District Court grants Care Order under Section 18(1)(c) of Child Care Act 1991 for infant due to maternal substance misuse.

IEDC 2018 02

THE DISTRICT COURT

DUBLIN METROPOLITAN DISTRICT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

AND

MM

RESPONDENT

IN THE MATTER OF, T A CHILD

CHILD CARE ACT 1991 – SECTION 18 (1)

CARE ORDER

1. This is an application for a Care Order under Section 18 of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) in

respect of a Child who is currently under a year old who shall be referred to in this decision as baby T as nothing must be reported

concerning this case which would serve to identify the child or the parent who are the subject of these proceedings.

2. The child’s mother is MM who is currently homeless and of no fixed abode but resides within the District Court area in various

homeless accommodations made available to her. The mother was served with the proceedings personally at the methadone clinic she

attends. She has two older children in the care of the Agency and Baby T who is the subject of the proceedings before the court.

3. I am satisfied that the Agency has taken all steps necessary to locate and serve the proceedings on the mother. I am also

satisfied that they have clearly outlined to her the nature and importance of proceedings and the nature of the orders sought by the

Agency in respect of her child today and the steps she might take in relation to same, including her right to apply for legal aid and be

legally represented in the proceedings before the Court. I am satisfied on the evidence of the allocated social worker that the mother

understands the application of the Agency is in relation to a Care Order in respect of Baby T until she is eighteen years old but the

mother has indicated to her that she does not wish to engage in the court process or be legally represented in the proceedings.

4. The child’s separate interests in the proceedings were highlighted by the Guardian ad Litem appointed by the court.

5. I am satisfied that the Dublin Metropolitan District has jurisdiction to hear this application. The Agency has applied for a Care Order

in respect of Baby T until the child reaches the age of majority at eighteen years of age on the basis that the threshold criteria of

Section 18 (1) (c) of the 1991 Act. She has never attended at access with Baby T.

6. Although personally served with the proceedings the mother has not been able to engage in the court process. The mother spoke

with both the Social Worker and Guardian Ad Litem to confirm that she would not come to court or participate in the proceedings and

was in agreement with Baby T remaining in foster care until 18 years.

7. I have heard the evidence of:

• UF, the Allocated Social Worker;

• TF the Guardian ad Litem for Baby T;

Family and Care History

8. There is a lengthy history to this matter which I summarise as follows.

9. The mother has a long history of substance misuse, and allied homelessness. She is isolated from her family both psychologically

and by virtue of private law court proceedings, and she is very vulnerable. Her two other children both of whom are in the care of the

Agency each have very particular health needs. The mother was opiate positive during her pregnancy with Baby T and refused

admittance to a drug treatment facility during pregnancy and was not consistent in her ante natal care. There was a pre-birth

conference held in respect of Baby T prior to birth in light of the identified risks. Following birth Baby T by caesarean section, her

mother left the hospital without seeing the child. Baby T became subject to an Interim Care Order and has never had access with her

mother.

10. The mother has confirmed to the social worker and the Guardian ad Litem that baby T is a half sibling to her other children but

she has refused to identify Baby T’s father. The mother has told the social worker that she believes that the father is aware of the

existence of the child but has exhibited no interest in participating in the child’s life. She does not wish to identify the father as she

fears that this knowledge will be shared by the Agency with others and it will impact on her precarious existence in sundry homeless

accommodations and services.

11. The mother has informed both the social worker and the Guardian Ad Litem that she wishes baby T to be cared for in general

foster care until the child is 18 years old because she herself cannot care for the child given her personal circumstances. She saw no

point or value in a short Care Order as she could not see herself being in a position to resume care of Baby T in the short or medium

term because of her personal circumstances. Both the social worker and the Guardian Ad Litem encouraged her to consider beginning

a process leading to taking up access with Baby T. She was reluctant to have direct access, but was open to receiving photographs

of Baby T if some secure arrangement could be put in place to hold the photographs for her. She outlined the religion she wished Baby

T to be raised in and expressed openness to be shown the photographs of the Christening ceremony.

12. The mother does not wish her family to have any contact with Baby T as she believes that they have failed to support her

throughout her life. The Agency will make sibling access available, and the allocated social worker will continue to encourage the

mother to consider the issue of access with her family from the perspective of Baby T, however the mother has steadfastly declined

to agree to her family having any access with Baby T. Both the social worker and the Guardian ad litem take the professional view

that it is very important for Baby T to develop a positive access relationship with the mother or at least for the child to have some

understanding of how they fit into that first extended family.

13. Baby T has been in the care of the Agency since birth and has been placed in non relative foster care. Baby T is reaching all

appropriate milestones and does not appear to have any special or particular health needs. The Interim Care Order has been extended

by the Court from time to time until the hearing of the Care Order.

THE LEGAL POSITION

14. The relevant law to be applied is well established. In summary:

(1) The burden of proof lies on the Agency and the standard of proof is the on the balance of probabilities.

(2) The threshold to be established by the Agency is set out in Section 18 (1) of the 1991 Act.

(3) The Court must determine whether the threshold has been reached in the case having regard to the evidence

adduced and having regard to the rights of the parents whether under the Constitution or otherwise and the rights of the

child.

(4) Even where the threshold for State Intervention has been reached the Court must consider the issue of the

proportionality of the Order granted.

15. Having heard the evidence set out above, having considered the findings of fact submitted by the Agency which is unopposed I

conclude on the evidence adduced by the Agency that on the balance of probabilities that Baby T’s health, development and welfare

is likely to be avoidably impaired or neglected into the future unless the court makes an order under this section and that it is

necessary for a Care Order to be granted under Section 18 (1) (c) of the Act of 1991 as amended until Baby T is eighteen years old.

My reasons for making this order for this duration are as follows;

(i) The mother has very considerable difficulties which are not likely to be addressed within the infancy or early childhood

of her child and the mother has indicated that she does not feel that she can parent Baby T due to her personal

circumstances. She has not availed of direct or indirect access but may be open to having indirect contact through

receipt of photographs but only if this can be arranged in a secure manner.

(ii) The child's physical, mental and emotional needs are being met to a very high standard in the foster placement where

the child has been cared for following discharge from the maternity hospital.

(iii) The child is forming secure attachments which are fundamental to Baby T’s personal developments and welfare from

childhood into adulthood.

(iv) The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

16. I am satisfied this decision and duration of the Care Order is proportionate on the evidence adduced by the Agency. The mother’s

circumstances are very tragic but if they change, and the best interests of the child at that time indicate that reunification is in the

best interests of the child at that time the order and the duration of the Order may be re-visited. The issue of reunification will be

considered regularly at the annual statutory care planning meetings. Furthermore the mother may apply to Court to discharge the

care order under S. 22 of the Child Care Act, 1991 if she wishes to assume care of Baby T. Having regard to Section 24 of the Act I

make the Order until Baby T is eighteen years.

17. I approve the Care Plan and note the Guardian Ad Litem’s approval also. The mother is satisfied with the Plan and has outlined

that her willingness to receive photographs of Baby T must be organised in a secure way as she moves from homeless hostel to hostel

and does not have secure arrangements for personal belongings. She has expressed the desire for Baby T to be Christened and raised

in her own organised religion. She is happy that the child is making progress and meeting all developmental milestones.

18. Having heard the evidence set out above I direct that access between Baby T and siblings should occur as recommended by the

Guardian Ad Litem. The question of extended maternal family access must be considered carefully by the Agency taking into account

the delicate balance between the views of the mother, which are very strong in this regard and the ‘best interests’ of the child taking

into account the factors set out in Section 31 of the Guardianship of Infants Act as amended.

19. I excuse the GAL with costs to be paid by the Agency and taxed in default of agreement on 30 May, 2018, following a closing

meeting with the foster parents for Baby T and the mother.

SECTION 47 DIRECTIONS

A. I direct the Agency to provide the mother with all supports necessary to assist her in participating meaningfully in either access

visits with Baby T should she wish to take up access, or indirect access through photographs exchange in a secure manner. Access if

it takes place must be planned in a manner which takes into account the child’s best interests and is set out in the Care Plan.

B. I direct that the Agency provide Baby T with all and any necessary remedial and therapeutic services as identified in the Statutory

Meetings and to have particular regard to the possibility of the necessity for an Assessment of Needs in advance of entry into primary

school in the light of the particular history of maternal substance misuse and the particular needs of other siblings (if so indicated).

C. I direct a default re-entry before the Court (on reappointment of and notice to the Guardian Ad Litem (date redacted) if the

current foster placement for Baby T has been matched as the long term placement for the child. The Agency to notify the Guardian in

advance of the date of re-entry if the placement has been matched and in that event the Agency to notify the Court Office that the

placement has been matched and the court date will be vacated if so matched.

D. Under section 47 of the 1991 Act I direct that the case is to be re-entered before the Court by the Agency (on reappointment and

notice to the GAL) in the event that:

(i) If the case becomes unallocated, to social worker for a period of four weeks;

(ii) If the case becomes unallocated, to a fostering link worker for each of the children’s foster parents for a period of four

weeks;

(iii) If the Agency (for any reason) fails to adhere to the statutory Care Planning regulations;

(iv) Should the child’s current foster placements break down; or should the CFA seek to change the child’s current foster

placements.

E. The case is to be re-entered before the Court by the CFA (on notice to the GAL) for the purposes of After Care Review on (date

redacted) being the nearest Court date to the child’s seventeenth birthday should the child remain in the care of the CFA at that

time.

F. The GAL is to be re-appointed six weeks before the date of re-entry.

G. If the GAL in this case is no longer available at that time, then the CFA is to bring an application to the Court for the purposes of

having a GAL appointed.

H. Should there be any application to Court by any party under Section 22, 37 or 47 of the Child Care Act 1991 the Guardian ad Litem

should be reappointed to give practical effect to Article 42A of the Constitution and the rights of the child.

20. In terms of reporting this case nothing is to be reported or broadcast which would lead members of the public to identify the child

or any of the parties involved in the Child Care proceedings. This is the legal position since the Courts and Civil Law (Miscellaneous

Provisions) Act 2013 became law.

Judge Rosemary Horgan

20th April 2018