A Guardian ad Litem (GAL) is an experienced independent social worker appointed directly by the Court to:
- Represent the voice of the child
- Report on the welfare of the child, and
- Provide recommendations on the child’s best interests
They currently operate independently, though some are organised through agencies. The Courts currently exercise a discretion to appoint amongst those persons who puts themselves forward.
The Child Care (Amendment) Act 2022, amending the Childcare Act 1991, will commence on 23 June 2026. It brings the provision of GAL services within the remit of the Department of Children, Disability and Equality through a national framework that establishes standardised authorisation, appointment and regulatory mechanisms.
Existing GALs raised concerns regarding
- Access to legal representation, and
- Operational independence under the new regime
The new regime represents a significant change to GAL services in child protection proceedings:
- The legal structure supporting the provision of GAL services to children, and
- The rights of GALs to be legally represented
Independence
GALs have long provided a valuable and independent voice in child protection services. They represent the perspective of the child and their needs in what can be a difficult child and family dynamic. Also, the views of the GAL and the Child and Family Agency may not always align. The GAL relies on their independence to freely put forward their professional view including advocating for the provision of services to children in care.
Independence of the GAL is a core value of the new role. The new Section 35E of the Childcare Act 1991 (as amended) states that Guardians ad Litem:
“shall be independent in the performance of his or her functions”.
Existing GALs say that being employed by the same Minister that oversees the Child and Family Agency gives rise to a conflict, and question if they can be truly independent when answerable to the same Minister. This issue may arise where a GAL seeks to bring an application advocating for resources or services in their role as the voice of the child.
Legal advice and representation
GALs are currently automatically entitled to legal advice and representation in Court. All costs are paid by the Child and Family Agency. The 2022 Act sets out the circumstances under which GALs will be legally advised and may be legally represented in proceedings.
At the GAL's request, the Minister shall “provide or arrange” legal advice, and, where the:
“Minister considers that it is in the best interests of the child, provide, or arrange for the provision of such legal representation as the Minister considers appropriate having regard to the matters specified in subsection (3).”
This means that GALs will not automatically be provided with legal representation.
The Minister shall, in deciding if legal representation to the GAL is in the best interests of the child, consider:
- The views of the Court that appointed the GAL
- If the GAL intends to make an application regarding the child
- The GAL’s opinion on applications made by others in the case, or
- If the Court has decided, of its own motion, to make the GAL a party to the case
This means that GALs must ask the Minister for representation and it is open to the Minister to decline. Legal services will be available to GALs through an inhouse legal team supported by procured legal services where necessary.
The core concern is that the new regime may undermine the constitutional rights of children. This is implicitly connected with the status of the child’s voice in the proceedings. In child protection cases the Child and Family Agency are submitting that the child has been or will be harmed by the parents. Is it then fair that each parent has separate legal teams but there is no legal team to represent the child’s voice? This may ultimately require clarification in the High Court.
What happens next?
The legal advice and representation issue is a significant concern voiced by many practising GALs. They say that sections of the 2022 Act are inconsistent with the rights of the child under Article 42A of the Constitution.
Conclusion
The new national service is aiming to deliver a consistent, quality, child-centred service, supported by standards, oversight, and accountability The current GAL concerns are that the voice of the child will be diluted.
There is a 12-month transitional period for existing GALs to continue ongoing work with children they are currently appointed to. So, it may be some time before we see how it develops in practice.
For more information and expert advice, contact a member of our Health & Prosecutions team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
