During a preliminary hearing, a District court judge was asked to decide on a point law concerning a 16-year-old mother with disabilities whose baby was in interim care. The teenager’s father, who was her legal guardian, had been instructing her legal team on her behalf under the Legal Aid Board scheme. The court heard that the teenager’s father had decided he was not in the position to act as her legal guardian any longer therefore the legal representative could not take instructions.
The question arose as to under what legal scheme it would be possible to appoint a guardian ad litem (GAL) to address the constitutional and human rights of the teenage mother and what agency would be responsible for the legal costs.
The interim care order extension application in respect of the teenager’s baby was due to be heard the following day. The adolescent mother had been giving instructions to her legal team, funded by the Legal Aid Board, through her father. The teenager’s father had expressed in very clear terms that he wanted the best for his daughter but he was of the opinion that she should represent herself in the proceedings.
Counsel for the teenage mother said that a GAL would have to be appointed so that he would be able to take instructions. After discussions, lawyers agreed that a named GAL would be the appropriate person. The CFA had agreed in principle to the appointment of the GAL but the issue of what agency would take responsibility for the legal costs remained.
The court heard that there was no legal basis for the GAL to be funded by the Legal Aid Board because it was not within the parameters of the Legal Aid Act 1995[1]. The judge said: “What about the children rights under the Constitution and the Convention on the Rights of the Child? You are telling me that [the teenage mother] needs a GAL in these proceedings.”
Counsel for the teenage mother told the judge that the appropriate party to bring the application for the appointment of a GAL was the CFA. Nevertheless, “to move matters along”, she brought the application under the District Court Rules Order 7 (Minors and other persons under disability) subsection (2) and (3)[2]. Counsel for the teenage mother said that, in the ordinary course of events, the rules would apply where a plaintiff initiated proceedings on behalf of a minor, similar to personal injury proceedings. She said: “I don’t see why the general rules would not apply.” “There should be a legal mechanism for the child to represent herself,” noted the judge.
There was a question as to whether the teenage mother would agree with the appointment. The judge said: “It is a legal point. She may or may not depending on whether she is or is not satisfied.” Counsel responded: “I am not sure, judge.” The judge pointed out that the interim care order extension was listed for hearing the following day. The court heard that the GAL was ready to act despite there being a dispute regarding who would pay. There was a scheduled fee and the GAL would adhere to it.
The CFA’s position was that it was a statutory duty of the Legal Aid Board to follow the case. It was an unusual way of appointing the GAL but the Legal Aid Board should discharge the costs. There were two different schemes in place: one scheme to take instructions from the parents and one scheme to discharge the GAL costs[3]. It should not be the responsibility of the CFA.
When the judge asked the solicitor for the CFA whether the Agency had come across similar circumstances in the past and how it was dealt with, the court heard that when the GAL was appointed according to the statute, the CFA would have covered the legal costs. The judge said: “This is two State agencies arguing about who is going to pay.”
Judge: “I am not being difficult. I am not going to make a decision until tomorrow… This is very rare. I have never come across this. Rare circumstances require rare answers in order to ensure that [the teenage mother’s] voice is heard. I would like if you and the legal representatives could engage with those State agencies. It may be the case that the CFA would like to pay or the Legal Aid Board or half each without establishing precedent. Thank you for your work.”
Appointment of GAL to the teenage mother
The following day the court heard that the teenager mother and her father were satisfied with the appointment of the suggested GAL. In the absence of a statutory scheme that would address the exceptional circumstances, the application to appoint the GAL for the teenage mother was made under Order 7 of the District Court Rules (Minors and other persons under disability) subsections (2) and (3).
The issue of what agency would be responsible for the legal costs of appointing a GAL remained. Counsel for the teenage mother said that she had not discussed the matter with the Legal Aid Board because their position was that the legal costs should be attributed to the Child and Family Agency. Solicitor for the CFA said that the Agency’s instruction was to recommend that the legal costs should be shared.
The judge said: “The duty of this court is to prioritise the welfare of the child and that involves no undue delays. Prolonged proceedings are not in the best interests of the child… The Legal Aid Board is not part of these proceedings. They are not in the room. I must have regard to the constitutional rights of both parents in these circumstances. I believe that the only option is that I must order the Child and Family Agency to discharge the costs on the basis that it is open to them to bring proceedings and seek indemnity from the Legal Aid Board. I am dealing with the Child and Family Agency. I am going to make an order for the GAL’s legal costs to be discharged. It is open to the Agency to pursue matters and bring proceedings.”
The judge appointed the GAL for the teenage mother according to the District Court Rules and ordered the legal costs to be discharged by the CFA. Given that the maternal grandfather no longer had a legal role, the judge asked whether he wished to remain in court during the hearing. The court heard that the maternal grandfather wanted to stay to support his daughter. The CFA application to extend the interim care order proceeded later that day.
Extension of the interim care order
Present in court for the extension application were the teenage mother with her father, the teenage father of the baby with his mother, the GAL and their legal representatives. The judge asked if anybody had any objection regarding the father of the teenage mother being present given that he had no longer a legal guardian role in the proceedings. No objections were made.
The social worker told the court that both young parents had had access to their five-month old baby in the last few days. The father had access during the week and once every second weekend, which the mother had agreed to. An access review was due to take place with the foster link worker and the GAL to consider increasing the mother’s access.
In relation to parental capacity assessments, the teenage mother was very clear that she was happy to engage in the process, which would take eight to ten weeks. The court heard that an occupational therapy assessment had concluded the teen mother required substantial support to be able to care for the baby. The social worker confirmed that she would continue to engage with both teenage parents in the next few weeks.
Counsel for the teenage father said that his client wished to continue with the access and wanted to engage in the parental capacity assessment. However, the 15-year-old father was not putting himself forward for parenting at that point in time.
The GAL told the court that the baby was doing very well. A very responsive and alert child, he was feeding normally and sleeping ten hours at night. The public health nurse had visited him the previous week and was very satisfied with the development of the baby. The relative foster carer was very focused on the child’s needs and the arrangement was working very well.
Both young parents were doing very well during access. The meeting that took place with them in relation to access was productive. The father was looking for additional access and at the time the mother agreed to it. However, this meant that, if the mother had wanted to increase her access, there would have been less availability for her. After reflection, the mother was not agreeable to the father’s increased access. The GAL said that the teenage mother was going to take “a bit of advice” from her own GAL, which was “a positive development”.
The GAL noted that the wider issue at that meeting was identifying the role that the parents wanted to play in relation to their child, even in the short-term.
GAL: “They want to be considered for the parental capacity assessments, if they are successful, how are they going to do it? They need a bit of thinking and engaging with the professionals.”
Judge: “They are not adults yet and that is another factor.”
The court heard that the foster relative also wished to be assessed. The baby was becoming very attached to the primary carer. The GAL said: “In fairness to [the parents] they need to decide what they want from this process and what they are prepare to do. Assessments need to take place sooner rather than later.”
The judge thanked the maternal grandfather and the paternal grandmother for the support to both teenage parents in the proceeding. “It is an enormous duty,” the judge said.
The interim care order was extended on consent of the parents, through their legal guardian and GAL, and the support of the GAL for the baby. Adjourning the care order application under section 18, the judge said: “I would like to know what the Agency’s position is in relation to this child, who has been in foster care for five months, and whether a care order is necessary.”
Parental Capacity Assessments
The case returned to the district court four weeks later. Present in court were the teenage mother with her father, the teenage father with his mother, the GAL for the infant and their legal representatives.
The social worker told the court that the baby was doing well in the foster placement. He had started taking solid foods. Both parents had access to their child. In terms of advancing the case, it was envisaged that the parental capacity assessments would start the following month but there were no exact dates yet.
The social worker commended the teenage father and his family for consistently attending the access appointments. She said it was important that the teenage father had his own legal representative independently of the mother. The social worker was satisfied that the grounds for the interim care order continued to exist.
During cross-examination, counsel for the teen mother said that she had started taking a new treatment, as prescribed by a consultant neurologist, and her symptoms had significantly reduced. She asked the social worker if an up-to-date occupational therapy assessment could be arranged. The social worker said that the teen mother was unable to hold the baby in a safe way and that it would require intense supervision. Given that the treatment was working, which represented a substantial change, the judge said it should be considered.
In relation to the parental capacity assessments, counsel for the teen mother asked the social worker what the differences would be, compared to a regular assessment, given that the parents were minors and the mother had disabilities. The social worker said that the assessments would be tailored accordingly. Counsel for the teenage mother asked for the terms of reference to be agreed as soon as possible, given that her client was being assessed in advance of the Agency making any recommendations to the court.
The social worker accepted that access with the adolescent mother, supported by her father’s partner, had been in place for a couple of weeks and was going very well. It took place in a more familiar and relaxing environment. The social worker agreed that consistent access was important.
The social worker agreed that the young father’s engagement and interaction with his son had been very good. The solicitor for the teenage father asked who was going to undertake his parental capacity assessment. The social worker said that a family welfare conference would take place in a couple of weeks to decide on it and also on the supports.
The court heard that the teenage mother would like to show the judge how much her condition had improved since she started her new treatment. The judge acknowledged that the improvement was a positive development.
The GAL told the court he had visited the baby in the foster placement a week earlier. He was growing rapidly and sleeping very well. There were some concerns regarding reflux but overall he was happy and very well looked after.
The evolution of access arrangements had stabilised. Both parents were doing very well during access, the mother with support. He agreed that an update of the occupational therapy assessment should be arranged given the recent developments in treating the mother’s condition. The GAL recommended that specific support services for children with disabilities and their families should be used.
The court heard that there had been a productive family engagement but a family welfare conference was due. It was important to ascertain in detail the commitment of the families in relation to the care of the baby in the future as soon as possible.
Acknowledging that matters should progress promptly given the tender age of the child, the judge said the threshold had been reached for an extension of the interim care order. “I would expect some clarity for the next date. I am glad that [the teenage mother] has the support of her father and family and that [the teenage father] continues his studies.”
Family Welfare Conference
When the matter returned to the District court four weeks later, the court heard that both parents, who were not present, had consented to the extension of the interim care order. The GAL for the mother and the GAL for the baby were present with their legal representatives. The paternal grandmother was also present.
The social worker told the court that the interim care order for the seven-month-old baby was granted in circumstances where both parents were teenagers and the adolescent mother had a neurological disorder. Since the last court hearing, the teenage mother had not attended all access appointments. The teenage father continued to attend access to his child consistently. He had just finished fourth year in school and his results were good.
The court heard that the infant had attended an appointment with a clinic to establish whether he was a carrier of the same genetic disability as the mother. The risk was low but it would not be possible to know with certainty until the baby reached the age of 10.
The parental capacity assessments had been scheduled and an appointment with a psychologist was being organised for the mother. Regarding the GAL’S recommendation to use specific support services for children with disabilities and their families, the social worker said that an appointment for the mother had been arranged but it had to be cancelled.
During cross-examination, the social worker said that a date for the family welfare conference had not yet been scheduled. Counsel for the teenage mother asked how seriously the Agency was considering reunification. The social worker answered that, as it was the beginning of the process, all options were being considered. The judge said: “I understand how anxious the mother and father are but, until that meeting takes place, it is a difficult question to answer.”
The GAL told the court that the baby was getting on well and growing very fast in the foster relative placement. The GAL agreed that access with the father continued to be positive but there had been some problems with the mother fully engaging with her son. “[She] has very real personal challenges. She is a very troubled young girl,” said the GAL. The GAL said that, although the risk of the baby developing the same disorder as his mother was very low, it continued to be monitored very closely.
The GAL reiterated that the parental capacity assessments needed to be completed as soon as possible in order to arrive to conclusions regarding future care arrangements. Acknowledging that matters would need to be moved quickly, he said that “making a transition from the [relative foster] care could be difficult for the child”.
The judge was satisfied that it was proportionate and in the best interests of the child to extend the interim care order.
[1] The Legal Aid Board scheme provides for the appointment of persons to assist clients of impaired capacity in childcare proceedings. It only applies to the provision of an “advocate” for an adult. The person will not be acting as a GAL or will not be allowed to be giving instructions to the solicitor.
[2] District court rules, Order 7 (2): A minor may sue by his or her next friend, and may defend any proceeding by his or her guardian ad litem. In any such case, before the name of any person shall be used in proceedings as next friend or guardian ad litem of the minor, such person shall sign an authorisation in the Form 7.1, Schedule C for that purpose, which shall be lodged with the Clerk together with the civil summons or other originating document or, as the case may be, with a notice of intention to defend.
[Appointment by the Court]
District court rules, Order 7 (3): Where any proceedings are brought before the Court on behalf of or against a minor the Court may, if it thinks it expedient so to do, at any stage of the proceedings by an order in writing in the Form 7.2, Schedule C, appoint a next friend or a guardian ad litem to act for and on behalf of such minor, and may at any time replace a person so appointed.
[Court approval required for acceptance of lodgements, etc.]
[3] The Child Care Act 1991 provided for the appointment of a GAL in respect of care proceedings where a child is not a party to the proceedings.
