Until the tail end of 2016, few people outside childcare and the courts were familiar with a group of people known as guardians ad litem.
But then came media reports detailing how much money some of the guardians had been earning from fees, and the opacity around the set-up for what they did.
It all came to a head at a meeting of the Public Accounts Committee (PAC) in January 2017, when it was revealed that the 65 guardians had been paid an average of more than €100,000 per year, with one individual paid €240,000 in the year being reviewed.
A member of the PAC, former Fine Gael TD Josepha Madigan, upon hearing of this figure, said: “That is more than the President of Ireland earns in a year”.
She also noted that in general, the guardians were earning 2½ times what similar guardians were earning in the North, and in England and Wales.
Guardians ad litem are individuals appointed by judges to represent the voice of the child, and their best interests, in care proceedings. The role was established by the Child Care Act 1991.
They play a crucial role representing the child in difficult, trying, complicated – and at times traumatic and troubled – circumstances involving family and care.
However, while the role was established by the legislation, there was no structure set up to operate the service. So the system grew in an ad-hoc way. In theory every child about whom care decisions were made should have had access to a guardian but it was up to the discretion of the judge. As it happened, only half the children were being assigned guardians. There was a geographical imbalance, with children in Dublin far more likely to be assigned one than children elsewhere.
In addition, the guardians often sought legal representation in court, which meant additional costs, which were not subject to independent assessment.
In his report on the guardian system, Séamus McCarthy, the Comptroller and Auditor General, said there was no agency charged with formal oversight of these guardians. He said there was inadequate data to allow monitoring of expenditure and delivery of service. And in 2016, that spending came to more than €15 million in fees for guardians and for legal services.
There was also opacity about how guardians came to be assigned. There were no formal requirements for minimum standard of qualifications, nor was there a limit in relation to the caseload being taken on by them. Most were former social workers. A few child-centred agencies such as Barnardos did establish guardian panels and had laid down strong protocols with insistence on minimum qualifications and experience. But the overall system was unsatisfactory.
Everybody acknowledged that, including the then minister for children Katherine Zappone and the secretary general of the department, Fergal Lynch. Urgent reforms were promised. Zappone announced new legislation.
Almost 10 years since the initial revelations, despite the promises of urgent change, that unregulated, ad-hoc system is still in place, with no oversight or governance, and with only half the children in care proceedings actually being assigned guardians.
In 2023, a total of €10.5 million was paid to the 100 or so guardians ad litem, with a further €7 million in legal fees. Last year, the overall bill topped €21 million, with roughly half being paid in legal fees. The average annual cost per guardian is €100,000 although some earn far more, as it is understood more than 40 of the guardians do the role part-time. As independent contractors, the guardians are entitled to a fee of €125 per hour, a rate set in 2014.
As recently as May 2024, the former Fianna Fáil TD Joe Flaherty raised concerns about the system with then minister for children, Roderic O’Gorman. In his reply, Mr O’Gorman said:
“The existing legislative provisions do not set out the criteria for appointing GALs [guardians ad litem] or legal representation to a GAL. Tusla is obliged to pay GALs and their legal fees but has little oversight of how these roles are fulfilled. Currently all GALs operating in the courts are self-employed individuals with many supported through network arrangements in relevant organisations. In the current system many children do not benefit from GAL support during their court proceedings.”
In other words, the situation on the ground has not changed in nine years.
It is not that no political effort has been made. In fact, it was O’Gorman, now the Green Party leader, who did the running on it. He steered through new legislation in 2022, the Child Care (Amendment) Act. It set up a new national guardian ad litem service with an executive office within the Department of Children. The new service would give universal access to all children to a guardian. It also envisaged that, over time, the service would move towards a largely salaried staff, supplemented by a panel. Crucially, it would be the office, rather than the individual guardian, who would make the decisions on legal advice and representation in proceedings, thus reducing the overall legal bill.
O’Gorman said having a coherent, regulated, value-for-money and transparent system was the priority but it was also vital that every child in care proceedings had a right to be represented by a guardian. “These are vulnerable children and that was really important,” he said.
A UK expert in child care, with experience of setting up such services, came in as a consultant to the department in late 2023 to advise on next steps. Since then, a new director has been appointed and the office has begun to operate in shadow form.
There will be a transition period of a year (and possibly more) to allow those operating in the current situation to adapt to the new service.
The Minister for Children Norma Foley has said she is committed to setting up the service “as soon as possible”.
“It will provide a high-quality, standardised, regulated and sustainable system to guarantee that the voice of the child is heard in court and that their best interests are represented there. As part of the process to set up the office there is ongoing engagement with the judiciary, the courts service, Tusla, non-governmental organisations and the current guardians ad litem and their representative bodies,” she said.
Although politicians and others have tried to address the shortcomings in the guardian system, it will have taken almost a decade for the necessary reforms to have become reality, another example of the implementation sclerosis that afflicts the Government and the public service.
The Fianna Fáil TD Seán Fleming was the chair of the PAC at the time of the guardian ad litem hearings in 2017. He was surprised to learn this week that the situation in 2025 with the service remained as it was in early 2017, albeit with changes on the way.
“The snail’s pace with which this has been followed up raises concerns,” he said.
“I think there is a need for everyone to follow up on things.
“When I was chair of the PAC we wrote reports and interim reports, and made recommendations, as we did for the [guardians ad litem].
“I think there should be a mechanism for future PACs to review previous reports to see if the recommendations are being followed up. It’s the same for the responsible department. There should be a look-back mechanism where they are asked in 12 months or 24 months later to check if they have followed up,” said Fleming.
