The High Court has ruled that guardians ad litem (GALs) are entitled to full legal representation where that is appropriate to the case to which they are appointed.
The ruling, from Ms Justice Baker, came in a judicial review of a decision of a District Court judge to grant legal representation to a GAL to act for her in a case in the same way as an advocate to any party in the proceedings.
The Legal Aid Board, representing the mother in the case, had brought the judicial review proceedings, arguing that the District judge did not have jurisdiction to make such an order; that the GAL was not a party to the proceedings; that her participating in them as if she was a party was contrary to the right of the respondent mother to fair proceedings and constitutional justice; and that the Child Care Act did not give the GAL any role in a factual dispute between the Child and Family Agency and parents in such proceedings.
Written submissions had been received in advance by the court, which were then discussed.
The Child and Family Agency supported the judicial review sought by the Legal Aid Board, though it had not opposed the appointment of a solicitor to the GAL in the District Court proceedings.
Senior counsel for the Legal Aid Board said the case related to a child in care under Interim Care Orders since 2009. The addition of legal representation for the GAL added to the complexity of the proceedings. The simple argument was that where the legislature specifically considered the matter [of giving the child a voice in the proceedings] it decided that a child can be a party to the proceeding and be represented, or have a guardian ad litem, not both. It was not for the court to add to this.
In child care proceedings parents have to prepare to defend themselves against two parties. This infringed their constitutional rights.
Counsel for the GAL said that both the Constitution, as amended by Article 42 A [the Children’s Rights Amendment], and the European Convention on Human Rights meant that the child was entitled to be represented in the proceedings through a guardian ad litem, and that the guardian, as a person entitled to be heard, must have rights equivalent to those of the main parties to the proceedings, Tusla/the CFA and the parents.
“It has to be shown that the right of the child can only be vindicated by the GAL as a party,” Dervla Browne SC, counsel for the Legal Aid Board, said. “The Child Care Act places children’s rights being vindicated either through a GAL or as parties. Mr Durcan [senior counsel for the GAL] argues that all children have to be parties. That is not in the Act.
“In fact both the Constitution and the Convention see rights of the child within the family. The representation aspect under the Act appears to relate to the wishes and welfare of the child. Section 47 and Section 18.6 of the Act make provision for any person to make an application relevant to the child, even they are not a party to the original proceedings.
“The Act distinguishes between older and younger children. Weight is given to their views depending on their age and maturity. There is a right of every child to be heard either through the CFA, or as a party through a solicitor. Recognising this doesn’t mean there is a gap in the legislation. Procedural rights don’t apply to every child. Procedural rights also apply to parents. Procedural deficiencies do not detract from the scheme of the Act.
Judge: “What would happen if a child wanted to be a party, but was too young to instruct lawyers? Under the Act the GAL has to step out of the picture if lawyers for the child are appointed. The Act says there is no necessity for a ‘next friend’ for the child. That doesn’t mean they can’t have one.”
Eoin Carolan, barrister for the CFA, said there were two questions: the role of the GAL and their right to legal representation. Section 46 of the Act makes it clear the child cannot have party status and a guardian at the same time. That would fly in the face of what the Oireachtas intended. Clearly it happens that GALs do act like parties. An element in the position being put by the GAL in this case was that this always happens.
We should go back and see what the Act actually says. The fact that it happens does not make it lawful. Also it doesn’t mean it couldn’t continue. The Oireachtas made a clear and flexible mechanism for vindicating the rights of children. Case-law is relevant to the GALs but it is not decisive.
The whole position of the GAL seems to be that the rights of the child are breached if the child does not have access to full adversarial representation. It fails to give attention to the role of the courts and the CFA in vindicating the rights of the child. The court is given a broad discretion under Sections 25, 26 and 27. It can substitute one method of vindicating the rights of the child for another as the case progresses. The child can be joined as a party for a specific issue raised by the GAL. Section 25 did not say that being joined as a party was limited to older children.
There is provision for a flexible response to difficult, complex cases. It is inappropriate that there should be a blanket approach. We don’t disagree that the child has rights. The Act provides for this with a range of options.
If proceedings are brought to protect the child, the child is, at best, the applicant. The child is not the defendant. The reference to the child as the “defendant” should not be used to create category of representation. How does the GAL fit into the adversarial system? Should the GAL play a full adversarial role? Was it even in the interests of the child that he or she did so, he asked.
The Supreme Court in the “OA” case said that any decision on representation should be made by the court in the interests of justice and the rights of the child. If the GAL was producing a report he or she could not also be an advocate. Whether the GAL was regarded as a party by the court depended on the context, he said.
Counsel for the GAL, Gerry Durcan SC, said in hundreds and hundreds of cases over the past 25 years District Court judges had acceded to legal representation for GALs. The CFA was a party to these cases, and in no previous case had the agency said that the judges were not entitled to grant representation. Until this case, when the question had been raised by the solicitor for the Legal Aid Board, the CFA did not object. The CFA had paid out millions of euro for GAL lawyers. Was this not necessary? If so, the Comptroller and Auditor General would be very interested.
Judge: “We are hearing one case relating to one order. What the CAG might make of it is of no concern.”
Counsel: “Hundreds of Care Orders have been made with this practice. Are they not lawfully made?”
Judge: “It happens.”
Mr Durcan said it was important not to lose sight of the wood for the trees. The Act was meant to protect children. If there had been any evolution in child law over the years it was that children were more than ciphers in child care proceedings. The procedural rights of children were involved. The great development in child care law in the past 3o or 40 years is that children are viewed as people.
“Anyone affected by a legal order is entitled to fair procedures and representation. What is the real issue? It is what is the true role and function of a guardian ad litem, duly appointed. We are not saying a GAL should be appointed in every case,” he said.
Judge: “I don’t see this as a case to decide whether a GAL must always have legal representation. This is not a hearing of a general matter, though it is an important case. Under judicial review I must exercise restraint.”
Mr Durcan said Section 26 of the Act should be interpreted in the context of the totality of the Act, whose purpose is child protection. One way was to make the child a party. The next way is by giving the child some of the rights of a party. There were two options under Section 25.1, and the last sentence said the appointment of a solicitor for the child did not require a “next friend”. It was permissive, not mandatory. It meant you could have a situation where a child had a guardian and some of the rights of a party.
According to the Act, if a child was not able to avail of Section 25 [being made a party] he or she may have a guardian appointed under Section 26. The costs are paid by the CFA. The Act did not spell out what the functions and powers of a GAL were. Why? “We suggest it’s because it’s a concept well known to law.” Referring to case-law relating to GALs going back 150 years, he said the function of the GAL was to protect the interests of the child in litigation.
He said the definition of a “party” went back to 1877, and was “any person entitled to be heard and appear”. A GAL is appointed to fulfil a function defined in law and was provided for in Rules of Court. Section 26.4 of the Act did not prohibit the guardian acting as a party, it did not address it. It was not the practice of the District Court to make children parties, though it was not prohibited.
If the Act was interpreted in any other way than that argued by the GAL children who are not made parties are not protected as much as those who are. In fact, those who have GALs are usually the most vulnerable. When protecting the interests of children, sometimes they have to be protected against what parents do, sometimes against what the CFA does, and sometimes against what the judge does.
In this specific case, even if the guardian was not a party to the proceedings, Section 25 says that children can be made a party in relation to certain issues, so if there was no other legal basis Section 25 gave the judge jurisdiction.
In her written judgment delivered later, Ms Justice Baker said that Part V of the Act provided a number of means whereby the interests of a child may be protected in care proceedings. Making the child a party for part of all of the proceedings was one option, and appointing a guardian was another. They were mutually exclusive processes by which the child engaged with the proceedings. In addition, the court could procure a report on any question affecting the welfare of the child.
“The Oireachtas thus envisaged a nuanced approach to the question of the furtherance of fair process and the interests of justice, and the District Court is vested with a wide discretion to act in the interests of the child and in the interests of justice,” she said.
She said she was of the view that Section 25 envisaged a child having sufficient age, capacity and understanding before he or she was joined as a party, and it would not generally be appropriate to join a child of tender years as a party. It was envisaged that the court could appoint a solicitor to represent the child, as the child lacked the legal capacity to do so and could not lawfully incur a liability to pay costs.
She said she agreed that an absurdity would arise if a younger and more vulnerable child could not be a fully represented in care proceedings as a child with the age and capacity to be a party or have some of the rights of a party. The power to appoint a guardian did not impute a lower status or degree of participation on a child who was not a party.
She pointed out that the Supreme Court judgment dealing with the role of a guardian ad litem, HSE v DK  was dealing with a guardian appointed for the purpose of High Court proceedings and not the role of guardian appointed by the District Court. This judgment envisaged that the guardian should be an expert.
However, she said she must assume that a guardian appointed for District Court proceedings would be a different person from that referred to in Section 27, who would prepare a report. “I consider that the function of the guardian ad litem appointed under S 26 is to represent the child in the litigation, and to promote the interests of the child and interests of justice. The furtherance of the interests of justice … would suggest that the Oireachtas had in mind that the guardian ad litem would take a role consistent with the furtherance of the interests of justice, and therefore will take a role in the proceedings not merely as a witness.”
However, she added that the role of a guardian under S 26 of the Act “may not always fit readily with the breadth of a party as fully understood.” The impugned order in the present case “did not envisage a role for Ms Kerr [the guardian] by which she was vested in all the powers of a party to the proceedings.”
She said that the appointment of a guardian under S 26 of the Act was envisaged when the person the guardian represented was not a party, and did not have the role of defending the proceedings.
Referring to case law on the matter, she said it “illustrates the complexity of the matter and that to characterise a person as a ‘party’ to litigation may not readily define that person’s role.” She said the District Court rules on who could appear and address the court could not inform her interpretation of the legislative provisions, because the legislation was silent on whether the guardian was a party or entitled to be heard.
She agreed with the approach which said that the purpose for which a person was appointed a guardian may inform their nature of the rights and obligations. In this case the guardian was not appointed to be a “party” in the sense of an opposing party litigation, so she was not satisfied that the order was unlawful, as argued. The right of the child to fair procedures, up to and including legal representation, was mandated by the facts of this case. “The order made by the District judge is constrained and careful, and permits for the solicitor for the guardian to act as advocate only with the leave of the court.”
She said the judge showed himself to be mindful of the dangers raised by the Legal Aid Board, and reserved unto himself the right to manage the process to ensure that this was avoided, which was a rational and careful means by which the rights of all parties would be protected.
The unusual nature of care proceedings had been recognised by the superior Courts and the District court was given a wide range of powers to manage the process.
In conclusion, she said that the Oireachtas intended the appointment of a guardian to be a means by which the child could engage in the litigation, and therefore in appropriate circumstances the GAL should have the capacity to engage a solicitor, with or without counsel, though it was not mandatory to do so.
S 26(2), which provided for the awarding of costs, recognised that the GAL may not always consider legal representation to be necessary, the choice was for the GAL, and the payment of costs or expenses is at the discretion of the court.
- 25 meant that a child of sufficient age and understanding may have the rights of a party for some of the proceedings only and could be excluded from parts of a case when the District Judge considered it to be prudent.
“To describe the guardian ad litem appointed by the order in the present case as a ‘party’ is neither accurate nor helpful,” she said. The authorities suggested that “the role of the guardian ad litem may depend on the context of the appointment and the extent of authority vested by the order.”
In this case the judge had said the GAL could only act as an advocate with the leave of the court, which would not be necessary if she were a party in the true sense. She did not consider that the GAL was permitted to act as a party to the extent argued by the applicant, through the Legal Aid Board. The judge carefully reserved unto himself the power to restrict the extent of the capacity of the solicitor for the guardian to engage in the factual and legal questions of which he had seisin.
She therefore refused the reliefs sought by the judicial review.