Jim O'Callaghan: Removing Guardianship Rights from Killers

This Bill upholds a fundamental principle that those convicted of the most serious crimes should not retain automatic legal authority over the children left behind. This Bill delivers on the Programme for Government commitment to examine proposals to remove guardianship rights from those convicted of killing their parents, their partners or a parent of their child. This Bill is not about additional punishment for a crime, rather it is about the welfare and protection of children. It is intended to protect vulnerable children from further trauma, to provide clarity for surviving family members and to prevent perpetrators from maintaining control over the lives of their children. I want to welcome to the public gallery Comhairle David French and his sisters Suzette and Hilary and his other sister Veronica who is watching in Australia. The reason why this law has been brought forward today is because of the campaign that David and his siblings launched arising from the murder of his other sister Valerie French. David French and his family have campaigned tirelessly for a change to the law in memory of his sister Valerie who was murdered by her husband seven years ago. Valerie's husband still retains all guardianship rights over their three children. I supported David in his campaign and since becoming Minister for Justice I have worked to change the law. There are other families in the same terrible situation and this Bill acknowledges their circumstances and I hope in some way ameliorates their difficulties. This important Bill will give the State the necessary power to ensure that the safety and welfare of the children left behind by such horrendous crimes are protected. It will do so in a manner that ensures that their voices are heard and ensures that their best interests are the paramount consideration at all times. The State must play a role here. Guardianship when one guardian kills another should not be regarded as a matter of private law to be determined between the families concerned, but must be regarded as a child protection and welfare issue. As I said earlier, this Bill delivers on the Programme for Government commitment to examine proposals to remove guardianship rights from those convicted of killing their partners or a parent of their child. It is part of the ongoing work to implement appropriate recommendations from the independent study on familicide, domestic and family violence death reviews published in May 2022. This study was commissioned by my Department to analyse and present recommendations on how the State's response could be more effective, both in terms of response after an incident occurs but also how systems could be put in place to learn lessons with a view to reducing future incidents of domestic homicides insofar as this may be possible. The Bill ensures that following the conviction of a parent or guardian of a child for the murder or manslaughter of another parent or guardian of that child, the Child and Family Agency, TUSA, will make an application to the Court. TUSA will be required to make that application as soon as it is practicable for an order which may remove or restrict the guardianship rights of the convicted guardian. My Department has worked with the Department of Children, Equality and Disability to ensure that the Bill is focused on child welfare, ensure that the voice of the child can be heard in proceedings and that TUSA will be best placed to make the applications provided for in the Bill. I want to thank and commend my colleague Minister Norma Foley, Minister of Children, Equality and Disability, who has been centrally involved in this legislation and who has been completely supportive of its introduction. The role of TUSA in making these applications recognises their important role as the State agency with primary responsibility to promote the safety and wellbeing of children. Given the tragic and serious circumstances being addressed by this Bill, TUSA will in many cases already be involved in providing support to the children and their caregivers. In some cases, TUSA may be making use of their powers under the Child Care Act 1991 to safeguard the safety and welfare of the child in the immediate aftermath of the crime. This is in keeping with TUSA's functions to promote the welfare of children, to identify children who are not receiving adequate care and protection, to coordinate information and to have regard to the rights and duties of parents, whether under the Constitution or otherwise. This Bill is a short one, but it deals with fundamental rights under our Constitution, including Article 42a, which provides that the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable by its laws, protect and vindicate those rights. The Bill will apply to both married and unmarried guardians, children will have a voice in proceedings and the courts will ensure that the child's best interests are balanced against the rights of a guardian who has failed in their duty towards their child by their horrific crime of killing that child's parent. Importantly, the provisions of this Bill will apply also to cases where one guardian killed another before the commencement of the legislation. This is an essential element to ensure that TUSA has the power, where it considers it necessary in the best interests of the child, to make an application to restrict or remove guardianship in the circumstances. Turning to the Bill before the Dáil today, it provides for a mechanism to remove or restrict the rights of a guardian who has been convicted of the killing of, or a serious offence causing harm to, the other guardian of a child. It amends the Guardianship of Infants Act 1964 by the insertion of a new Part 2a to that Act. The Guardianship of Infants Amendment Bill contains four sections. Section 1 is a provision defining the principal Act as the Guardianship of Infants Act from the 1960s, which is the Act to be amended by this Bill. Section 2 inserts a new Part 2a into the Guardianship of Infants Act. Part 2a is the part which gives effect to the Programme for Government Commitment to remove guardianship rights from those convicted of killing their partners or a parent of their child. This is in implementation of the recommendations of the Study on Familicide and Domestic and Family Violence Death Reviews. This new part contains nine sections. The first of these, Section 12b, defines terms that are used throughout the new part. Section 12c is the principal operative provision of the Bill. TUSLA must apply to the District Court within six months of the conviction of a guardian for the murder or manslaughter of another guardian of the child. This application must be made where the agency has reasonable cause to believe that the convicted guardian has failed in his or her parental duty to such extent that the child's safety or welfare is likely to be prejudicially affected. An order may be made by the Court which will be suspended and take effect once an alternative arrangement is in place, either a care order under the Child Care Act 1991 or that another guardian of the child is already in place. The Court must consider both the failure of duty and the best interests of the child before making such an order. An order may either restrict the convicted guardian's powers and duties or remove the convicted guardian from office as a guardian. The Court may impose such conditions as it considers necessary in the best interests of the child relating to the review of the order. It is important here to emphasise that TUSLA are required in these circumstances to make an application. However, it will be a matter for the Court to determine the form of the order to be made, considering the best interests of the child, whether that order is one to restrict or to remove entirely the convicted guardian from office as a guardian. The Court has the power to consider the totality of the circumstances in relation to any case before it may determine that it is not in the best interests of the child to make an order. The requirement is that this application be made as soon as practicable after the conviction, but in any case within six months of the conviction. This requires swift action, but the circumstances that give rise to such an application are thankfully rare. Section 12d provides for the same procedure and powers on the part of TUSLA and the Court in circumstances where the other guardian of the child has been a victim of a serious offence but has not been killed. A serious offence is defined as an offence causing serious harm, which carries a sentence of at least 10 years' imprisonment. In these circumstances, TUSLA may apply to the Court for an order removing or restricting guardianship of the guardian who has been convicted of a serious offence. TUSLA may make such an application where there has been a failure of parental duty, as in section 12c, and there has been a change in the care arrangements or guardianship of the child as a result of the serious offence. For example, a new guardian has had to be appointed or care arrangements under the 1991 Child Care Act have been put in place in respect of the child. Unlike section 12c regarding murder and manslaughter, the provision here will be a discretionary power for TUSLA. This is to ensure that guardianship of the convicted guardian only can still be removed or restricted in situations where the victim guardian has not been killed but is not in a position to exercise their guardianship. Section 12e provides for the procedures for a review of Court orders under this part. Applications may be made by TUSLA, the convicted guardian, another guardian of the child, or the child concerned, where there has been a significant change to the circumstances of the child which is capable of affecting his or her welfare. TUSLA must, and the convicted guardian may, make an application for such a review by the Court where the conviction of the convicted guardian has been quashed or set aside. The Court may determine that the order made under section 12c or 12d should remain in place having regard to the best interests of the child and must provide its reasons for doing so in writing. Section 12f provides for the appointment of a guardian ad litem to represent the voice of the child in proceedings under this part. This section applies the relevant provisions of the 1991 Act as amended by the Child Care Act 2022. This will ensure that the practices for appointment of GALs under this part, once the relevant sections of the 2022 Child Care Act are commenced, are in keeping with best practice. This includes a requirement for the Court to appoint a guardian ad litem unless it is satisfied that the best interests of the child can be determined without such an appointment and that it has determined that there are other means to facilitate the expression by the child of those views. Where a Court has decided not to appoint a guardian ad litem, it will be required to give reasons for its decision in writing. Best practice also includes powers to procure reports, allowing a guardian ad litem to make an application for procurement of a report on any question affecting the welfare of the child where there is no such report or where it is out of date after consultation with the parties in the proceedings. It should be noted that Minister Foley, the Minister for Children, Equality and Disability, will pay the costs or expenses incurred by a guardian ad litem. Section 12G provides for jurisdiction and the conduct of proceedings. Proceedings under this part will be heard in the District Court and in the Family District Court on commencement of the relevant sections of the Family Courts Act 2024. This will serve to reduce costs and timelines, along with ensuring that proceedings are heard before the Court which is most experienced at dealing with such matters. Proceedings will be heard otherwise than in public as a standard for guardianship and care proceedings. Section 12H provides for the necessary safeguards in relation to data protection and data sharing under this part. Consultation has been undertaken with the Data Protection Commission in developing these provisions. They will provide for the necessary legal basis to permit TUSA to share and receive data with relevant bodies to enable it to perform its functions under this part. I will, in consultation with Minister Foley, be able to make regulations under this section to specify the nature of and manner in which personal data may be shared and the measures to be taken to ensure that such personal data is shared only where necessary and proportionate. Section 12I provides for individuals to be made notice party to proceedings. Any guardian of the child must be made a notice party to proceedings. Any relative of the child may seek leave to be joined as a notice party to proceedings. This is broadly defined. This section implements a request of stakeholders and a recommendation of the Joint Oireachtas Committee on Justice, Home Affairs and Migration that family members be in a position to be made notice parties to proceedings. Section 12J provides for the retrospective application of this part to cases in which a conviction predates the commencement of the provisions of this Bill. In such circumstances where a convicted guardian was convicted of the murder or manslaughter of another guardian of the child, TUSA will be able to apply for an order as set out in the provisions of section 12C where there is reasonable cause to believe that there has been a failure of duty on the part of the convicted guardian and TUSA considers it appropriate to apply for such an order. Section 3 of the Bill is a technical amendment to section 8A of the Principal Act to acknowledge the new part 2A inserted by section 2 of the Bill. Section 4 of the Bill is a standard provision relating to the short title of the Bill and its commencement. The Bill will come into operation on the day to be appointed by me after consultation with Minister Foley. Before I conclude, I will speak briefly about the amendments I intend to bring on the committee stage. At the request of Minister Foley, I intend to provide for the inclusion of a short set of technical amendments to the Child Care Act 1991. While further detail will be provided at the committee stage, these amendments will ensure that the policy intent in respect of the appointment of guardians at Leitham and the provision to them of legal advice and legal representation under the Guardian at Leitham National Service are further elaborated in legislation. These amendments are necessary for the proper operation of this Bill. Many details will merit debate and I look forward to working constructively with Members as the Bill progresses. I know there is a general acceptance across the House that measures are needed to ensure that the welfare and safety of children are protected in the wake of these thankfully rare but incredibly serious and tragic circumstances. This Bill is one with a narrow scope that seeks to deliver on a well-defined and much-needed recommendation of the study on familicide and domestic and family violence death reviews. The Bill has been carefully calibrated to ensure that it reaches the appropriate balance between the constitutional protection of the family and the constitutional imperative that the best interests of the child are the paramount consideration when it comes to their guardianship. This Bill is a significant and important development in giving the state the tools it needs to ensure that it is the child's best interests, their welfare and their safety that is prioritised in the aftermath of these horrific crimes. Everyone in the House will agree that this is a worthy purpose and that is why I commend this legislation to the House.