District Court grants Care Orders under Child Care Act 1991 s.18 for two children due to parental unfitness.

[2013] IEDC 21

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND -

AB (FORMERLY C),

DE & FB

RESPONDENTS

SECTION 18 OF THE CHILD CARE ACT 1991

IN THE MATTER OF CHILD 1 AND CHILD 2

18TH DECEMBER 2013

Background

1. These are applications by the Health Service Executive (“HSE”) under section 18 of the Child Care Act 1991 for Care Orders in

respect of two children, Child 1 and Child 2. The applications were heard over 10 days between the 4th and the 18th November, 2013

and the 2nd to 5th December, 2013, with the decision reserved to 18th December, 2013.

2. Child 1 was born on 30th November, 2010 and had his/her third birthday during the course of the hearing. He/she was placed in

voluntary care on 2nd August, 2011 following a section 12 removal. An Emergency Care Order was made under section 13(1) on 30th

September, 2011 and an Interim Care Order was made on 7th October, 2011 which has been extended on 25 occasions since that

date.

3. Child 2 is 14 months old. He/she was taken into care on the day he/she was born, on foot of an Emergency Care Order on 25th

September, 2012 and an Interim Care Order was made on 2nd October, 2012, which has been extended on 14 occasions.

4. AB (nee C), the respondent mother of both children the subject of these proceedings has been properly served with notice of

these proceedings and she has been represented throughout by solicitor and counsel. She contested the applications.

5. The father of Child 1, DE, has had no contact with Child 1 since the end of October, 2011. His whereabouts are now unknown and

he has not been served or represented in these proceedings although he was put on notice of the section 18 application in

September, 2011. I am satisfied that he consented to the placing of Child 1 in voluntary care on 22nd August 2011. I am also

satisfied that he was served with and was aware of the making of the Emergency Care Order herein and the Interim Care Order of the

7th October and of the application for an extension on the 1st November, 2011. He left Ireland in or around the end of October 2011

and the social worker for Child 1 had one telephone conversation with him in November, 2011 and there has been no further contact

with him despite efforts to serve him, personally and by registered letter, at his mother’s address in Eastern Europe. I am also

satisfied that it is in the best interests of Child 1 to proceed with the hearing notwithstanding the absence of his father.

6. The mother married FB, the father of Child 2, on 20th May 2012, prior to the birth of Child 2. He has been properly served with

notice of these proceedings and has been represented throughout by solicitor and counsel. He contested the application.

7. Both children were represented in these proceedings by the same Guardian Ad Litem (“GAL”) who was represented by his solicitor

and counsel throughout the hearing. The GAL indicated to the Court his support for Care Orders in respect of the both children and

recommended such Orders be for the full duration. The GAL provided a booklet comprising 23 reports prepared by him to the Court.

8. I am satisfied that this District Court Area has jurisdiction to hear this application and I am a Judge for the time being assigned to

this District Court Area. On a number of hearing days, the court physically sat in a courthouse in an adjoining District Court Area (to

which I am also assigned) with the consent of the parties.

Evidence

9. The HSE called the following witnesses in support of their application:-

a) Manager of the Access Centre;

b) A, Access Worker;

c) B, Access Worker;

d) A forensic psychologist, who provided 2 reports a) an undated parenting capacity report relating to the mother

and b) a risk assessment report dated 22/2/2013 relating to the father of Child 2;

e) FB’s psychologist, who provided a report dated 1/9/2013 relating to the father of Child 2;

f) AB’s psychologist, who provided an undated report relating to the mother;

g) A consultant psychiatrist, who gave evidence relating to a report dated 12/9/2012 from a locum consultant

psychiatrist relating to the mother;

h) A nephew of FB;

i) A social worker for FB’s two older children;

j) The team leader for FB’s two older children

k) A medical social worker, who provided a report dated 23/5/2012;

l) The social worker for Child 1; and

m) The social worker for Child 2.

10. I also heard evidence from the mother (through an interpreter), from the father of Child 2 and the GAL also gave evidence.

11. A booklet of documentation which included access contact report forms from the Access Centre and the relevant expert reports

was also put into evidence.

12. Two letters from the father of Child 1 (with translations) dated 2.10.11 and Oct 26, 2011, were admitted into evidence. The

father of Child 1 makes various statements about the father of Child 2, which I have disregarded since he is unavailable to be cross-

examined about them but I am satisfied from these letters and the evidence of the social worker for Child 1 that he wished Child 1 to

remain in the care of the HSE.

13. I viewed 2 CCTV extracts, which had no audio. The first CCTV extract was taken inside the access centre on 17th July 2013 and

showed an access visit between the mother and Child 2 which was supervised by A, access worker. A second short CCTV extract

showed the mother and father of Child 2 meeting the social worker for Child 1 outside the access centre on the 7th October, 2013.

Facts

14. I make the following findings of fact based on the evidence I have heard:

i) The mother’s overall level of cognitive function has been assessed as within the Low Average range of ability. Her

verbal functioning is in the Borderline range and her perceptual reasoning is also compromised. She was abused and

neglected as a child and she developed anxiety symptoms which required in-patient treatment as an adolescent.

She was the victim of domestic violence and assault by the father of Child 1.

ii) The mother is not suffering from any psychiatric illness, including post-traumatic stress disorder.

iii) The mother has a dependent style of functioning in her adult relationships. She lacks autonomy and

independence. She has only a very limited support network in Ireland or in her home country. She is passive and is

not proactive in seeking the return of her children, awaiting others to take initiatives.

iv) The mother was referred for individual psychotherapy to help her address issues from her past and how they

impact of her parenting. She failed to engage with the therapeutic interventions offered, refused to address the

issues from her past and withdrew from the therapy after 5 sessions.

v) The mother and father of Child 2 have a co-dependent relationship where the mother is dependent on the father

of Child 2 and he controls her. While this relationship is happy and harmonious and meets her needs,

notwithstanding her assertions that she has the ability to act appropriately if needed to protect her children, she

does not have the capacity to prioritise her children’s needs over him at this time.

vi) The father of Child 2 has two older children, now aged 18 and 13, who reside with their mother who has primary

care and control of them but to whom he has regular and liberal access including overnight access. He has never

resided with either of these children on a fulltime basis. Their mother is a protective parent for these children.

vii) It has not been established on the balance of probabilities that the father of Child 2 sexually abused his

nephew.

viii) In any event, the father of Child 2 has been assessed as a Low Risk for future sexual offending even when

assessed on the presumption that retrospective allegations of child sexual abuse made against him are true.

ix) The father of Child 2 did not co-operate with attempts to assess and investigate the allegations of child sexual

abuse made against him. While his reluctance to co-operate is understandable, his failure to cooperate legitimately

heightened HSE concerns in this regard.

x) The father of Child 2’s anger is easily provoked. He has little or no insight into his own anger and he has little or

no appreciation of the effects of his behaviour on others.

xi) The father of Child 2 was referred for psychotherapy for anger management. He demonstrated on-going

resistance to emotional exploration and despite being offered an opportunity to reflect on this, it was agreed that

he was not ready to engage in and would not benefit from therapeutic intervention because of his unwillingness to

explore his emotions.

xii) The father of Child 2 has been assessed as having a Borderline Intellectual Disability and has traits that are

correlative with mild symptoms on the ASD spectrum. He lacks empathy and has difficulty with both perceptual and

abstract reasoning. He is rigid and inflexible in his beliefs and ideas and is resistant to change.

xiii) The father of Child 2 lacks understanding of and is resistant to learning about a child’s emotional developmental

needs. He shows no insight into the impact of his aggressive and confrontational behaviour on children.

xiv) The father of Child 2 is very resistant to engaging with social workers or access workers and has been

inappropriately threatening, abusive and aggressive to both.

xv) The father of Child 2 is capable of the physical day to day repetitive caring tasks of feeding, winding, nappies,

bathing, sleeping etc.

xvi) The Bs’ home is permanent secure accommodation which would be suitable for the children.

xvii) Child 1 was neglected by the mother prior to coming into care. The specific concerns about his/her physical

care at that time have now been resolved and the mother, with the support of the father of Child 2, would be able

to meet his physical care needs if he/she were returned to her care now. These concerns are not grounds for

making a Care Order now.

xviii) The mother did consent to the initial voluntary care agreement. She attended the meeting and signed the

agreement on 22nd August, 2011.

xix) The mother’s memory of these traumatic events is distorted and she has not deliberately or consciously

intended to deceive the Court.

xx) Overall Child 1 is a happy and content child who loves activity with other children. The Bs both engage well with

Child 1 at access visits and have a clear affectionate bond with him. He enjoys male company including that of the

father of Child 2 and it is obvious that he/she loves the mother. He/she enjoys access visits where he/she is active

and engaged in play and is very often the sole focus of activity.

xxi) Child 1 has had three different primary carers in as many years with 2 major disruptions in his care; a) when

he/she left his mother to go into care and b) in October 2012 when his/her foster placement was changed so that

he/she could be placed with Child 2 in a long term placement.

xxii) The suspensions and disruptions in access since January 2013 are incomprehensible for Child 1 and they

contribute to his/her insecurity and lack of trust in adults. Child 1 struggles emotionally and following minor triggers

fails to self-regulate his/her internal emotions quickly becoming angry and then upset and emotionally distressed.

Child 1 is at risk of and showing symptoms which could develop into disorganised attachment disorder.

xxiii) Child 1’s emotional health and development requires a secure attachment to a carer with a high level of

sensitivity and insight into his emotional and psychological needs and his/her carers require specialist intervention to

arrest the development of disorganised attachment disorder.

xxiv) Child 2 is a very happy playful baby who has begun to walk in recent months. He/she has a secure attachment

base with the foster parents with whom he/she was placed at less than 1 week old. This has allowed him/her to

thrive in an environment where his/her needs are met.

xxv) Child 1 and Child 2 enjoy a good sibling relationship which continues to deepen as they spend most days with

each other and as Child 2 has become more active, Child 1’s interest in him/her as a playmate has increased.

xxvi) The Bs are warm and affectionate to Child 2 for periods during access. The mother comforted Child 2

appropriately following the “tea towel incident” and he/she self-regulated and calmed himself/herself appropriately.

xxvii) The Bs have shown a lack of insight into Child 2’s need for attachment, bonding, interaction and stimulation

and a lack of responsiveness to his/her changing needs as he/she has developed. When he/she was younger they

limited physical and eye contact with him/her and insisted on his/her need to sleep for unnecessarily long periods

during access, placing him/her in a car seat for long periods even when encouraged not to do so. They persist with

a routine which is unresponsive to his/her needs.

xxviii) The Bs have failed to avail of all access opportunities offered for Child 2. Between October and December

2012, an access visit was offered on Friday afternoons which was not availed of. The mother also failed to attend

access when the father of Child 2 was unwell despite being offered bus vouchers. Between December 2012 and

March 2013, access on Wednesday was available from 10 am to 1 pm but they consistently left at 12 noon.

xxix) The Bs have refused to consent to Child 2, who has severe eczema, attending a GP near to the foster parents

with whom he/she lives and insist on him/her attending their GP some 45 minutes away. They also prefer access

visits to be near their home which entails Child 2 travelling 45 minutes each way for the access three times a week.

xxx) Both children have been exposed to aggressive and threatening behaviour by the father of Child 2 to access

workers in their presence.

xxxi) Both parents, the father of Child 2 in particular and the mother when he/she is present, have shown

themselves unable or unwilling to accept support, direction and guidance provided by access support workers.

xxxii) The role of supervising access workers in intervening to provide direction and support, including modelling good

parenting, has been explained to the Bs on a number of occasions.

xxxiii) Access has been disrupted and suspended on a number of occasions for extended periods (including during

the course of this hearing). The failure to resume access speedily is due to the deliberate and conscious

unwillingness of the father of Child 2 to engage with the social workers and access workers.

xxxiv) The HSE has a heightened responsibility to parents with cognitive disabilities to ensure that they are

communicated with in a clear and simple way to enable them to understand what is being required of them.

xxxv) The social workers for Child 1 and Child 2 in this case, have taken all reasonable steps to ensure that access

be availed of, including organising meetings expeditiously, informing the Bs of those meetings, changing access

venues and supervisors.

xxxvi) The Bs show very limited insight into the effect of suspensions of access upon either Child 1 or Child 2; the

father of Child 2, in particular, being preoccupied with and prioritising his own concerns about his dispute with the

access worker over the needs of the children.

xxxvii) Supports have been offered and not availed of or availed of late and only to a limited extent.

xxxviii) The mother did not complete the parenting course she commenced, she did not complete the English

language course, she did not attend appointments for psychiatric assessment and she did not complete

psychotherapy. She is now unwilling to accept direction from access workers although she responded well to

modelled good parenting from social workers in the past.

xxxix) The father of Child 2 did not complete psychotherapy for anger management. He has refused to accept any

direction or modelling of good parenting from access workers. He delayed co-operation with his assessment by the

forensic psychologist and delayed attending a meeting to discuss the recommendations of the assessment when it

was complete. He did not co-operate with the investigation of risk of sexual offending.

xl) Both of the parents have refused to attend meetings with HSE social workers and access workers and have

failed to respond to invitations to discuss issues. The father of Child 2 and the mother, under his control, have

failed to engage with social workers to improve their parenting capacity and to work towards reunification of this

family.

xli) This pattern indicates that the Bs will be unlikely to be able to provide a safe and emotionally stable

environment for either child in the future.

xlii) The emotional developmental needs of Child 1 and Child 2 for approval, consistency and security would not be

met if they were returned to the care of the Bs.

xliii) Child 1 and Child 2 would be at risk of emotional abuse as defined in para. 2.3 of Children First: National

Guidance for the Protection and Welfare of Children if they resided in the fulltime care of the Bs.

xliv) Supervision by the HSE of care in the home would not be adequate to prevent emotional abuse of the children

which is unlikely to be discernible during periodic visitation.

xlv) Supervision by the HSE of care in the home would not be practical or desirable having regard to the easily

provoked anger and anger management issues of the father of Child 2 and the safety and welfare of HSE staff.

Threshold criteria

15. Having regard to the constitutional rights of the parties and to section 3 of the Child Care Act 1991, I am satisfied that the family

is in a special position as the natural, primary and fundamental unit group of society and it is only in exceptional cases that it is not in

a child’s best interests to be brought up by his own family. The welfare of the child is the paramount consideration but due regard

also must be given to the rights of the parents. A difference of opinion or disagreement with the professionals, or the HSE considering

that the parents are wrong in their care of the children does not justify intervention in a family.

16. I am satisfied that while the Bs have a desire to care for the children, they lack the capacity to provide the emotional care and

protection that Child 1 and Child 2 need. I am satisfied that appropriate supports have been identified by the HSE which would assist

the Bs to overcome their identified parenting deficits. While the Bs have engaged to a limited extent with the psychological

assessment and treatments they have been offered, there continue to be difficulties in engaging with social and access worker

support services and there are concerns regarding the aggression of the father of Child 2, both Bs’ lack of capacity and ability to

parent, and the mother’s lack of ability to protect the children should they be returned to her care.

17. The HSE has also established that there is a real possibility that Child 1 and Child 2’s health, development, and welfare will be

impaired if they are returned to the care of the Bs. I am also satisfied that both Child 1 and Child 2 require care and protection which

they are unlikely to receive unless I make an order under section 18(1) of the Act.

18. On the evidence before the Court, it is established that this is an exceptional case requiring the State’s intervention to vindicate

the children’s rights where the parents have failed for physical and moral reasons in their duty to both Child 1 and Child 2.

19. I am satisfied that a Care Order is necessary, appropriate and proportionate in this case as:

• The mother has engaged to a limited extent with the social workers in the past; however, she has not shown

sufficient ability to sustain consistent care and parenting of Child 1 or Child 2 and there is no indication that this is

likely to change in the foreseeable future. While it is clear that the mother loves her children very much, she cannot

offer them the protection and emotional stability they require. The mother is dependent on the father of Child 2 and

would prioritise her relationship with him over the needs of her children were any conflict between their respective

needs and his wishes to occur;

• despite the supports offered to the father of Child 2, his engagement with these services has been limited or

refused and these problems continue to persist to such an extent that he has not shown the ability or commitment

to sustain consistent care and parenting of Child 2 and there is no indication that this is likely to change in the

foreseeable future; and

• it is in the best interests of Child 1 and Child 2 to remain in the care of their current foster-carers.

20. With regard to the Article 8 of the European Convention on Human Rights, the ECtHR affords a wide margin of appreciation in

balancing the importance of protecting the child with the aim to reunite the family. I am satisfied that the making of care orders,

while no doubt difficult for the Bs, does not impose burdens or cause harm which is excessive when compared to the importance of

the objective to be achieved in Child 1 and Child 2’s best interests.

Wishes of the children

21. Having regard to the age and maturity of Child 1 and Child 2, they cannot express any meaningful views of their own. In the

circumstances, I am satisfied that the GAL has represented the interests of the children appropriately and I am grateful to him for the

assistance he has provided the court.

Order

22. The criteria set out in section 18(1)(c) of the Child Care Act 1991 are met and I will make Care Orders under section 18(1) of the

Child Care Act 1991 in respect of Child 1 and Child 2 for so long as they remain children i.e. for Child 1 until the 30th November 2028

and for Child 2 until the 25th September 2030.

Directions

23. I direct access between Child 1 and Child 2 and the Bs continue pursuant to section 37 of the Child Care Act 1991 having

considered the importance of regular contact and maintenance of the relationship between the children and the Bs both in the

interests of the current emotional stability of the children who have attachments to the Bs and in the interests of the still achievable

goal of reunification.

24. Under section 47 of the Child Care Act 1991, I direct the HSE

i) that no child, other than a sibling of Child 1 and Child 2, be placed for fostering with the current foster parents;

ii) to appoint [named psychologist] to work directly with the foster carers in respect of Child 1’s trauma and

attachment needs and to provide a report for the court in November 2014 on the progress made;

iii) to appoint a psychologist to work with the mother in relation to her parenting capacity and to provide a report

for the court in November 2014 on the progress made;

iv) to appoint [named forensic psychiatrist] to work with the father of Child 2 on his parenting capacity and provide

a report for the court in November 2014 on the progress made;

v) to appoint [named clinical psychologist] to work with the father of Child 2 on his parenting capacity and provide

a report for the court in November 2014 on the progress made.

25. I direct that the GAL be reappointed in September 2014 and provide a report to the court in November 2014.

26. I direct that a review of this matter be heard on 10th November, 2014.

27. I direct that the case is to be re-entered before the Court by the HSE and the GAL is to be re-appointed in the event that;

i) the matching process with the current foster parents is not completed;

ii) any child, other than a sibling of Child 1 and Child 2, is placed with the current foster parents;

iii) any change of placement occurs;

iv) a Social Worker or Fostering Link Worker becomes unallocated for a period of 6 weeks;

v) the statutory Child in Care Review is not carried out for any reason.

28. I further direct an After Care Review for Child 1 on 30th November, 2026 and for Child 2 on 25th September, 2028, to assess After

Care Service needs, the GAL to be reappointed 6 weeks in advance.

29. If the GAL in this case is no longer available then the HSE is to bring an application to the Court to have a GAL appointed

pursuant to section 26 of the 1991 Act.

30. I further direct that no party is to identify the children the subject matter of these proceedings.