At-risk children need a Guardian by their side

06 Apr 2017 in Advocacy, Featured

Granting children better access to legal advocates in childcare cases should just be the start of reforming the entire family justice system, writes Freda McKittrick, Head of Barnardos Guardian ad Litem.

Andrea is seventeen now. She has been in the care of the state for the last four years, in a residential aftercare setting that works very hard to meet her needs. Andrea functions as a seven year old.

That’s in part because Andrea’s childhood was unimaginable. From the age of two she suffered physical, emotional and sexual abuse of the most terrible kind, at the hands of her stepfather and other men, with the full knowledge of her mother. She was frequently denied food and locked outside of the house as a young child. She was told, again and again, that she would be found and killed if she ever told of the abuse.

To this day, she lives in fear of her step-father finding her. She has been diagnosed, among other things, with Post Traumatic Stress Disorder (PTSD). This impacts on her cognitive and emotional functioning, as Andrea is having to cope with intrusive thoughts, a high level of anxiety and a pervasive fear.

There is a plan for her future when she turns 18 that involves a safe residential facility where she will be properly cared for and supported. Since she came into care, Andrea has had a Guardian ad Litem at her side, appointed by the Court. The Guardian ad Litem worked with Andrea and her social workers to ensure that the court was fully aware of the harm that Andrea had suffered and that it was important she could not have contact with her parents due to the trauma and abuse she had encountered. The Guardian ad Litem worked closely with Andrea as she came close to her 17th birthday as the court wanted to be satisfied as to the aftercare arrangements for her, given her vulnerability.

That’s what Guardian ad Litem, known as GALs, do. They’re appointed by the Courts to make sure that young and vulnerable people have a voice in Court when life-changing decisions are being made about them. They advise the Courts about the wishes and needs of young people, and they seek to represent the interests of young people in the highly stressful atmosphere of a court.

The first Guardians were appointed in the UK after the terrible death of a little girl called Maria Colwell in 1974, who was discharged from care by a court, and sent home to an abusive parent, without any independent view of her needs being given to the Court. It is routine in the UK now for every child to have a Guardian, but the system wasn’t introduced to Ireland until 1995, and it is still the case that Guardians are only appointed in about half the cases where children are facing life-changing decisions in front of a court.

The core of the Guardian’s work is their relationship with children. It has to be professional at all times, but it is not a therapeutic relationship. It has to be sufficiently close to build trust to allow the child to openly discuss their wishes and feelings, yet not foster a dependency. It does not and cannot replace the child’s relationship with their social worker, who is the most significant person in their care journey, and who will remain after all court proceedings have gone. The Guardian’s relationship with the child has to be measured and proportionate. The Guardian needs to have a thorough knowledge of child development and welfare, and the impact of trauma on children and their capacity to form and maintain healthy relationships.

Despite that obvious need, the system has grown up in Ireland on a pretty ad hoc basis. The organisation I work for, Barnardos, contracts about half the Guardians, and has a rigorous code of standards and practice. But it is technically possible for anyone to offer themselves as a Guardian – there is nothing in the law that requires them to operate to minimum standards. And there are serious question marks around the cost of the system – a cost that must be borne by Tusla, alongside its already very stretched role in keeping children safe and providing for their welfare.

I believe passionately that every child being taken into the care system should have a right of access to someone who can speak for them and them alone, someone whose expertise and judgement will be valued by the Courts and the social work teams alongside who they work. I’ve argued for years that we need a system which is much less adversarial, much better managed, and where people can work alongside each other with one aim in mind – the best possible outcome for the child.

Securing best outcomes often involves juggling resources and priorities, and a collaborative approach is going to be much better at that than a legal battle is. But sometimes battle is necessary, if the interests of the child demand that.

There’s now a Bill in preparation to reform and regulate the entire system, and that’s really welcome. It needs to ensure that every child who needs access to a Guardian has that access as a right, and the Bill is not yet strong enough in that sense.

The head of Tusla, Fred McBride, talks about the ‘jagged edge’ between the privacy of family life and state interference in order to protect children. The Guardian works right within that space, in our adversarial, often conflictual courts system.

So while we’re changing the Guardian system, to provide better and more value-for-money representation of children’s rights, we need to push on with other reforms too. Our child and family justice systems remain too legalistic, too adversarial, too frightening. We shouldn’t stop at reforming one area, when by working together we can get it right for all children. 

Barnardos' Guardian ad Litem 20th anniversary conference took place on April 4th. 

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