Court grants 18-month care orders for children due to avoidably impaired welfare and neglect by parents.

[2018] IEDC 06

Dublin Metropolitan District Court

In the matter of H and J, children

In the matter of the Child Care Act 1991

Child and Family Agency,

Applicant

S and T

Respondents

EB, guardian ad litem

[Note: This version of the original decision delivered is prepared for the purpose of publication. Any changes from to the

original are intended only to be as to form and not as to substance, and are for the purpose of reducing the possibility of

identification of the children.]

1. This is an application by the Child and Family Agency under section 18 of the Child Care Act 1991 [“the 1991 Act”] for care orders

for a period of 18 months in respect of H born 2 October 2009, and J born 18 August 2013.

2. Section 18 Child Care Act 1991, in so far as relevant, provides as follows;

“18.—(1) 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 this Act referred to as a “care order”) in respect of the child.

(2) A care order shall commit the child to the care of the Child and Family Agency for so long as he remains a child or

for such shorter period as the Court may determine and….

(3) Where a care order is in force, the Child and Family Agency shall—

(a) have the like control over the child as if it were his parent; and

(b) do what is reasonable (subject to the provisions of this Act) in all the circumstances of the case for the

purpose of safeguarding or promoting the child’s health, development or welfare;

And shall have, in particular, the authority to—

(i) decide the type of care to be provided for the child under section 36;

(ii) give consent to any necessary medical or psychiatric examination, treatment or assessment with respect to

the child; and

(iii) give consent to the issue of a passport to the child, or to the provision of passport facilities for him, to enable

him to travel abroad for a limited period.

(4) ….

(5) Where, on an application for a care order, the Court is satisfied that—

(a) it is not necessary or appropriate that a care order be made, and

(b) it is desirable that the child be visited periodically in his home by or on behalf of the Child and Family Agency,

the Court may make a supervision order under section 19.

(6) Between the making of an application for a care order and its determination, the Court, of its own motion or on the

application of any person, may give such directions as it sees fit as to the care and custody of, or may make a

supervision order in respect of, the child who is the subject of the application pending such determination, and any such

direction or supervision order shall cease to have effect on the determination of the application.

(7)….

(8)…”

3. Section 24 of the 1991 Act applies to this case, as does article 42A of the Constitution, in particular with regard to the best

interests of the children being paramount in reaching this decision.

4. The Child and Family Agency is legally represented in this application by solicitor and counsel.

5. S is the mother of both children. Mother has been present throughout the hearing and she has had the assistance of an

advocate/mental health nurse, and she is legally represented by solicitor and counsel. She opposes the application. At the outset of

the hearing, she indicated that she would consent to the making of care orders for an unspecified period shorter than that applied for

by the Child and Family Agency, she has indicated in her evidence during the hearing that she would consent to care orders being

made for 2 or 3 months rather than the 18 months applied for. If care orders are made, of whatever length, then she wishes for H and

J to be placed together, in the care of relative carer A, (with whom H is presently placed).

6. T is the father of both children. Father has been present throughout the hearing and he is legally represented by a solicitor. On the

second day of the hearing, he indicated that he consents to the application. He wishes for H and J to be placed together for the

duration of any care orders made, in the care of relative carer A (with whom H is presently placed).

7. The guardian ad litem was first appointed to the children of the family (including H) in December 2012, which was prior to the birth

of J. He has been appointed/reappointed in the context of the various proceedings under the 1991 Act, and his current appointment

to H and J was in February 2015. He has been present throughout the hearing and he is represented by solicitor. He supports the

Child and Family Agency 's application.

8. The family, including older siblings of H and J, has been the subject of a number of applications and orders pursuant to the 1991

Act.

9. H and J's older siblings, who were previously the subject of proceedings and some of whom were subject to orders under the 1991

Act, now reside with father in another EU member state. These arrangements came about with the agreement of Child and Family

Agency. By all accounts, those children are doing well with their father and are not and have never been the subject of child

protection interventions in the other EU member state.

10. This case was set down for hearing for 4 days. Ultimately the hearing stretched over 6 days, although the actual number of hours

taken could have been completed in 4 days if witness scheduling had been tighter, if witnesses had been available on the dates

originally set and if both parents had attended on time.

11. In the course of the hearing, I have heard evidence from 12 witnesses as follow: –

(i) R [social worker] who gave evidence on 5 December 2017,

(ii) E [social worker] who gave evidence of 5 December 2017,

(iii) DG [clinical and forensic psychologist], who gave evidence on 6 December 2017, and who submitted his report dated

6 November 2017 comprising 22 pages and appendices,

(iv) D, [current allocated social worker], who gave evidence on 7 December 2017 and who submitted her report dated 28

November 2017,

(v) L [clinical psychologist], who gave evidence on 8 December 2017 and who submitted her reports dated 14 June 2016

and 12 October 2017,

(vi) C, [social care worker], who gave evidence on 8 December 2017 and who submitted her report dated 28 November

2017,

(vii) W, [consultant psychiatrist], who gave evidence on 04 January 2018 and who submitted reports dated 21 April 2017

and 24 November 2017,

(viii) A, relative carer of H and J, who gave evidence on 04 January 2018,

(ix) Mother, who gave evidence on 04 January 2018,

(x) Father, who gave evidence on 04 January 2018,

(xi) F, [fostering link social worker for A], who gave evidence on 05 January 2018,

(xii) Guardian ad litem, EB, who gave evidence on 05 January 2018 and who submitted his report dated 29 November

2017.

12. In the course of the hearing, the court was also furnished with the following: –

• minutes of professional meeting 15th of September 2017

• family plan for J and H, dated 27th of November 2017.

13. There was a fully contested application for interim care orders in 2012, in respect of the then four children. I heard that

application, which hearing commenced on 7 November 2012, and my decision was ultimately delivered on 30 January 2013 [“the 2013

decision”, HSE v S and T [2013] IEDC 25]. A copy of that decision has been made available to all of the parties. For the reasons set

out in that decision, I refused the application. In the course of that decision I set out various findings on the basis of the evidence

given.

14. Supervision orders under section 19 of the 1991 Act were made in respect of the then four children in July 2013. The fifth child of

the family, J, was born on 18 August 2013. A supervision order was made in respect of J in December 2013. All of the said supervision

orders expired in July 2014.

15. In late 2014 the eldest child of the family went to live with father in another EU member state, and remains there to date.

16. In early 2015, H and J were received into the care of the Child and Family Agency and have remained in the care of the Child and

Family Agency to date pursuant firstly to section 4 of the 1991 Act (“voluntary care”), then pursuant to the initial interim care orders

made in early 2015 and extensions thereof, and since early 2018 pursuant to orders of this court under section 18 (6) of the 1991

Act.

17. In mid-2015, in the context of the relatively sudden admission of mother to hospital as a result of her mental health, the remaining

two older children of the family, who up to then had remained in the care of mother, were received into the care of the Child and

Family Agency pursuant to interim care orders, and remained in the care of the Child and Family Agency pursuant to those orders and

extensions thereof until firstly the elder of those children went to live with father and some time later the younger of those children

went to live with father. Throughout the period of their being in the care of the Child and Family Agency pursuant to these orders,

those two older children were placed by the Child and Family Agency in relative foster care, in the care of their relative carer A.

18. On their reception into care H and J were initially placed together, with a non-relative foster carer. H's placement with that non

relative foster carer broke down in or about March 2015, and H was then placed in and remains in relative foster care with her relative

carer A. J remained in her non relative foster care placement, where she remains placed to date.

19. In the 2013 decision, I held that the matters of concern raised by the Child and Family Agency were proved under 5 headings,

firstly, the housing issue, being the physical conditions of the family’s living accommodation; secondly, the relationship between

mother and the eldest child; thirdly, the safety issue, being a lack of attention to safety in the home and leaving the children home

alone; fourthly, the boundaries issue, being lack of boundaries, failure to define and impose appropriate boundaries on the children’s

behaviour; fifthly, the education issue, including failure by the eldest child in particular to achieve potential, lack of stimulation, lack

of appropriate routines regarding school, including attendance and homework. For the reasons set out in the 2013 decision, I refused

that application, however I was satisfied that that there was reasonable cause to believe that the circumstances mentioned at

paragraph (b) and (c ) of s18(1) of the 1991 Act then existed or had existed in respect of each of the four children.

20. On the basis of the facts that I had found in the 2013 decision I considered the guardian ad litem’s assessment at paragraph 11.2

of his report for those proceedings to be an excellent statement of the nature and degree of neglect in this case. That paragraph said

11.2. The HSE in their application reports set out a chronology of events in which the children have been exposed to a range of

concerning behaviours by their mother. As separate instances these could be considered under the categories of moderate to severe

neglect. (Severe neglect being those instances where the children are left unattended). However, taken as an overall picture of

family functioning, the aggregation of child protection concerns could be categorised under chronic neglect. That is ‘patterns of the

same acts or omissions that extend over time or recur over time.’ (Child Protection and Welfare Practice handbook: HSE) Practice

guidance would invite a distinction between wilful neglect and circumstantial neglect. Wilful neglect generally involves the deliberate

deprivation by a parent of a child’s basic needs. Circumstantial neglect may have environmental/external causal influences such as

parental stress or inability of the parent to cope. In the case of [this] family the neglect appears to be mainly circumstantial in

nature.

21. R remained the allocated social worker until in or about September 2014. E was then the allocated social worker from in or about

September 2014 until in or about January 2017, and was the allocated social worker at the time of the various applications in early

2015 which led to the current admission to care of J and H. D has been the allocated social worker since January 2017.

22. R and E gave evidence in this hearing of the situation of the family and in particular J and H throughout their respective periods of

allocation. In respect of the particular period from the date of the refusal of the interim care order application in January 2013 until

the granting of the interim care orders in respect of H and J in February 2015, they gave evidence of the continued concern of the

Child and Family Agency in respect of some of the headings referred to in the 2013 decision.

23. In respect of the housing issue, being the physical conditions of the family’s living accommodation, they gave evidence that the

condition of the then family home [being the second address referred to in the 2013 decision] continued to deteriorate, until at latest

by the end of 2014 conditions regarding hygiene, safety, heating, plumbing and internal structural issues (including collapsing ceilings)

were similar to those that had ultimately existed in the first address referred to in the 2013 decision. I find that the living conditions

of the children at the second address at the date of their admission into care in 2015 were unacceptable and inappropriate, and

constitute neglect. E in her evidence stated that the parents said that responsibility for the condition of the family home lay with the

landlord or other external issues - however similarly to what I had found in the 2013 decision in respect of the then conditions of the

family's accommodation, while I accept that external causes such as flooding, and uncooperative landlords, might explain or justify

the occurrence of some of the conditions described (which occurrence would of course require attention), I again do not accept that

such issues in themselves can explain or justify the persistence and repetition of such conditions in 2015 in the second address.

24. In respect of the relationship between mother and the eldest child, at the date of the granting of the interim care order in

February 2015, the eldest child had left mother's care and by virtue of that fact the issues which had arisen in 2012 and which were

found to contribute to the threshold findings in the 2013 decision were historical fact rather than an immediately presenting issue, and

this remains the case as the eldest child has remained out of mother's care.

25. In respect of the safety issue identified in the 2013 decision, being a lack of attention to safety in the home and leaving the

children home alone and the boundaries issue identified in the 2013 decision, being lack of boundaries, failure to define and impose

appropriate boundaries on the children’s behaviour, R's evidence was that subsequent to the refusal of the interim care order

applications in 2013, that there continued to be safety issues for H and J, that H and J were not adequately supervised, did not

receive adequate stimulation, that there was a general lack of boundaries in relation to the older children including a lack of any set

routine, returning late to the family home without mother being aware of their whereabouts. E gave evidence of similar matters that

came to her attention on her taking over the case. I find that the lack of safety in the home and lack of boundaries for the children

at the date of their admission into care in 2015 constitute neglect.

26. In respect of the education issue identified in the 2013 decision, while the particular issues regarding the eldest child had by 2015

been resolved by going to the care of father, there continued to be issues around education of and stimulation of J and H in

particular. In respect of H, it is clear from the evidence (in particular the evidence of L referred to below) that H has specific and high

needs, which mother did not appear to understand or have insight into, including the importance of routine for H, and for H to attend

school regularly. I find that the lack of stimulation of the children and the failure to cause H to attend school constitute neglect.

27. Both R and E gave evidence of supports offered to the family and most particularly to mother. These included the family support

service / family support workers, YAP, “X…” Home Help, and most particularly the support of the respective social workers who both

said they attempted direct work with mother, taking account of any cognitive difficulties that she may have. Both social workers

specifically gave evidence that despite the supports offered, and to the extent that they were taken up, that while some change or

improvement resulted immediately or directly from such interventions, no consistent or sustained change or improvement in the

circumstances of the children was being achieved, that mother did not appear to have any sustained insight into the issues raised

and discussed or the effect that such were having and might continue to have on the health development or welfare of the children,

and that mother did not learn or appear capable of learning the skills required to consistently deal with the presenting issues and

avoid neglect of H and J.

28. All parents and children are unique, and all cases are different, all cases develop and are managed in their own particular way.

Nevertheless, I think it is fair to say that this was a case where, following the granting of the interim care orders in early 2015 in

respect of H and J, and the subsequent extensions thereof, it would be expected (without being in any way prescriptive) that the

Child and Family Agency would continue to assess the needs of the children and how they might be met, to assess the strengths and

weaknesses of the parents including their capacity to provide good enough parenting to the children, to assess the motivation and

ability of the parents to bring about whatever changes might be required to bring about reunification of the family, to assess the

supports that might be made available to support such change, etc. In essence, that is how matters were proceeding between

February and June 2015. In particular arrangements were put in train for a psychological parenting assessment of mother, and for

psychiatric assessment of mother.

29. While there had in the past been some expression by social workers of concerns around mother's mental health, mother did not

accept that there was any reason for such concern, and did not attend for assessment. It appears that there was no psychiatric

assessment of mother until in or about May 2015. By that time, concerns were heightened about mother's mental state. Ultimately,

mother was admitted to hospital in June 2015, as an involuntary patient, for psychiatric treatment. She remained an involuntary

patient for a number of months. Thereafter she remained in hospital for a period. Her care was then transferred to a 24 hour nursing

supervised residential community home. Unfortunately her needs could not be adequately met in that setting, and she was readmitted

to hospital, where she remains a patient to date.

30. W, mother's treating consultant psychiatrist gave evidence. In April 2017, W reported that mother was suffering with treatment

resistant schizophrenia characterised by delusional beliefs, social withdrawal, loss of motivation and poor self-care. He said that

mother at that time continued to suffer significant functional impairment with respect to her own basic self-care, that she was at

that time unsafe to live independently, and that on discharge from hospital she would require intensive rehabilitation in a 24 hour

supervised community residence. W also listed several concerning medical issues which mother presented with at that time.

31. Virtually throughout the period from June 2015 to April 2017, evidence heard in the various applications for extensions of interim

care orders confirmed that mother, in the context of her illness, had delusional beliefs, one in particular which was expressed on

almost every one of the several occasions on which such applications were heard by me.

32. Following mother's admission to hospital in June 2015, the Child and Family Agency took the view that assessment of the

motivation and ability of mother to address the issues identified at the 2015 interim care order applications and to bring about

whatever changes might be required to bring about reunification of the family, assessment of the supports that might be made

available to support such change, etc. would have to be considered in the context of mother's mental health diagnosis and prognosis

when available. I think it is fair to say that in or about April 2017, in light of mother's then diagnosis and prognosis, there appeared to

be little prospect of her recovery from her mental illness to the extent that reunification of the family might be considered.

33. From April 2017, and over the next few months, mother's mental health improved. In November 2017, W reported that mother had

a diagnosis of treatment resistant schizophrenia, depression and mild cognitive impairment. He said that she had made considerable

progress in her recovery from schizophrenia in the inpatient unit following commencement of a new drug regime. He said there were no

symptoms of depression, although there was occasional "rudimentary delusion". He said mother displayed a remarkable improvement in

her insight and understood that she suffers from a mental disorder. He said she is accepting of medication and the need for

medication in maintaining her mental health. He said she is independent in her self-care. He said that she was engaging well with

treatment. He said that the concerning medical issues with which mother had previously presented had resolved or were under

appropriate treatment. He said that following her prolonged illness and hospital admission, mother had become “de-skilled” in her

previous cooking abilities and that this would likely generalise to other life skills, and that she would require "up-skilling" in a

community hostel to achieve this. He was unable to specify how long would be required for mother to achieve such "up-skilling", but

he said that post hospital discharge, mother required placement in a high support hostel to regain her skills for independent living, with

access to 24 hour mental health nursing, occupational therapy, social work and a therapeutic day program, and that mother would

eventually be able to live independently in the community under the care of the rehabilitation assertive outreach team.

34. In evidence on 4th January 2018, W said that the improvement noted above continued. At that date mother remained an

inpatient, awaiting a place in a high support hostel.

35. It was clear from W's evidence that he had little detailed knowledge of the specific circumstances that had led to H and J coming

into care in 2015, and that he had no knowledge of mother's mental health prior to her admission to hospital in June 2015. He was

unable therefore to say what mother's "baseline" mental health condition might be. He was unable to say whether mother would in any

event return to any such baseline following her current hospitalisation and treatment. He said that following the recent improvement

in her mental health, it may be that there is an emerging diagnosis of depression and /or bipolar disorder.

36. Recognising the significant and dramatic recent improvement in mother's mental health, the Child and Family Agency maintains

that the threshold for a care order exists, and that the an 18 month order would provide a timeframe which would allow mother an

opportunity for her mental health to stabilise, to progress to independent living, and to engage in a parental capacity assessment. W

was of the opinion that that is an appropriate timeframe for those purposes.

37. Mother, in her brief evidence, disagrees with this. It is common case that mother, even at the height of her illness, has at all

times and at every opportunity said that her primary wish is for her children to return to her care, and she has always maintained that

she is capable of caring for them. In evidence she accepted that she could not look after the children at present, but even if there

are obstacles to her immediately resuming care of the children, she maintains that she will be in a position to fully resume care of the

children in a matter of 2 or 3 months.

38. There was a suggestion in submissions and examination of witnesses that mother's mental health was adversely affected by the

removal of H and J from her care. I would acknowledge, and I think anyone would, that removal of children from a parent is in most

cases likely to be very stressful for the parent, and could well be a factor in mental health difficulties. Even if that is the case here

(and that is not made out), while on the one hand it could not be said that it is in the interests of the welfare of the children that

their mother be subjected to stressors that contribute to mental distress or illness, on the other hand it could not be said that

because their removal might cause stress, even extreme stress to mother, the children should remain in the care of mother to the

detriment of their health development or welfare. It remains the case that the primary and paramount consideration is the welfare of

the children.

39. Similarly there was a suggestion in submissions and examination of witnesses that mother's mental health might be beneficially

affected by the return of J and H to her care. Even if that is the case here (and that is not fully made out although the proposition

appeared to find some favour with W), while on the one hand it could be said that it is in the interests of the welfare of the children

that every step be taken to assist mother recover as soon as possible from her mental distress or illness, on the other hand it could

not be said that the children should on that basis return to the care of mother if that would be to the detriment of their health

development or welfare. It remains the case that the primary and paramount consideration is the welfare of the children.

40. I am satisfied on the basis of the evidence about mother's mental health, that she does not at present have capacity to provide

good enough parenting to H and J.

41. The currently allocated social worker D, gave evidence, and submitted a comprehensive and detailed report. She was allocated to

the case in January 2017 and has dealt with the parents and children since then. She had no direct experience of the family prior to

the admission on H and J into the care of the Child and Family Agency. However her report comprehensively and accurately sets out

the situation for the family at the date of the granting of interim care orders in 2015, as confirmed in the evidence of R and E. D has

set out in her report her analysis of the strengths and weaknesses of the family in respect of currently caring for H and J, and has

also set out the rationale of the Child and Family Agency in seeking an order for 18 months (summarised at para 36 above).

42. T is the father of H and J. He is also the father of the three older children who previously lived with mother, but who moved to his

care between October 2014 and October 2016. The evidence in 2012 was that the three older children had previously resided with

him for a period, about five years prior to that hearing. He is also the father of other children with another partner. As I understand it,

those other children reside in another EU member state, but do not reside with him, and he has considerable contact with them.

Father has his own health issues, in that he sustained a stroke, approximately 10 years ago. Over the period of social work

intervention with this family, father has spent some time with his family in Ireland, but continues to reside in another EU member state

where he maintains a home, where he receives his medical treatment and from where he receives his social welfare payment, and

where he now cares for the three older children. He maintains that he wishes to take an active part in the care of H and J, and until

the second day of hearing was, as I understand it, seeking to have care of H and J if they were not being reunified with mother (he

has consistently throughout the proceedings said that his first preference is for the children to return to their mother's care). He has

attempted to maintain and develop relationships with both H and J, through access and electronic contact. However, due to a variety

of reasons, including his duties in caring for the three older children, his health, distance, and possibly financial reasons, such direct

contact as has been taking place between H and J and their father has been less often that might be desirable. There is no plan for

father to move to Ireland.

43. DG carried out a detailed psychological assessment of father, and gave detailed evidence of that assessment, his conclusions and

recommendations. In essence he concluded that father would not at present be able to provide “good enough” parenting to H and J.

One striking issue that arose during the course of that assessment was father's lack of understanding of and insight into both

mother's mental health and H's needs. This is also an issue referred to in social work reports and evidence. Mother's mental health

issues are set out above. As regards H, in short, H is assessed by L as having a mild intellectual disability, with a possible diagnosis of

ADHD. Father's lack of understanding of and insight into these issues was maintained despite what I regard as compelling evidence

which was available to him from various reports. When undergoing assessment by DG, father did not accept the assessment or

possible diagnosis of H. DG accepted that it is not unusual for parents to have difficulty in accepting such assessments or diagnoses,

and to express what are ultimately unrealistic expectations of a child's ability. During the hearing, however, father made it clear that

he had come to accept the nature and extent of mother's mental health issues, and H's needs. This is a welcome and important

development. In light of this change of view from father, it is not necessary at present to go any further into the issues or risks

identified as possibly arising from his previous lack of understanding or insight, except to say that if he had persisted in his previous

view, or if he reverts to it, this might well have adverse implications for his overall capacity to parent H and J.

44. DG ultimately recommended a behavioural, evidence based parenting intervention as a prerequisite to consideration of whether it

would be in the best interests of H and J to move to their father's care. Father has confirmed that he will participate in such an

intervention. Father has also said that he recognises that there are issues to be addressed, including accommodation issues, if H and

J were to move to his care.

45. L, clinical psychologist, gave evidence. H was referred for an assessment of need in 2013, which concluded that H meets the

definition of disability as contained in the Disability Act 2005. L carried out a comprehensive psychological assessment in May 2016,

and a review assessment in September 2017 to particularly address the suitability of H's then school placement. These assessments

detailed issues and concerns raised by carers and professionals, and set out the various psychometric tests administered, and detail

the various observations of the psychologist. In the latest report, L concludes that "H's profile is consistent with DSM-V criteria for a

mild intellectual disability". L also states that results of psychometric testing together with clinical observations "suggest that further

assessment is warranted to ascertain if a diagnosis of ADHD is appropriate. A referral to CAHMS is warranted in this regard". In

evidence, L said this assessment / referral is a priority.

46. C, social care worker, gave evidence. She said she has been involved for about two and a half years, around access for the

parents with H and J, and between H and J. With regard to mother, she said that mother really tries hard to make access a success,

and clearly loves her children. However the quality of access and mother's capacity to supervise and stimulate H and J has been

adversely affected by her ongoing mental illness. C acknowledged that there has been improvement recently in mother's presentation,

and also a significant improvement in interaction corresponding with a change of venue to a Child and Family Agency "access house".

Despite such improvement as has occurred, it remains the case that mother still requires some “prompting” at access, and continues

to struggle with successfully supervising H. With regard to father, she said that it took some time for J to communicate with or

interact with father. She observed that communication and interaction improved over time, and she referred to some positive and

special interaction that occurred. She said that H was excited to see father from the first access. She said that there was little

interaction between father and H at access. She observed (and DG also observed) that father spent much of access taking photos or

videos, or simply watching the children, rather that becoming actively involved in activity or play.

47. The guardian ad litem, EB, gave evidence and submitted his report dated 29 November 2017. He set out the history of his

involvement with the family.

48. The guardian ad litem described H as a happy go lucky child. He said there is an emerging picture over the past 18 months of H’s

needs, as detailed particularly by L. He said that H requires a high level of one to one adult attention, which H receives from the carer

(relative carer A). He said that H has been assessed as requiring a special educational placement and this has been secured. He said

that H's care by the relative foster carer is being supported by L as to H's emotional and behavioural issues. He agreed with the

necessity of a referral to CAHMS, and was of the view that there should be assessment of possible attachment issues as well as

possibility of ADHD. He noted that H also attends play therapy. H says H is happy living with relative carer.

49. The guardian ad litem described J as a strong determined child, who is settled with and attached to J’s foster carers. J is not of

an age to directly express views and wishes, but on observation the guardian ad litem believes J is content and happy living with the

carers, and that J has a good understanding of J’s birth family.

50. The guardian ad litem gave evidence of his views regarding access. He said family access is very important. He referred to the

history of access between mother and H and J. He said following the recent improvement in mother's mental health access has been

reviewed and there is now an access plan. He said that currently the quality of access is reasonably good, but that H's behaviour can

be difficult to manage. Moving forward he said that there is an opportunity for access for both H and J to occur in H's placement, and

to consider overnight access. With regard to access with father, he said that H is aware of father from access and “facetime”, that J

has progressed to being more relaxed with him than was initially the case. With regard to access with their older siblings, the guardian

ad litem says that J has less sense of them that H has, and there is a need for more consistent contact.

51. With regard to the parents, the guardian ad litem described their strong sense of family, and the love and nurture all of the

children have received, particularly from mother, which he says has stood to the children. He describes the environment in which the

children were living prior to admission to care as uninhabitable. He said that the deficits in parenting were at the level of not

adequately safeguarding the children. While he hoped that mother's diagnosis / possible emerging diagnoses of schizophrenia,

depression and or bipolar disorder might account for the issues which arose grounding admission to care, it was not yet clear that it

would. He said mother needs space to recover her mental health, the current trajectory being improvement and insight, and that she

needed this before assessing her "baseline" capacity and whether her "baseline" capacity is such that she is capable of adequately

caring for H and J. With regard to father, he said that despite his long absences from the family home, there was always a sense of

influence, that father has clear standards and a clear value base particularly around education, and has cared for the three older

children. As regards father's capacity to parent H and J, the guardian ad litem regards DG's assessment and recommendations as

pivotal.

52. I have considered the evidence of all of the above witnesses and any submissions made by the parties and the guardian ad litem.

I note that mother has at the hearing in effect accepted that she is not currently in a position to care for H and J and would consent

to an order under section 18 of the 1991 Act for 2 or 3 months. I note that father has at the hearing indicated consent to an order

under section 18 of the 1991 Act for 18 months. The evidence, particularly that of R and E, clearly establishes that H and J suffered

neglect prior to their being admitted to care in 2015. Such neglect had been evident (in respect of H) in 2012, and regrettably

continued through to 2015. In his assessment and summary, at paragraphs 11.1 and 11.2 of his report of 29th November 2017, the

guardian ad litem assesses the situation as

"...a high level of community based home support was provided to mother during the course of 2011 to 2014. The CFA

reported in 2015 that in spite of ongoing and intense support mother had not managed to maintain standards of care for

H and J and the cumulative circumstances compromised their long term health development and well-being. ...Father

was absent from this jurisdiction. ....The chronically adverse nature of the family’s circumstances in early 2015

appeared to be normalised by mother with her reluctance to engage in collaboration with helping services, her suspicion

about those services and the stress she experienced in managing helping relationships. This view may now best be

understood in the context of what appears to have been an undiagnosed mental health condition ..."

Having considered the evidence, I am satisfied that this is an appropriate and correct assessment. The nature of the neglect

experienced by H and J continues to be "circumstantial" as set out at paragraph 20 above.

53. As yet, neither parent has demonstrated capacity or ability to successfully address the deficits that brought about the neglect of

the children.

54. On the basis of all of the above, I am satisfied that H and J have each been neglected, and that on the basis of what has been

proved to have occurred in the past that neither parent has demonstrated capacity or ability to successfully address the deficits that

brought about the neglect of the children. I am satisfied that in respect of both H and J, that each child’s health, development or

welfare is likely to be avoidably impaired or neglected, if returned now to the care of either parent

55. In respect of each child, I have considered the possible orders that the court might make. I have considered making no order,

however I am satisfied that making no order would not properly or adequately provide for the welfare of the children, and I am

satisfied that each of H and J requires care or protection which they are unlikely to receive unless the Court makes an order under

this section. In respect of each child I have considered making a supervision order under section 18(5) of the 1991 Act, however I am

satisfied that making supervision orders would not properly or adequately provide for the welfare of the children.

56. In respect of each child I am satisfied that the appropriate order to make is a care order under section 18(1)(a) and (c) of the

1991 Act. Noting section 18(2) of the 1991 Act, which provides that

(2) A care order shall commit the child to the care of the Child and Family Agency for so long as he remains a child or

for such shorter period as the Court may determine and….

I have considered the length of care orders that are appropriate to be made. I have considered making a care order for 3 months as

requested by mother, however I am satisfied that an order of that length would not properly or adequately provide for the welfare of

the children.

I am satisfied that the appropriate order is to commit each of the children to the care of the Child and Family Agency under section

18 of the 1991 Act for 18 months. In the very particular circumstances of this case and the evidence given, this is proportionate in

that it provides for the care of the children while enabling the mother to have the opportunity for her mental health to stabilise, to

progress to independent living, and to engage in a parental capacity assessment, and for father to have the opportunity to

participate in the parenting intervention recommended by DG.

57. It is to be hoped, and on the evidence of W it is a legitimate and real hope, that mother's mental health will continue to improve,

to the extent that a realistic parenting capacity assessment can be undertaken sooner rather than later. It is to be hoped, and on

the evidence particularly of father and in the context of his current new found understanding of both mother's mental health issues

and H's disability, it is a legitimate and real hope, that father will engage with DG's recommendations with full commitment, with a view

to further assessment of his capacity to parent H and J, particularly if mother is unable to do so.

58. It is necessary for everyone and particularly the parents to be and to remain realistic - there is much for them to do, which may

be difficult for them and will at the very least require their continued engagement with the social work department and other

professionals without any guarantee of what the ultimate outcome of any future assessments will be.

59. I therefore make care orders, in respect of H and J, to 25 July 2019.

60. From the outset of and throughout the hearing, both parents expressed the wish that if the court made care orders, that H would

remain in the care of relative carer A, and that J would join H in the A's care. This was not expressed by either parent to be a

condition of their consent, and the court would not in any event consider or accept a consent based on any such condition. This

issue took up considerable time during the hearing, and a considerable amount of evidence was heard - 2 witnesses were called

effectively on this issue alone, namely A [relative carer] and F.

61. I expressed a view during the hearing that I had some doubts as to whether this court has the power to order that a child be

placed in a particular placement, particularly if such placement had not been assessed as suitable in accordance with section 36 of

the 1991 Act (which I note is referenced in section 18 (3)(b)(i) of the 1991 Act) and the regulations made under the 1991 Act, and

that if the question of any such power was to be raised it might require a separate application - I retain those doubts and I do not

make any determination in that regard.

62. However out of respect for the sincerely held and expressed views of the parents and the reasons advanced as underlying those

views, and in the particular and peculiar circumstances of this case, I propose to engage to some extent with this issue.

63. A number of the witnesses have remarked on the parents' strong sense of family. H resides with the relative carer A, and is

thereby linked with the biological family. J resides with a non-relative foster care, and the parents emphasise that they are satisfied

with the care that J receives. J is however separated from sibling H, and from the biological family, and as time passes the parents

are concerned J is becoming isolated from the [biological] family. H's relative carer A is, on the evidence of mother, father and A,

ready willing and able to care for J.

64. Both parents are originally from outside Europe. While they are both from the same continent and in that sense share a common

background, they are from different countries, different ethnic and language groups, and therefore they are from different cultural

backgrounds. DG in his report refers to this case spanning four cultures, by which I take him to mean the respective indigenous

cultures of the respective parents, and the culture of another EU member state, and the culture of Ireland. H and J were born in and

have been brought up in Ireland.

65. H resides with the relative carer A, and is thereby linked with H’s and the parents’ cultural heritages. J resides with a non-relative

foster care, and the parents emphasise that they are satisfied with the care that J receives. As time passes the parents are

concerned J is becoming isolated from and is losing J’s cultural heritage. J's relative carer is, on the evidence of mother, father and

herself, ready willing and able to care for J.

66. H and J were initially placed together, with H being placed with A after that initial placement broke down for H - however J

remains in the original placement.

67. It has been clear that the Child and Family Agency has considered and had planned at least the possibility of placing J with A. The

Child and Family Agency identified that A's accommodation was too small to accommodate placement of H and J [although they had

previously placed two of the older children there at the same time as H]. The Child and Family Agency assisted A with planning, and I

believe funding of an extension with the specific purpose of accommodating J. For reasons that were not fully opened, there was

considerable delay in that extension being built, but it appears that it has just now been completed.

68. H's placement with A is by all accounts a great success, with H thriving in A’s care and A meeting H's high needs.

69. A gave evidence and was an impressive witness, and is undoubtedly a committed, capable and experienced carer, who is

personally committed to the care of H and J, and wishes to have care of both of them.

70. The Child and Family Agency has not formally assessed A as a carer for J. They say (and I accept) that such assessment that

might have been done in accordance with regulations was "held" pending completion of the extension to A’s house, and some other

issues that have also by now been attended to (including A passing a driving test).

71. The Child and Family Agency has indicated that it now doubts whether it would be in J's interest to move to A's care. They say

that this change is due to the passage of time since such a move was mooted, during which time J's attachment to J’s current carer

has strengthened, and during which the nature and extent of H's needs have become more apparent. On the latter ground, the Child

and Family Agency fears that placing J with A might "overload" the placement, which would be detrimental to both children.

72. The Child and Family Agency accepts, and so does the court, that placement of J with A would be more culturally appropriate

than the current placement, in that J’s exposure to and immersion in at least part of J’s heritage would occur more naturally and

spontaneously there than is possible in a placement that does not share such culture. Nevertheless the Child and Family Agency says

it can ameliorate any "cultural deficit" by the current carer taking appropriate steps to support J's cultural heritage and by continued

access and contact between J and the biological family.

73. The parents referred to the minutes of a professional meeting held on 15 September 2017. It appears that the question of

placement of J with A was discussed at that meeting, and the decision of the meeting was recorded as being that J should remain in

the current placement. It appears that F, fostering link social worker, expressed a contrary view at that meeting. F was called by the

respondent parents to give evidence regarding her view expressed at that meeting. F was and is A's fostering link worker, and to that

extent her view could be expected to carry some weight. However her view expressed at a meeting is just that - without more it

carries no more or less weight than any other view expressed there. Diverse views are expressed at many meetings - it is good to

know that robust discussion can occur at Child and Family Agency professional meetings. No more can be made of this.

74. At the commencement of the hearing it was not clear what the current position of the Child and Family Agency was with regard

to assessment of A as a relative foster carer for J, and placement of J with A. In the course of the hearing, A has confirmed a wish to

be so assessed, and if such assessment has commenced that it to be completed. For their part the Child and Family Agency has

stated that it will assess / complete assessment of A. Whatever this court's power (if any) might be to direct particular placement of

a particular child with a particular carer, I would regard any application for such a direction as premature if brought prior to a

reasonable opportunity being given for such an assessment to be completed. Such assessments are carried out in accordance with

the regulations made under the 1991 Act, and in accordance with standards and procedures, which include a right of appeal by a

foster carer/prospective foster carer against a refusal of approval. It seems to me that such an assessment process, particularly

when a particular child is identified as the subject of placement, can and should balance the various competing issues, including

contact with sibling and biological family, cultural issues, attachment issues, "overload" etc.

75. I am satisfied it is in the interests of H and J to make the following directions:-

(i) That the access to each child be in accordance with section 37 of the Child Care Act, 1991, and that access

arrangements be reviewed for H and J on a quarterly basis at a meeting convened by the Child and Family Agency. This

review should include parents and foster carers;

(ii) that the family plan dated 27th November 2017 as devised by the Family Welfare Conference to support J’s placement

should be reviewed and updated on a six monthly basis. This should involve J’s family of origin and the foster carers;

(iii) that the Child and Family Agency forthwith identify procure and within reason fund a behavioural, evidence based

parenting intervention for T in Ireland as recommended by DG;

(iv) that the Child and Family Agency retain the expertise of DG to review father's progress in 12 months. An updated

written assessment should be commissioned by the Child and Family Agency from DG;

(v) that the Child and Family Agency set up a schedule of multidisciplinary meetings on consent with mother (subject to

such consent being forthcoming) to ensure the care plans for the children are in keeping with mother’s treatment and

recovery for the duration of this order. W (or any other consultant psychiatrist treating mother) should be involved in

such meetings;

(vi) that the Child and Family Agency set out a schedule of professional meetings to include H’s foster carer to support

H’s care plan and placement needs;

(vii) that in respect to father and mother, the Child and Family Agency set out a schedule of tasks to be achieved,

services to be brought on board, identifying responsible personnel and professional review mechanism of progress;

(viii) that the Child and Family Agency ensure that there is a referral of H to CAHMS forthwith for assessment to ascertain

if a diagnosis of ADHD is appropriate and to assess attachment;

(ix) That the matter be re-entered in Court on notice to parent(s) and guardian ad litem to be reappointed forthwith and

without further court order in the event of

(a) the current placement(s) of any of the children breaking down or of any change in placement, planned or

unplanned. The Child and Family Agency shall use its best endeavours to re-enter the matter in court prior to the

occurrence of any change in placement;

(b) if there is no fostering link social worker allocated to the any of the children's foster carers for a period of 4

weeks;

(c) if there is no fostering link social work visit to the any of the children's carers for a period in excess of 12

weeks;

(d) if either child is without an allocated social worker for a period in excess of 4 weeks;

(e) if there is no social work visit for a period in excess of 26 weeks;

(f) in the event that at any time during the currency of this order, “child in care reviews” do not take place as and

when required by the Child Care (Placement of Children in Residential Care) Regulations (SI 259/1995) or the Child

Care (Placement of Children in Foster Care) Regulations (SI 260/1995) or the Child Care (Placement of Children in

Relative Care) Regulations (SI 261/1995), or any regulations amending or replacing such regulations;

(x) The matter be listed for review on or the next court business day and the Guardian Ad Litem to be re-appointed 4

weeks in advance of that date, the purpose of the review is to consider:

• update on progress and for any additional assessments to be identified and agreed. At this juncture the Child and

Family Agency should: Provide an update on the children’s care plans including the family plan for J and confirm that

arrangements have been made for update assessment with father.

• Confirm agreed meetings have been convened and provision of updated action plan arising from those meetings.

• the progress made by the parent(s) in terms of addressing the concerns identified as impediments to their

parenting capacity including mental health, rehabilitation and "upskilling" for independent living [mother] participation

in and assessed result of recommended parenting intervention with father;

• Parent(s) engagement with the Child and Family Agency and with such services as are provided by the Child and

Family Agency to them;

• attendance by each parent at access;

• to consider the needs of the each parent and child;

• update on the wishes and welfare of the children;

(xi) The guardian ad litem is discharged in the current proceedings

In the event that re-appointment of the guardian ad litem arises and that the current guardian ad litem is no longer in practice or is

otherwise unavailable, the agency shall apply forthwith to the court for appointment of an alternative Guardian.

Judge Brendan Toale

Children Court

26.01.18