GAL brings concerns to court after order made – 2017vol1#17

A guardian ad litem (GAL) sought to have a case re-entered before the judge where a Supervision Order and an Interim Care Order had been made. The case involved a Supervision Order for three siblings and an Interim Care Order made in respect of one child in late January 2017.

On being appointed to the children towards the end of the hearing the GAL completed a preliminary analysis of the relevant documentation. Her review raised serious concerns which she said she felt obliged to bring to the court’s attention and to the attention of the parents. She submitted her concerns in a written report to the court.

The solicitor for the GAL said that the GAL felt she had a duty, in line with the McMenamin decision in AO, to bring to the attention of the court matters where he or she had a different opinion to that of the Child and Family Agency on an issue before the court. She noted that it was the duty of the GAL to represent the children in line with the High Court decision of Baker in AOD. She said the children are independent rights-holder under Article 42A of the Constitution. To have a meaningful role the GAL must bring a matter back to the court if she had serious concerns.

The solicitor for the Child and Family Agency noted that he had no instructions to bring an application on behalf the Agency. He said the Child and Family Agency’s position was very clear and had been set out in a strategy document.

The barrister for the mother said other than six paragraphs there was nothing new in the GAL’s report, which essentially reiterated evidence already heard. She noted that the GAL met with the children in the home but her report did not convey the views of the children. She said it was completely unnecessary to bring this back into court. The GAL had brought her concerns to the Child and Family Agency who had not acted on them.

This barrister noted that the AO case set out the role of the GAL in the context of a secure care case. She argued that they were only observations and asked if they were limited to High Court proceedings or if they applied elsewhere. She said the GAL was attempting to reopen a case which had been determined by this court. She argued that the motion for re-entry was founded on a misinformed view that a Safety Order was in place and that her client had breached this Order. She said there was only a short term interim Safety Plan in place. She also noted that she was instructed by the Legal Aid Board and there would be cost consequences to this hearing.

The barrister for the father queried the purpose of the application, saying it did not make any sense. There was no difficulty in hearing from the GAL but there was no application for an Interim Care Order before the court so the barrister was unsure what the court was being asked to do and what the court could do after it heard the evidence.

The Judge rose to read the GAL report.

In response to the submissions raised by the barristers for the mother and the father, the solicitor for the GAL clarified that she was not trying to reopen the case. She referred to Justice Baker’s decision that in the interests of justice and to ensure fair procedure rights children must be represented in litigation given that they are the dominus litus and that in this case the GAL was representing the dominus litis (person directly interested in the suit). She noted that the GAL was only appointed at the end of the hearing which resulted in the granting of a two-month Supervision Order – she did not participate in those proceedings.

The judge queried the purpose of the GAL’s submission, asking what could the court do with the GAL’s concerns. The barrister for the GAL replied that the purpose was for the court to hear and consider her concerns: she appreciated that they did not have jurisdiction to make an application for a direction under s.19 or s.47. The only body that could make such an application was the Child and Family Agency. She indicated that she may make an application to listen to the DAR so the GAL and her lawyers could be informed of the original hearing as neither the GAL nor her barrister were present at that hearing. She said that when the GAL completed her analysis she was concerned that there was a serious level of risk to the children.

Again the judge asked that if he accepted the GAL’s statement and it was not contested, what could he then do, there was no order he could make. The children were not in care as they were only under a Supervision Order. He said it was a “novel application” and he asked the barrister to justify the purpose of the application, stating that “there’s not a single order I can make.” He said one option was to take a case against the Child and Family Agency.

The GAL’s barrister noted that when the judge appointed the GAL he placed no limit on her role: her obligation was to bring her concern to the court.

The barrister for the GAL rejected the criticism of the GAL for not eliciting the views of the children when she visited them. She said that the GAL took a professional decision that it was not appropriate to interview the children as they were awaiting specialist attention. She said that when the court made its initial decision it did not have the benefit of the GAL’s analysis, it had it now and so they had put the case in for review.

The judge noted that the appointment of the GAL was in the context of a Supervision Order and not High Court proceedings. He directed that the Supervision Order be reviewed along with the Interim Care Order in ten days’ time. The Supervision Order was due to run for two months. The judge noted that “the order was made for two months: that in itself should be a signal.” He said the Child and Family Agency could consider what, if any, application needed to be made.

The judge said he was placing the GAL’s report on file but he had not approved it and it was open to all parties to look at it. Both barristers for the mother and father noted that they would be making an application for costs.