District Court grants Care Orders under Child Care Act 1991 s.18 for two children due to parental unfitness.
Sintesi Legislator
Generato dall'IAThe District Court granted Care Orders for two children under Section 18 of the Child Care Act 1991 following contested applications by the Health Service Executive. The mother contested the orders, while the father of one child was absent and unknown, though consented to prior care placements. The court found the statutory criteria met, prioritizing the children's best interests and emotional stability, and directed ongoing psychological assessments and contact arrangements.
Regesto Legislator
Generato dall'IASection 18(1) of the Child Care Act 1991; The court may make a Care Order if it is satisfied that the child is suffering or is likely to suffer significant harm, and that the harm is attributable to the child's parents or that the child's welfare would not be promoted if the child remained with them.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
[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.