The District Court has ruled that a guardian ad litem is not a party to child care proceedings and that the notice filed in this case did not adequately identify children’s statements proposed as hearsay evidence.
The decision, dated 6 November 2013, concerned an application by the guardian ad litem under section 23 of the Children Act 1997. A Health Service Executive application for care orders remained pending. The court did not decide that the children’s statements were admissible or determine the care application.
The guardian ad litem argued that statements made by the children could be presented as their evidence, and that broad references to paragraphs in reports were sufficient notice. The HSE accepted that the reports gave sufficient notice of statements intended to support the guardian’s professional opinion. The mother’s counsel disputed both positions and argued that the statements had to be identified specifically so the mother could respond fairly.
The court concluded that section 26 of the Child Care Act 1991 did not give the guardian ad litem party status, either personally or as the children’s representative. It described the role as bringing the child’s views and wishes before the court while also offering a professional view on the child’s welfare. It said those views can differ, and that the guardian’s independent role sits uneasily with party status.
The ruling distinguished presenting children’s views from relying on disputed statements as evidence. It said a guardian ad litem would generally not need a section 23 notice merely to present the children’s views. But where statements allegedly made to the guardian are disputed and relied on as evidence in specified applications under the 1991 Act, the guardian must serve notice detailing the statements. The court also said the HSE must call the guardian to give evidence and serve notice if the HSE seeks to use statements made to the guardian to establish its case.
The judge held that the court must first inquire whether a child is unable to give evidence because of age or whether giving evidence would harm the child’s welfare. If statements pass that threshold, the court must separately consider whether admitting them would be unfair or contrary to the interests of justice, and, if admitted, what weight they deserve.
In this case, the guardian’s notice referred to paragraphs in reports but did not appear to identify all the statements intended to be relied on. The court rejected the suggestion that extracting the statements would be too onerous and found the notice inadequate. It said an application may cover statements from any of the children in the family, with the court deciding whether to admit all or part after considering possible unfairness. The ruling did not make that admissibility determination.