Court grants Care Order for three children due to mother's ongoing substance addiction and failure to provide safe care.

[2018] IEDC 04

THE DISTRICT COURT

DUBLIN METROPOLITAN DISTRICT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

AND

GK

RESPONDENT

IN THE MATTER OF, WK, AK AND HK CHILDREN

CHILD CARE ACT 1991 – SECTION 18 (1)

CARE ORDER - REASONS FOR DECISION

INTRODUCTION:

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 three Child aged 14, 8 and 6 years of age years who shall be referred to in this decision as W, A and H, as nothing must be

reported concerning this case which would serve to identify a child or parent of a child or family member who has acted in loco

parentis to a child who are the subject of these proceedings.

2. The children’s mother is GK who currently resides in sundry homeless accommodations within Dublin Metropolitan District Court area.

3. The mother was present in court and legally represented in these proceedings by her solicitor.

4. The father of A is deceased and the father of W and the father of H are unknown.

5. The child’s separate interests in the proceedings were highlighted by the Guardian ad Litem, CC.

6. I am satisfied that the Dublin Metropolitan District has jurisdiction to hear this application.

BACKGROUND

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

8. The mother is in her early thirties and has had a problem with addiction to illicit substances since her late teens. While her initial

addiction was to heroine, this has been treated with methadone (110mls per day) but she has developed an addiction to cocaine and

benzodiazepine’s. She has not engaged with the Applicant since March of last year, and has not attended at access with the children

in the same period.

9. The mother placed W in the care of her own mother (the child’s grandmother) when he was approximately five years old in a

private family arrangement. Section 12 was invoked by An Garda Síochána in respect of A when she was four months old and the

Court made an Emergency Care Order followed by an Interim Care Order, placing A with the maternal grandmother at that time also.

In [date redacted] W and A were returned to the care of their mother upon the birth of H as she had made great strides in

overcoming her addiction at that time. The children then came back into the care of the maternal grandmother two years later, as

unfortunately the mother had relapsed in her addiction. The care of the children became too much for the maternal grandmother and

the Agency received all three children into voluntary care under Section 4 of the Child Care Act, 1991 in autumn, three years after

entering into the care of their grandmother. As the Agency determined that the children were not adequately protected in voluntary

care as it became difficult to contact the mother to secure her consent to medical treatment, school, holiday arrangements in foster

care etc. The Agency sought and obtained an Interim Care Order in respect of the children in the summer of the following year when

the children were received into voluntary care by the Agency, and these orders have been extended to the date of hearing.

10. The Agency has applied for a Care Order in respect of each child and sought that the duration of such Order should be until each

child reaches his/her majority at eighteen years of age. The Agency provided all parties and the Court with a Booklet of Reports, a

summary of the application and the grounds relied upon to support the ‘findings of fact’ document, which the Court was asked to

make in achieving the threshold criteria of Section 18(1) of the 1991 Act.

11. On the day of hearing the case was delayed as there was no appearance by the mother, however she did contact her solicitor to

say that she would be delayed but intended to come to court. The case was left stand until she arrived at court later in the morning.

The case then proceeded to hearing and was further postponed after the lunch recess as the mother found the proceedings stressful

and was late returning to Court. Ultimately the mother instructed her solicitor to consent to the Orders sought by the Agency for

each child for the duration sought, namely until each child reached the age of eighteen years, provided that the Court reviewed the

Care Orders in a year’s time to ascertain at that time:

(a) The mother’s progress with overcoming her addiction;

(b) Whether her capacity to care for her children should be assessed at that time and;

(c) The access arrangements for the children;

12. The mother denied that the children were neglected or emotionally abused by her or that she lacked insight into the emotional

needs of the children. It was her position that the children were appropriately placed by her with her own mother when she could not

care for them safely. She understood the effect her absence in the lives of the children had, and was anxious to turn over a new leaf

in terms of her:

(a) Engagement in drug treatment;

(b) Engagement in a respectful way in access, by respecting the views of W and A that they do not wish to see her at

this time in view of previous disappointments, and the anxiety of H to have access;

(c) Engagement with the Agency in advance of any access arrangement being put in place for H by attending at 2

consecutive meetings about access with the Social Worker, Ms. AMR, to make sure that she would be consistent in her

engagement with the Agency and at access;

13. The Statement of Facts outlined on page 3 points 1-13 which were admitted, point 14 was not admitted as it was submitted by

her solicitor that she attended at the Addiction Centre regularly, all be it to collect methadone, and she provided urinalysis as

requested. She accepted that she had not engaged with the social work department.

14. Paragraph 13 was admitted to the extent that she did have two periods of traction on her addiction which was not acknowledged

in the paragraph and hence she feels capable of sustaining traction on her addiction. Paragraph 17 was admitted as she is homeless

at present, paragraphs 18-24 were not admitted or accepted and paragraph 25 was admitted that at this time the three children

require stability and security.

15. For these reasons the mother through her legal representative indicated to the Court her consent to the making of a Care Order in

respect of W, A and H until each child achieves the age of 18 years and admitted the facts as set out above;

16. I have heard the evidence of:

• AMcG the Social Worker with the Addiction Services in accordance with Reports to Court at Tab 24-26 of the Booklet of

Reports. AMcG indicated that he was involved with the mother in 2009 who then moved out of Dublin but returned to the

service again in 2013 requesting methadone treatment. He indicated that the mother’s addiction journey was fragmented.

She receives 110mls of methadone daily. However, her urine analysis indicated that she is also using street drugs namely

cocaine and un-prescribed benzodiazepines. He considered her association with another cocaine user part of the problem

but acknowledged that cocaine was highly addictive psychological as well as chemical addiction. She needs to separate

her life from this co-dependency, in his view, if she is to gain traction. He also felt that 110mls of methadone is on the

high end of the scale. In his view if she could focus on rebuilding a relationship with her three children it would assist her

focus. He agreed that the service would do all in its power to assist her with accommodation and advocate for her in that

regard.

• AMR Social worker (Tabs 1-13 of the booked of Reports) was allocated to the case in [date redacted] when the children

came into voluntary care by reason of the mother’s addiction, homelessness, chaotic lifestyle and unwillingness to engage

with the Social Work Department around the children’s issues. She described the mother’s absence of engagement at

access and late or missed access arrangements which disappointed the children. She described the harm experienced by

the children through parental neglect and lack of insight. She accepted that the mother was very well intentioned in

terms of her children but was not and could not be available to her children in the way that they each needed, and also

support and prioritize her addiction needs at the same time.

• W has difficulties at school, issues around trusting adults, he refuses to accept a picture of his mother and wants to

hear nothing about her and will not attend access with her. A had assumed an intolerant parenting role over H until they

came into foster care, but is not settling. H on the other had is very worried about her mother and would like to have

access and was happy to receive a photograph of her though commentied that she had become “very thin”.

• CC, the Guardian ad Litem, provided her Report to Court setting out the wishes and feelings of W, A and H and her

observations of the inadequacy in terms of the service provision as set out in the care plan for W and was largely happy

with the Care Plan’s for A and H. He described W’s care placement as vulnerable and was not entirely persuaded that it

was a secure or long term placement for W but indicated that it would be supported to a high extent by the Agency as W

has had many moves in his young life and needed to have security at this time. W has behavioural issues at school but

the school is anxious to support him. The school were surprised that W was placed in this foster placement because poor

communication was a feature with the same foster carers in the past with another pupil who was in care and had similar

behavioural issues. The foster carers were experienced carers and upset by W’s behaviour in recent times and it seemed

that the placement would break down. The foster carers did not understand the role of the GAL and were without a

fostering link worker in the past. The issues may be resolvable with greater linkage and support by the fosterling link

worker and the foster parents. However, another issue is their support for the various remediation services that the

Agency and Guardian Ad Litem recommend for W.

THE LEGAL POSITION

17. 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 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.

FINDING OF FACTS ON EVIDENCE

18. Having heard the evidence set out above, having considered the findings of fact submitted by the Agency and admitted by the

mother to be proven and having considered the evidence regarding the facts not so admitted by the mother I make the following

findings on the evidence adduced, namely that:

(a) The mother has an addiction to an illicit substance, namely cocaine and is prescribed in addition 110mls of methadone

daily, and also consumes un-prescribed benzodiazepines;

(b) By her own admission she is homeless and is not in a position to parent her children;

(c) By reason of her addiction she has not been able to parent her children in the past;

(d) The children have been unintentionally neglected and emotionally abused;

(e) By reason of her addiction she has not been able to consistently or meaningfully engage with the social work

department or at access and has not seen any of her children at access since March 2017;

19. For these reasons I am satisfied that the Agency has established evidentially the threshold of Section 18(1) (a)(b) and (c) on the

basis of unintentional neglect and abuse; I have taken into account the views, interests and wishes of each child W, A and H

(indirectly expressed to the Court through the GAL) and so conclude on the evidence adduced by the Agency that on the balance of

probabilities that each child’s health, development and welfare has been neglected and that their respective health development and

welfare is likely to be avoidably impaired or neglected into the future unless the court makes an order under this section until each

child reaches 18 years;

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

(i) the mother’s polysubstance addiction and the presenting needs of each child for security and consistency, to

remediate their experience of harm. I approve the Care Plans for A and H and note the GALs approval also, but I cannot

at this time approve the care plan for W for the reasons outlined in evidence by the GAL and AMR and the precarious

state of the foster placement. The outstanding issues regarding the care plan have been outlined;

(ii) The security of the foster placement and supports necessary to maintain same;

(iii) The remediation supports for W, the duration of the Extern Support with SF which the guardian recommends should

continue for 12-18 months if required and should not cease by reason of absence of funding, whether he is to be

positively encouraged to engage with Ms. B for counselling, whether the foster carers will participate in engagement with

Ms. B to gain an understanding of W’s needs, the Stepping Stones Service and other school support services as set out in

the Care Plan for W.

(iv) I note the attendance of the mother today, and note that this was a very challenging and stressful day for her. She

did not give evidence but relied on her legal advisor to outline her position and hopes for the future, and also gave

unsworn views from the body of the courtroom. She wishes to rebuild her relationship with the children. I note that AMcG

was hopeful that the mother could, with perseverance, overcome her addiction if she managed to end a co-dependent

relationship with another cocaine user. I also note the positive support to be offered by the Social Worker if the mother

can establish consistency in her engagement with the agency with the goal of re-establishing access. The requirement for

consistency is not whimsical or a road block for access, but a necessary pre-requisite to re-establishing access with H

and perhaps ultimately with W and A if she can demonstrate this consistency at access. Both AMcG and AMR Social

Workers are clear that the primary issue in this case is the mother’s addiction, homelessness and chaotic lifestyle. If the

mother can overcome that addiction and remain drug free and become attuned to the individual needs of her children,

then she has the capacity to engage in relationship rebuilding with each of them.

SECTION 37

21. Having heard the evidence set out above I direct that access between the mother and H shall be pursuant to Section 37 of the

1991 Act and that the mother needs to demonstrate an ability to meet the Agency on two consecutive appointments allocated within

one calendar month. In view of the evidence of AMR Social Worker and CC, the Guardian Ad Litem, regarding the mother’s desire for

access with W and A and taking into consideration the views of W and A, access with them must be more nuanced and if the mother

demonstrates consistency in attendance at access on time and consistently with H then they may be more encouraged to voluntarily

engage in access. Should an impasse develop however liberty to apply under s. 37 remains a reality. If the issue of access returns to

Court for determination, then the GAL is to be reappointed to give material substance to the Court hearing the independent views of

the children. I note and approve the sibling access arrangements and access arrangements with the maternal grandmother.

SECTION 47 DIRECTIONS

a. I direct that this case is reviewed by the Court on [date redacted] for the purposes of assessing the mother’s progress

in her engagement with the drug treatment services to overcome her addiction and whether her capacity to parent should

be assessed further at that time, and to review her attendance at access.

b. The Agency is directed to provide the mother with all supports within the statutory functions of the Agency as set out

in Section 8 of the Child and Family Agency Act 2013 to the extent necessary to assist her in participating meaningfully in

the care planning for each of her children in care and to support the mother in attending access visits with each child

taking into account each child’s individual views and best interests. If there are any supports which are not within the

statutory functions and remit of the Agency but deemed necessary by the Agency, then the Agency is directed pursuant

to Section 8 (6) and (8) to collaborate with the relevant statutory or non-governmental agency in question to ensure

enhanced interagency cooperation.

c. I direct that the Agency provide each child with all necessary remedial and therapeutic services as identified in the

Care Plan and that the Care Plan be updated in this context at each statutory child in care review.

d. I direct re-entry before the Court should any of the remediation services for W outlined by the Guardian Ad Litem

(extern, counselling, school support etc.) cease to be provided for W within the next eighteen months.

e. The Guardian Ad Litem shall remain appointed for all three children until [date redacted] to enable the Guardian to

explain the Court’s Order to each child and to facilitate collaboration between the social worker and Guardian Ad Litem for

W on the reframing of his Care Plan so that it may be approved and recommended to the Court to be in the best interests

of W;

f. I direct that the case be re-entered before the Court in the case of A and H should their current joint foster placement

not be matched as their long term foster placement by the Fostering Committee of the Agency by [date redacted] and in

the case of W should his current foster placement not be matched as his long term foster placement by the Fostering

Committee of the Agency by [date redacted] one year and two months later.

g. I direct that the case is to be re-entered before the Court by the Agency in the event that:

• If the case becomes unallocated to social worker for a period of four weeks;

• If the case becomes unallocated to a fostering link worker for each of the children’s foster parents for a period of

four weeks;

• If the Agency (for any reason) fail to adhere to the statutory Care Planning regulations;

• If the Agency change or propose to materially alter the nature of W, A or H’s foster placement in any way;

h. Should the children remain in the care of the Agency then the Agency is directed to re-enter the case before the Court

for the purposes of considering After Care arrangements on the court date most proximate to each child’s seventeenth

birthday:-

• W, on [date redacted]

• A, on [date redacted]

• H, on [date redacted]

i. Should this case come before the Court for any reason in respect of W, A or H, I direct that the Guardian Ad Litem is to

be re- appointed at least 6 weeks in advance of the date of re-entry where practicable and where not so practicable as

soon as possible so that the Constitutional Rights of each child under Article 42A to have their views expressed

independently are given concrete effect;

j. If the GAL in this case is no longer available, I direct the Agency to bring an application under Section 26 to Court for the purposes

of having a Guardian Ad Litem or solicitor for the Child appointed;

22. 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

21 May 2018