Givig a voice to childre s wishes, feeligs ad iterests Guidace o the Role, Criteria for Appoitmet, Qualificatios ad Traiig of Guardias ad Litem Appoited for Childre i Proceedigs uder the Child Care Act, 1991 May 2009
Phoeix House, 28 Coygham Road, Dubli 8, Irelad Tel +353 1 672 4100 Fax +353 1 677 4892 Web www.caab.ie
Cotets Glossary ii Foreword iii Itroductio 1 Sectio 1: Stadards for the Role, Appoitmet, Qualificatios ad Traiig of Guardias ad Litem 3 Sectio 2: Operatioal Guidace 8 Sectio 3: Practice Guidace 12 Appedices Appedix A: Format for Report to Court 17 Appedix B: Summary of Research/Cosultatio Fidigs 20 Appedix C: Ackowledgemets 24 Appedix D: Submissios Received 25 Appedix E: Bibliography 26 CAAB Guidace: Report No.1 i
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Foreword Aida Browe Chief Executive, CAAB The CAAB was established i July 2007. Oe of the Board s statutory requiremets is to publish guidace o the qualificatios, criteria for appoitmet, traiig ad role of ay guardia ad litem appoited i proceedigs uder the Child Care Act, 1991. The resposibility placed o the CAAB by the legislatio is cosistet with refereces i the Natioal Childre s Strategy to the eed to examie ad review the role of the guardia ad litem service i family law proceedigs ad the geeral issue of represetatio of childre i legal proceedigs, the eed for more detailed guidace o the appoitmet, role ad fuctio of a guardia ad litem ad the adequacy of the preset service icludig its fudig ad maagemet. To help fulfil this requiremet the Board established a cosultative group comprisig of represetatives of key stakeholder agecies i the area. The Board also sought ad received submissios from iterested parties. We are very grateful to all who participated i this cosultative process ad are satisfied that the robust debate ad cosideratio of the wide ad varied opiios has greatly helped the Board i developig this guidace. Our role did ot exted to how the maagemet or fudig of the guardia ad litem service might be addressed. The Board is of the view however, that uless these issues are addressed ay guidace offered to the sector caot have the optimum effect. The Miister for Childre ad Youth Affairs has bee advised of the Board s view i this regard. The CAAB views the publicatio of this guidace as oe step i a essetial process of chage maagemet which will ultimately esure that the voice of the child ca always be appropriately heard i child care proceedigs. I must ackowledge the tremedous job doe by CAAB Advisory Officer Jim McGuirk i skilfully ad patietly steerig the process of developmet of this guidace ad udertakig the lio s share of the work ivolved. Aida Browe Chief Executive, CAAB iii
Glossary Throughout this documet, the followig relevat terms are referred to. These are explaied briefly at the outset for easy referece ad to avoid repetitio withi the text. Act of 1991: the Child Care Act, 1991 which provides for the care ad protectio of childre ad related matters. Childre Act, 2001: makes further provisio i the care, protectio ad cotrol of childre ad, i particular, replaces the Childre Act, 1908, ad other eactmets relatig to juveile offeders, ameds ad exteds the Child Care Act, 1991, ad provides for related matters. Child Care (Amedmet) Act, 2007: ameds the Child Care Act, 1991 ad makes cosequetial ad other amedmets to the Childre Act, 2001; ad provides for related matters. CAAB (Childre Acts Advisory Board): refers to the Board whose fuctios are set out uder S. 227 Childre Act, 2001 as iserted by S. 20 Child Care (Amedmet) Act, 2007 ad established o July 23rd, 2007. Guardia ad Litem: literally guardia for the case, a perso appoited by a court uder S. 26(1) of the Act of 1991 to represet the wishes, feeligs ad iterests of a child who is the subject of proceedigs uder parts IV, IVA or VI of the Act of 1991. Child: as iterpreted by Sectio 2(1) Child Care Act, 1991. Ombudsma for Childre Act, 2002: provides for the appoitmet ad fuctios of a Ombudsma for Childre. Publish Guidace: required uder S. 227(1) (b) Childre Act, 2001 (as substituted by S. 20 Child Care (Amedmet) Act, 2007. Operatioal Guidace: guidace o how the stadards developed i Sectio 1 ca be achieved ad adhered to i a operatioal sese. Practice Guidace: guidace o what a guardia ad litem eeds to do i order to achieve best practice ad fulfil his/her role. HSE: Health Service Executive, established uder the Health Act, 2004 to perform the fuctios assiged to it by this Act. iv
Itroductio Settig the Scee the Need for Guidace A guardia ad litem is a perso geerally uderstood to be idepedet ad appoited by the courts to represet childre i child care proceedigs. This meas that s/he must atted court i care proceedigs to make kow a child s wishes ad feeligs ad to advise the court o the child s best iterests. Strictly speakig, however, there is o official defiitio ad hece o atioally agreed stadard for the role, qualificatios, appoitmet or traiig. As a result ad particularly for the sake of the childre a guardia ad litem represets there is a eed for guidace i this area. This is recogised i the Act uder which the CAAB was established i July 2007. The Child Care (Amedmet) Act, 2007, by substitutig a ew Sectio 227 i the Childre Act, 2001, states i Sectio 227(1)(b) that the Board shall: Publish guidace o the qualificatios, criteria for appoitmet, traiig ad role of ay guardia ad litem appoited for childre i proceedigs uder the Act of 1991. Whe the CAAB came to carry out this task, it decided to cosult extesively with a rage of stakeholders i the sector. The resultat cosultative group icluded represetatives from the Law Society, Health Service Executive, Courts Service, Legal Aid Board, Probatio Service, Departmet of Health ad Childre/Office of the Miister for Childre ad Youth Affairs, Childre s Rights Alliace, Barardos, idepedet guardias ad litem, Law Library, ISPCC, Irish Associatio for Youg People i Care ad service providers. This group met o six occasios ad, while cosesus was ot reached o all issues, it broadly supported the work of the CAAB. Submissios were also ivited through advertisig i the atioal press ad o the CAAB s website. Iteratioal examples of best practice iformed the work from the outset. The guidace for guardias ad litem that emerged from this cosultatio seeks to: Help stadardise the provisio of guardia ad litem services atioally. Help to promote the idividual ad huma rights of all childre represeted. Develop criteria to assist i esurig that oly suitable people are appoited to act as guardias ad litem. Assist the courts i determiig the eed for ad appoitmet of guardias ad litem i specific cases. Promote the establishmet of traiig programmes to ecourage ad esure the cotiuous professioal developmet of guardias ad litem. Take ito accout custom ad practice already established i service provisio. This guidace also ackowledges the rights of parets uder the Irish Costitutio, i additio to their duties, aspiratios ad wishes to promote the welfare of their childre. I drawig together this guidace, relevat legislatio, case law, atioal policy ad reports/studies i the field have bee cosidered ad while ot all are specifically referred to i this text those that uderpi the work are set out i full i the bibliography. Legislatio ad Guardias ad Litem Child Care Act, 1991 Guardias ad litem, as already stated, are appoited by the courts to act o behalf of childre ivolved i child care proceedigs. However, Sectio 26 (2) of the Act of 1991 provides that the HSE is resposible for ay cost icurred by a perso actig as a guardia ad litem. The Act of 1991 specifically refers to the importace of a child s wishes ad his/her welfare ad i certai circumstaces a guardia ad litem may be the oly idepedet promoter of these cosideratios. The followig sectios are iextricably liked ad exist to esure that the child s wishes are made kow to the court ad that there is a mechaism for this to be achieved. 1
Sectio 24 of the Act of 1991 states: The court, havig regard to the rights ad duties of parets, whether uder the Costitutio or otherwise, shall regard the welfare of the child as the first ad paramout cosideratio ad i so far as is practicable, give due cosideratio, havig regard to his age ad uderstadig, to the wishes of the child. Sectio 26 (1) of the Act of 1991 allows for the appoitmet of a guardia ad litem. It states: If i ay proceedigs uder Parts IV, (care proceedigs), or VI (childre already i the care of the HSE), the child to whom the proceedigs relate is ot a party, the court may, if it is satisfied that it is ecessary i the iterests of the child ad i the iterests of justice to do so, appoit a guardia ad litem. I additio Sectio 16 of the Childre Act, 2001 iserts a ew Part IVA ito the Act of 1991 relatig to childre i eed of special care ad protectio. Childre, the subject of proceedigs uder Part IVA, are also icluded i the provisios of Sectio 26(1) above. The Child Care Act, 1991 is divided ito a umber of parts which deal with the various aspects of State care provisio for childre. The actual proceedigs that a guardia ad litem might fid him/herself appoited i are: Part IV Applicatios for a iterim care order Applicatios for a care order Applicatios for a supervisio order Applicatios to vary or discharge ay of the above orders Part IVA Applicatios for a special care order Applicatios for a iterim special care order Applicatios to vary or discharge a special care order Applicatios to vary or discharge a iterim special care order Appeal agaist the makig of a special care order Appeals agaist the makig of a iterim special care order Part VI Access applicatios Applicatios to vary or discharge ay access orders Applicatios for a order directig a child to be delivered ito HSE care Applicatios for directios o the care or welfare of a child already i HSE care District Court Rules The geeral District Court rules lay dow the practice ad procedures to be followed ad the forms to be used i the District Court proceedigs to which they relate. Ay party to proceedigs, their solicitor/cousel or ay Garda may appear, address the court ad coduct proceedigs. Uless preveted by law from doig so, a father, mother, so, daughter, husbad, wife, brother or sister may appear o behalf of that party with the court s permissio if that party is uable to be preset. This is called right of audiece. Order No. 7 (S.I. 93/97) provides additioal protectio for childre/miors ad states that: Where ay proceedigs are brought before the court o behalf of or agaist a mior, the court may if it thiks it appropriate at ay stage of the proceedigs by a order i writig appoit a ext fried to sue o behalf of the mior or a guardia ad litem to defed ay proceedigs o behalf of such a mior, ad may at ay time replace a perso so appoited. This rule refers to civil cases ivolvig childre where a child is a party to the proceedigs. Guardias ad litem are sometimes appoited to represet the mother of a child, the subject of care proceedigs where the mother is herself a child. Guidace Structure For clarity ad ease of use, this guidace is divided ito three sectios. The first cocers stadards for the role, appoitmet, qualificatios ad traiig of a guardia ad litem. This is the core of the documet ad the other sectios flow from it. Sectio 2 describes how the stadards developed i Sectio 1 ca be achieved ad adhered to i a operatioal sese. Sectio 3 deals with what a guardia ad litem eeds to do i order to achieve best practice ad fulfil his/her role. Fially a umber of appedices are also attached. 2
Sectio 1: Guidace for the Role, Appoitmet, Qualificatios ad Traiig of Guardias ad Litem 1.1 Role Followig the CAAB s cosultatio with atioal stakeholders it was agreed that the role of the guardia ad litem should be to idepedetly establish the wishes, feeligs ad iterests of the child ad preset them to the court with recommedatios. The guardia ad litem has a dual role, to iform the court of the child s wishes ad feeligs ad to advise o the child s best iterests. This role iforms or at the very least iflueces the appoitmet, qualificatios ad specific traiig of cadidates for the role of guardia ad litem. I this light, Sectio 1 is the core of the documet, settig the toe for what follows i Sectios 2 ad 3. Sectio 1 looks at good practice stadards for the role, appoitmet criteria, qualificatios, ad fially traiig. 1.2 Stadards for Good Practice 1.2.1 Summary of Stadards I providig idepedet represetatio to a child who is the subject of child care proceedigs uder the Act of 1991, the guardia ad litem must recogise the Health Service Executive s resposibility for maagemet of ay case i which s/he is ivolved. The followig stadards are applicable to the various aspects of the role of a guardia ad litem: (a) Idepedece: the guardia ad litem is idepedet of all other professioals ad agecy staff ivolved with the child ad family. (b) Iclusiveess: the guardia ad litem shall esure that the views of all parties ad others of sigificace are take ito accout. (c) Iquiry ito the child s circumstaces: the guardia ad litem s approach to the task shall be plaed, focused, ad flexible. Avoidig delay, other tha plaed ad purposeful, will be a priority. The iquiry shall comply with the provisios of the Freedom of Iformatio Acts, 1997 ad 2003, ad the Data Protectio Acts, 1998 ad 2003. (d) Iterests of the child: the guardia ad litem shall meet the child as ofte as ecessary to be satisfied that his/her wishes, feeligs ad iterests are ascertaied ad adequately represeted to the court. (e) Evaluatio ad report: the guardia ad litem shall complete a writte report for the court, uless the exceptioal ature of the case requires otherwise. (f) Attedace at court: the guardia ad litem shall atted o all court dates uless excused by the court. (g) Closig the case: whe proceedigs have cocluded, the guardia ad litem s ivolvemet i the case ceases. However, if the case is scheduled for further review, s/he shall seek clarificatio from the court regardig its expectatios of his/her further ivolvemet. These stadards are ow examied i more depth. 1.2.2 Idepedece The guardia ad litem is idepedet of all other professioals ad agecy staff ivolved with the child ad family. To achieve this, a guardia ad litem shall: (a) Avoid cases where there may be a coflict or a perceived coflict of iterest for him/her ad otify the court of ay possible coflict that may arise i the course of proceedigs. (b) Take professioal resposibility for his/her assessmet ad recommedatios i each case ad be accoutable to the court. (c) Seek to achieve a appropriate outcome based o the wishes, feeligs ad iterests of the child through adoptig a partership approach ad cosultig ad ivolvig all parties. 3
1.2.3 Iclusiveess The guardia ad litem shall esure that the views of all parties ad others of sigificace are take ito accout. To achieve this, a guardia shall: (a) Esure the child is aware of what is happeig throughout the proceedigs ad of the outcome. (b) Takig ito accout the age ad/or level of maturity of the child ad usig professioal judgmet, cosider sharig some or all of the cotets of his/her report with the child. (c) Esure his/her report is made available to all parties, via their legal represetatives where appropriate, ad that recommedatios are icluded. (d) Explai the ature ad purpose of expert assessmets ad examiatios which s/he recommeds ad seek the agreemet of all parties o such provisio. 1.2.4 Iquiry ito the Child s Circumstaces The guardia ad litem s approach to the task shall be plaed, focused ad flexible. Avoidig delay, other tha that which is plaed ad purposeful, will be a priority. The iquiry shall comply with the provisios of the Freedom of Iformatio Acts, 1997 ad 2003, ad the Data Protectio Acts, 1998 ad 2003. I coductig a iquiry a guardia ad litem shall: (a) Address areas relevat to the particular court proceedigs. (b) Record iitial ad updated plas throughout the ivestigatio ad retai these together with otes ad other documetatio acquired throughout the iquiry. (c) Iform the child of the ature ad purpose of the guardia ad litem s role. (d) Be aware of the duty of cofidetiality uder the provisios of Childre First Natioal Guidelies 1999 whether updated, ameded or replaced, professioal cofidetiality, the limitatios of cofidetiality i certai circumstaces ad the rights to privacy. 1.2.5 Iterests of the Child The guardia ad litem shall meet the child as ofte as ecessary to be satisfied that his/her wishes, feeligs ad iterests are adequately represeted to the court. To achieve this, a guardia ad litem shall: (a) Regularly aalyse, review ad assess ay risks to the child. (b) Cotiually focus o the eed to arrive at specific decisios that are i the child s iterests ad evaluate all iformatio obtaied throughout the iquiry takig accout of the rights of the child ad his/her paret(s), guardia(s) or carer(s). (c) Report o ay other issues as appropriate as directed or requested by the court. (d) State for the court s assistace, key areas of agreemet ad disagreemet betwee the relevat parties icludig the child, to the proceedigs. (e) Commet o the criteria for makig a order for the proceedigs i questio. (f) Cosider whether it is i the child s iterests to seek the appoitmet of a legal represetative to represet the child i the proceedigs. (g) Cosider seekig the approval of the court regardig: 1. The appoitmet of a legal represetative for the guardia ad litem. 2. Cosultig where ecessary, with a legal professioal regardig legal issues i the proceedigs. (h) I particular, whe represetig childre i special care or civil detetio, a guardia ad litem shall: 1. Keep i mid the costitutioal rights of the child ad his/her parets. 2. Iquire ito the circumstaces i which the child is placed i a special care uit or civil detetio by High Court Order, reportig to the court o the suitability of the placemet, the appropriateess of the care pla ad ay alteratives. (e) Comply with the requiremets of the Data Protectio Acts, 1998 ad 2003 ad the Freedom of Iformatio Acts, 1997 ad 2003 together with the rights to privacy of all idividuals. 4
1.2.6 Evaluatio ad Report The guardia ad litem shall complete a writte report for the court, uless the exceptioal ature of the case requires otherwise. To achieve this, a guardia ad litem shall: (a) Systematically aalyse all the material gathered before writig the report. (b) Address sigificat differeces i views ad icorporate these ito the report. (c) Focus o a well-argued idepedet case aalysis cotaiig clear recommedatios to help the court make appropriate decisios for the child. (d) Cosider ad report o all optios ope to the court ad idicate the suitability or otherwise of each. (e) Be familiar with all work udertake together with its relevace ad refer to relevat professioal kowledge ad research fidigs i support of recommedatios. (f) Not duplicate work doe elsewhere. (g) Not take o the resposibilities of other service providers or agecies. (h) Highlight ay issues regardig the services available to the child. (i) Esure that where iterim reports are requested by the court, each report cotais up-to-date iformatio. (j) Make reports available to all parties ivolved before the ext court date, the timetablig for which should be agreed at previous hearigs. 1.2.7 Attedace at Court The guardia ad litem shall atted o all court dates uless excused by the court. The purpose of attedig will be to: (a) Preset a report to the court ad be available to give evidece. (b) Brig to the court s attetio ay urget matter affectig or likely to affect the child s rights, well-beig ad iterests. (c) Assist i the overall court maagemet of the case by cotributig at court hearigs relevat views which focus o the child s eeds. (d) Alert the court to issues of avoidable delay i decisio-makig for the child. 1.2.8 Closig the Case Whe proceedigs have cocluded, the guardia ad litem s ivolvemet i the case ceases. If the case is scheduled for further review, the guardia ad litem shall seek the court s clarificatio o its expectatios of his/her further ivolvemet. I additio: (a) Whe proceedigs coclude, the guardia ad litem shall advise the child of the outcome of the case ad of the termiatio of his/her ivolvemet. (b) S/he shall iform other relevat idividuals, for example expert witesses, of the outcome of the court hearig ad that the guardia ad litem s ivolvemet has cocluded. (c) At the close of proceedigs the guardia ad litem shall esure that appropriate security measures are take agaist uauthorised access to, or alteratio, disclosure or destructio of ay data gathered durig the course of the case ad agaist their accidetal loss or destructio i accordace with the provisios of Sectio 2(1)(d) of the Data Protectio Act, 1988. 1.3 Appoitmet Stadards 1.3.1 Iterpretatio of the Term Criteria for Appoitmet It was further ackowledged durig the cosultative process that the term criteria for appoitmet could have two meaigs. Firstly that those wishig to become guardias ad litem shall comply with the eligibility criteria set out i 1.3.2 below; ad secodly, that the court may cosider the guidace suggested by the CAAB i decidig to appoit a guardia ad litem to a specific case as described i 1.3.3. 5
1.3.2 Eligibility for Appoitmet to the Role of Guardia ad Litem To be eligible for appoitmet to the role of guardia ad litem, the followig criteria shall be adhered to: (a) Cadidates for the role of guardia ad litem must be vetted by A Garda Siocháa. (b) Cadidates must be prepared to provide a self-declared statemet of fitess to practice every three years. (c) If a cadidate has lived i ay coutry other tha Irelad for loger tha three moths, s/he must be vetted by the police of that coutry. (d) Cadidates must supply the required umber of refereces. (e) Cadidates must have a third level qualificatio i, social work recogised by the Natioal Social Work Qualificatios Board, psychology or other third level qualificatio relevat to the role. (f) Cadidates must have at least five years postgraduate experiece of workig directly i child welfare/ protectio systems. 1.3.3 Guidace o the Appoitmet of a Guardia ad Litem by a Court i a Specific Case Areas of cosideratio that may ifluece the appoitmet of guardias ad litem to specific cases shall iclude: (a) Oly suitably qualified persos, as outlied at 2.4 shall be appoited as guardias ad litem. (b) The complexity of the case, for example where there is a difficulty i idetifyig a appropriate placemet for the child. (c) The ability of the child cocered to express his/her wishes ad feeligs. (d) The ature of the proceedigs ad the implicatios for child ad family, for istace i some circumstaces, there may be the possibility of log-term separatio from parets, sibligs or exteded family. (e) Cases, where there is reduced or o paretal support or where paret(s)/guardia(s) are abset. (f) Cases where there are issues about a child s idetity, atioality or etitlemet to residece i the jurisdictio. S/he may be separated from his/her family or be a uaccompaied mior. (g) Cases where a child s liberty is at issue, for example where the youg perso s emotioal ad behavioural eeds ca oly be met at that time by a secure placemet i a special care uit ad where the HSE seeks a special care placemet for the child. (h) Cases where other circumstaces exist as determied by a court, such as the effects o the child of a outof-state placemet due to the uavailability of a appropriate placemet atioally. (i) A guardia ad litem who has bee appoited to represet a child i previous proceedigs may be appoited i ew proceedigs. 1.3.4 Iterests of the Child, Justice ad Beefit to the Court Overview I additio to 1.3.3 above, legislatio states that whe a court appoits a guardia ad litem it must be satisfied that to do so is i the iterests of the child ad justice. Additioally, there should be a beefit to the court i makig such a appoitmet. The iterests of each of these may ad sometimes do overlap. The followig are examples of how the iterests of the child ad justice ca be served ad beefits to the court ca be achieved. 1.3.4.1 Iterests of the Child Appoitig a guardia ad litem ca serve the child s iterests by: (a) Examiig the ature of proceedigs ad the implicatios of the proceedigs for the child, his/her family, paret(s), guardia(s) or carer(s). (b) Esurig the complexity of the case does ot prevet achievig a appropriate outcome to the proceedigs. (c) Assessig the child s ability to express his/her wishes ad feeligs ad esurig these are commuicated to the court. 6
(d) Esurig the child s circumstaces are cosidered i every case. (e) Cosiderig ad addressig areas of disagreemet betwee parties ad the possible implicatios of ay disagreemet for a child who is the subject of care proceedigs. 1.3.4.2 Iterests of Justice Appoitig a guardia ad litem ca serve justice by: (a) Determiig the ature of the proceedigs before the court. (b) Assessig the complexity or otherwise of the case. (c) Idetifyig possible areas of disagreemet betwee parties that ca affect the outcome of the case. 1.3.4.3 Beefit to the Court Appoitmets may be made by a court of its ow motio or followig a applicatio by a party to the proceedigs. A guardia ad litem ca be of beefit to the court by: (a) Esurig that the wishes, feeligs ad iterests of the child are made kow to the court. (b) Assistig the court with idepedet professioal advice. I additio, durig the cosultative process, stakeholders ackowledged that idepedet appoitmets made by the court esured that guardias ad litem were see to be ad were i effect idepedet. The followig are importat i maitaiig the idepedet role of the guardia ad litem: (c) The court of its ow motio appoitig a guardia ad litem. (d) The court appoitig a guardia ad litem based o the applicatio of ay party to the proceedigs. (e) The court idepedetly appoitig a guardia ad litem. 1.4 Stadards for Qualificatio Guardias ad litem shall meet certai stadards i order to qualify for the role amely: (a) Possess a third level qualificatio i, social work recogised by the Natioal Social Work Qualificatios Board, psychology or other third level qualificatio relevat to the role. (b) Have a miimum of five years postgraduate direct experiece i child welfare ad/or protectio work. (c) Have a uderstadig of child care ad family law. (d) Have kowledge ad experiece of the courts system. (e) Possess aalytical capability. (f) Possess the ability to assess ad uderstad complex family relatioships. (g) Have well-developed iter-persoal skills. (h) Be skilled i commuicatig with childre of differet ages ad circumstaces. (i) Have relevat report writig skills. 1.5 Stadards for Traiig Durig the cosultatio process, stakeholders broadly agreed that traiig was importat for guardias ad litem. The child care ad legislatio ladscapes are costatly chagig ad guardias ad litem must keep up with these chages if they are to play a effective role i represetig childre. Traiig ca help them to be properly briefed i all areas i which they operate. This is covered i more detail i 2.5. With this i mid, ay traiig udergoe shall: (a) Be directly related to the cosistet provisio of a guardia ad litem service. (b) Ehace existig kowledge, skills ad values. (c) Esure cotiuous professioal developmet. (d) Develop ew relevat skills ad kowledge. (e) Help to improve performace ad service delivery. 7
Sectio 2: Operatioal Guidace 2.1 Sectio Itroductio This Sectio provides guidace o how the stadards developed i Sectio 1 should be achieved ad adhered to i a operatioal sese, as it deals with the tasks ad cosideratios for both guardias ad litem ad the courts. 2.2 Tasks for the Guardia ad Litem While egaged i a case, a guardia ad litem has specific tasks, set out below, which s/he must carry out. These ca help achieve fulfilmet of the role bearig i mid his/her resposibilities to the child ad the court. I the course of his/her work the guardia ad litem shall: (a) Meet the child who is the subject of the proceedigs. (b) Idetify the ature of the proceedigs ad the parties ivolved. (c) Coduct a thorough iquiry ito the child s circumstaces ad provide idepedet recommedatios to the court. Some cases may require more extesive iquiry tha others. Whatever the level of difficulty, a guardia ad litem shall be familiar with the family ad child s history durig proceedigs. (d) Uderstad the judicial, legal, social, political ad govermetal systems affectig the child. (e) Try to achieve the most appropriate outcome for the child. (f) Cosult with the child s family. (g) Assess the impact of the proceedigs o the child ad, if ecessary, act promptly to help protect the child from further stress or distress. A guardia ad litem shall be aware of the optios available to him/ her i ay situatio. (j) Provide a writte report to the court which takes accout of all iformatio gathered durig the iquiry. The cotets of this report shall ot be revealed to ayoe who is ot a party to proceedigs. 2.3 Criteria for Appoitmet 2.3.1 Criteria for Appoitmet to the Role of Guardia ad Litem To be cosidered for appoitmet as a guardia ad litem, prospective cadidates shall: (a) Be i a positio to udertake the role. (b) Be prepared to udergo a iterview process. (c) Be prepared to provide sufficiet iformatio to courts idicatig that s/he is qualified to act as a guardia ad litem. (d) Agree to declare the possible existece of ay coflict of iterests whe a referral is received or if ay arises durig a case. (e) Udertake to provide idepedet ad professioal represetatio to childre i child care proceedigs. (f) Be cogisat of the eed to promote the idividual ad huma rights of the child represeted. (g) Have the ability to work i a maer which promotes equality ad respects diversity. (h) Have a thorough kowledge of courts systems, workig methods ad geeral requiremets icludig the requiremets of i-camera proceedigs. (i) Maitai the highest professioal stadards at all times. (j) Be idepedet of ad have o curret professioal coectio with ay parties to the proceedigs. (h) Decide o the ecessity or otherwise of expert evidece bearig i mid the possible egative implicatios of delay. (i) Assess the level, timig ad the maer of State itervetio i the life of the child. 8
2.3.2 Criteria for Appoitmet of a Guardia ad Litem by a Court i a Specific Case The overall objective of these criteria is to ecourage a level of cosistecy i appoitig guardias ad litem. Legislatio i the area is limited ad offers little guidace to courts o whe ad where to appoit a guardia ad litem. As stated previously, Sectio 26(1) of the Act of 1991 allows the court to use its discretio i such appoitmets. The oly criteria laid dow by the legislatio are that the court must be satisfied that it is ecessary to do so because: (a) It is i the iterests of the child. (b) It is i the iterests of justice. I additio, Sectio 24 of the Act of 1991 provides that the court, havig regard to the rights ad duties of parets, whether uder the Costitutio or otherwise, shall regard the welfare of the child as the first ad paramout cosideratio ad i so far as is practicable, give due cosideratio, havig regard to his/her age ad uderstadig, to the wishes of the child. Together with these overridig criteria, the court may cosider the followig: (c) The appoitmet of a guardia ad litem. (d) The beefits or otherwise to the child of appoitig a guardia ad litem. (e) The advatages or otherwise to achievig a appropriate outcome for the child by appoitig a guardia ad litem. (f) How appoitig a guardia ad litem may beefit the admiistratio of justice. (g) How the appoitmet of a guardia ad litem may assist the court i its deliberatios. (h) Of its ow motio decide whether or or to appoit a guardia ad litem. (i) O the applicatio of ay party to proceedigs, decide whether or ot to appoit a guardia ad litem. 2.3.3 More Difficult Cases I more difficult cases, the court may cosider the appoitmet of a guardia ad litem where: (a) There is sigificat variace betwee the child s wishes, feeligs ad iterests ad the provisios of the care pla placed before the court. (b) A care pla is curretly uavailable or there is sigificat dispute over some or all of its provisios. (c) There is a questio of termiatig or reducig cotact betwee a child ad his/her family. (d) The proceedigs ivolve a applicatio for special care. (e) There have bee previous child care proceedigs. 2.3.4 Other Cosideratios for the Court I additio to the above, whe decidig to appoit a guardia ad litem, the court may also cosider the followig issues: (a) The wishes, feeligs ad iterests of the child cocered if they ca be ascertaied (cosidered i light of his/her age ad level of uderstadig) regardig the appoitmet of a guardia ad litem or a specific guardia ad litem. (b) Ay evidece cotaied i supportig iformatio available to the court cocerig the child s physical, emotioal ad/or educatioal eeds, ow ad i the future. (c) The likely effect of ay chage i the child s circumstaces, ow ad i the future. (d) The likelihood of the child beig removed from his/ her paret(s) or guardia(s). (e) The age, geder, backgroud ad ay other characteristics of the child the court may cosider relevat. (f) Ay evidece of harm the child has suffered or is at risk of sufferig ow or i the future. (g) The perceived eed to stabilise a extreme situatio. (h) The perceived eed to provide care ad protectio. (i) The effects of multiple placemets o the child. (j) Ay evidece of behaviour that poses a real ad substatial risk to the child s health, safety ad welfare. 9
(k) Ay itervetios/services already provided to the child. (l) Ay cocers regardig the child s metal health. (m) The existece or otherwise of a learig disability. () The possibility of a special care order beig made. (o) The capability of each paret ad/or ay other perso for whom the court cosiders the questio relevat of meetig the child s eeds. (p) The rage of optios available to the court uder the legislatio i the proceedigs i questio. 2.4 Criteria for Qualificatio to Serve as a Guardia ad Litem 2.4.1 Academic Qualificatios The followig are required qualificatios: (a) A third level qualificatio i, social work recogised by the Natioal Social Work Qualificatios Board, psychology, or other third level qualificatio(s) relevat to the role. 2.3.5 Cosideratios for the Court followig the Appoitmet of a Guardia ad Litem Where the court decides to appoit a guardia ad litem i a specific case it may: (a) Idepedetly idetify a suitable guardia ad litem. (b) Iform the parties to the proceedigs of its decisio. (c) Idetify the guardia ad litem so appoited to the parties to the proceedigs. (d) Complete a order assigig the idetified guardia ad litem to the case. (e) Esure the order specifies the court s requiremets. (f) Esure the order eables the guardia ad litem to perform his/her duties to the court. (g) Esure the perso appoited as guardia ad litem is iformed of the appoitmet as quickly as possible. (h) Iform the guardia ad litem appoited of the court s requiremets. (i) Request the provisio of a report. (j) Specify ay cocers the court may have about the case. (k) Specify ay issue the court believes requires urget attetio. (l) Idicate to the guardia ad litem the effects ay possible delay may have o the case. (m) Request the provisio of a iterim report if ecessary. () Issue ay directios the court deems ecessary. 2.4.2 Experieced Based Qualificatios The followig are required qualificatios: (a) Miimum of five years postgraduate direct experiece i child welfare ad/or protectio work. (b) Kowledge ad experiece of the court system. (c) Relevat experiece of child welfare/child protectio systems. 2.4.3 Skills Based Qualificatios The followig are required qualificatios: (a) Ability to commuicate with ad assess childre i stressful situatios. (b) Ability to commuicate with ad assess paretal fuctioig ad family dyamics. (c) Ability to uderstad ad assess attachmet patters betwee childre ad sigificat others. (d) Ability to uderstad ad assess the fuctioig of professioal systems ivolved with the child. (e) Ability to uderstad ad use the legal system as it affects the child s iterests i the proceedigs. (f) Ability to uderstad ad assess the dyamics of iteractio betwee family ad professioal services ad maitai a impartial positio. (g) Ability to egotiate. (h) Ability to uderstad together with skills i, systemic work i statutory/family systems. (i) Kowledge of ad experiece i the statutory child care field. 10 (j) Report writig skills.
2.5 Criteria for Traiig 2.5.1 Overview The CAAB, together with the cosultative group, recogises the eed for ogoig traiig. This will help to, maitai geeral stadards, esure cosistecy of service provisio, maitai morale withi the raks of guardias ad litem, assist i the retetio of guardias ad litem i the role ad promote a positive image. 2.5.2 Traiig Effectiveess To be effective, traiig shall adhere to the followig guidace: (a) Traiig shall be directly related to the desired requiremets of a guardia ad litem service ad iclude iductio programmes. 2.5.4 Traiig Objectives Traiig shall be focused o achievig the followig objectives: (a) Improvemet of performace ad service to childre. (b) Provisio of traiig o a equal opportuity basis. (c) Provisio of traiig by diverse methods. (d) Exploratio of opportuities for joit traiig. (e) Sharig of exteral traiig where possible (f) Opportuities to promote the service at exteral traiig evets. (g) Opportuities for those already traied to trai others. (h) The moitorig ad evaluatio of all traiig. (b) Traiig shall be directly related to the idividual s preset or foreseeable work resposibilities ad based o assessed eed. (c) Traiig shall equip guardias ad litem with the ecessary kowledge, skills ad values pertaiig to their role. (d) Traiig shall assist i advacig the goal of providig the best possible service to vulerable childre ad youg people. (e) Traiig shall esure cotiuous professioal developmet. (f) Traiig shall provide opportuities for developig ew skills ad kowledge. 2.5.3 Traiig Methods The followig are examples of how traiig shall be delivered: (a) Iteral away days, semiars ad cofereces. (b) Iteral professioal developmet groups. (c) Literature research. (d) Legal Judgmet research. (e) Exteral semiars, cofereces ad courses. 11
Sectio 3: Practice Guidace 3.1 Sectio Itroductio This sectio expads o sectios 1 ad 2 by providig guidace o what a guardia ad litem eeds to do i order to achieve best practice ad fulfil his/her role. 3.2 Fulfillig the Role of the Guardia ad Litem 3.2.1 Prelimiary Cosideratios A guardia ad litem shall cosider the followig issues whe appoited to represet a child: (a) The ascertaiable wishes, feeligs ad iterests of the child cocered (cosidered i the light of his/her age ad uderstadig). (b) The child ad his/her circumstaces. (c) Physical, emotioal ad educatioal eeds. (d) The likely effect of ay chage i his/her circumstaces. (e) Age, geder, backgroud ad ay characteristics which the court cosiders relevat. (f) Ay harm suffered or at risk of sufferig. (g) Capability of each of his/her parets, ad ay other perso for whom the court cosiders the questio to be relevat, of meetig his/her eeds. (h) The rage of powers available to the court uder legislatio i the proceedigs i questio ad their possible impact o the fial outcome of the case. (i) The HSE ivolvemet ad care pla. (j) Cotiuous reviews of the effectiveess of the care pla. (k) Circumstaces regardig cotact betwee the child ad his/her paret(s) ad sibligs. 3.2.2 Iquiry ito the Child s Circumstaces The guardia ad litem shall coduct a detailed iquiry ito the child s life ad this shall iclude: (a) The history of the case. (b) The child s health ad physical growth. (c) Psychological ad emotioal developmet ad educatioal eeds. (d) Paretal ability ad commitmet to chage. (e) The level of attachmet betwee paret(s) or guardia(s) ad child. (f) Payig attetio to ethic, cultural ad religious eeds. (g) Idetifyig other sigificat people i the child s life ad idetifyig them to the court. (h) Readig all the statemets, affidavits ad reports filed durig the proceedigs. (i) Discussig the situatio with all relevat people, professioals ad agecies ivolved with the child. (j) Ascertaiig the child s wishes ad feeligs regardig his/her future. (k) Accessig all relevat reports, iformatio ad data available. (l) Idetifyig the key issues i the case. (m) Ascertaiig the ecessity or otherwise of legal represetatio or cosultatio. 3.2.3 Stages of the Iquiry It may be helpful to divide the iquiry ito stages to esure a efficiet ad time measured process. 3.2.3.1 Stage (1) Plaig the Iquiry The followig shall be cosidered i the plaig stage of the iquiry: (a) The completio of a check list to help esure all relevat areas are addressed i a timely maer. (b) The relevat court requiremets ad the ext court date. 12
(c) What is required durig that time-frame. (d) The ature of the proceedigs. (e) The idetity of the parties ivolved. (f) The idetity of the child s social worker. (g) What is specified i the court order. (h) The possibility of ay professioal coflict of iterest. The level of iformatio available regardig: (i) The child. (j) The grouds for the applicatio. (k) The child s immediate ad exteded family. (l) Ayoe with paretal resposibility. (m) The care pla for the child ito the future. () Where the child is curretly residig. (o) The child s level of kowledge of the proceedigs ad the roles ad fuctios of all the parties ivolved. 3.2.3.2 Prelimiary Iquiry Durig this prelimiary iquiry stage (2) the guardia ad litem shall: (a) Make a prelimiary list of people to be cotacted/ iterviewed to iclude: 1. Parets ad other adults importat to the child icludig previous ad curret carers. 2. Sibligs. 3. Members of the exteded family where relevat. 4. Professioals ivolved, for example social worker, family support worker, geeral practitioer, teacher, youth worker, garda juveile liaiso officer, residetial/uit maager or foster paret. 5. The child s solicitor, if appoited. (b) Examie all available iformatio. (c) Idetify ay gaps i that iformatio. (d) Request the provisio of whatever additioal iformatio is perceived ecessary. (e) Iform the child of the appoitmet ad explai the role icludig ay remedies to resolve tesios or dissatisfactio occurrig betwee the child ad the guardia ad litem. (f) Iform the child s carers of the appoitmet ad explai the role. (g) Iform the relevat social worker of the appoitmet both by phoe ad i writig. (h) Compile a record of appoitmets, iformatio provided, cotact details of parties ad professioals ivolved. (i) Idetify the issues to be addressed ad the tasks to be completed. (j) Ascertai if ay additioal directios from the court are required. 3.2.4 Areas of Iquiry 3.2.4.1 Approach The iquiry stage (3) shall cocetrate o two areas, gatherig iformatio ad idetifyig the areas of the case which are i dispute or where more detailed iformatio is required. 3.2.4.2 Gatherig Iformatio Whe gatherig iformatio, the guardia ad litem shall: (a) Esure that the child uderstads the role of the guardia ad litem. (b) Speak to all the people icluded i the prelimiary list. (c) Make otes of all iterviews coducted. (d) Request permissio to examie all social work or other relevat files regardig the child. (e) Liaise with the child, develop a pla of meetigs ad edeavour to keep each appoitmet made. (f) Usig professioal judgmet, meet the child i differet eviromets. (g) Whe a case ivolves a family group of childre, esure that the childre s iterests are represeted idividually ad as part of the family group. (h) Esure that the child s wishes ad feeligs are ascertaied regardig cotact with each family member ad the other sigificat people i the child s life. 13
(i) I particular whe represetig a child i special care or civil detetio, a guardia ad litem shall: 1. Esure that the child s wishes, feeligs ad iterests are represeted to key staff ad maagers ad to the care plaig group. 2. Cosider the child s ability to give iformed coset to medical ad other assessmets. (j) Focus o key areas regardig: 1. Aalysis of social work ad other relevat files. 2. Reasos for decisios take by the HSE. 3. The appropriateess of the curret applicatio. 4. The various areas of cotact with the child. 5. The aticipated duratio of the proceedigs. 6. The perceived urgecy of the situatio. 7. The idetificatio of the key issues. 3.2.4.3 Idetifyig Areas of Dispute Followig the iquiry ad examiatio of all relevat issues the guardia ad litem shall idetify ay areas of dispute or where more detailed iformatio is required. I particular, guardias ad litem shall: (a) Be familiar with the opiios expressed i files ad reports. (b) Be satisfied as to the veracity of the iformatio cotaied i files ad reports. (c) Examie the source of disputed or cotetious iformatio cotaied i files ad reports. (d) Be i a positio to differetiate betwee matters of fact ad opiio. (e) Idetify additioal people to be iterviewed or re-iterviewed if ecessary. (f) Ascertai the eed for the provisio of expert opiio/assistace. (g) Ascertai the eed or otherwise for additioal directios from the court. (h) Coduct focused iterviews with key people. (i) Be clear about the purpose of the iterview ad the specific iformatio required. (j) Explai the purpose of the iterview ad what will be doe with the iformatio obtaied to the iterviewee. (k) Focus o the wishes, feeligs ad iterests of the child. (l) Esure that the child participates i the decisiomakig process without bearig resposibility for the decisios made. (m) Keep the court updated o progress ad developmets. () Discuss the case with the appropriate HSE professioals or with HSE agets ad idetify possible areas of coflict, cofusio or agreemet. (o) Try to resolve ay perceived difficulties i a o adversarial way through discussio ad egotiatio before the ext court date while ot becomig ivolved i the maagemet of the case. (p) Actively seek the provisio of other reports before the ext court date so that issues idetified ca be take ito accout i the guardia ad litem s report. (q) Discuss the case with the child s solicitor, if oe has bee appoited. (r) Seek legal advice/cosultatio if legal issues are a likely or actual impedimet to achievig a appropriate outcome to the proceedigs. (s) Atted case cofereces/reviews where ivited ad participate i a costructive maer while beig aware of the idepedece of the role ad the resposibility of the HSE for maagemet of the case. (t) Usig professioal judgmet, ad takig accout of the provisios of, the Childre First Natioal Guidelies 1999, whether updated, ameded or replaced ad the provisios of the Data Protectio Acts, 1988/2003, be prepared to share relevat iformatio with other professioals ivolved with the child. 3.2.4.4 Ed of the Iquiry By the ed of the iquiry stage (3) the guardia ad litem shall: (a) Have all the relevat facts of the case. (b) Have iterviewed all those relevat to the proceedigs. (c) Be i a positio to idepedetly represet the child s wishes, feeligs ad iterests to the court. (d) Be i a positio to iform the court o all welfare aspects of the case. 14
(e) Where difficulties remai uresolved followig discussio ad egotiatio, be i a positio to iform the court with recommedatios ad/or possible solutios. (f) Have addressed ay issues of geder, ethicity, culture ad laguage. (g) Be i a positio to provide a idepedet view of the outcome of the work of the HSE ad other agecies ivolved with the child. (h) Be satisfied that the case is beig heard withi a reasoable timeframe. (i) Be able to offer idepedet advice o the optios available to the court ad the possible effects of each course of actio o the child. (j) Be i a positio to preset a view to the court o whether makig a order would be better tha makig o order. (k) Be i a positio to make clear idepedet recommedatios to the court regardig the course of actio most appropriate to the iterests of the child. (l) Be i a positio to advise the court o ay coditios to be attached to whatever order is made. (m) Advise the child s solicitor o the cross examiatio of ay witesses. () Iform the HSE of the recommedatios to be made to the court. (o) Be i possessio of cotemporaeous otes of iterviews so that these may be tedered i evidece to the court if ecessary. 3.3 Represetatio 3.3.1 Report ad Court Appearace Represetatio ivolves providig a report ad represetig the wishes, feeligs ad iterests of the child to the court. The courts that have sigificat experiece of guardias ad litem recogise ad appreciate the beefits of these reports ad advice. The report shall be readable for its rage of readers. The layout shall make it easy to read. The use of jargo, phrases or words ot easily uderstood shall be avoided. It shall be writte i clear, cocise ad correct laguage. It shall differetiate betwee professioal opiio, udisputed ad disputed fact. The report shall be a free-stadig, idepedet documet. Its purpose shall be to describe i clear ad uambiguous terms the backgroud of the case, iquiries udertake, the child s wishes, feeligs ad iterests, a assessmet of the child s eeds, a aalysis of the optios available to the court ad a recommedatio regardig the disposal of the case. Opiios or assessmets outside of the expertise of the guardia ad litem shall ot be provided. Expert assistace regardig the iterpretatio of iformatio that is difficult to uderstad shall be sought. The report shall preset to the court a fair ad balaced assessmet based o the iformatio available. The report shall assist the reader by eablig the makig of otes i the margis for the purpose of questioig or cross examiatio. Reports shall coform to a stadard template ad provide cosistet iformatio. I particular the report shall cotai: (a) A title page (b) Report cotets (c) Details of qualificatios (d) Details of the proceedigs (e) Summary of the case (f) Iquiries udertake (g) Family compositio (h) Backgroud history (i) Circumstaces of the child (j) Wishes, feeligs ad iterests of the child (k) Physical, emotioal ad educatioal eeds of the child (l) Child s experiece of harm (m) Assessmet of paretal ivolvemet ad other relevat care of the child () Details of HSE ivolvemet ad care pla (o) Optios available to the court (p) Recommedatios 15
3.4 Post Proceedigs Whe proceedigs have cocluded but depedig o the court s order, the guardia ad litem s ivolvemet usually ceases. However, it has become icreasigly commo for courts to make orders ad set further review dates requestig updates from the guardia ad litem. I these situatios it is importat for the guardia ad litem to clarify the positio with the court regardig his/her cotiued ivolvemet. Issues covered i ay update of proceedigs shall iclude: (a) Ay behaviour that might affect the well-beig or iterests of the child. (b) Ay chage i circumstaces that might affect the well-beig or iterests of the child. (c) A assessmet of the level of ay existig risk. (d) A assessmet of ay actio required to address ay risk. Notwithstadig the above, there are certai resposibilities which the guardia ad litem shall discharge upo coclusio of proceedigs: (e) Esure the child uderstads the outcome of the proceedigs. 3.5 Appoitmet Whe a guardia ad litem is appoited to a specific case s/he shall: (a) Declare ay possible coflict of iterests (self declaratio), whe iitially appoited to a specific case or arisig at ay poit durig the case. (b) A coflict of iterests might occur where: 1. The guardia ad litem has had direct cotact through previous employmet with the child or his/her family or sibligs 2. The guardia ad litem has had direct case or case maagemet resposibilities i previous proceedigs through previous employmet 3. The guardia ad litem has had a previous professioal or persoal relatioship with ay party coected to the case (c) Where ay of the above or similar situatios exist, the guardia ad litem shall satisfy the court that his/ her idepedece while actig i the case specified is ot compromised. (d) The guardia ad litem, o appoitmet, shall be resposible to the court ad shall comply with all directios ad requests of the court. (f) Esure the child is aware of his/her rights to make applicatio to have orders varied or discharged. (g) Cosider the eed to commet formally o ay sigificat issues arisig from the case. (h) Cosider the appropriateess of lodgig a appeal. I additio, the guardia ad litem take all reasoable steps to: (i) Esure that all data gathered durig the life of the case is stored, hadled, trasferred or disposed of i a way that atteds to the eeds for privacy ad security. (j) Esure adequate plas are i place for the appropriate disposal of records i the evet of illess or death. (k) Esure records over which s/he has cotrol remai persoally idetifiable as log as is ecessary i the iterests of those to whom the records refer. 16