Judgment: 2016-10-14 · Court archive

High Court rejects challenge to guardian ad litem’s limited right to legal representation

The court refused to quash a District Court order allowing a guardian ad litem to instruct a solicitor, who could act as an advocate only with the District Court’s leave.

High Court · [2016] IEHC 555

Who, what, where, when and why

Who
  • The Child and Family Agency
  • Val Kerr
  • Justice Baker
What

The court refused to quash a District Court order allowing a guardian ad litem to instruct a solicitor, who could act as an advocate only with the District Court’s leave.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

Justice Baker concluded that the Act allowed a guardian ad litem, in an appropriate case, to engage a solicitor or solicitor and counsel. She treated appointment of a guardian as an alternative way for a child who is not a party to engage in care proceedings, and said legal representation was not mandatory. The guardian did not thereby become a full or opposing party. The District Court retained control over the process and could limit the solicitor’s participation, including in factual and legal issues.

The High Court refused an application to quash a District Court order permitting a guardian ad litem in child care proceedings to instruct a solicitor or solicitor and counsel. The District Court order allowed the lawyer to act as the guardian’s advocate only with the court’s leave.

The judicial review was brought by the mother of a child in care proceedings initiated by the Child and Family Agency (CFA). The child had been placed in voluntary care in March 2011 and was later placed with foster carers. The mother sought placement with her brother and half sister. The judgment records that the foster placement had broken down by the time of the District Court application.

The guardian ad litem, Val Kerr, had been appointed to represent the child’s interests. In May 2015, the mother and the child’s father asked the District Court to decide whether Kerr’s solicitor could fully represent her, including having a right of audience and cross-examining witnesses. The District Court ruled that the guardian could instruct a solicitor or solicitor and counsel, who could act as her advocate with the court’s permission.

The mother argued that the order exceeded the District Court’s powers under the Child Care Act 1991, that the guardian could not take part in disputed factual issues between a parent and the CFA, and that the order affected her constitutional rights. The CFA had supported legal representation for the guardian in the District Court but argued against it in the judicial review. Kerr submitted that representation could be needed to protect the child’s interests and participate effectively in the proceedings.

Justice Baker concluded that the Act allowed a guardian ad litem, in an appropriate case, to engage a solicitor or solicitor and counsel. She treated appointment of a guardian as an alternative way for a child who is not a party to engage in care proceedings, and said legal representation was not mandatory. The guardian did not thereby become a full or opposing party. The District Court retained control over the process and could limit the solicitor’s participation, including in factual and legal issues.

The judge also noted that amendments to the Act providing expressly for a guardian’s legal representation had not been commenced. She found that the existing statutory scheme nevertheless permitted representation in a suitable case. The High Court held that the District Court order was neither beyond its powers nor impermissible, and refused the relief sought. It did not grant the separate declaratory relief sought by the mother.

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