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Breda O’Brien: Child welfare system is too dependent on courts

  • 10 Apr 2017

Focus on guardians ad litem misses bigger issue of overly adversarial system. There is merit in Minister for Children and Youth Affairs Katherine Zappone's proposal to reform the guardian ad litem system by establishing a nationally organised service.However, while the current system is dangerously ad hoc, institutionalising it may have unwanted consequences by reinforcing the adversarial nature of court cases involving children.

A guardian ad litem – usually a trained social worker – is appointed by the courts to represent the voice of the child in proceedings involving them, and very often performs invaluable work.

For example, when the relationship between social workers and the parents of the child has completely broken down, a guardian ad litem can provide a helpful neutral space.

However, it is far from clear that one should be appointed in every single court case.

A child, especially one from a chaotic or dysfunctional background, is at a grave disadvantage in a court

As Kieran McGrath, the respected child-welfare consultant, wrote more than a decade ago in the Judicial Studies Institute Journal, the adversarial legal system in Ireland is particularly unsuited to complex cases involving child welfare. Parents who are in court in Ireland automatically feel stigmatised.

Elsewhere, such as in the Netherlands, the system is far more informal and far less stressful on families. As a result, there is far less need for lawyers as it is not usually the law that is in dispute, rather what is in the best interests of the child.

In the Netherlands only about 20 per cent of children coming into care do so by court order. In Ireland it is about 60 per cent.

In an adversarial system, anyone who is not represented is going to lose out. A child, especially one from a chaotic or dysfunctional background, and usually feeling intimidated and helpless, is at a grave disadvantage in a court.

Often children's views were not being sought in complex situations. The guardian ad litem system was to remedy that.

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But sometimes it can add to the complexity. For example, there is a growing trend for guardians ad litem to have their own legal representation in court, with some acting almost as if they were parties to the case rather than officers of the court.

Long and aggressive cross-examination can leave the child in limbo as a case drags on. The new proposals will reinforce that.

There is also a difficulty regarding how guardians ad litem are viewed by judges in comparison to social workers.

Social workers expect to be very sharply questioned in court as if they are, by definition, not there in the child's interest, whereas guardians ad litem are treated as experts even though the majority trained as social workers.

Also, sometimes guardians ad litem demand measures from social workers knowing that they themselves could not have delivered the suggested approaches when they were working in the field themselves, due to lack of resources.

If an exasperated judge demands that the remedies suggested by a guardian ad litem be applied, it may distort the system's allocation of resources in a way that damages other vulnerable children.

Guardians ad litem are seen as the experts, yet social workers are the professionals who, according to the law, must act in the best interests of the child and be held accountable if they fail to do so.

Have we so little faith in our system that it is now considered necessary to add another actor, that is, a guardian ad litem, every time a child-welfare case comes to court?

Many cases end up in court because of a lack of adequate personnel or resources to carry out preventative work.

Cost increase

Tusla, the Child and Family agency, paid €8.2 million to 65 guardians ad litem in 2016.

While the new system will prevent individuals earning their current level of fees, the presumption that a guardian ad litem will be appointed in every single case means that overall, the costs will probably increase, not decrease.

Appointing a guardian ad litem in every child-welfare case will do little to remedy the underlying flaws in our system

Our overly legalistic system is dangerous in other ways, too. Insurance companies now have a huge unseen effect on the policies of government agencies, because the bottom line often is: if you follow the legal advice you are given, you will be covered by insurance. If you don't, you are on your own.

This gives legal advice an unwarranted power. Advice should be sought, but the job of legal advisers is always to protect the interests and assets of the client.

We are all too aware that acting rigidly according to legal advice left the Catholic Church with an over-emphasis on preserving the institution and its assets at the expense of compassionate care for human beings.

The damage to human beings as a result is incalculable and the Health Service Executive and Tusla are heading towards the same precipice.

It is not that Tusla and the HSE should go unexamined or not be subject to stringent regulation.

Examples such as the "Grace" case, where a young women was left in a situation where she was subject to unthinkable sexual exploitation show how necessary oversight is.

But appointing a guardian ad litem in every child-welfare case will do little to remedy the underlying flaws in our under-resourced and overly adversarial system.

Radical reform of a different kind is needed, including much more child-centred and child-friendly courts.