The 2022 act amends legislation concerning child-care proceedings (under the Child Care Act 1991), special-care proceedings (under the Child Care (Amendment) Act 2011), and the detention of children in an approved centre (under the Mental Health Act 2001).
The act primarily provides for a system of regulation and appointment of guardians ad litem (GALs) and provides that the best interests of the child are the paramount consideration for courts. It also sets out that children’s views in a matter should be heard.
GAL-appointment system
Before detailing the new regulatory system for GALs, the act provides two values that will ground the courts’ approach in proceedings under the act. Firstly, section 4 provides that the best interests of the child are the paramount consideration for the court in child-care and special-care proceedings.
This amendment was intended to reflect the intent of article 42A of the Constitution, which was inserted by the Children’s Referendum in 2012.
Secondly, section 5 inserts a new provision to the 1991 act that provides that the court must have due regard to the views of the child in proceedings relating to child care or special care. The court must give due weight to these views according to the child’s age and maturity.
Section 7 makes up the primary focus of the act, as it inserts a new part VA to the 1991 act. This part details the new system for authorisation, appointment, regulation, cessation, and revocation of authorisation of GALs. It also sets out the role and functions of GALs and their powers.
Authorisation and revocation
Section 35L of part VA sets out that the minister may create regulations that specify requirements and qualifications for a person to be authorised to act as a GAL. It also states that the minister may require prospective GALs to provide information relevant to these requirements in order to decide as to their authorisation. GALs may have their authorisation revoked under certain conditions set out in section 35N.
Appointment and cessation
Section 35B specifies that, in all special-care proceedings, the court will make an order for appointment of a GAL. It also states that, in child-care proceedings before the District Court, there is a presumption in favour of making an appointment order.
If the District Court decides against making an order, the court must give its reasons in writing. Section 10 of the act provides that, in proceedings relating to the detention of a child under the Mental Health Act 2001, a GAL must be appointed. All GALs are to be appointed by the minister under section 35C of part VA.
Section 35D deals with the provision of legal advice and legal representation for appointed GALs. The section allows for provision of legal advice on the request of the GAL.
Legal representation may be provided if it is considered to be in the best interests of the child, contingent on a number of factors, such as whether the GAL has been vested with the rights of a party to the proceedings by order of the court, and whether the GAL intends to make an application pursuant to the 1991 act.
Section 35H sets out the circumstances where an order for appointment of a GAL ceases to have effect. These include where the child becomes party to the proceedings, and where the child reaches the age of 18.
Regulation and functions
The minister is empowered by section 35J of part VA to develop a regulatory framework that will hold GALs to high professional standards. These standards will relate to the functions of GALs under the act, which are outlined in section 35E as follows:
- Ascertain the views of the child,
- Consider the views of the child,
- Make recommendations to the court as to the best interests of the child,
- Furnish the court with a report of the views of the child,
- Explain the reasons for their recommendations,
- Inform the child of the recommendations made in an age-appropriate way,
- Inform the child of the outcome of the proceedings in an age-appropriate way, and
- Inform the court of other matters when required by the court to do so.
Powers
GALs powers are defined under section 35F and 35G of part VA. The GAL is empowered to:
- Apply to the court to procure a welfare report about the child,
- Apply to the court for provision of information in the case that relates to any of their functions as GAL,
- Request information from the Child and Family Agency that relates to their functions as GAL,
- Apply to the court to resolve the dispute, where such a request is denied.
Commencement and implementation
While the act was signed into law on 19 July 2022, the act requires that it be commenced by statutory instrument made by the minister. Sections 1, 4, 6, and 13 have already been commenced, but the remainder have not yet been subject to a commencement order.
This is due to the requirement for extensive regulation and development of the GAL system before commencement can occur – particularly, the establishment of a functioning executive office is necessary before the legislative provisions can come into force.
This is necessary to avoid disruption to ongoing proceedings as much as possible. It is anticipated that the remainder of the act may not, in fact, be commenced until late 2024.
The introduction of the Child Care (Amendment) Act 2022 brings necessary clarity to the role of GALs and may be an important step in standardising a high level of service to children in child-care and special-care proceedings. It spotlights the views of the child in the consideration of the child’s best interests in a way that reflects the text of article 42A of the Constitution.
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