District Court extends permanent care orders for three children under Child Care Act 1991 s.18.

DISTRICT COURT DISTRICT COURT AREA OF TUAM DISTRICT NO. 4 THE CHILD AND FAMILY AGENCY APPLICANT

- AND - QF, TH, KC RESPONDENTS Judgment delivered by Judge Brian O’Shea at Tuam District Court on the 19th day of October 2018

1. The Child and Family Agency (“CFA”) seeks three care orders pursuant to section 18 of the Child Care Act 1991 as amended. The application is that those orders should be remain extant until the children reach their majority.

2. Two care orders are sought in relation to two children of the QF and TH. They are DF, aged 10 and AF, aged 9. The children are currently the subject of interim care orders that have been reissued from time to time. They are in a foster placement with their maternal uncle and his partner. Their names are TF and FM. A respite foster carer has also been identified in respect of AF. This is owing to certain behavioural difficulties that he exhibits on occasion.

3. A further care order is sought in relation to FF, aged 1. He is also a child of the QF. KC is the putative father. FF is currently the subject of an interim care order that has been reissued from time to time. He is in a foster placement with BM and his wife TM.

4. QF opposes the applications. TH has failed, refused or neglected to engage in the proceedings. He has however acknowledged that he has received the various correspondences forwarded to him, and is agreeable to the subsisting arrangements for the children. There is no objective evidence before the court to prove that KC is FF’s father. He is not a guardian nor has he applied to become a guardian. He has not engaged with the proceedings.

5. The CFA and QF were legally represented during the proceedings before the court.

Padhraic Harris, solicitor, appeared for the CFA. QF was represented by Sinead McDonagh BL instructed by Maria Maguire, solicitor. The guardian ad litem, Tina O’Brien, was represented by David McCoy, solicitor.

6. As is often the case in proceedings of this nature much of the evidence presented to the court by the parties was hearsay. As such that evidence was not admissible as to its veracity. It was however utilised to test the credibility of witnesses and to show the state of mind of particular witnesses when making certain decisions at various stages.

7. There was a significant number of witnesses who gave testimony during the proceedings.

They included David O’Reilly. He possesses a masters’ degree in social work from NUI, Galway. He has been employed by the CFA since 2013. Elaine Tannian also testified.

She is the social worker assigned to DF and AF. She possesses a degree in applied social studies and a master’s in social work. Similar to Mr O’Reilly, she has authored multiple reports in recent times relating to the instant case. Sinead Nolan is assigned to FF. She has a BA in applied social studies and a master’s in social work from UCC. She is CORU registered. All three professionals adopted the content of their reports having testified as to their truth and accuracy. They also gave elucidating testimony that did not vary in any material manner from the content of those reports. The detailed evidence of the social workers proved particularly helpful to the court. It did not contradict the evidence of the psychologist or the guardian ad litem in any material manner. All three social workers were cross-examined and made certain limited concessions. The concessions primarily related to the reasonable possibility of alternative innocent explanations for matters they had previously been perceived as impugning the parenting skills of QF.

8. The court also heard evidence from Keith Higgins, family support worker. He outlined a catalogue of excessive drinking by QF during June and July 2016. This was a period during which her children were alleged to have been effectively abandoned by her. Ms Biggins is a child care leader. Her role in the instant case was that she was assigned, on the recommendation of the psychologist, as a mentor to guide and assist QF during access with FF. She gave testimony that was in line her report as prepared for the court and disclosed to the parties. In broad terms her evidence was supportive of QF’s position.

She testified that with regard to access with FF, QF was punctual, well prepared, and became full involved in play exercises. She testified that QF was struggling to engage properly with regard to the required “comfort-first-and-task-second” approach to FF’s emotional needs. She expressed no concerns regarding QF’s ability to meet FF’s physical needs. Her principal concern related to the inconsistency in QF’s responses to FF’s psychological needs. She stated that this was most evident in QF’s inability to deal with FF’s emotional needs at the commencement and conclusion of access. She agreed that it was understandable that QF found it difficult to leave FF at the conclusion of access and that she did not wish to become upset in his presence but she considered that this was putting QF’s needs before FF’s. She also indicated that if QF was experiencing difficulty with her own emotions at that point in the access then she would be supported in this and it could be discussed and addressed. She also referred to FF “zoning out”. This was later described by the psychologist as dissociative behaviour which is a self-preservation tool.

Ms Biggins’ concern in this regard were in the context of QF not noticing this phenomenon, in particular on three occasions where she had the opportunity to do so.

When she did notice it on a later date she was frightened by it, in circumstances where she had already been informed about it and how to deal with it. She considered that it followed that QF had apparently not focused on the issue when it was initially explained and then had a sudden realisation of its occurrence but had not equipped herself to deal with it. It is worth noting at this stage that the psychologist noted an improvement in the quality of access following Ms Biggin’s engagement as a mentor during access.

9. The court also heard testimony from Dr Donovan, consultant neonatologist and paediatrician. He testified that FF was born growth retarded. He was born with a cleft palate. He forecasted consequent feeding difficulties and the potential need for tube feeding in the short term. At the time of writing his first report on 17 July 2017 he reported that no other abnormalities had been detected. On 10 September 2018 he authored a further report. He described a repair to FF’s cleft palate but a small fistula or hole remains that will require further surgery at 3 years. He noted that FF had clinical features suggestive of Foetal Alcohol Syndrome. He testified that this was an umbrella term with no specific diagnostic test. He testified that his opinion regarding the syndrome was based on (1) FF’s features at birth, i.e. growth retardation, cleft palate, unspecified facial features, and (2) FF’s size, and (3) having eliminated other potential causes by way of brain scan and genetic and other testing. He testified that “there must be a history consistent with the possibility and features.” He testified that he had a number of similar patients over the years and that the symptoms in the instant case were consistent with the syndrome. He reached this conclusion on the balance of probabilities. He testified that while he had some knowledge of the syndrome and had researched it in anticipation of his court appearance that he was not an expert in relation to the syndrome and that an obstetrician would be more qualified to speak to the issue. He did not fully commit to asserting that, leaving aside the history (which had not been proven) that one could reasonably conclude on the balance of probabilities that QF was drinking excessively during her pregnancy. It is appropriate to adjudicate on this assertion at this point. While the court accepts that there is authority to the effect that ADHD is consistent with the likelihood of excessive alcohol consumption during pregnancy it only gives rise to a possibility of harm in utero. Such odds are not sufficient to establish to the requisite standard in these proceedings that QF engaged in excessive drinking at the relevant time.

To do so would be to extrapolate and speculate to an impermissible extent.

10. Ms Tina O’Brien is the court-appointed guardian ad litem to all three children. She has a master’s degree in social work. She has a higher diploma in counselling from UCC and a certificate in child psychotherapy. She has also completed CARE Index Training for children from 0-15 months and two of Dan Hughes’ model of dyadic developmental psychotherapy. She is trained to a certain degree in attachment, working with trauma, developmental trauma, neuroscience and developmental trauma, and contact and access issues. She has also authored several reports in relation to the children, and a very detailed recent report which ties together all of the earlier reports while making some additional observations.

11. Ms Jacinta Nolan is a clinical psychologist and psychotherapist. She prepared two reports for the benefit of the court. She is registered and is an associate fellow of the PSI. She possesses a Montessori diploma in special education, a BA, an MA and a MPsychSc from NUI. She also has a diploma in counselling psychology from Trinity College, Dublin. She is currently studying for a PhD.

12. By way of brief background, the evidence was that QF is aged 37. She is one of seven children. She was educated to Junior Certificate level. She worked from 16 until 17 years old and then left Ireland for the UK. She lived there with the TH and his family of origin. They had two children KH and FH. By her own several admissions QF endured repeated violent incidents at the hands of TH. They later had two more children, DF and AF who are the subject matter of these proceedings. According to QF she separated from TH in 2010. This was only a short time after AF was born.

13. The family have an extensive history of involvement with Social Services in the UK. That involvement commenced in or about 2003. The fact that there was such involvement is not in dispute but the reason for the involvement is in dispute. The CFA says that there were various events reported to the CFA by the UK services. Those alleged events centre around the welfare of the children in the context of numerous allegations of alcohol and substance abuse, domestic violence and a lack of parental supervision. QF disputes this and lays blame for the necessary intervention of the UK services at the feet of TH. In the event, there was no evidence from the respective authors of any of the documentation supplied by the UK services to the CFA. In such circumstances the veracity of the documents has not been proven. However, certain events alleged in the reports were put to QF at various meetings with some of the witnesses in these proceedings and she made admission regarding same. In particular she recalled being subjected to violence involving being pulled by the hair around her garden on several occasions. There is also evidence from the guardian ad litem that the children reported to her that they had witnessed violence. In particular AF referred to this as “bullying” and stated that he had to intervene to “defend” QF from TH and that he “asked his Daddy to get out of the house”. Ultimately in March 2016 the family relocated to Ireland. The services in the UK alerted the CFA to the move and referred the family to the social work department with the CFA. Since the initial referral there has been significant engagement by the CFA.

14. The evidence is that the children are all subject to interim care orders. It is an agreed fact that since January 2017 QF has attended every supervised access meeting, sober. On

3 April 2018, QF advised that she attended Bushypark Addiction Treatment Centre, Ennis, Co. Clare. She agreed to attend there for a one-month day programme. She did not however engage with the programme and suggesting that the basis for not doing so was that the CFA was not in agreement for her to do same.

15. There was evidence presented to court that QF attended AA and Carmel Haverty, addiction counsellor, until her retirement, at which point she was replaced by Brendan Barrett. He is also an addiction counsellor. The CFA argues that she has been unwilling to attend Coolmine Therapeutic Community or Cuan Mhuire for therapeutic intervention.

The CFA alleges that she changed her mind about this following a consultation with her solicitor after the court appearance on 12 June 2018. A meeting was set up to bring this about but QF indicated that she would only engage subject to conditions regarding access to her children with a view to reunification. She denies this and states that she merely wanted to know what would occur in the event that she engaged in the treatment. She states that she declined to attend at Coolmine because she would be separated from her children during the residential component of the treatment and would then have to travel to Dublin for the non-residential follow-up treatment. It appears that QF recently reverted to her original view. This is evidenced by the fact that she has now obtained a report from Dr Deirdre Mulryan, consultant psychiatrist. The report suggests that residential treatment is neither necessary nor appropriate. The evidence of Mr Barrett in this regard will be dealt with later. In truth the real issue is not whether residential treatment is necessary at this stage, but whether QF was willing to engage with such treatment at a time when it was being recommended. At this stage the CFA have perhaps resiled to some degree from its previous insistence on residential treatment. It is only fair to say that this is as a result of efforts made and being made by QF in the meantime. The report of Ms Mulryan and Mr Barrett revolves around the needs of QF rather than those of the children who are the subject matter of these proceedings. There is no evidence to suggest that the psychiatrist explored the complexity of the relationship between the various parties, the impact of the current environment on the children, and the myriad of issues surrounding their upbringing and their physical and psychological needs. That is not a criticism, nor would it be fair to be critical in circumstances where those issues are outside of the field of psychiatry as opposed to psychology and in circumstances where the report was commissioned for the very purpose of addressing QF’s current position in terms of her efforts to rehabilitate herself and the appropriate methodology to be adopted in that regard.

16. Unlike the psychiatrist, the guardian ad litem and the psychologist are of the opinion that therapeutic intervention is crucial to QF’s recovery and towards increasing her parental capacity skills. This is particularly so in terms of her relationship with FF. The guardian ad litem, in the context of testifying regarding the best interests of the children, testified that: “One of the essential pre-requisites for reunification is that a parent can take responsibility for their behaviour, acknowledge its effects on their children and make appropriate changes to assist children in developing their trust in the parent to repair the damage done and respond more appropriately in the future.” In her opinion QF has to date, in real terms, made little or no effort in this regard.

17. The guardian ad litem opines that during her meetings with QF there has been no demonstration of a capacity to understand the effects of domestic violence, alcohol misuse and neglect on the children. She states that this is coupled with a failure to take responsibility for her behaviour, demonstrate a capacity to change and consequently engage with child protection professionals in a meaningful way. She further opines that the “change process” is further complicated by a combination of factors including possible childhood difficulties, domestic violence, mental health difficulties and alcohol issues. On the basis of the information currently available to the guardian ad litem she concludes that QF’s capacity to parent will not change until she engages firstly with addiction services and maintains sobriety for a lengthy period and therefore the best interest of the children are in jeopardy. The guardian ad litem points out that psychology services within the mental health services, generally recommend that adults do not engage in psychotherapy until they have maintained sobriety for two years. This is to ensure that any distress during the therapy process is less likely to trigger an episode of alcohol use.

This assertion was supported by studies. This aspect of the case is perhaps outside her statutory remit but the assertion was also put to the psychologist who agreed with the proposition. It is accepted that QF is a long way along the road to recovery and “where she needs to be” and the guardian ad litem is of the opinion that the best interest of the children would be well served by QF engaging fully and meaningfully with whatever assessments and intensive therapeutic treatments are required.

18. Based on the information currently available to her the guardian ad litem opines that is not possible for QF to develop the level of understanding she would need to parent DF and AF safely within the children’s time frame. Consequently, she concludes that, in the children’s best interest, care orders are necessary to enable them to continue to experience safe care into the future, receive the supports they need and maximise their potential. This conclusion is echoed by David O’Reilly and Elaine Tannian. As stated earlier, the guardian ad litem reports that the DF and AF often refer to traumatic incidents that they witnessed as children while in the company of QF and TH. The guardian ad litem concludes that DF and AF in particular need to know they will not be returning to a situation of abuse, so they can commence their process of recovery.

19. The guardian ad litem examines DF’s personality in terms of certain learned and selfpreserving techniques that she has had to develop arising from her early childhood. The guardian ad litem also sets out reasons for the particular somewhat unusual relationship that exists between DF and AF. In this regard she opines that it is unlikely that the children will relinquish their coping strategies if there is a chance that they will be returned to QF’s care. She further concludes that the process of recovery from child abuse and neglect is a difficult process that will require special consideration and that the foster carers will need ongoing support in that regard.

20. The professionals have particular and significant concerns for the welfare of AF. He exhibits highly challenging behaviour. He suffers from ADHD. The CFA argues that AF has spent almost his entire childhood exposed to harm, possibly in utero, as his ADHD is consistent with the likelihood of same being increased by significant alcohol intake during pregnancy. The guardian ad litem cites Howe (2005) as authority for this proposition.

The CFA argues that he has been exposed to significant and frequent alcohol abuse and violence. The guardian ad litem has presented evidence relating to AF’ exposure to harm, violence and alcohol abuse. She has also testified as to his experiences of boundaries and the difficulties they now cause for him. She further testified regarding the effects of neglect and emotional abuse on his self-esteem, and gave evidence in relation to his physical, emotional and educational needs. In her opinion he needs therapeutic supports.

Although his care is ongoing, AF’ behaviour has improved considerably since engaging with support services including CAMHS and the community psychology service. In an effort to maintain the current placement, the professionals believe that a respite placement is necessary. This is so in order to “diffuse the home situation which can be strained due to the challenges AF poses.” The CFA is unconvinced that QF can provide this respite as has been suggested by her. Consequently, the CFA has identified an approved foster placement that can meet the respite needs of the child.

21. Turning to FF. He was initially cared for in the baby care unit in Galway University Hospital. In September 2017 he came into the care of the CFA and interim care orders have been granted on a monthly basis since that time. FF was born with cleft palate, for which he has had surgery. He still has a hole in his palate that will require further surgery when he reaches 3 years of age. The evidence is that QF, at least initially, not accept this diagnosis. He is deaf in his right ear. The evidence is that QF, at least initially, was of the opinion that there was nothing wrong with his hearing. It has come to light recently that he also has hearing issues in his left ear that require further investigation. A physiotherapy assessment has revealed that he has delayed gross motor skills and he is underweight for his age. Again, here there are suspicions that QF was drinking during her pregnancy, but she refutes this allegation. The guardian ad litem concludes, amongst other things that FF is responding very well to his foster carers. She states that he presents as very relaxed and interacts very well with his carers, laughing and making ongoing eye contact when being held by them. She has noticed that FF is showing signs of distress and discomfort during access and that QF’s responses are exacerbating that distress. She testified that FF is not responding to his mother as his main care-giver. She recommends supervised as opposed to unsupervised access. In support of this recommendation she cites that QF is unconsciously obstructing FF’s developmental tasks.

22. The guardian ad litem recommends an Adult Attachment Assessment for QF. She testified that, in ease of QF, this could take place within the community. She testified that the assessment differs from others in that it is research-driven. The assessment provides refined information to pinpoint areas that require work. She opines that if the assessment is sanctioned then it must be carried out by a trained professional with expertise in this form of assessment. She further opines that this assessment is key to ensuring QF’s engagement with her children. The guardian ad litem considers that QF requires therapeutic intervention for herself and in relation to attachment for her children.

While the guardian ad litem does not, as a matter of law, have a therapeutic role in relation to QF the court is satisfied that her suggestions in this regard are in truth directed towards what would ultimately be in the best interests of the children. Later in the proceedings, Ms Jacinta Nolan, psychologist, testified that she was training and experienced in relation to the form of assessment recommended by the guardian ad litem and while she saw merit in the assessment she opined that it would only work in conjunction with other tools. This is not inconsistent with the view expressed by the guardian ad litem.

23. Under cross-examination for QF the guardian ad litem set out that the difficulties regarding QF’s parenting capacity are: (1) failure to recognise the negative effects on her children of previous alcohol abuse, (2) previous abandonment of children while at the height of her drinking issues, and (3) failure to acknowledge abuse and to speak about it rather than deflect. She conceded that she was not in a therapeutic relationship with QF.

She opined that it is appropriate for her to engage in exploring with parents how they perceive their children in order to protect and meet the needs of their children. She agreed that QF was in all probability alcohol-free but was keen to point out that unless previous alcohol abuse in the past was addressed then it remains live for children in terms of being unresolved. Also under cross-examination she set out that AF has an inability to regulate his emotions, and inability to understand how relationships work, and has become self-reliant to such an extent that he will even challenge his care-givers. She testified that he has learned his relationship patterns from relationship experiences. She based these concerning behaviours in a combination of absence and omissions. She stated that AF has no safe boundaries for himself, needs to be in charge, and displays difficulties around listening to instruction unless it accords with what he wants to do. She testified that these absences and omissions are linked to parenting but not caused by it.

She agreed that it is difficult to separate behaviours arising from ADHD and those arising from omissions or absences, but she also stated that ADHD would not account for challenging care-givers. She stated that there must be different input by parents at different stages of development and that therefore instruction regarding parenting evolves. The guardian ad litem was asked if the resources she was recommending to support the foster carers were instead given QF whether this might improve things for QF and her children. She distinguished that suggestion from her recommendation on the basis that QF was of the view that there is nothing that she needs to work on.

24. Regarding sibling access, DF and AF have repeatedly expressed a wish to see FF. It is alleged that this is being frustrated by QF as she does not wish it to occur unless she is present. The evidence is that on one occasion QF became upset when discovered that DF and AF had attended, without her knowledge, at a party to celebrate FF’s birthday.

25. The guardian ad litem also testified regarding her consultations and discussions with QF.

She set out a compelling analysis of QF perspective of her past and current situation and how this relates to the children. She also explains her minimising of her problems and her mixed views regarding the abuse perpetrated by the TH and the apparent contradiction of her viewing him as protector. She also explains the reasons why QF is unwilling to engage in any discussion of detail regarding his violence towards her and her efforts to protect the children from his violence. The analysis of QF’s ability to learn from her experiences and accept responsibility for past wrongs in the context of parenting capacity is illuminating.

26. In the context of the children in issue the ongoing concerns regarding QF are her addiction to alcohol, which is being well managed, minimising of the impact of her previous drinking, and her ongoing refusal to properly consider treatment. According to the guardian ad litem QF consistently fails to meet the needs of her children. Her engagement with support services has been described as “ambivalent”. The professionals are concerned that QF has demonstrated an ability to maintain a short-term, but not a long-term, stable home environment for her children.

27. The guardian ad litem is concerned that if access were to be increased it would likely give the children a message that reunification is a possibility. She is of the opinion that this would be particularly detrimental when QF continues to fail to recognise and validate the harm her children experienced while in her care. She further opines that any message that suggests that there is a possibility of reunification without significant parental change is likely to instil increased levels of fear for the children. She reaches this conclusion by applying the evidence that she has gathered to the scientific findings of Hughes, Burnell and Archer in various peer-reviewed studies.

28. It is important to observe that the guardian ad litem was cross-examined by Mr Harris for the CFA. During the course of same she accepted that some the concerns she had raised could also be addressed by the court granting a care order until FF reaches his majority with a review after two years instead of granting a care order for two years that might be renewed as she was initially recommending. Indeed she conceded that it might well be preferable. Her primary reason for accepting this potential remedy was that there is a strong case to be made for longer orders as they promote security and stability for the child concerned. She also noted that this would place a practical onus on QF to show a genuine effort to engage with necessary assessment and therapeutic intervention. Her opinion in this regard arises from viewing matters through the prism of the interests of the child rather than the effect of such an order QF, but that is her function in these proceedings.

29. This court must make informed decisions based on evidence that establishes certain facts to the required standard of proof. The court has already set out the evidence of the guardian ad litem in some detail. The type of analysis engaged in by the guardian ad litem regarding the children’s interests and their needs has been of enormous assistance to the court in reaching its determinations.

30. There are a number of minor instances relating to the best interest of the children where the evidence of the guardian ad litem conflicted with the evidence of the other evidencegathering professionals, that is to say excluding the psychologist. After careful consideration of each such instance the court preferred the testimony of the guardian ad litem. The reasons for this are: (1) the court found her evidence to be particularly compelling and persuasive; (2) she repeatedly gathered and presented evidence that was relevant to the issues to be determined; (3) she made evidence-based findings; (4) in making such findings she applied a scientific approach; (5) she supported her opinions and findings using peer-reviewed studies; (6) her focus at all times was the best interests of the children, which is also the paramount consideration for the court.

31. The testimony of the psychologist merits separate consideration. The psychologist authored a report for the benefit of the court and gave testimony that was broadly in line with the content of that report. She also authored a very recent supplementary report with a view to providing updated information. She met QF and observed her during supervised access on about five occasions between 29 September 2017 and 9 April 2018.

She also attended at a more recent access and made a home visit to FF in the presence of his foster carers. She drew conclusions by applying her education, training and experience and the research she had conducted to the reports from the social workers, the reports from the UK services (which were not proven), the five observations of access, and a number of meetings with QF.

32. As part of her engagement with the psychologist, QF underwent four psychometric assessments, i.e. two on 28 September 2017 and two more on 26 February 2018. The tests are: (1) the Wechsler Adult Intelligence Scale; (2) Behavioural Rating Inventory of Executive Functioning; (3) Neo-3 Personality Inventory; and (4) Trauma Symptom Inventory. In relation to the Wechsler test she displayed average scores in verbal comprehension, perceptual reasoning, working memory and processing speed. She has an average IQ. The Behavioural Rating Inventory is a self-reporting measure on which QF indicates that she does not experience any difficulties with her emotional behaviour regulation or her metacognition, i.e. her understanding of her own thought processes.

She also scored an unremarkable average score on the NEO Inventory, which is a concise measure of the five major domains of neuroticism, extraversion, openness, agreeableness and conscientiousness.

33. The Trauma Symptom Inventory is a test of posttraumatic stress and other psychological sequelae of traumatic events. It is used in the evaluation of acute and chronic traumatic symptomatology, including the effects of spouse abuse and physical assault. QF did not endorse any critical item e.g. self-harm. She responded to the majority of items on the test with zeros. In the psychologist’s opinion this amounts to a denial of any significant concerns or symptomatology. This level of denial is even less than is endorsed by the average non-traumatised individual. She opines that QF generally lives in a state of denial and minimisation of events.

34. The psychologist testified that QF told her that she had a history with alcohol. She also told the psychologist that AF Hynes had been violent towards her, citing one example of him pulling her down the street by the hair in front of her children. She testified as to some minor inconsistencies in the information provided to her by QF over the course of their interactions.

35. Regarding FF, the psychologist is of the opinion that he presents two separate facades to the world: one when in the presence of his mother and the other when in the presence of his foster carers. She testified that the essential difference between the two personas is FF’s level of engagement. She noted that the work being done by the mentor, as she had recommended, was improving the quality of access. She gave a practical example of attunement that occurs when a person makes eye-to-eye contact with a child and smiles while remaining still at which point the child will smile back in a calm manner with eyes wide. If this type of engagement is lacking then the child will react with puzzlement, frowning, and a lack of understanding of what the person is about. She testified that care-giver’s mindset must be alive to this attunement. She was keen to point out that she not expecting “the gold standard” of parenting but rather parenting that was “good enough”.

36. In relation to DF she noted in particular that she is shy about speaking about her achievements in sport and education. This was a source of concern to her. She also noted, as a clinician, that DF has experienced a lot of disruption and distress in the UK.

37. In relation to AF, she testified that the access venue was somewhat confined. The psychologist opines that he needs his foster family to support his development and therefore he should remain in care for the significant foreseeable future.

38. In relation to both DF and AF she opines they will need work in relation to their expectations and abilities regarding forming relationships with others. She concluded that the children are currently in a stable environment.

39. In relation to FF, the psychologist noted that during access and consultations QF regularly find herself on the right hand side of FF notwithstanding that he is deaf in his right ear.

She is of the opinion that it is apparent that FF finds this frustrating and does not respond when people are on his right hand side. She concludes that if FF is returned to his QF he would have to make further adjustments including a break with his foster parents that would be too much to bear. She determined that because FF has significant medical challenges his care-givers need to engage with minimising same.

40. It was suggest to the psychologist that she may have gone beyond the terms of reference of her pre-agreed function but she disagreed with this proposition on the basis that she had to look at things in the round and that she had to know how QF perceived her own children. She also addressed the fact that abandonment and rejection, which QF experienced drives her not to connect with her inner self and causes pseudo-confidence and pseudo-blocking. She concluded that QF needs psychoeducation to deal with the effect this can have on attachment.

41. At paragraph 15 of her earlier report the psychologist wrote the following: “QF was well aware of Mr Hynes’ violence and aggression. On a number of occasions, she was assaulted by Mr Hynes including on one occasion Mr Hynes pulled QF by her hair along the street outside her home, watched by her children.” Under cross-examination the psychologist accepted that it may be possible that the source of the content of that paragraph was the reports from the UK social services as opposed to being uttered by QF.

She did, however, state that QF told her: “AF (Mr Hynes) was in prison for assault. He did assault me in front of the children in UK. AF was violent up to 2010. AF (Junior) was born in 2009, we split up in 2010.” The psychologist also testified that QF described to her that her relationship with AF Hynes was abusive, and that he “controlled her day.” QF also acknowledged that there was social work involvement with the family in the UK.

42. It is a significant part of the court’s function to assess the evidence of the various witnesses and attribute weight to that evidence which is relevant and admissible. In relation to the testimony of Jacinta Nolan, psychologist, it was evident that she was cautious and thorough in gathering relevant evidence. It was also apparent that she thought carefully about that evidence and assessed and analysed it in a multi-layered and multi-perspective manner. She considered every conceivable eventuality. She was careful with her words and phrases and she was conscientious with the presentation of her testimony. The level of knowledge and expertise displayed by her in terms of analysing the real issues before the court was nothing short of astounding.

43. One final point regarding the conclusion that she reached: they were in part based on the content of notes furnished to her by the UK social services. Those notes were one factor amongst approximately ten factors that she mentioned. Just because the actual notes were not proven or put into evidence does not mean they could not properly be placed into the mix to the limited extent that they were and relied upon by her, with caution.

That caution was evident by the fact that she spoke directly to a specific person in the UK services to confirm (1) the providence of the notes and (2) that the services in the UK were involved to the extent set out in those notes. In the opinion of this court it would be unreasonable to conclude that the psychologist could only factor the notes into her thought process if she could be sure that they would pass muster to the required standard of proof in potential subsequent proceedings. As a matter of public policy, to insist on such a standard would paralyse the work of the child protection services. In the opinion of this court it would be erroneous to disregard the overall findings of the psychologist on the basis that one of the many matters she considered, bearing in mind her vast expertise, were notes made by her colleagues in the UK.

44. There is another matter that was raised on the evidence that is worthy of comment.

There was evidence from David O’Reilly, Elaine Tannian and Sinead Nolan that QF effectively obstructed for relatively short periods the completion of passport-related forms and declarations for the benefit of the children. It is alleged this consisted of refusing to provide a signature on declaration as to the loss or mislaying of previous passports until blame was attributed for such loss or mislaying. It is further alleged that QF refusing to sign a consent form for a passport for FF. She gives a different account of both incidents that is consistent with her having valid reasons for not signing the necessary documents.

45. Another issue raised in the evidence was an allegation that QF refused to engage in bringing about a referral of FF for physiotherapy. The evidence is that she does not accept that FF needs physiotherapy. The physiotherapy had been recommended by FF’s early intervention team in order to improve his gross motor skills. QF’s objection to signing the referral related to certain wording in the referral form with which she disagreed. This was later ordered to be redacted by Judge Faughnan. There is a dispute as to his reasoning for making such order. QF argues that it vindicated her view that it was inaccurate whereas the CFA argue that it was simply to provide an immediate solution to an impasse that was adversely affecting FF.

46. For a brief moment of joviality albeit the context of solemn proceedings, the court notes that AF asked the guardian ad litem to ask the judge: “Who lives in a pineapple under the sea, and get back to me when he knows?” Presumably he posed the question because he knows that any judge worth their salt would be aware of such an important fact! He should be informed that the judge said that the answer is: “Sponge Bob Square Pants”.

47. Mr Brendan Barrett gave evidence on behalf of QF. He is her addiction counsellor. He took over this function from Carmel Haverty. He is part of a multi-disciplinary adult mental health team assigned to QF. He testified that QF had been referred to the team following an assessment by a duty psychiatrist at the accident and emergency department where she had presented following an overdose of prescribed medication that followed her having consumed alcohol. He spoke highly of QF and the efforts she has made regarding her drinking and her mental health issues. He informed the court that she attends a psychiatrist approximately every three months, attends with Mr Barrett every week, and attends with AA as part of her treatment plan.

48. Mr Barrett briefly alluded to what he described as “an almost unhealthy preoccupation with her relationship with Tusla”. He said QF was benefitting from her attendances with the team and that there was no evidence of alcohol consumption. This is consistent with unannounced random urinalysis that he conducted, none of which tested positive for drugs or alcohol. In his opinion if QF could maintain sobriety for two years she would have reached a significant milestone. Mr Barrett also testified that QF is “doing as good as she can”. He stated that she is registered for a parenting skills programme with family support in Ballinasloe, Co Galway but that there is a waiting list for that course. Finally he testified that she has secured employment and he recalled her excitement about having done so and how he noticed that this fact improved her self-esteem and selfconfidence. He was cross-examined but nothing material turned on this.

49. QF testified on her own behalf. It was evident that she dearly loves her children. She spoke about the issues surrounding the violence that had been raised by other witnesses.

During the course of cross-examination of earlier witnesses, Counsel on behalf of QF had put QF’s instructions regarding several matters in issue as between the parties to those earlier witnesses – QF in her evidence confirmed those instructions. QF testified regarding the efforts she has been making regarding her recovery. She testified regarding her perception of the CFA involvement and the difficulties that arose at access. She stated that she really is doing her very best to comply with the instructions and guidance being given to her, particularly during access. She testified about her recovery and her job.

She denied not being attuned to her children’s needs. She was cross-examined and nothing material emerged therefrom that had not already been debated earlier and in relation to which there was evidence to the contrary by the aforementioned professionals.

She confirmed during cross-examination that she had been subjected to violence in the UK, and in particular she recounted three separate assaults upon her by TH. She agreed that her children witnessed one of those assaults. She stated that as a result of that assault she sustained bruising that was obvious to everyone, including the children. She set out the sequence of events regarding her transit to and from the UK owing to cheating, assaults and violence by TH. Ultimately she returned to Ireland from the UK of foot of a violent assault by a group of unknown assailants that resulted in her sustaining injuries including a broken nose. He brother travelled to the UK to extricate her from her scenario. At that time the DF and AF were living with her.

50. Also under cross-examination QF confirmed that she could not, for the most part, contradict the testimony of Mr O’Reilly and Mr Higgins regarding her utterances and their observations in or around June and July 2016. She openly conceded that she was at her “lowest point” by then. She recounted all the turmoil going on in her life around that time and shortly thereafter, including the recent death of her father. She agreed that on 1 July 2016 that TF contacted the CFA owing to concerns regarding the children. She agreed that they made a house visit. She could not contradict the testimony that she told them the children were not with her. She testified that in fact the children were with her. Later that day she handed the children over to TF. She concluded that she needed to stay away from the children, in their interests, as she was at a “low point”. She also testified in relation to the lack of engagement of KC regarding the upbringing of FF, and that insofar as she is aware he only saw FF in the first few days while he was in hospital immediately after his birth. She testified that if she had care of FF then KC would need to earn the right to have contact with FF, as she has had to do.

51. In the opinion of the court it is not unfair to state that for the most part the testimony of QF concerned her love for her children, her efforts at recovery, her desire for reunification, and her denials of the matters that Counsel on her behalf had already contested with earlier witnesses by way of cross-examination. During the course of her testimony she displayed a significant awareness of the physical needs of FF, but a less meaningful understanding of the complex psychological needs of her children and the effect that their environment prior to 1 July 2016 has had on them.

52. Having reviewed all of the evidence and assessed the manner in which it was given, that is to say, not just what was said but how it was said, the court is satisfied that the following facts have been established to the requisite standard:

a) There is insufficient to prove to the requisite standard that QF was in a car with her children while drunk.

b) There is insufficient evidence to prove to the requisite standard that QF was drinking excessively during her pregnancy.

c) Although they arise from different circumstances the needs of the three children at the centre of these proceedings are highly complex. Additionally, AF suffers from diagnosed ADHD.

d) DF and AF have suffered significant psychological harm arising from having witnessed incidents of violence. AF intervened in at least of those incidents.

e) DF and AF have suffered ill-treatment and neglect owing to, amongst other things, alcohol abuse by QF coupled with and an inability to fully understand their psychological and emotional needs.

f) DF’ and AF’ lives have been characterised by a sense of a lack of safety and stability.

g) As a result of the environment imposed upon them by QF, her acquaintances and her activities, DF and AF have developed self-survival strategies. Those strategies are hampering their ability to accept and absorb care from others, and have the potential to adversely affect their ability to form relationships with others.

h) FF is deaf in his right ear, and requires investigation regarding potential hearing loss in his left ear. FF has a fistula in his palate that will likely require further surgical intervention within the next two years.

i) Initially QF was not accepting of the physical difficulties that FF has and at best was minimising them. With the passage of time she has begun to come to a realisation of his physical issues such that they no longer represent a significant source of concern.

j) Despite doing her understandably incompetent best QF cannot currently meet her children’s highly complex emotional and psychological needs.

k) As matter stand QF lacks real insight into the concerns at the root of her subsisting scenario. She has no meaningful understanding of the effects of the environment she has contributed to creating upon her children. She is erroneously of the opinion that because she has broadly done what has been asked of her by the CFA that she should have her children returned. This is consistent with her general tendency to minimise the legitimate concerns of the CFA.

l) QF’s willingness to engage with appropriate therapeutic services has been hesitant, conditional, and sometimes consciously misleading. The court has concluded that she has in the past attempted to use the promise of her engagement with suggested services in order to bargain for perceived increased benefits to her personally.

m) In more recent times, there has been a marked improvement in the level of engagement by QF with the CFA. She has also accepted her issues with alcohol and has set about addressing those issues. She has engaged to a relatively minor degree in terms of the therapeutic intervention that are actually required as opposed to what she believes is required.

n) QF requires intensive therapeutic treatment tailored in a manner that will enable her to properly address her own life experiences, but in the context of acquiring appropriate parenting skills to deal with the particular scenario in which she finds herself.

o) The refusal by QF to sign the necessary forms and declarations to enable her children to obtain passports as soon as possible was unreasonable. Her consent to referring FF to physiotherapy that was objectively necessary was unreasonably withheld. This incident in particular placed senseless stubbornness before her children’s needs.

p) The children are currently in a secure and stable home environment. The older ones are attending National School and are progressing well. They are, for the first time, experiencing a sense of safety and security and are being protected from harm.

53. Subsection 18(1) of the Child Care Act 1991 as amended provides that where, on the application of the Child and Family Agency with respect to a child, the court is satisfied that (a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or (b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or (c) the child’s health, development or welfare is likely to be avoidably impaired or neglected, and that the child requires care or protection which he is unlikely to receive unless the court makes an order under this section, the court may make an order in respect of the child. These are the matters that must guide the court in its determination, remembering at all times that there is a constitutional presumption that the best interests of a child are to be found within the family unit and that that presumption must permeate the adjudication process.

54. Counsel for QF has argued that the CFA must prove something exceptional in terms of the circumstances of the case in order to overcome the constitutional presumption. This is disputed and the CFA. It argue that what is required is that the CFA meets the threshold set out at section 18(1) of the 1991 Act. In reality therefore it is not necessary for the court to adjudicate on the arguments because the court has come to the conclusion that if the CFA proves what it is it must prove to the requisite standard then the circumstances of the case would de facto be exceptional.

55. Section 24 of the 1991 Act obliges the court to have regard to the welfare of the child as the first and paramount consideration and in so far as practicable to give due consideration to the child’s wishes. The views of the children, as expressed through the guardian ad litem, have been carefully noted and taken into consideration by the court.

The court must, and has, also carefully considered the rights and duties of parents and the child both under the Constitution or otherwise. Additionally, in determining what is in the best interests of the children, the court has had regard to the a number relevant factors and circumstances many of which are set out in more detail at section 31 of the Guardianship of Infants Act 1964 as amended. These include but are not limited to (1)

the benefit to the children of having a meaningful relationship with their mother and of maintaining sufficient contact for that purpose, (2) the ascertainable views of the children, bearing in mind that those views may not be in the child’s best interests; (3) the physical, psychological and emotional needs of the children; (4) the likely effect on them of any change of circumstances; (5) the history of their upbringing and any physical or psychological harm which they have suffered or are at risk of suffering; (6) the impact of household violence that has occurred; (7) their ages, special characteristics, and social, intellectual and educational needs; and (8) the capacity of QF to care for and meet the needs of the children.

Finally, section 47 of the 1991 Act provides that: “Where a child is in the care of the Child and Family Agency … the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.”

56. Before turning to the orders that are about to be made in these proceedings it is only right to acknowledge the efforts, ongoing efforts, and progress that QF has made. She has done this against a background of having previously being subjected to abuse and violence that no human being should ever have to endure. She has been described as a person with great potential who could easily have gone on to third-level education had her life taken a more fortunate course. The court can only imagine the torturous road she has made to where she is now in terms of her previous alcohol addiction. She has surrounded herself by a multitude of people who want to help, some of whom she gets on with and others she goes not, but they all have one thing in common: they all want to help her to get to where she needs to be. It is the court’s fervent hope that the outcome of this case will not deter her from her path and her ongoing recovery, education, and employment. The court believes that notwithstanding all that she has had to endure she has the mechanisms and the fortitude to cope with the outcome of these proceedings.

57. The court is satisfied on the evidence that DF and AF have been ill-treated and neglected.

Although the requirement of paragraphs (a), (b) and (c) of subsection 18(1) are disjunctive, the court is further satisfied that the children’s health, development and welfare has been avoidably impaired or neglected. Again, although any one of the three would suffice, all three are present. The court is also satisfied that the children’s health, development or welfare (and all three for that matter) are likely to be avoidably impaired or neglected (and both for that matter). The court is satisfied on the evidence that the children require care or protection (and both) which they are unlikely to receive unless the court makes the order sought in respect of DF and AF.

58. The same concerns evident in respect of DF and AF are present in respect of FF, save for the fact that he has not witnessed some of the traumatic events that his older siblings have. However the concerns that exist in relation to DF and AF are even more pronounced in the case of FF when objective consideration is given to his particular difficulties and his environment. As Sinead Nolan put it: “If you do not recognise a child’s need then you cannot meet those needs”. For all of the same reasons as set out heretofore regarding his older siblings, the court is satisfied that the requisite threshold is also met in respect of FF and that he requires the same care and/or protection as they do, which he is unlikely to receive unless the court makes the order sought.

59. Being satisfied that the statutory threshold is met in relation to the application before the court, it is appropriate to carefully consider whether any remedy short of a care order might meet the situation. In particular, the court has considered whether the circumstances of the case might be met by granting supervision orders rather than care orders. On the evidence the court considers it appropriate, necessary and proportionate to grant care orders as opposed to supervision orders.

60. Accordingly, the court hereby grants care orders in respect of all three children pursuant to section 18(1) the Child Care Act 1991 as amended.

61. Subsection 18(2) of the 1991 Act provides that a care order shall commit a child to the care of the Child and Family Agency for so long as s/he remains a child or for such shorter period as the court may determine and, in such case, the court may, of its own motion or on the application of any person, extend the operation of the order if the court is satisfied that grounds for the making of a care order continue to exist with respect to the child.

62. The court is satisfied on the evidence that an order for the duration of DF’ and AF’ minority is appropriate and proportionate and will maximise their potential to recover from the abuse and neglect they have experienced, and are likely to experience in the event that the orders were not made for those periods. DF and AF will remain in the care of TF and FM, and the respite foster parent from time to time as required.

63. The court is satisfied on the evidence that the duration of the care order in respect of FF should also be until he reaches his majority. The court has reached this conclusion on the basis that it will provide security and certainty for FF and is appropriate and proportionate. Given the different considerations in FF’s case there should be a review of this order after three years. This will place an onus of QF, in the best interests of her children, to engage in the recommended assessments and any therapies that flow from those assessment, and in particular any intensive therapeutic intervention as repeatedly recommended but not yet done. FF will remain in the care of Sarah and Aidan Mullery.

64. The court orders that access, including sibling access, shall be at the discretion of the CFA within the parameters of section 37 of the 1991 Act. On the evidence this access should be supervised unless and until the CFA, in its discretion, deems this unnecessary. The court recommends that in the shorter term FF’s contact should be reduced to three times per fortnight. This is above average access and it will allow for QF to undergo the assessments and therapeutic interventions referred to earlier. It will also allow adequate time for FF’s dissociative presentation to be fully probed. Finally, it will reduce his current intense itinerary that requires him to spend considerable periods of time in transit between various appointments. This decision is consistent with the Court’s acceptance of the testimony of the guardian ad litem that high quality access is more constructive and beneficial than frequent access of lesser quality. The cancellation, suspension, or postponement of access on reasonable grounds, including but not limited to FF’s illness or fatigue or FF becoming distressed during any such access, shall be at the discretion of the CFA.

65. The court directs that the CFA provide funding and arrange for the provision of all appropriate medical, psychological and therapeutic interventions and services for the children, tailored to meet their specific needs.

66. The court dispenses with the requirement of consent by any and all of the respondents to permit the children to undergo any medical, dental or other similar treatment, including but not limited to medically advised surgery. This is particularly so in respect of any investigations, treatment or surgery for the benefit of managing FF’s physical difficulties including but not limited to his hearing and the hole in his clef palate.

67. The court dispenses with the requirement of consent by any and all of the respondents to allow the children to obtain passports, visas or other travel documents or to travel out of the jurisdiction for reasonable motives, including but not limited to, family holidays, or educational or medical reasons. In the event that such travel is to occur the CFA or its agents will notify the respondents in writing at least two weeks in advance of both the fact and the purpose of the travel. Service of such notice shall be deemed good if it is by ordinary prepaid post at the last known address of the respondent(s).

68. The case will be listed in the near future, and not later than one month from today, for the purpose of fixing a date for a review hearing relating to (1) the implementation of the care orders, (2) to set out any proposed care plan for the children, and (3) to deal with the mechanisms of sibling access.

69. In order to ensure that the guardian ad litem shall have an input into any care plan and an opportunity to raise any issues that arise in relation to sibling access she shall remain appointed and represented until the review date. The guardian ad litem will have liberty to apply for an extension of such appointment in the event of any further adjournment and in the event that she harbours any reasonable reservation regarding the needs of the children, particularly FF, not being met.

70. An annual review shall be conducted by the CFA until further order. Following such reviews, the CFA shall prepare a report in writing detailing the information and matters to which the CFA is required by law to have regard. This should include any views and information provided by the children, any parents who chose to engage, the foster parents and any other persons consulted by the CFA. The written report must also include the decisions made as a result of the review.

71. The court directs that the event of agreement by QF, she shall be facilitated and supported in terms of any assessment and treatment deemed necessary. The assessment and treatment should be under the overall direction of either Jacinta Nolan, psychologist, or some other professional with comparable expertise.

72. The court directs that the CFA shall provide support, advice and assistance to the foster carers to help them meet their challenges in caring for the children including the appointment with immediate effect, if not already done, of a fostering link worker for the families who shall visit the families on a regular basis, but at least every three months.

In particular the court directs that the CFA shall to provide specialist foster care support to TF and FM in relation to AF’s behaviour and the consequences of same of the foster family as a whole.

73. The court directs that the CFA shall re-enter the case before the court without delay and a guardian ad litem shall be reappointed immediately, without further order, in the event that: (1) a social worker becomes unallocated to any of the children for a period of one month; (2) a planned or unplanned change occurs relating to the current foster placement of the child; (3) a fostering link worker not being assigned to the foster carers for more than one month; and/or (4) the foster carers are not visited by the fostering link worker at least every three months.

74. The court directs that an aftercare review for the children be commenced on or before their respective 16th birthdays to assess their future needs.

75. The court directs that an aftercare plan be prepared and an aftercare worker be appointed for the children not later than the children’s respective 16th birthdays.

76. The court directs that the case shall be re-entered before the court not later than the children’s respective 17th birthdays for review of the aftercare plan. To this end, a guardian ad litem shall be reappointed six months before the children’s respective 17th birthday.

77. Having regard to the CFA’s legal obligation to pay an allowance to the foster carers and, in addition to this allowance, provide such financial or other assistance as the CFA considers necessary to take care of the children, the court directs that any Child Benefit or other State payments paid for the benefit of DF and AF be applied in addition to such allowance or financial or other assistance paid or made available until further order.

78. On the basis that this court has determined these proceedings primarily on the facts established on foot of the evidence the court hereby orders that any appeal from the orders herein shall not stay the operation of such orders or any part thereof except on the express order of the appellate court.

79. The court is expressly not retaining seisin of this matter.