The solicitor took to social media to complain that the minister is “regurgitating inaccuracies” in statements on the bill which he described on Twitter as “factually and legally wrong”.
Either way, Noble believes that the voices of vulnerable children are being “drowned out”.
Dual function
As matters stand, the dual function of a GAL is to ascertain the views and wishes of a child, and to offer a professional view to the court as to what is in the child’s best interests.
Noble says that the proposed amendments place huge emphasis on children who are in a position to give their views at the expense of those who can’t.
There are a number of circumstances set out in the bill that enable courts not to appoint a guardian, notwithstanding the so-called presumption that all children will be granted one.
The lawyer believes that the function of guardians ad litem in discerning the “child’s best interests” is now being diluted, and that children will bear the brunt of this failure.
He says it will also lead to a situation where the State will potentially be in breach of its constitutional duties, where children will have a right of action where their voice was either not heard or heard on a restricted or limited basis.
Noble predicts that these actions will inevitably follow where children have been denied their voice, wishes, feelings and best interests on an equal basis to either the State or their parents.
Fears
The proposed amendment will make it more difficult for the voices of young, scared, disabled and/or non-verbal children to be heard, he says, and he expressed fears that these children would be left behind.
The solicitor stresses that the bill, as drafted, “has had no input or consultation from lawyers acting on behalf of the interests of children on the front line, or guardians themselves”.
He pointed out that two very experienced High Court judges in this area of law have publicly highlighted the invaluable role that guardians ad litem play in bringing about good decisions and outcomes for children.
The solicitor is concerned that the minister has not met any of those from a children’s rights perspective who have sought and advocated for reforms to enhance the voice of the child, and who have examined the wider application of the voice of the child protocol.
Window dressing
Noble added that an Expert Reference Panel established by the Department of Children and Youth Affairs had not even met yet.
This panel was “to provide additional specialised advice and opinion to the department on a number of key operational aspects of the new guardian ad litem service”
“The minister has never once invited lawyers on the front line to advise her on how to get a better service on behalf of children,” Noble said.
The solicitor slated the current consultation process as “window-dressing which will come when all the real decisions have been made behind closed doors”.
He believes that the bill, as currently drafted, is unconstitutional.
“This country voted in a constitutional referendum to enshrine the rights of the child in our constitution. Children have stand-alone rights, meaning that they are not merely add-ons to their parents’ rights."
Diluting children’s rights
“It is ironic that the first substantive piece of legislation, post-referendum, is actually diluting children’s rights,” Noble said.
“It doesn’t give an effective voice to all children, and it treats children differently, even within the care system. It offers no additional rights to the very many children in voluntary care situations, and adds nothing for children in private family law proceedings, whose voice depends, for the most part, on the ability of their parents to pay for it.”
In relation to those very limited categories of cases where it will be compulsory to appoint a guardian, referring to mental-health proceedings and High Court special-care cases, Noble says: “That is happening anyway, and rightly so.
“How then can we draw a further distinction between those cases and very fundamental cases of huge import in court decisions around taking a child into care, and vital decisions about their future welfare and well-being, which will continue to be at the mercy of others?
“How can we ascertain the position of the child if they want to express a view, or are able to, without ascertaining that independently of the parties to the proceedings?”
“This bill will strengthen the hand of parents who have neglected or abused their children, and strengthens the hand of those who want to take them into care, but will offer them little else, especially when it comes to aftercare.”
Voice of the guardian
Noble points out that under the proposed changes, GALs who will be asked to submit a report will only be able to speak if called upon by the court or called by the parties.
It has yet to be clarified if, at all stages of the proceedings, guardians, through their legal representatives, will be able to cross-examine and make submissions from the perspective of the child, their voice and best interests.
“Tusla won’t call a GAL recommending something that it doesn’t like,” Noble says, pointing out that the bill relegates the voice of the child to being a “backseat passenger in a vehicle driven by others, some of whom may not always have the child as the central focus of their decision-making”.
“Under this legislation social workers have full rights of legal representation, parents have full rights of legal representation, but those representing the voice of the child will now have to apply to the minister for sanction to be represented. How can that conform with article 42A of the Constitution?”
He said that many courts across the country had embraced the spirit of the children’s rights referendum and had endeavoured to vindicate the voice of the child, recognising that the referendum obliges them to do so.
Inconsistency
However, there were concerns that the voice of the child was not always heard consistently, and this bill did little to fill that gap, Noble said.
He pointed out that regulation to ensure greater consistency in relation to the role, qualifications and experience of guardians was necessary in order to provide a good and ethical standard of service.
Protocols
This is something that guardians themselves have long called for and, indeed, two of the largest providers, Tigala and Barnardos, have already developed strict protocols and standards in relation to the guardians working with them.
“I am at a loss to know why the minister is promoting this bill as an advancement of children’s rights when it is actually the opposite,” he said.
“However, there is a long journey to travel, and we will continue to work hard to engage with all interested parties to ensure that we come out the other end with a bill that puts the vulnerable child and their voice first.”
“This is a missed opportunity to progress the rights of children, but it can and will have to be put right.”