Gordon Jeyes, the head of Tusla (Child and Family Agency) has been in the media recently, expressing concern about how courts handle childcare cases, and the level of scrutiny involved. I agree with him to this extent only: that in terms of child care cases (applications to have children removed from their homes into the care of the CFA), there is a need for more cohesive policies of practice across the State’s courtrooms. On that basis, I welcome debate around these issues.
However, as a family lawyer who represents children and their guardians, as well as parents, I do take issue with some of what he is reported as saying, and the assumptions which appear to lie beneath his comments. The starting and finishing point of this debate must ultimately centre on the needs of the children concerned, rather than the difficulties that court processes or decisions may or may not create for those charged with these children’s care.
Firstly, there can never be too much scrutiny of childcare cases. The central tenet of any childcare application is the welfare and protection of the child, because the consequence of removing a child from its family is so severe. No-one can honestly claim that mistakes haven’t been made in the past or that Tusla should be beyond the scrutiny of the court, which is the body charged with testing the evidence and making decisions on a child’s future care.
Mr Jeyes contends – presumably as part of this ‘scrutiny’ – that there can be a lack of respect for social workers in court. This does not tally with my experience, where I see social workers being treated with both courtesy and respect by judges. It is a court’s obligation to question social workers in order to establish facts and to seek action. Surely Mr Jeyes is not suggesting that social workers should be above such levels of scrutiny when it comes to childcare?
Secondly, Mr Jeyes hits out at the Guardian Ad Litem (GAL) system, which allows children to be represented in court by a Guardian who speaks for them, and them alone. This is an independent voice, both in respect of whether they should be taken into care, and also most importantly, in respect of their needs.
If children in care were automatically given the services they require then there may not be such a requirement for the Guardian system to advocate for the children’s needs while in care. The reality is that there is often a wide gap between what Tusla and the State system provides for children, (this is usually a resource argument) and what children actually need.
It is very often the voice of the Guardian in the courtroom which will secure the immediate provision of services, as a last resort order by the court. I have personally seen children in care wait for services for months during the course of a care order application, and it has only been on the Guardian’s insistence and perseverance that services have actually been provided. This is through no fault of the social workers, who are themselves constrained by bureaucracy and inadequate resourcing.
Whilst I agree that regulation is required for Guardian- ad- Litem service, the majority of Guardians in my experience are ethical and conscientious and their continuing role is essential for the balance of power to be maintained in respecting and vindicating the voices of children in childcare. If we remove the GAL system, where does the voice of the child themselves come in. And where does that leave the rights of children which are now enshrined in our Constitution following the Children’s Referendum?
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