Critically evaluate (a) the role of the guardian ad litem (GAL) in child care proceedings in Ireland and (b)

the effectiveness, in general, of the Child Care Act 1991 (as amended).

The Role of the Guardian ad litem in Child Care Proceedings in Ireland Guardian ad litem (GAL) is a person appointed by the court to represent the voice (more accurately, they virtually become that child by proxy?) of the child. The children that these people represent have not committed a crime, but due to circumstances beyond their control they are intrinsically involved as their welfare is of concern. The GAL symbolizes and denotes the innate needs of the child, and does so by making recommendations to the court that summarises what the child (?) perceives to be a remedy for the situation that he or she finds themselves in.

The GAL works with one individual, within the court and social services divisions. They address areas such as: An Investigator: looking into the childs background family and friends, organisations the child is involved with A Monitor: Keeping all agencies informed of the events relating to the child. A Reporter: Acknowledging the wishes of the child to court proceedings. A Protector: Answering difficult questions and producing written documentation to the courts, receive support and services to promote all aspects of their development (Carr, )

A Spokesperson: To articulate the wishes of the child within a legal framework.

The function of the GAL should be two-fold; firstly to place the views of the child before the court, and secondly to give the guardians views as to what is in the best interests of the child (Health Service Executive v D.K, 2007).

Controversy can arise simply because what the child desires and what the GAL collates determines to be relevant and paramount to their welfare can be contestable (Corrigan and Forde, 1995). Evidence has shown that even when parents/guardians inflict indescribable

abuse, the child still seeks the comfort of the abuser. The GAL therefore has to be sit between the real needs of the child and the potential emotional conflict of separation from their parents. No doubt children are institutionalised into their family in the same way men or women spending any length of time in a prison, can be massively conflicted when set free.

This then to a degree poses the question about the Irish legal system which advocates an adversarial approach. This approach is one of winning the case. Each appointed lawyer is aggressive with the aim of the outcome to be victorious. (Mallon and White 1996:50). An active role is witnessed; legitimacy, facts and veracity are merely by-products of the result. By contrast in the Netherlands an inquisitorial approach is encouraged. This is conducted in an informal setting without a jury. In general three judges are present. The material compiled, consists of various reports from social workers, police and other statutory bodies. A Statement Validity Analysis is in operation, this allows specific specialists to assure the dependability of the childs statement (Mc Garth, 1997). A passive role is promoted court hearing is informal, and the parents and (older) children are able to speak directly to the judge (Hetherington et al, 1997: 96).

This social concept in an Irish legal framework would be inconceivable. The adversarial system accentuates stress. The child is under immediate pressure. The witnesses are crossexamined ruthlessly. The professionals are subjected to time-consuming questioning (Mc Guinness, 1991:19) the aim of cross-examination are basically two-fold: (a) to advance your own case; and (b) to undermine your opponents case (Council for Legal Education 1991:237). Who is the winner? This approach can potentially lead to the wrong result in fact it can depend on the quality of the arguments put forward by the solicitors.

Currently in child care trials there can be up to five legal bodies representing the people involved. The GAL is only when appointed by the court in areas such as care and supervision orders when the child is absent in the court proceedings Child Care Act, 1991s 26 (1) will represent the best interests of the child but under what duress? The more legal teams operating in the court arena, the greater the scope for protracted legal argument, with much

re-hashing of evidence with each witness (Mc Grath, 1997:148). Is the system in compliance with the best interests of the child? Who really gets life? (??)

The GAL was introduced into the Irish legislation in the Child Care Act 1991. The introduction was in association with heinous crimes of child abuse and followed the format of a system that was operational in England. Its main objective was to protect children in civic proceedings. The United Nations Convention on the rights of the child stipulated that the GAL in Article 12 should be representative of the child. The GAL is prominent and regulated by CAFAS in countries such as the United Kingdom. This is an autonomous agency that has a qualified panel accessible to the courts (Gibbons 2007: 187).

However, in Ireland this is not the case. No regulatory body is overseeing the practice or implementations that are deemed viable by the GAL there is clear evidence that the Irish system is seriously failing children due to the lack of regulation of the area and very low provision rates (Daly, 2011:1). The Childrens Acts Advisory Board (CAAB) is the responsible agency outlines instructions relating to the responsibility of the post (Child Care Amendment Act, 2007 s.20).

The CAAB outlines the necessities that are required to be a GAL, such as Description of the Role Qualifications that the GAL should hold Guidance on the appropriate direction that the GAL should operate Outlining testimonies that are both written and orally articulated within the court system. Instructions that deserve to be acknowledged by the Judge in accordance with the role of GAL (CAAB, 2009:3-17).

The reality concludes that the document was restrictive in content due to regulation and legislation. Consequently, it is not applicable in the house of law. It is up to the Judge to refer

to the document if he or she so wishes, meanwhile GALs are not measured analytically to their effectiveness within the system and if their recommendations are valid. The exception is Barnardos which currently employs 19 GALs. It provides training, and manages GALs within their organisation. However, this does not stop other GALs from employment, be it in the private or public sector. What is also contestable is that the Health Service Executive (Hse) is accountable to the payment of this profession, whilst also being answerable to every case under the Child Care Act 1991.

The CAAB is to be dispersed under the rule of the Child Care Amendment Bill (s.35). This is unjust as yet there are no provisions being implemented to continue the efforts made by CAAB in its requisite to provide regulations the GAL. It is in anticipation that the new Minster for Health and Children Frances Fitzgerald will provide an authoritarian body for the provision of GALs.

The fact is that children do wish to speak, especially in matters concerning their well-being. Research has showed that they are articulate and have a great understanding of where there welfare is concerned (Huddart & Demson, 2005:4). The social workers that practice as GALs are indispensable, their innate knowledge and well informed views are irreproachable. Time, funding, educating, legislative implementation relating to the above must be paramount in all child care cases. It is not acceptable that a GALs should only be deemed necessary on the request of a court. Every child deserves to be heard. It is time the republic of Ireland grew up and became in sync with other countries relating to our most precious asset the child.

Cases to note: This was synonymous with the conviction of a father who subjected his daughter to all forms of abuse, spanning a period of over 16years. The states involvement proved futile (Mc Guinness, 1993). The population as a whole was outraged that this abuse was committed but furthermore, nearly over two decades. This prompted an influx of funds into the Child Care Act, enabling provisions and recommendations to be assigned. A significant endorsement was allocated to

the GAL and full provisions were finally implemented in 1996, as a consequence of the Kilkenny Report (Ferguson, 1996: 5-36).

The Effectiveness of the Child Care Act 1991 The history of child abuse in Ireland does not make very pleasant reading. A lot of issues have come to light in the past 20 years of widespread abuse of children in the family home, at the hands of the church from priests and nuns, in industrial schools, childrens homes and in other school settings. While the issues were first highlighted in the media in the 1990s and the scale of the problem began to unfold what we find now that abuse of children is still ongoing as highlighted in the Roscommon case where the children were taken into care in 2004 when details of sexual abuse were disclosed even though there was neglect for 14 years since the first child was born in 1989. Some of the details from the timeline for this case are included below: 1989 The first of the familys six children is born. A neighbour expresses concern about the parents alcohol consumption, and alcohol being given to the baby. 1996 Serious concerns of neglect and emotional abuse are raised with social services after the birth of the familys fourth child. Social workers express concern over the level of alcohol consumed by parents, as well as hygiene, with refuse building up outside the house. The first of 11 case conferences begins, which results in health authorities providing periodic family support from home help, public health nurses and social workers. 2004 The eldest boy is taken into care after disclosing details of neglect and sexual abuse to a social worker. All children are later taken into care. They disclose the scale of abuse and neglect they have suffered to social workers. Garda officially begin their investigation. 2009 The mother is sentenced to seven years in prison for the abuse and pleads guilty to incest, sexual assault and abuse of her children. 2010 The father is sentenced to 14 years in prison with 18 months suspended on 47 counts of rape and sexual assault (www.irishtimes.com ).

Department of Health Guidelines in the 1970s did refer to the physical abuse and neglect of children. Child sexual abuse was not mentioned in Department of Health guidelines until the 1980s so is just a modern phenomenon or was it something that was always there? According to Kevin Lalor, Dublin Institute of Technology in as report entitled Child Sexual Abuse in Ireland: A Historical and Anthropological Note the sexual abuse of children is not a recent phenomenon in Ireland. It is probable that the massive increase in reporting in recent years reflects a greater awareness of the issue amongst professionals and the public, rather than an actual increase in incidence. We will never know the true incidence of child sexual abuse throughout Irish history. However, the few references to it which exist in the Penitentials and the Brehon Law alert us to the fact that the sexual abuse of children was merely discovered, rather than commenced, in the late 20th century. As to the apparent absence of child sexual abuse in the anthropological record, it would be reassuring to think that this reflects reality. However, as in Europe and the US prior to the 1960s, it could also mean that the right questions are not being asked. (www.arrow.dit.ie )

The Childcare Act 1991 is the begining of the most significant legistation in Ireland in relation to the protection of the child and promotion of the childs welfare. The purpose of the act was to implement the provisions of the UN Convention on the Rights of the Child 1989 which was ratified by Ireland in 1992. This act puts a legal responsibility on any person charged with the care of any child to act in the childs best interests... (Mc Partland 2010:19). It also places a specific duty on the health boards (now the Health Service Executive) to identify children who are not receiving adequate care and protection, and in promoting their welfare to provide child care and family support services (www.ispcc.ie).

There are many other pieces of legistation that were put in place as a result of the UN Convention on the Rights of the Child including the Childcare (Pre-school Services) (No.2) Regulations 2006. The overriding principle of this convention is that the best interests of the child should be the primary consideration but the Irish constitution puts the family based on marriage first and protects the child as part of the family. Hence the authorities are often too slow to remove a child from the family situation.

In addition to our awareness there is legislation and guidelines in place that we need to adhere to. There is legislation that applies to all work places and there is the childcare legislation that references the issues of equality and diversity. Convention on the Rights of the Child 1989 (UNCRC) There is also the United Nations and while this in not a piece of

legislation it has shaped the laws in relation to the protection of children.

Even with this legistation in place there were many high profile cases and investigations that came to light over the follow years. There were: The Kilkenny Incest Inquiry, 1993 The Madonna house Inquiry, 1996 The Kelly Fitzgerald Case, 1996 West of Ireland Farmer Case: (McColgan), 1998 Child Sexual abuse in Swimming, 1998

A Commission to Inquire into Childhood Abuse The Ryan Report (published May 2009) The Ferns Inquiry, 2005 The Roscommon Case, 2009

The report on the Kilkenny incest case was one of the first major investigations published in Ireland and the main recommendations from this investigation were: The Child Care Act, 1991, is implemented in full. Introduction of mandatory reportin and child abuse guidelines A national system for setting and monitoring child protection standards to be put in place. Standardized child abuse registers required (www.ispcc.ie)

Yet three years later in 1996 a child died due to neglect. The report Kelly fitzgerald, A Child is Dead stated that there was an over emphasises on intervening only because of sex abuse rather than recognising the dangers of physical and emotional abuse and neglect... (www.ispcc.ie) The report recommended that the constitution be changed to protect the rights of the child... (www.ispcc.ie) but 15 years later this has not happened.

Following on from the Child Care Act 1991 and the investigations carried out there were a number of additional pieces of legistation and guidelines issues as follows: Protection for Persons Reporting Child Abuse Act 1998 Due to the fact that people remained reluctant to report suspected cases of abuse following on from the 1991 act, the 1998 act provides immunity from being sued for damaged people who report suspicions of abuse reasonably and in good faith to designated health services staff or Garda. (Mc Partland, 2010:23).

Children First National Guidelines for the Protection and Welfare of Children 1999. The purpose of the guidelines is to provide assistance to all in the identification and reporting of child abuse. They emphasise that the needs of the children and famalies must be at the cebtre of child care and child protection activity and that a partnership approach must inform the delivery of services (Children First, 2004:17).

Mandatory Reporting (White Paper 2000) - This paper was drafted and circulated to government departments in 2000 but no legislation has been put in place and the debate continues each time high profile abuse cases are highlighted in the media.

Children Act 2001- This act provides for additional procedures including foster care, the duties of the Garda, family welfare conferences and parental supervision orders. It reinforces the 1991 Childcare act.

Garda Central Vetting Unit (2002) This was initially put in place for Government bodies but was extended to include all those working with children including voluntary organisations.

Ombudsman for Children Act 2002 The Act charges the Ombudsman for children with the promotion of the rights and welfare of children... (Mc Partland, 2010:69)

The Office for the Minister for Children (2005) It was set up by the Government in December 2005 to improve the lives of children under the National Childrens strategy and bring greater coherence to policy-making for Children. (www.ispcc.ie)

The Irish constitution defines the family unit (with married parents) as the fundamental unit of society. While the child at risk is a member of the family unit they are not looked on as an individual. There remains ongoing calls from many groups including the Childrens Rights Alliance to prioritise the referendum to strengthen childrens rights in the constitution (The Irish Times Health Plus, January 25th 2011). Hence the reason why social workers and the Health Service Executive are slow to remove children from the family home in many cases. The Childrens Rights Alliance, a coalition of non-governemntal organisations(NGOs) working to secure the rights of children, has 90 members including Barnardos, Society of St vincent de Paul and Amnesty (The Irish Times Health Plus, January 25th 2011)

The cycle of abuse in society continues where parents were abused themselves might also go on to abuse their own children especially if they have not dealt with the emotional trauma of their own abuse. There may be other factors such as the abuse of alcohol and drugs in the home along with other with socio-economic problems. A report by the Childrens Rights Alliance group show one in every six cases of child abuse in Ireland is attributed to alcohol, with up to 104,000 children aged under 15 estimated to be living with parents who misuse alcohol. (The Irish Times Health Plus, January 25th 2011)

If parents have emotional problems children may suffer from neglect, sometimes they may not be aware that they are neglecting their children and just need some help and support. Help is often only provided when the situation deteroiates to when abuse or neglect is detected by an outside agency e.g. school setting. People have to ask for help there is no one that will go and ask if they are ok e.g. new mothers, big families etc. Public Health nurses often see families but their role is developmental checks of babies and care of the eldery. In these situations children will be the first to suffer they do not have a voice.

Be aware of the present you are constructing; it should be the future you want. (Alice Walker from National Childcare Strategy, 2006: x). This statement sums up the response that the children that are in our care are tomorrows future leaders and workers in our society whether that is in our country, in wider European or worldwide society.

Bibliography Childrens Act Advisory Board (2009) giving a Voice to Childrens Wishes, Feelings, and Interests: Guidance on the Role, Criteria for Appointment, Qualifications and Training of Guardians ad litem Appointed for Children, Ireland: Child Care Act 1991 Mc Partland E, 2010, The Best interests of the Child, Gill & Macmillan, Dublin Department of Health and Children, 2004, Children First, National Guidelines for the Protection and Welfare of Children, The Stationary Office, Dublin