department as data controller. The position in relation to records is as follows:
• Children’s information generated by Guardians ad litem prior to the commencement of the 2022 Act will not be transferred into the systems of the National Service as the incorporation of privately held records would give rise to significant legal and governance risks, including under data protection law.
• Guardians ad litem who hold such records do so as independent data controllers and remain responsible for them in accordance with GDPR, including in respect of retention, security, access and deletion. Any transfer of records must consider the independence of the Guardian ad litem, the in-camera rule and legal privilege.
• Where relevant information from earlier proceedings is required, it may be accessed by a Guardian ad litem through established lawful channels, including court records, Tusla records, and statutory information-sharing provisions such as section 35K and section 35G of the Child Care Acts 1991-2024 which makes provision for a Guardian ad litem to have access to records in the performance of their function.
Notwithstanding this position, I acknowledge the Deputy’s point regarding the importance of maintaining a clear and accessible record of a child’s wishes, experiences and interactions with their Guardian ad litem over time. The preservation of such information, in a manner that is safe, lawful and centred on the best interests of the child, is an important consideration.
In that context:
• Tusla, the Child and Family Agency has a statutory responsibility to retain records relating to children in care in perpetuity. The statutory framework provides for the maintenance of a comprehensive record of the child’s life and circumstances. Tusla, as the State agency with responsibility for child welfare and protection, maintains secure and enduring records relating to the child, including their care history, needs and interventions over time in line with Article 13 of S.I. No. 260/1995.
• A child’s wishes, needs and experiences, as conveyed through the Guardian ad litem, are captured in court reports prepared for proceedings. These form part of the official court record and remain accessible, as appropriate, to the Court, and to Tusla in the exercise of its statutory functions.
• The Department will generate and maintain records in respect of all children for whom a Guardian ad litem is authorised and appointed by the Guardian ad litem National Service under the Child Care Acts. The National Service operates within a clear data governance framework and will maintain records in line with its statutory functions and legal obligations.
• As part of the transition to the National Service, the Department is seeking to ensure continuity of relevant and up-to-date information through lawful mechanisms, including the provision of the most recent court report and, where appropriate, a transfer summary of relevant information under section 35K of the Child Care Acts.
• As part of the transition to the National Service, arrangements are in place to ensure continuity of relevant and up-to-date information where a Guardian ad litem appointed under section 35Q becomes an employee of the National Service. This includes, through lawful mechanisms, the provision of the most recent court report and, where appropriate, a transfer summary of relevant information under section 35K of the Child Care Acts.
I can assure the Deputy that the National Service places the child at its centre, ensuring that their voice is consistently heard in current proceedings, while their broader life experience and history are safeguarded through established statutory records and court processes. This approach ensures clear accountability for children’s data, maintains strong safeguards around sensitive information, and supports the delivery of a consistent, legally robust and child-centred Guardian ad litem National Service.
