District Court grants care order for child in foster care due to parental substance misuse and domestic violence risks.

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

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

1. The Applicant seeks a care order pursuant to section 18 of the Child Care Act 1991 as amended. The order sought relates to the Respondents daughter AL who was born on 30 October 2017. BK is the child’s mother and EL is the child’s biological father but is not a guardian. He has an application before the court to be appointed as a guardian. AL is currently the subject of an interim care order that has been renewed from time to time.

She has been in foster care since she was 10 days old. The Respondents, who are legally represented but not present, are consenting to the order sought. Given the age of the child there was no need for a court-appointed guardian ad litem.

2. The history of this case is set out in the helpful report of the social worker, Alison Browne.

Her expertise in respect of her function in these proceedings is not in dispute. Under oath and without objection she 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.

3. The evidence is that AL is the only child of the Respondents. BK has two other children from previous relationships. Homelessness has forced her to return to residing with her mother. Her two older children are in the care of relative foster carers since 9 May 2017.

EL also has two other children from a different relationship. Those children reside with their mother in Wales.

4. There has been social work involvement with BK since 2007. Ms Browne set out in detail for the court the background chronology of events and referrals. She also dealt with the pre-birth assessment and the various family options. Further, she informed the court about the strategy meeting held on 1 November 2017 and the matters arising from the formation of that strategy. She sets out a detailed and helpful table of concerns that are likely to have an adverse impact on the emotional and psychological needs of AL in the event that the order sought was not made. In 2017 alone there were five referrals regarding BK’s then unborn child. The concerns centred around substance misuse, alcohol abuse and violent domestic incidents. It is in the context of domestic violence that the other children were taken in to care, initially by the gardai, and later by the Applicant The pre-birth social work assessment highlighted EL’s lack of responsibility for the legitimate concerns outlined to him. At that meeting he placed his and BK’s mental health issues before the best interests of AL. EL has been unwilling to address his substance misuse issues or his inability to manage his anger. Domestic violence permeates the relationship between the Respondents, although they are currently separated. For her part, BK has long-standing previously denied issues in terms of drug abuse. She had made intermittent efforts to deal with same. Significantly, she tested positive for cocaine and cannabis on the birth of AL. More significantly, AL also tested positive for cocaine at birth and had to be monitored for ten days for withdrawal symptoms.

5. The social worker presented evidence concerning AL’s developmental needs, but perhaps more significantly the Respondents’ capacity to meet those needs. She also elucidated the position regarding access, including familial and sibling access. She alluded to the inconsistencies surrounding access and the detrimental effect this has had on AL in terms of developing the desired attachment pattern. She opines that AL is currently in a stable and secure foster placement. AL has been meeting all of her developmental milestones.

The foster carers have demonstrated a commitment to meeting AL’s care needs.

6. 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 almost as much about lack of parenting skills as it is about the needs of AL.

b) The relationship between the Respondents has been punctuated by domestic violence, drug abuse and general chaos.

c) But for the actions of the Applicant and the loving and stable environment provided by the foster carers there is a strong likelihood that AL would have been exposed to the matters referred to above.

d) As matters stand the Respondents do not fully understand AL’s emotional and psychological needs.

e) As matters stand the Respondents cannot meet AL’s emotional and psychological needs.

f) As matter stand the Respondents lack any real insight into the legitimate concerns of the Applicant. They have no meaningful understanding of the potential effects of the environment in which they exist upon AL.

g) As matters stand the Respondents do not have the capacity to parent AL.

7. 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.

8. 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. Owing to her age AL’s wishes are not ascertainable in this case. 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 AL, the court has had regard to the a number relevant factors and circumstances many of which are set out 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 AL of having a meaningful relationship with her parents and of maintaining sufficient contact for that purpose, (2) the physical, psychological and emotional needs of the child; (3) the likely effect on her of any change of circumstances;

(4) the history of her upbringing; (5) any physical or psychological harm which she is at risk of suffering; (6) the impact of household violence that has occurred; (7) her age and her social, intellectual and educational needs; and (8) the capacity of her parents to care for and meet her needs.

9. 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.”

10. The court is satisfied on the evidence that AL’s health, development or welfare (and all three) is likely to be avoidably impaired or neglected (and both), and that AL requires care or protection (and both) which she is unlikely to receive unless the court makes the order sought.

11. 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 a supervision order rather than a care order. On the evidence the court considers it appropriate, necessary and proportionate to grant a care order as opposed to a supervision order.

12. Accordingly, the court hereby grants the care order sought in respect of AL pursuant to section 18(1) the Child Care Act 1991 as amended.

13. 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 she 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.

14. The court is satisfied on the evidence that an order for the duration of AL’s minority is appropriate and proportionate and will maximise her potential to avoid the abuse and neglect she is likely to experience in the event that the order were not made for such period.

15. The court orders that access, including sibling and familial 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.

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

17. The court dispenses with the requirement of consent by the Respondents to allow AL to obtain a passport, visa or other travel document 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).

18. 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 ascertainable views and information provided by AL, 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.

19. The court directs that the event of agreement by DMK and/or EL he/she/they should be given whatever reasonable assistance the Applicant considers is needed in relation to their rehabilitation in relation to drug misuse, alcohol dependency, and issues surrounding domestic violence, including but not limited to counselling and anger management.

20. 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 AL including the appointment with immediate effect, if not already done, of a fostering link worker for the family who shall visit the family on a regular basis, but at least every four months.

21. The court directs that the Applicant shall re-enter the case before the court without delay and a guardian ad litem, if appropriate, shall be appointed immediately, in the event that:

(1) a social worker becomes unallocated to AL for a period of one month; (2) a planned or unplanned change occurs relating to the current foster placement; (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 four months.

22. The court directs that an aftercare review be conducted and an aftercare plan be prepared and an aftercare worker be appointed for AL not later than her 16th birthday.

23. The court directs that the case shall be re-entered before the court not later than AL’s 17th birthday for review of the aftercare plan. To this end, a guardian ad litem, if appropriate, shall be appointed six months before AL’s 17th birthday.

24. 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 AL, the court directs that any Child Benefit or other State payments paid for the benefit of AL be applied in addition to such allowance or financial or other assistance paid or made available until further order.

25. 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.

26. The case will be listed before Gorey District Court on 21 February 2019 for the purpose of a review hearing relating to the implementation of the care order and to set out the proposed care plan for AL.

27. On the same date at the same court the guardianship application may be considered by the court, assuming that EL attends to move his application.

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