Child Care (Amendment) Act 2022

1. Definition

1. In this Act, “Principal Act” means the Child Care Act 1991.

2. Repeals

2. The following provisions are repealed:

(a) sections 23NH and 26 of the Principal Act;

(b) sections 13(b), (c) and (d) and 14(b) of the Child Care (Amendment) Act 2011.

3. Amendment of section 2 of Principal Act

3. Section 2(1) of the Principal Act is amended by the insertion of the following definition:

“‘Data Protection Regulation’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016[^1] on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);”.

4. Best interests of child to be paramount

4. The Principal Act is amended by the substitution of the following section for section 24:

“24. (1) In any proceedings before a court under this Act in relation to the care and protection of a child, including proceedings before the High Court under Part IVA in relation to special care, the court shall regard the best interests of the child as the paramount consideration in the resolution of such proceedings.

(2) In determining for the purposes of subsection (1) what is in the best interests of the child, the court shall have regard to all of the factors or circumstances that it considers relevant to the child including—

(a) the child’s age, maturity and any special characteristics of the child,

(b) the benefit to the child of having a meaningful relationship with his or her parents and with any other relatives and persons who are involved in the child’s upbringing,

(c) the views of the child where he or she is capable of forming, and has chosen to express, such views,

(d) the physical, psychological and emotional needs of the child,

(e) the social, intellectual and educational needs of the child,

(f) the religious, spiritual, cultural and linguistic upbringing and needs of the child, and

(g) any harm which the child has suffered or is at risk of suffering, including harm as a result of household violence, and the protection of the child’s safety and psychological well-being.

(3) In this section, ‘household violence’ has the same meaning as it has in section 31(7) of the Guardianship of Infants Act 1964.”.

5. Views of child

5. The Principal Act is amended by the insertion of the following section after section 24:

“Views of child

24A. Where in any proceedings before a court under this Act in relation to the care and protection of a child, including proceedings before the High Court under Part IVA in relation to special care, the child is capable of forming his or her own views, the court, in so far as practicable shall—

(a) determine the means by which to facilitate the expression by the child of his or her views in the proceedings, and

(b) give due weight to such views as the child wishes to express, having regard to the age and maturity of the child.”.

6. Amendment of section 29 of Principal Act

6. Section 29 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “Part III, IV, IVA or VI” for “Part III, IV or VI”,

(b) in subsection (2), by the substitution of “Part III, IV, IVA or VI” for “Part III, IV or VI”,

(c) in subsection (5)—

(i) by the substitution of “Part III, IV, IVA or VI” for “Part III, IV or VI”, and

(ii) by the substitution of “relevant documents” for “relevant court documents”,

(d) by the insertion of the following subsection after subsection (5A):

“(5B) (a) Where the Minister is satisfied that the attendance by an officer of the Minister at proceedings referred to in subsection (1) will assist the Minister in—

(i) the performance of his or her functions pursuant to Part VA and any regulations made thereunder, including the promotion of high professional standards and good practice by guardians ad litem in the performance of their functions under this Act, or

(ii) the review of the operation of this Act, in particular in relation to the care and protection of children,

the Minister may grant an approval to the officer (in this subsection referred to as an ‘approved officer’) for the purposes of such attendance.

(b) An approval under paragraph (a) shall specify—

(i) the name of the approved officer to whom it is granted,

(ii) the purpose for which it is granted,

(iii) the period for which it is valid,

(iv) the proceedings that the approved officer is permitted to attend,

(v) the purposes for which information, obtained by the approved officer in the course of his or her attendance at proceedings in accordance with subparagraph (iv), may be processed, which shall include the preparation of a report under paragraph (c)(iii) and the assistance of the Minister for a purpose referred to in paragraph (a),

(vi) without prejudice to any other requirement of the Data Protection Regulation or the Data Protection Act 2018, a requirement that personal data and special categories of personal data contained in information obtained, by the approved officer in the course of his or her attendance at proceedings in accordance with subparagraph (iv), shall be kept in such form that does not permit the identification of the parties to the proceedings or any child to whom the proceedings relate, and

(vii) such other matters as the Minister considers appropriate.

(c) Subject to any directions the court may give, nothing contained in this section shall operate to prohibit for the purposes specified in an approval—

(i) the attendance of an approved officer at proceedings referred to in subsection (1),

(ii) the access by such officer to any relevant documents of the proceedings referred to in subsection (1), and

(iii) the preparation by such officer of a report of the proceedings to assist the Minister for a purpose referred to in paragraph (a), provided that the report does not contain any information which would enable the parties to the proceedings or any child to whom the proceedings relate to be identified.

(d) In this subsection—

‘personal data’ has the same meaning as it has in the Data Protection Regulation;

‘proceedings’ include proceedings commenced but not completed before the commencement of this subsection;

‘special categories of personal data’ has the same meaning as it has in the Data Protection Act 2018.”,

and

(e) by the addition of the following subsection after subsection (9):

“(10) In subsections (5) and (5B), ‘relevant documents’, in relation to any proceedings referred to in those subsections, means any of the following documents (other than where the contents of any such document are expressed to be without prejudice or in terms having a like effect):

(a) the originating document in the proceedings;

(b) pleadings and other documents (including the terms of settlement, if any) produced to, or lodged with, the court or included in the book of pleadings;

(c) reports prepared in the course of the proceedings or otherwise under this Act and produced to, or lodged with, the court including—

(i) a report prepared by the Child and Family Agency, and

(ii) a report furnished by a guardian ad litem under section 35E(2);

and

(d) any order, decision or judgment of the court in the proceedings.”.

7. Guardians ad litem - insertion of Part VA in Principal Act

7. The Principal Act is amended by the insertion of the following Part after Part V:

“PART VA

Guardians ad Litem

Interpretation (Part VA)

35A. (1) In this Part—

‘appointed’ means appointed under section 35C(1);

‘authorisation’ means an authorisation issued to a person under section 35L(1);

‘child’, in relation to a guardian ad litem, means the child to whom the proceedings under Part IV, IVA, IVB or VI relate, and for whom the guardian ad litem is, or is to be, appointed;

‘guardian ad litem’ means a person in respect of whom an authorisation is issued;

‘relevant date’ means the date on which section 7 of the Child Care (Amendment) Act 2022 comes into operation.

(2) In this Part—

(a) a reference to the District Court shall be construed as including a reference to the Circuit Court on appeal from the District Court, and

(b) where the proceedings are proceedings under Part IVA, ‘court’ means the High Court.

Order directing appointment of guardian ad litem

35B. (1) A guardian ad litem shall not be appointed for a child in proceedings under this Act unless an order directing such appointment has been made under this section.

(2) In proceedings under Part IVA, the High Court shall by order direct that a guardian ad litem be appointed for a child.

(3) In proceedings under Part IV, IVB or VI, the District Court shall by order direct that a guardian ad litem be appointed for a child, unless the court—

(a) is satisfied, having regard to all of the circumstances that the court considers relevant to the child including the matters referred to in paragraphs (a) to (g) of section 24(2), that the best interests of the child can be determined without such appointment being made, and

(b) in respect of a child who is capable of forming his or her own views, it has determined other means by which to facilitate the expression by the child of those views.

(4) Where the District Court decides not to make an order under subsection (3), it shall give reasons for its decision in writing.

(5) Where a court makes an order under subsection (2) or (3), the court shall give directions relating to—

(a) the service on the Minister of such documents relating to the proceedings as he or she may require for the performance of his or her functions under section 35C,

(b) the service on such guardian ad litem as may be appointed of documents relating to the proceedings, and

(c) the notification of the making of the order and the appointment of a guardian ad litem under section 35C(1) to the parties to the proceedings.

Appointment of guardian ad litem for child

35C. (1) Where an order under section 35B(2), (3) or 35H(3)(b) is made, the Minister shall appoint a guardian ad litem for the child to whom the order relates.

(2) The Minister shall notify the court that made the order under section 35B(2), (3) or 35H(3)(b), as the case may be, of an appointment under subsection (1) as soon as practicable after the making of such an appointment.

(3) The power to appoint a guardian ad litem under subsection (1) includes the power to appoint a guardian ad litem in place of the guardian ad litem who stands appointed under that subsection.

(4) Where the Minister appoints a guardian ad litem for a child pursuant to an order under section 35H(3)(b), the power to appoint a guardian ad litem under subsection (1) includes the power to appoint a guardian ad litem other than the guardian ad litem previously appointed for the child in the proceedings and to whom the order relates.

Legal advice and legal representation

35D. (1) In proceedings under Part IVA, where a guardian ad litem is appointed for a child pursuant to an order under section 35B(2) or 35H(3)(b), the Minister shall provide, or arrange for the provision, to the guardian ad litem of legal advice and legal representation for the purposes of the proceedings for which the guardian ad litem is appointed.

(2) In proceedings under Part IV, IVB or VI, following the making of an order under section 35B(3) or 35H(3)(b), at the request of the guardian ad litem appointed for the child, the Minister, for the purposes of the proceedings for which the guardian ad litem is appointed—

(a) shall provide, or arrange for the provision, to the guardian ad litem of legal advice, and

(b) may, where he or she considers that it is in the best interests of the child, provide, or arrange for the provision, to the guardian ad litem of such legal representation as the Minister considers appropriate having regard to the matters specified in subsection (3).

(3) In determining for the purposes of subsection (2)(b) whether the provision of legal representation to the guardian ad litem is in the best interests of the child, the Minister shall have regard to:

(a) the views (if any) in relation to legal representation being provided to the guardian ad litem expressed by the court that made the order under section 35B(3) or 35H(3)(b);

(b) whether the guardian ad litem intends to make an application under this Act in relation to the child;

(c) the opinion of the guardian ad litem in relation to any application made in the proceedings;

(d) whether an order has been made under section 35E(11).

Functions of guardians ad litem appointed under section 35C

35E. (1) The functions of a guardian ad litem appointed for a child shall be—

(a) in so far as practicable and where the child is capable of forming his or her own views, to ascertain the views of the child in relation to any matter to which the proceedings relate, and

(b) to make recommendations to the court regarding what is in the best interests of the child—

(i) where the child has expressed views referred to in paragraph (a), after having considered those views, or

(ii) where the child is not capable of forming or expressing his or her views or is unwilling to express his or her views.

(2) Without prejudice to the generality of subsection (1), a guardian ad litem appointed for a child shall—

(a) furnish to the court a report that—

(i) conveys any views expressed by the child in relation to the matters to which the proceedings relate, and

(ii) contains the recommendations of the guardian ad litem regarding what is in the best interests of the child and the reasons for those recommendations,

(b) having regard to the age and maturity of the child, inform him or her of—

(i) the recommendations referred to in paragraph (a)(ii),

(ii) the outcome of the proceedings, and

(iii) such other matters relevant to the proceedings as the guardian ad litem considers appropriate,

(c) inform the court of any additional matters, relevant to the best interests of the child, coming to his or her knowledge as a result of the performance by the guardian ad litem of his or her functions, and

(d) perform such additional functions as the court, having regard to subsection (3), may of its own motion direct either generally or for a specified purpose.

(3) In determining for the purpose of subsection (2)(d) whether to direct the performance by a guardian ad litem of such additional functions as the court may specify, the court shall have regard to the nature of the case and whether such performance is necessary and in the best interests of the child.

(4) Subject to this Part, a guardian ad litem appointed for a child shall be independent in the performance of his or her functions.

(5) A guardian ad litem shall, in the performance of his or her functions under this Part, regard the best interests of the child as the paramount consideration.

(6) In determining for the purposes of this section what is in the best interests of the child, a guardian ad litem appointed for the child shall have regard to all of the circumstances that he or she considers relevant to that child, including the matters referred to in paragraphs (a) to (g) of section 24(2).

(7) Subject to subsection (9), a copy of a report furnished to the court under subsection (2)(a) shall be made available to the counsel or solicitor, if any, representing each party in the proceedings, or, if any party is not so represented, to that party and may be received in evidence in the proceedings.

(8) The court or any party to the proceedings may call a guardian ad litem appointed for a child as a witness.

(9) The court may, where it considers appropriate, order that such part of the report as is specified in the order shall be omitted from a copy made available under subsection (7).

(10) A guardian ad litem appointed for a child is not a party to the proceedings.

(11) Notwithstanding subsection (10), the court may, in any proceedings under this Act in which a guardian ad litem has been appointed for a child pursuant to an order under section 35B(2), (3) or 35H(3)(b), of its own motion or on the application of the guardian ad litem, where it is satisfied, having regard to the nature of the case, that it is necessary and in the best interests of the child and in the interests of justice to do so, order that the guardian ad litem shall have such of the rights of a party as may be specified by the court in the entirety of the proceedings or in respect of such issues in the proceedings as the court may direct.

Powers of guardians ad litem appointed under section 35C

35F. (1) A guardian ad litem appointed for a child may make an application to the court—

(a) subject to subsection (4), to procure a report on any question affecting the welfare of the child where—

(i) there is no report on the question concerned, or

(ii) the information in a report on the question concerned is out of date,

(b) for the provision of information to the guardian ad litem by any person, or

(c) in relation to any other matter relating to his or her functions.

(2) The court may by order—

(a) on an application under subsection (1)(a), direct the Child and Family Agency to procure a report from such person as the court may nominate on any question affecting the welfare of the child,

(b) on an application under subsection (1)(b), direct such person as the court considers appropriate to provide specified information to the guardian ad litem appointed for the child, and

(c) on an application under subsection (1)(c), give such directions as the court considers appropriate.

(3) In deciding whether or not to give a direction under subsection (2)(a), the court shall have regard to the wishes of the parties to the proceedings.

(4) A guardian ad litem appointed for a child shall consult the parties to the proceedings or the counsel or solicitor, if any, representing such parties before making an application under subsection (1)(a).

(5) Where a court gives a direction under subsection (2), a person to whom the direction is made shall, subject to subsection (9), comply with such direction.