District Court grants four care orders for children amidst domestic violence and neglect history.

DISTRICT COURT DISTRICT COURT AREA OF WEXFORD DISTRICT NO. 23 THE CHILD AND FAMILY AGENCY APPLICANT

- AND - MM, EM RESPONDENTS Judgment delivered by Judge Brian O’Shea at Wexford District Court on the 13th day of November 2018

1. The Applicant seeks four care orders pursuant to section 18 of the Child Care Act 1991 as amended. The orders sought relate to 4 children of MM. KG (deceased) is the father of her two older children KL (aged 13 years) and LL (aged 11 years). EM is the father of her two younger children LM (aged 8 years) and JM (aged 5 years). The children are currently the subject of interim care orders that have been renewed from time to time.

2. The Applicant, the Respondents and the guardian ad litem were legally represented during the proceedings before the court. Having sought time from the court to discuss the pending proceedings both MM and EM expressed the opinion through their respective counsel that they would consent to the orders sought on the basis that their circumstances would be reviewed by the Applicant after a period of two years. The Applicant is agreeable to this course. On foot of this promise, both counsel indicated that they would be taking a passive role in the proceedings.

3. The history of this case can be traced to more than a decade ago when the authorities became aware of domestic violence incidents involving MM and KG. This led to the involvement of social workers. In light of the approach taken to these proceedings by the Respondents it is unnecessary to itemise the various incidents referred to in the reports of the professionals. Suffice to say that issues gradually began to emerge concerning hygiene, nutrition, financial and household management, domestic violence, and parental substance misuse and mental health. It is noteworthy that MM was sexually assaulted and then admitted to hospital following a self-harm incident. Ultimately both KL and LL became the subjects of a child protection plan. They began residing with their maternal grandmother, supported by respite care.

4. MM later had two children with EM, that is to say, LM in 2010 and JM in 2013. By 2013 there was a clear and comprehensive plan of intervention in place. The concerns that were present all along in relation to the two older children were by this time present regarding the younger children. In April 2016, owing to ongoing neglect of the children the Applicant was granted a supervision order. By November 2016 both LL and LM were verbalising self-harm. On 24 November 2016 all four children went into the full time care of the Applicant pursuant to interim care orders. Those orders have been reviewed from time to time and are extant.

5. A number of witnesses gave testimony during the proceedings. These included (1)

Siobhan Doyle, social worker; (2) Patricia Molony, court-appointed guardian ad litem; and

(3) Jacinta Nolan, psychologist. Their expertise in respect of their particular functions was not in dispute.

6. Under oath and without objection Siobhan Doyle adopted the content of her report having testified as to its truth and accuracy. The report had been made available to the parties in advance and she was available for cross-examination in relation to, but not limited to, any aspect of the report that was contested. She was not cross-examined. Her evidence proved particularly helpful to the court. It did not contradict the evidence of the psychologist or the guardian ad litem in any material manner.

7. Patricia Molony authored a comprehensive report for the benefit of the court. Under oath and without objection, she adopted the content of that report and testified that it was true and accurate to the best of her knowledge and belief. The report had been made available to the parties in advance and she was available for cross-examination in relation to, but not limited to, any aspect of the report that was contested. She set out her history of involvement in the case and the particulars of the various persons that she had interviewed. She also presented evidence that she engaged with the children’s schools and observed access with them. She attended the review meetings and has engaged fully with the social work department. She consulted with the psychologists regarding primary care and parenting capacity.

8. Before considering the evidence of Jacinta Nolan the court will first turn to the children.

KL was born in June 2005. The guardian ad litem notes that he has been in his current foster placement for two years, and he is “settled and happy”. He has formed a good relationship with his foster carers and responds well to their parenting approach. He has integrated well into his local community availing of several community clubs and activities including soccer. The guardian notes that KL enjoys good general health although he suffers with manageable asthma. He enjoys a proper and varied diet and has a good sleep routine. He has resolved a previous enuresis issue. He has no dental or eyerelated problems. KL has been diagnosed with a common sweating disorder known as hyperdrosis. This can be treated when he is a little older, if necessary. An occupational assessment placed him in the average range. He missed a lot of school days necessitating additional tuition in both mathematics and English. He is now in secondary school and is doing as well as can be expected. He attends homework club. He struggles with receptive language and retention of information, but guidance for this is in hand. KL has an ongoing issue around personal hygiene and while he likes the “feel” of cleanliness he will stand in the shower unit with the water running without standing under the water.

9. In terms of KL’s emotional and psychological needs the court has been informed that he has experienced a high level of trauma throughout his childhood. He has been exposed to significant perpetual domestic violence, mental health issues, and neglect. He struggles with trust, low self-esteem and low self-worth and possible depression. These experiences have impacted his ability to concentrate in school, make friends and engage in daily life. He has experienced isolated periods of “good enough” parenting but nothing long term. During the course of her evidence the guardian ad litem set out the reasons KL expresses a desire to remain in his foster placement with appropriate access.

10. LL was born in April 2007. He too has been adversely impacted by exposure to domestic violence, drug and alcohol misuse and mental health issues. He went into the care of the Applicant in November 2016. Since then there have been no issues with his general health needs. His diet had been lacking fibre but this has been remedied. Like his older brother he also suffers with manageable asthma. He has had four dental fillings and wears glasses. He has a good sleep routine. He enjoys outdoor activities. Despite some initial concerns he is doing very well in school. He struggles with socialisation skills in school owing to his strong need to control his peers and be the centre of attention. This has impacted his friendships both inside and outside of school. The guardian ad litem opines, not without scientific authority, that this learned behaviour will prevent him from establishing normal and healthy relationships throughout his life. LL presents as an engaging and social child. He is described by his foster carers as “charming and funny with a quick wit”, but yet he can be defiant and moody when not getting his own way. He views himself as cognitively superior to his older brother. He show signs of anxiety around access. He becomes argumentative and withdrawn with his foster mother before and after access. This is not an unusual coping strategy. During the course of her evidence the guardian ad litem set out the reasons LL expresses a desire to remain in his foster placement, with appropriate access.

11. LM was born in December 2010. Save for the matters set out later, she enjoys good general health. She eats and sleeps properly. She wears glasses. She has had tooth infections requiring antibiotics. Her occupational assessment was for the most part unremarkable, save for requiring some ongoing assistance with hand-writing. She has also had a number of successful speech therapy sessions. At school, her academic ability is described by her teacher as “very weak”. She struggles with reading and writing. She struggles emotionally in school before and after access to the point of having to be taken from the classroom for reassurance that access will be a positive experience.

12. The guardian ad litem informs the court that Dr Paul McGrath, clinical psychologist, assessed LM’s cognitive function as borderline very low range within her age group. LM exhibits extreme distress and difficulties with emotional regulation. She struggles with developing a sense of being safe. Past experiences appear to invade her thoughts. She consistently talks openly about her experiences while in the care of her parents. She recounts being exposed to domestic violence and the use of “bad words” and namecalling. She achieves short periods of contentment, but she continues to exhibit sleep disturbances, bedwetting, soiling and smearing of faeces. The guardian is of the opinion that given the ongoing anxiety exhibited by LM in relation to access consideration should be given to LM receiving one-to-one support to reassure her regarding the safety of access.

13. JM was born in January 2013. She enjoys good general health apart from seasonal respiratory issues, treated with a preventative inhaler. She wears glasses and has no dental problems. She has made progress in speech and language therapy, which is ongoing. She was admitted to care when she was only three years old. Consequently she had the benefit of regular attendance at pre-school. She is meeting all her milestones. She has occasionally displayed inappropriate behaviours following access.

These include defiance and aggression. She settled well into school but struggles with concentration. JM appears to have been least affected by her early life experiences. She was only two years and nine months when she went into foster care. She is described as a “highly independent, social and engaging little girl”. The guardian ad litem has noticed that at access JM entertains herself a lot owing to her older sister’s desire for as much attention as possible. It is the guardian ad litem’s view that this situation must be closely monitored and addressed as required. The guardian also alludes to the fact that JM may benefit from one-to-one play therapy where she can explore her feelings surrounding the relationship between her and her sister. Finally, according to the guardian ad litem, Dr Paul McGrath has concluded that JM presents with a minimal level of social, emotional and behavioural difficulties. JM is too young to fully understand the proceedings or express any particular views regarding access.

14. The guardian ad litem identifies gaps in the current care plan that the Applicant has put in place. She notes that the children have responded in different ways to the trauma they have experienced. She opines that this is evident in their differing presentation, interactions, emotional wellbeing, cognitive functioning and coping skills. She further opines that the children need individualised and separate approaches and responses to their emotional and psychological wellbeing. In her opinion “understanding each child’s needs independently of one another is essential for robust, focused and meaningful planning and interventions to occur.” She is of the view that “this will then in turn give these individual children the best chance of achieving better outcomes in their lives as they proceed through the care system and their placements.” The guardian is supportive of the current access arrangements, including sibling access in its current format.

15. For the reasons stated the guardian ad litem does support the Applicant’s application for care orders but does not support the current child care plan proposed by the Applicant as she opines that it does meet the emotional and psychological needs of the children. The guardian wishes to await the assessment of Dr Humphries, psychologist, and expresses a wish that he should also assess LM. She considers that this would provide a framework for a proper individualised care plan for the children. The Applicant has agreed to prevail upon Dr Humphries to assess LM. The court is aware that Dr Humphries’ work schedule and his research is time consuming but it would be of huge benefit to the process in this case if LM could be assessed by him. This would achieve what the guardian has correctly suggested but also provide consistency to the approach to be taken regarding the children’s future development as a whole.

16. Jacinta Nolan undertook a psychological parenting capacity assessment of the Respondents and prepared two reports for the benefit of the court. Ms Nolan is a clinical psychologist and psychotherapist. 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. Ms Nolan approached this assessment in a most professional manner. She interviewed the Respondents and she gathered all of the available evidence. She then applied a battery of appropriate scientific tests that gave rise to further evidence. Finally she applied her knowledge and expertise to the evidence she had gathered. She answered precisely the questions she was asked to address in the report. Her input has been such that the court can make informed decisions with relative ease. It must be a significant source of comfort the those involved in the child protection services to know that people such as Ms Nolan are at the centre of the decision-making process. Her conclusions included the following:

a) All attempts to remediate and repair the long term psychological distress and ongoing emotional disturbance in the lives of the four children must be actioned and remain in place for as long as the children need support.

b) Maladaptive, emotional behavioural and cognitive problems in traumatised children relate to the nature, timing pattern and duration of their developmental experiences. Changes in the thinking and behaviour of the children only occur over time with a great deal of repetition and security. Years of neglect will take years to repair.

c) Therapy in isolation is not sufficient. A safe, secure, predictable, nurturing, welcoming and loving environment is a prerequisite of recovery, rehabilitation and repair for the children.

d) At this time, the children are experiencing a loving, safe, nurturing environment which is supporting their age-appropriate development. Their present home environments should not under any circumstances change. Their psychological and emotional needs are met, they are integrated locally in school and community, they are experiencing and engaging in what normal family life is.

e) To date, the children have demonstrated remarkable coping skills, selfpresentation, and a certain level of ego coherence. The children's psychological, emotional, and physical lives were fractured and fragmented. The lives and psychological and emotional functioning of the children need to be supported in the long term. They need to be in a stable, predictable environment.

f) At present the Respondents do not have the capacity to meet the children’s basic day-to-day needs.

g) At present the Respondents do not have the capacity to meet their own emotional and psychological needs and if they cannot meet their own needs they cannot meet the needs of their children.

h) At present the Respondents cannot manage their communication. Domestic violence including verbal and physical violence is never an appropriate way of managing communication in life.

i) At this time the Respondents are separated. That in itself is a change. But separation does not bring about a Pauline conversion. The Respondents are facing an enormous task in relation to their own parenting education and understanding of themselves and their children for access purposes.

j) Therapeutic re-parenting is essential for both parents. This is a method of parenting based on the work of Dan Hughes. It has as its focus the rebuilding of trust and a relationship between parents and children. It does not mean reunification is the goal. The Respondents need education moving from parental insensitivity to sensitivity-enhancing interventions in relation to their children.

k) The children are benefitting from the positive environments in which they find themselves. From a chaotic, disorganised, dysfunctional household underpinned by neglect and lack of positive relationship the children have moved to secure predictable environments. This will allow the children to form earned secure attachments with their foster carers, detach from the high intensity of the previous negative environment and become coherent, ego-centred well-functioned children who will in time be able to manage themselves in the world.

17. MM elected to give testimony to the court. She began by thanking the Applicant for the support it had given to all her children and for arranging their placements. She informed the court that the foster parents are “fantastic” and that she could not ask for better.

She testified that she is consenting to the orders sought because she recognises that to do so is in her children’s best interests. She was keen to establish that she has positive plans for her and her relationship with her children. She expressed sorrow for her children’s suffering and acknowledged that she had contributed to that suffering. She stated that she loves her children more than anything. She poignantly pointed out that parents sometimes think that the only thing that can take their children is death, but that she now knows that other life circumstances can intervene. She accepted responsibility for her children’s suffering and acknowledged that even if her children were with her she will always have to live with the fact that she let them down. Her testimony was compelling and credible.

18. MD understandably chose not to testify.

19. Having reviewed all of the evidence the court is satisfied that the following facts have been established to the requisite standard:

a) This case is very much about parenting skills.

b) Although they arise from different circumstances the needs of the four children at the centre of these proceedings are complex.

c) The three older children have suffered significant psychological harm arising from having witnessed incidents of violence.

d) The three older children have suffered ill-treatment and neglect owing to, amongst other things, witnessing domestic violence over a prolonged period coupled with and an inability by the Respondents to fully understand the children’s psychological and emotional needs.

e) The only reason that JM did not suffer the ordeal that the older three children did is because she was removed from the situation before she could have fully understood what was happening. The impugned behaviour was ongoing and it is through no design on the part of the Respondents that JM was too young to understand matters.

f) The children’s lives have been characterised by a sense of a lack of safety and instability.

g) As a result of the environment imposed upon them by the Respondents the children 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) The children are currently in a secure and stable home environment. They are attending school and are progressing relatively well. They are experiencing a sense of safety and security and are being protected from harm.

i) Despite doing their incompetent best the Respondents cannot currently meet her children’s complex emotional and psychological needs.

j) As matter stand the Respondents lack real insight into the concerns at the root of the subsisting scenario. They have no meaningful understanding of the effects of the environment they have contributed to creating upon her children.

k) As matters stand the Respondents do not have the capacity to parent their children or to meet the emotional and psychological needs of their children.

l) As matters stand the Respondent do not have the capacity to develop the skills necessary to prevent the reoccurrence of domestic violence within their current abilities and circumstances. The fact that the Applicant is willing to review this position in two years is an indication of hope, and must be encouraged.

20. 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 s/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.

21. 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 and in a different context 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 parents 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 the parents to care for and meet the needs of the children.

22. 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.”

23. The court is satisfied on the evidence that all four children have been ill-treated and neglected. This is so even though JM did not appreciate same. 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.

24. 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. This is so notwithstanding that the Respondents are consenting to the orders sought. In particular, the court has considered whether the circumstances of the case might be met by granting one or more 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.

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

26. 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.

27. The court is satisfied on the evidence that an order for the duration of the children’s 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. However, the court must have regard to the agreement made between the Applicant and the Respondents that a detailed review of their circumstances will be undertaken in two years. This agreement resulted in counsel for the Respondents being instructed to approach the application in a different manner. In effect the evidence of the witness was left uncontested. In that context, a review of the Respondents’ circumstances in two years is appropriate and fair.

28. The court orders that access, including sibling access, shall be at the discretion of the Applicant within the parameters of section 37 of the 1991 Act. On the evidence this access should be supervised unless and until the Applicant, in its discretion, deems this unnecessary. The cancellation, suspension, or postponement of access on reasonable grounds shall be at the discretion of the Applicant.

29. The court directs that the Applicant provide all such funding as it deems necessary for the provision of appropriate medical, psychological and therapeutic interventions and services for the children, tailored to meet their specific needs.

30. The court dispenses with the requirement of consent by the Respondents to permit the children to undergo any medical, dental or other similar treatment, including but not limited to medically advised surgery.

31. The court dispenses with the requirement of consent by 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 for educational or medical reasons. In the event that such travel is to occur the Applicant 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).

32. Although she has done no more that was required of her by virtue of her appointment, the guardian ad litem in this case must be commended for showing the courage that she has in these proceedings. It is all too easy to go along with the Applicant’s view. She has not done that. Instead she has properly identified issues surrounding the inadequacies of the system that is designed to assist the court in making appropriate decisions regarding the children at the core of these proceedings. She has identified outrageous delays, incompetency, and apparent disinterest. The guardian ad litem shall remain appointed until a satisfactory care plan is put in place regarding all of the children, and she shall be directly involved in the preparation of such plan. The plan must address the recommendations contained in her report to the fullest possible extent. She shall have liberty to re-enter the proceedings if she is met with any obstruction whatsoever from any quarter.

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

34. The court directs that the event of agreement by MM and/or EM he/she/they should be given whatever reasonable assistance the Applicant considers is needed in order to enable full engagement with the Marte Meo programme or a comparable intervention as advised by Jacinta Nolan.

35. The court directs that the Applicant 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.

36. The court directs that the Applicant 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 children; (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.

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

38. 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.

39. Having regard to the Applicant’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 Applicant considers necessary to take care of the children, the court directs that any Child Benefit or other State payments paid for the benefit of the children or any of them be applied in addition to such allowance or financial or other assistance paid or made available until further order.

40. On the basis that this court has determined these proceedings primarily on the facts established on foot of the evidence, and bearing in mind the manner in which the Respondents have chosen to approach the proceedings, 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.

41. The case will be listed for mention before Wexford District Court on 10 June 2019 for the purpose of fixing a date for a review hearing relating to (1) the implementation of the care orders and (2) to set out an updated proposed care plan for the children. This date has been selected in anticipation of the reports being available from Dr Humphries, hopefully including the assessment of LM.

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