District Court orders Child and Family Agency to provide school support for child with severe attachment difficulties.

[2018] IEDC 05

AN CHUIRT DUICHE

DUBLIN METROPOLITAN DISTRICT

APPLICANT

TUSLA, THE CHILD AND FAMILY AGENCY

RESPONDENTS

AND

CO’B AND RO’B (PARENTS)

CHILD CARE ACT - 1991 SECTION 47 - APPLICATION FOR DIRECTIONS ON A QUESTION AFFECTING THE WELFARE OF A CHILD

RMO’F Guardian Ad Litem for CO’B

INTRODUCTION

1. The Applicant is the Guardian ad Litem for “C” who is 12 years old and who is the in the long term care of the Respondent CFA for

the last six years. C is part of a sibling group of six. C and another sibling S were placed in foster care together but this placement

ended due to the serious illness of the foster carers.

2. C’s experiences of harm before that date were considerable. C and S moved to another temporary foster placement in another

Province as a temporary measure while the Agency sought long term placements together for them. C has remained in the temporary

foster placement but S has moved back to the Province of the first foster placement and the Agency believe that each child’s needs

are now best met in separate placements.

3. C has severe attachment difficulties (RAD) and a diagnosis of Developmental Trauma Disorder. C can become extremely

disassociated and fearful and can ‘phase out’ at these times. The triggering of this dissociative state can be caused by physical,

sensory or emotional events as perceived by C. On occasions C has not been able to enter the building, and has lain on the pavement

in a catatonic state on more than one occasion. C’s foster carers remain with C when this happens until C can be persuaded to enter

the school through a side entrance. On other occasions C’s fight/flight instincts react differently. C has lashed out at the school

principle on one such occasion, without intent to harm, merely to flee the perceived danger. There is no disagreement that C requires

substantial support and a Special Needs Assistant (SNA) to achieve consistent attendance at school. C is in fourth class, attends

weekly art therapy and tends to have ritualistic behaviours, does not integrate with other children in the class and is very isolated. C

has special educational needs. C cannot learn in the school environment by reason of the absence of a support person who is

exclusively available to C.

4. An oral hearing in this application was held on[date redacted]. Evidence was heard from RMO’F the Guardian ad Litem for C and Ms.

SP who is C’s allocated Social Worker. Both agree that C is psychologically fragile and subject to enormous anxiety.

5. The change of foster placement from one Province to another Province occurred in [date redacted] SP, the ASW made an

application for “home tuition” so that C would have ongoing education for the remaining six weeks of the school year. This was

considered to be in C’s best interests at that time, as given the diagnosis of reactive attachment disorder it was clear that the foster

placement move would be more traumatic for C than for another child in foster care. SP noted that it was unclear if C would stay in

this foster placement in the long term. However, C became settled in the placement and it was then deemed to meet her long term

needs, even though S left the placement.

6. C’s foster carer applied to the local school for a school placement for C and SP determined it was in the best interests of C to

repeat 5th class rather than move to 6th class. Both SP and the GAL agree that it is in the best interests of C to have an individual

Special Needs Assistant (SNA) to ensure that she is supported adequately in the new school environment.

7. Between May and September there was no evidence of engagement by the Agency with the school regarding C’s particular

educational needs. In this period, C received “home tuition’ and SP engaged the special measures available from the Department of

Education for a child in care obliged to move foster placement through no fault of their own. The Circular was not provided to the

Court.

8. The Court is not aware of the level of communication or information sharing between the schools in each Province (Ulster and

Munster) with the Department of Education & Skills (DES)/ National Council for Special Education (NCSE)/ the Health & Safety

Authority (HAS) in relation to C. No evidence was adduced as to whether the school where C is currently enrolled created a Risk

Assessment for C, however a School Support Plus- Stage 3-Individual Education Plan (IEP) was exhibited in the grounding Affidavit of

the Guardian Ad Litem. The Court is not aware of the level of sharing (if any) between the schools before this IEP plan was created.

The IEP does identify a summary of the Special Educational Needs of C. It also indicated the level of support provided for C within the

school and also provides a copy of most of the reports outlined later.

ISSUE IN DISPUTE

9. SP and the GAL both agree that C’s foster carer cannot act as a safe attachment figure for C in the school but also agree that C

needed to have a 1:1 secure attachment figure in the school environment to enable C to feel safe and function in school for the

entire duration of every school day.

10. Where they disagree is that the GAL is of the view that a responsible Parent would, out of their own money, privately fund SNA

support for C for the rest of the school year (May/June/ July) while the decision of the SENO is appealed.

11. SP accepts that C needs 1:1 support of a SNA and that it in the superior and best interests of C to have that level of support.

However, SP has been advised that is the responsibility of the Department of Education & Skills or the National Council for Special

Education (NCSE) to provide this support for C, rather than the CFA. Absent a Court Order under s.47, the CFA will not provide C with

an individual to act as an attachment figure for C within the school as this is ultra vires the Child and Family Agency Act 2013.

SPECIAL NEEDS ASSISTANTS

12. Special Needs Assistants (SNA) are recruited specifically to assist in the care of pupils with disabilities in an educational context.

This enables children with special educational needs to be supported in the school environment and given the opportunity to reach

their full potential. SNA’s may be appointed either to a special school or a mainstream national school to assist the school authorities

in making suitable provision for pupils with special care needs arising from a disability. The Education for Persons with Special

Educational Needs Act 2004 provides in s. 2 that children are to be educated in an inclusive setting unless this would not be in the

best interests of the child or the effective provision of education for other children in mainstream education.

CHILD C’S SPEICAL NEEDS

13. As set out in paragraphs 2 & C above, C’s special needs are not in dispute. In 2012 the Social Worker allocated to C at that time

commissioned an Expert Report from Dr AMA Consultant Clinical Psychologist. Dr AMA provided a clinical and cognitive assessment in

2012 to provide guidance for the school in Ulster to better enable them to understand C’s educational needs. C was then diagnosed

as suffering from anxiety in a range of settings, Reactive Attachment Disorder (DSM IV TR), was excessively inhibited and hyper

vigilant. Additionally, C operated in the Borderline/ Extremely Low Average range of ability. C missed out on a lot of education as a

result and could not learn effectively without significant support. Dr AMA indicated that C required an Individual Education Plan (IEP)

in relation to behavioural and social needs, 1:1 support from an SNA throughout the school day in relation to care and safety and help

with communication skills to ensure participation in the classroom environment. The SNA was also required to provide an ‘Additional

Attachment Figure’ within the school.

14. In [date redacted] SP contacted C.E a Trauma and Attachment Specialist and Psychotherapist for advice about tensions in C’s

foster care arrangements at that time and advice about a potential move of foster placement. It was clear to SP from reading Dr

AMA’s report that a lot of C’s presenting issues stemmed from her diagnosis of reactive attachment disorder (RAD).

15. SP arranged a private National Educational Psychology Assessment (NEPS) from EH, an Educational Psychologist during August

2017. EH also conducted a cognitive assessment which concluded that C fell within the Borderline range of ability. Scores on working

memory index fell within the ‘Extremely Low Range’. The Report concluded that C required an SNA as an essential support in the new

school environment. As C already had a diagnosis of RAD, it was crucially important that C have support to manage transitioning on to

the school ground in the morning and then from the reception area of the school to the classroom, to effectively manage C’s health

safety and welfare at school.

16. CF, Chartered Educational Psychologist from the NEPS Service also provided a Report on 19 January, 2018, which clearly outlined

C’s needs and indicated that the IEP was compromised by a lack of adequate adult assistance and that an SNA involvement was

needed to meet and welcome C upon school entry, to be there to listen, to provide a sense of security during structured and non-

structured time, to help C manage stressful situations etc. In essence the NEPS Psychologist was in full agreement with EH’s August

2017’s assessment.

ENHANCED INTER-AGENCY CO-OPERATION TO ENSURE CO-ORDINATION?

(S. 8(8) Child and Family Agency Act 2013)

17. SP wrote to the SENO, BB, at the National Council for Special Education (NCSE) to support the allocation of an SNA for C on a 1:1

basis on 21 February, 2018. SP noted that C’s education was being severely compromised by the absence of constant 1:1 support

necessary to enable C to function at school. SP noted that as a child in care, C was already at an educational disadvantage

compared to other pupils not in care and this disadvantage persisted lessening hopes of positive outcomes in life the longer that C

was not in receipt of the required supports. The SENO responded on the same day indicating that the SNA application for C was being

processed and the decision would be furnished to the school. BB noted that “for information purposes” the NCSE do not allocate a

defined amount of SNA support to a child, rather the NCSE grant the child access to an SNA support and the SNA allocation to the

school is based on the care needs of the children who meet the criteria for SNA support. It is a matter for the school to deploy the

required support accordingly.

18. The SENO approved access to an SNA application for C and one other chid on 29 February, 2018. The School had at that time 3.5

SNA’s for 9 children, one of whom required the constant assistance of an SNA due to behavioural issues. The school was accordingly

to manage on 3.5 SNA’s for 11 children or alternatively put in “a robust case” for an emergency SNA appointment specifically to

support C.

19. The foster carer LH also contacted SP the social worker to inform her that C had a traumatic episode in school on the first two

weeks of March and the school principle had to become involved in trying to get C into the car with the foster carer. The school

principle contacted SP to discuss the vetting process for a prospective SNA. HB the School principle indicated that if the prospective

SNA was vetted through the CFA/School it would probably be “alright”.

20. The SENO informed the school principle HB of the process and procedure required if the school was looking for an emergency

additional SNA allocation in light of the educational care needs of C as it would be necessary to review the current SNA allocation for

the school. The rational for this requirement was that care needs can diminish as well as increase and competing requirements had to

be taken into consideration when reviewing the allocation.

(a) The School would have to make “a robust case” as to why the existing allocation was inadequate.

(b) This would require a summary of the care needs of all pupils in the school as well as the Personal Pupil Plan (PPP) for

all children requiring SNA’s as well as for child C.

(c) A review would take time, at a minimum a month before a decision could be issued to the school.

(d) The SNA allocation would be reviewed in September in the alternative

(e) SENO suggested enlisting the support of NEPS, SESS to support the school with a behavioural plan for C. Where SNA

support is requested for a student with SEN and when the primary reason for the application relates to behavioural care

needs, the school must demonstrate what strategies and positive behaviour supports have been put in place to manage

the behaviour prior to requesting access to SNA support.

21. The SENO also advised the school principle HB, that an emergency application to provide an additional SNA would require the

SENO to attend at the school to observe C’s level of need.

22. HB the School principle informed SP the allocated social worker that the school had made a “robust case” already. An Individual

Education Plan (IEP) was already submitted along with various Reports regarding C.

23. The Guardian ad litem and Social Worker believe that the SENO did not appear to accept that the level of needs required by C

was appropriately assessed. The 2012 Report from Dr AMA and the 2017 Report of Ms. C E Psychotherapist were not accepted by the

SENO. In the case of the former Report it was deemed to be too old, and in the case of the latter report the expert was a

Psychotherapist rather than a Psychologist. The SENO did accept a Report from E.H Psychologist dated [date redacted] and a fourth

Report from C. F Chartered Educational Psychologist dated [date redacted]

24. Both SP the Allocated Social Worker for C and the Guardian ad Litem for C approved the referral letter sent to the SENO seeking

1:1 SNA support for C within the school. The Social Worker and GAL believe that the SENO may not have fully understood the

debilitating and devastating consequences for C of the RAD attachment and trauma diagnosis. The decision of the Department of

Education, as understood by each of them, is that while the SENO accepts that C has special educational needs and has been

approved for SNA support, it is a matter for the school to manage the competing needs of all pupils in the school requiring such

supports. If the school cannot manage those fluctuating competing needs, then it is necessary for them to reassess the needs of all

the pupils and demonstrate to the SENO why the current allocation of SNA’s is insufficient to meet all the needs and the school would

have to make a robust submission to the SENO demonstrating that additional need.

25. The decision of the SENO is under appeal by the school and the SENO has also advised the school to assess the behaviour needs

of C with the support of NEPS, SESS etc to support the school with a behavioural plan.

LEGAL SUBMISSIONS

26. The Guardian submits that s. 47 of the Child Care Act, 1991 is the relevant statutory provision which allows the Court to make

the Orders sought on behalf of C in this case. The Section provides that:

47.—Where a child is in the care of a health board, 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.

27. As outlined by the legal advisor for the Guardian Ad Litem, this section has been the subject of judicial scrutiny in particular the

decision of McCracken J. in the case of Eastern Health Board v McDonnell [1999]1 IR 174. It is further submitted that it is for the

District Court, through the operation of this section of the Child Care Act, 1991 to protect and enforce the constitutional rights of

children in care of the State. The Court is referred to the High Court decision of Finnegan J in Western Health Board v. M. (K.) [2001]

IEHC 135; [2001] 1 IR 729 and the Supreme Court decision in the same case Western Health Board v KM [2002] 2 IR 493;[2001] IESC

104. Further in VQ-v- Horgan & Anor [2016] IEHC 63 and Article 42A of the Constitution. The Court was also referred to Meadows -v-

Minister for Justice, Equality and Law Reform [20120] 2 IR 701 on the issue of proportionality, and to the case of State (Keegan) v

Stardust Victim’s Compensation Tribunal[1986] IR 642 on the question of unreasonableness or irrationality.

28. The Agency are of the view that it is ultra vires the power of the District Court under s. 47 to make the Orders sought on behalf

of the child by the Guardian Ad Litem as the provision of an SNA for a child with special educational needs is a matter for the Minister

for Education not the Child and Family Agency. The Court was referred to the Education Act, 1998, the Education (Welfare) Act,

2000, and the Education for Persons with Special Educational Needs (EPSEN) Act, 2004. It was submitted that among the express

objectives of the Education Act are to give practical effect to the constitutional rights of children as they relate to education (6(a))

and to promote equality of access to and participation in education and the means whereby students may benefit from education

(6(c)). It was further submitted that the Child and Family Agency is a creature of statute, namely the Child and Family Agency Act

2013 and this legislation does not designate any function to the Agency in relation to the provision of educational support services.

29. The Court was also referred to Article 42 of the Constitution, and the case of Cathy Sinnott v Minister for Education [2001] 2 I.R

545, Ireland v. the Attorney General [2001] IESC 63, O’Donoghue v Minster for Health [1993]IEHC 2, S.McD ( A Minor Suing by his

Next Friend, M.McD) v Minister for Education and Science [2008] IEHC 265. The court was also referred to the cases of the Eastern

Health Board v District Judge McDonnell [I999] IR 174 and Western health Board v KM [2002] IR were also relied on. The case of VQ-

v- Horgan & Anor [2016] IEHC 63 was distinguished on the facts by the legal representative of the Agency on two grounds. Firstly it

is submitted that the within case does relate to a matter of policy. The effect of the direction sought in this case by the Guardian Ad

Litem would be to mandate the Child and Family Agency, which is a creature of statute, to provide a service that is outside of its

statutory function and is squarely within the function of another statutory body under a separate piece of legislation. The Court was

reminded that it is also a creature of statute and has powers conferred on it by the Child Care Act 1991. It is submitted that whilst

section 47 is wide ranging it does not permit the court to make directions that would trespass into a service that is governed under

separate legislation in which the Court has no jurisdiction. It was also submitted that in contrast with the VQ case, the issue in this

case is not just that the direction results in the expenditure of money by the Agency. The Agency is not concerned with the

expenditure of its monies as such but is concerned that any direction which mandates it to do something that is not within the scope

of its powers and functions under the 2013 Act, or the Court’s powers under the 1991 Act, but is a function and power specifically

designated to a separate statutory body and governed by the 1998 Educational Act and the subsequent 2004 Act.

ANALYSIS

(a) The Relevant Circulars

30. Special Education Circular 02/05 introduced a General Allocation Model for all mainstream primary schools. Prior to that it would

seem that varying levels of resource teaching hours were provided to schools to support individual pupils with assessed special

educational needs. The Circulars have changed over the years.

31. Circular 0030/2014 specifies that the allocation of a Special Needs Assistant is time bound and made initially for a period of three

years, subject to annual review, and subject to a full re-assessment at the end of the three year period. The Circular indicates that it

is the responsibility of school management to deploy SNA support allocated to qualifying students while at the same time ensuring the

acquisition of independent living skills as appropriate. The application process outlines that when the SENO receives a new application

for SNA support from a school their obligation is to confirm that the requirements of the circular are met. Most resources are allocated

at the beginning of the school year in September. There is provision for the allocation of resources after that depending on demand.

The role of an SNA is not a teaching one, but rather to support the work of the teacher.

32. It became apparent that C would have to move foster placement in or around 18 May, 2017. It was decided that C would have

home tuition at that point as it was not certain that she would settle in the new foster placement. C did settle and the foster carer

made contact with the local school and the school created an individual Education Plan for C. This plan was exhibited by the GAL in

her grounding Affidavit for this application. Email correspondence between the Social Worker and the SENO of 21 February 2018, the

school and the SENO dated [dates redacted] has also been furnished to the Court.

33. The Court was not provided with any documentation or testimony from the school about how the schools managed its compliance

with the application process in this 2017 Circular. It is unclear whether the school has submitted a further application in 2018 which

complied with the new guidelines, and which demonstrate the strategies and positive behaviour supports to be put in place to manage

C’s behaviour prior to requesting further access to SNA support.

34. The application for an individual SNA for C was made by the School to the Special Education Needs Organiser (SENO) in

September 2017. The guidelines of the National Council for Special Education (NCSE 06/17) indicates that eligibility for SNA provision

requires both a diagnosis of disability and the identification of an assessed care need.

35. The Department of Education and Skills Circular also advised schools of the revised procedures which provide for the allocation of

Special Educational Needs Teaching Support to all mainstream primary and post primary schools, with effect from September, 2017.

However, the Circular also acknowledged that where the school profile changes very significantly, or where other exceptional

circumstances have arisen in a school, the exceptional or unforeseen circumstances must be demonstrated to be substantially beyond

that which the school profile is intended to provide for, as set out in DES Circulars 13/2017 and 14/2017, to the extent that the

school is clearly unable to meet the needs of the full cohort of students even when all existing resources have been fully and

effectively managed and deployed.

37. NCSE Guidelines 04/2017 also sets out the procedures for schools in seeking a review of their Special Education Teacher allocation

and the utilisation of their allocation, on the grounds that very exceptional circumstances have arisen in the school in circumstances

whereby they are already utilising their allocation in accordance with the principles set out in the circulars and guidelines and have

taken all reasonable steps to ensure that support is provided by the school for all pupils who are most in need of support.

38. The CFA submit that it is outside the remit of the Agency to provide an SNA for C as this is an obligation of the Department of

Education & Skills and the National Council for Special Education by virtue of the Constitution, the Education Act 1998 as amended,

and the Education of Person’s with Special Needs Act (2004). The Agency is a creature of statute and bound by S. 8 of the Child and

Family Relationship Act, 2018 and the jurisprudence of the High Court and Supreme Court outlined at paragraph 29 above.

STATUTORY FUNCTIONS OF AGENCY

8. (1) The functions of the Agency shall be to—

(a) perform the functions transferred to it by sections 72 and 82 ,

(b) support and promote the development, welfare and protection of children,

(c) support and encourage the effective functioning of families,

(d) maintain and develop support services, including support services in local communities, relating to the

functions specified in paragraph (a), (b) or (c),

(e) carry on such activities or publish such information concerning the functions specified in paragraphs (a), (b),

(c) and (d) as it considers appropriate,

(f) undertake or commission research into matters related to the functions specified in paragraphs (a), (b), (c)

and (d) or into such other matters as the Minister may request, and

(g) provide information or advice, or make proposals, to the Minister on matters relating to the functions of the

Agency.

(2) The functions specified in subsection (1)(b) include providing for the protection and care of children in circumstances

where their parents have not given, or are unlikely to be able to give, adequate protection and care.

(3) Without prejudice to the generality of subsection (1), in supporting and encouraging the effective functioning of

families pursuant to subsection (1)(c), the Agency shall provide—

(a) preventative family support services aimed at promoting the welfare of children,

(b) care and protection for victims of domestic, sexual or gender-based violence, whether in the context of the

family or otherwise, and

(c) services relating to the psychological welfare of children and their families.

(4) The services referred to in subsection (3)(c) do not include—

(a) psychological services associated with the provision of specialist mental health services to children,

(b) adult psychological services other than services which relate to the effective functioning of families and the

improvement of relationships between parents and children, including effective parenting,

(c) psychological services to a child in respect of a disability, or

(d) psychological assessments in accordance with section 8 of the Disability Act 2005 or with section 4 of the

Education for Persons with Special Educational Needs Act 2004 .

(5) The Agency shall, in the performance of its functions, demonstrate high standards of performance, transparency

and accountability.

(6) The Agency shall collaborate with any person that the Agency considers appropriate in relation to any matter

connected to the Agency’s functions.

(7) The Agency shall have all such powers as are necessary or expedient for, or incidental to, the performance of its

functions.

(8) The Agency shall facilitate and promote enhanced inter-agency cooperation to ensure that services for children are

co-ordinated and provide an integrated response to the needs of children and their families.

(9) In the performance of its functions, the Agency shall use the resources available to it in the most beneficial,

effective and efficient manner.

(10) The Agency shall have power to acquire, receive on transfer, hold, sell, mortgage, lease, let or otherwise dispose of

land, buildings or premises and to erect, alter or maintain buildings or premises.

(11) Subject to this Act, the Agency shall be independent in the performance of its functions.

(12) The Agency may perform any of its functions through or by any member of the staff of the Agency duly authorised

in that behalf by the Agency.

39. The Court is empowered by s. 47 to do whatever is appropriate in the circumstances to achieve the objectives of the 1991 Act in

the interests of the welfare of a child in State Care.

40. C is a child in the long term care of the Agency. Both SP and the GL agree that C requires a 1:1 SNA to be able to negotiate

ingress to the school, and to manage and safely exit at the end of the school day. Through no fault of C, the first foster placement

ended. and C, a child with RAD, a diagnosis of Developmental Trauma Disorder and a learning need, (having been assessed as

operated within the Borderline/ Extremely Low Average range of ability) had to go to a foster placement and school in a different

province. Such a move would challenge any child of C’s age but would be particularly traumatic of a child with C’s level of need.

41. The Agency assumed responsibility for services previously provided by the National Educational Welfare Board and so if C remained

within her family the Educational Welfare Services section of the Child and Family Agency would have a role in ensuring the promotion

of school attendance by C and if necessary bring C’s parents to Court to ensure her right to education. The stumbling block for C in

attending school is that she needs a specific attachment figure to help her to feel safe and enter the school.

DECISION

42. The Agency became this child’s statutory parent in 2012. The change of placement and school occurred with some warning and

her diagnoses and presenting needs were well known to the Agency. An unacceptable time elapsed before there was collaboration

with the school and SENO on the welfare needs of C which are matters connected intrinsically to the Agencies functions. There is no

evidence before me of “enhanced” interagency co-operation to ensure that services for C were co-ordinated in an integrated

response to the needs of C and her foster carers. There is no disagreement on the fact that C requires supports in the context of the

new placement and school move to a high level. It should not be necessary for this court to order the Agency to engage in actions it

is under a statutory duty to engage in. It is uncontested that C needs support in the interests of her welfare – her physical,

psychological and emotional needs.

43. I make the following Directions under s. 47 to achieve the purposes of the 1991 Act and achieve C’s best interests which are not

in dispute:

44. The Agency take immediate steps to engage in enhanced and active inter-agency cooperation with the School, the DES and

NCSE to ensure a co-ordinated approach is taken to the SNA application/ appeal process for SNA services for C so that she has the

least disruptive transition to her new school and social environment in her best interests, and in order to ensure her wellbeing,

emotional health and intellectual development.

45. That pending the allocation by the NCSE of sufficient SNA supports to the school so that C can have an allocated SNA to carry

out the functions outlined in the Reports of E.H, Psychologist and C.F, Educational Psychologist that the Agency provide C with an

appropriately qualified individual to bring C to school each day and remain with her as a support within the school for the duration of

the school day so that she can enter the school and avail of SNA provision currently made available to her within the school allocation

of SNA’s.

Judge Rosemary Horgan

11 May 2018