District Court allows kinship carer's Section 47 application to place child in her care based on best interests.

NEUTRAL CITATION:[2025] IEDC 2

AN CHÚIRT DÚICHE

THE DISTRICT COURT

DUBLIN METROPOLITAN DISTRICT COURT

IN THE MATTER OF AB (A CHILD) AND IN THE MATTER OF SECTION 47 OF

THE CHILD CARE ACT 1991

BETWEEN:

CD

Applicant

-AND-

THE CHILD AND FAMILY AGENCY

Respondent

-AND-

EF

Notice Party

-AND-

WW (GUARDIAN AD LITEM)

Decision of Judge Conor Fottrell delivered on the 27th day of March 2025

Introduction:

1. This application is brought under section 47 of the Child Care Act 1991 (“the Act”) by a relative/kinship carer seeking to have a 2-year-old child placed in her care.

2. The child is in the care of the Child and Family Agency (“the Agency”) under an Interim Care Order granted in 2023 and placed with a general foster carer.

3. The application is supported by the child’s mother (“the Mother”) and the courtappointed Guardian ad Litem (“the Guardian”), with the Agency contesting the application. The Mother is a notice party to this application and has issued her own section 47 application seeking to have the child placed with the applicant.

4. The applicant is referred to as CD, the Mother EF, the Guardian as WW and the child referred to as AB. In this way, the public interest in favour of publication can be satisfied without any identification of the applicant or the child in accordance with the requirements of the Act (as amended by the Courts and Civil Law (Miscellaneous Provisions) Act 2013). The report of this decision has been “anonymised” to ensure that the rights of the child, parent and carer as litigants, in an in-camera hearing under the Act, are protected.

5. The section 47 application dated December 2024 took 6 days at hearing, with evidence from 10 witnesses in February and March 2025.

6. The Court was provided with a large volume of documents, including social work and Guardian ad Litem reports, care plans, various other professional reports and assessments and minutes from various professional meetings and foster care committee meetings.

Background:

7. There is a long history of social work involvement with the Mother, both as a child and parent. The Mother was in the care of the Agency for most of her life. As a very young baby, she was in care and placed with the applicant. The Mother remained living with the applicant up to her early teens, when she moved to residential care arising from concerns that her foster family could no longer keep her safe due to her risk-taking behaviour.

8. The applicant has remained involved in the Mother’s life and is still involved and in contact with her today. She has been the most consistent and supportive figure in the Mother’s life.

9. As a parent, numerous referrals were received over the years to social workers in relation to the Mother and her two other children which resulted in them being cared for by family members. The concerns expressed at the time in relation to the Mother included her mental health, domestic violence, drug use and homelessness. Sadly, one of the children died in a tragic incident. For the purposes of this written decision, the Court does not intend to go in that matter in any further detail.

10. Her third child and the subject of this application was born in 2022, and, throughout her pregnancy, the Mother was living in homeless accommodation and suffered from domestic violence, including one incident where she was seriously assaulted by a partner. The Mother struggled to attend her ante natal appointments and there were concerns in relation to her drug use during the pregnancy.

11. It is acknowledged that the Mother is a very vulnerable woman who has lived a chaotic life over many years. The father of the child is unknown.

The Applicant:

12. The applicant explained to the Court that she had cared for the child’s mother from the age of 3 months old. Apart from a brief period of a few months, the Mother had remained placed with the applicant until she was about 12 years of age, when her behaviour became difficult, and she had to move to a residential placement.

13. She has always remained committed to and in contact with the Mother and was involved in helping at times when the Mother struggled to care for her other two children. While there have been ups and downs in the relationship, she regards the Mother as her daughter, and she is always there for her.

14. The applicant was present in the hospital shortly after the child was born and, while the Mother left the hospital early, the applicant remained to help with the general care of the baby while in hospital. At birth, the child tested positive for cocaine and remained in the hospital for almost two weeks following her birth.

15. The child was discharged from hospital under voluntary care to a shared care arrangement placed between the current foster carer and a relative carer. The relative carer was the Mother’s foster sister, an aunt to the child, and the applicant was residing with the relative aunt at this time and helped in caring for the child.

16. The shared care arrangement between the relative carer and the foster carer consisted of the child spending 3-4 days a week split between the two placements. This arrangement continued for approximately 10 months.

17. Initially the relative aunt put herself forward to be considered as a relative carer for the child, but she subsequently withdrew from this process. In July 2023, the placement and contact with the relative carer stopped for a period of weeks and the child was placed full time with the general foster carer.

18. Access recommenced in August/September of 2023, initially supervised and then unsupervised for several hours on a weekly basis. In or around this time, the applicant put herself forward to be assessed as a relative/kinship carer for the child, along with her partner.

19. This was a long difficult process taking place over a period of 9 months, with the applicant and her partner undergoing a relative fostering assessment with meetings and interviews taking place with the fostering link worker.

20. In March of 2024, while the fostering assessment was underway, overnight access once a week commenced between the child and the applicant. During this time, the applicant and her partner were also interviewed and observed with the child as part of an attachment assessment completed by an independent specialist social worker.

21. On completion of the fostering assessment, the fostering link worker submitted a report to the committee with a recommendation that the applicant and her partner be approved as relative carers for the child.

22. The assessment was considered by the Agency’s fostering committee on three occasions over a period of four months and, in September 2024, the fostering committee made a recommendation to approve the applicant and her partner as relative carers but with a further recommendation to proceed with them as respite carers out of concerns for the child’s wellbeing.

23. The applicant outlined that she was upset and devastated with the recommendation from the fostering committee that she would be considered as a respite carer for the child. She felt that this would reduce the time the child could spend with her and to build a relationship with her family, including her other sibling and cousins.

24. The applicant indicated that she wanted to appeal the decision of the committee and submitted a letter outlining her wishes and feelings. It appears there was some uncertainty as to how to progress the appeal process, so the Court is not clear exactly what happened in relation to this.

25. The applicant told the Court that she is very positive about the current foster carer and speaks highly of her and the care she is providing for the child. However, she wants to give the child an opportunity to grow up in the same family home as her mother and build a relationship with her wider family and cousins, including the child’s sibling.

The Child and Family Agency:

26. The Agency’s position in this application was supported by evidence from the allocated social worker and team leader, two members from the fostering committee and from two senior social workers who were requested to undertake a review of the decision-making on this case as regards the placement planning.

27. The fostering link worker who carried out the s. 36 relative foster assessment was also called to give evidence, and her two reports were included in the booklet of papers before the Court.

The Fostering Committee:

28. Following an initial screening meeting with the social worker in November 2023, the applicant’s s. 36 fostering assessment commenced in February 2024. The assessment was carried out by the fostering link worker who prepared an interim report dated May 2024 and a final report in July 2024.

29. According to the Agency’s National Standards for Foster Care (“the Standards”), a section 36 fostering assessment is carried out when a relative applies or is requested to apply to care for a child and they participate in a comprehensive assessment of their ability to care for the child. The assessment is usually completed within a period of 16 weeks.

30. As part of this assessment, the applicant was interviewed on 8 occasions, either on her own or jointly with her partner and, in recommendations, the fostering link worker noted that the applicant and her partner “engaged and cooperated fully in the assessment process…and recommends they be approved as a relative carer for the child.”

31. The fostering committee considered the s. 36 assessment at their meetings in June, July and September 2024. The minutes from those meetings were included in the booklet of papers before the Court. At their meeting in June, the committee indicated they would like more information along with the full assessment report.

32. When the committee considered the assessment again in July, both the fostering link worker and the social worker attended the meeting, along with the applicant and her partner, who joined separately.

33. According to the evidence and minutes from that meeting, the committee requested further information to a future committee meeting, either in September or October 2024. The additional information included a Guardian ad Litem report as there was a concern the voice of the child was missing from the process. They also sought further clarity and information around the independent attachment assessment completed in March 2024.

34. The fostering committee met again in September and the fostering link worker, the social work team leader, along with the independent specialist social worker who completed the attachment assessment attended the meeting. The applicant also joined the meeting.

35. At this meeting the committee made their decision to “approve to recommend the applicant and her partner to be s. 36 relative carers to the child but with the recommendation to only proceed with respite for the child’s wellbeing”. The committee went onto to further recommend “that they understand the applicant and her partner’s dedication to the child and believe they should very much part of her life, beginning with respite and increasing and continuing as the social work department deem appropriate”.

The Social Worker Team:

36. The allocated social workers, in their evidence, indicated that they were not challenging the capacity of the applicant to care for the child, and they had no concerns for the child when on overnight access with the applicant for the last year.

37. The social workers did not accept that there were delays in the s. 36 assessment process or drift in the case and outlined in some detail the steps that were taken by the Agency to ensure the assessment was completed within the timeframe provided in the Standards.

38. Following the decision of the fostering committee in September 2024, the social work department considered the long-term care plan for the child and made the decision that the child would remain with the foster carer, with respite at weekends or over holiday periods with the applicant and her partner.

39. The social workers outlined to the Court that the rationale and reasoning used to decide for the child’s long-term care was grounded on the principles of trauma informed care. There was a risk of impact of any move on the child where in their view the child had experienced trauma from in utero experiences and early life changes of living environments.

40. As the Court understands, the social work view is that consideration needs to be given to the trauma impact of another placement move for the child and to place or move the child to another placement is not necessary at this time, when she has a current stable placement.

41. The Court was provided with 16 social work reports, minutes from various professional’s meetings over the last 2 years, statutory child-in-care review forms, care plans and a placement decision rationale document to explain the decision-making process.

42. Having reached their decision on care planning for the child, it was clear there was a difference of opinion between the social workers and the Guardian ad Litem. There was some discussion around this time of seeking an independent review of the decision-making, but it appears no agreement could be reached on who might carry out this review. So perhaps in anticipation of the section 47 application, the social workers requested an internal review of that decision.

Internal File Review:

43. In January 2025, according to the terms of reference, two senior social workers from within the Agency were requested to undertake “a review of all documentation….to consider the current social work teams’ rationale for accepting the Foster Care Committee’s recommendation with regard to placement, in particular to provide a recommendation, following a review of the documents and a consultation with the social work team, of the child’s placement”.

44. The two social workers were from a different social work area, and both acknowledged as experienced professionals with different expertise and backgrounds. They were provided with various reports and held two meetings with the social work team to discuss the file review.

45. In their evidence and report they concluded that, in their view, it is in child’s best interest to remain with her current foster carer with regular ongoing contact with her birth family and the extended family. They went on to say that their decision is based on what they know about the child’s pre-natal and birth history, family, relationship experiences to-date and by knowledge of child development, attachment and developmental trauma.

Independent Attachment Assessment:

46. In November 2023, the professionals agreed to seek an independent assessment to look at the issue of the child’s attachment to assist in the care planning decisions for the child.

47. The assessment took place in February and March of 2024, carried out by an independent social worker with an expertise in this area. The assessor met with both the foster carer and the applicant relative carer and observed them both in their interactions with the child.

48. The assessment report was completed in March 2024 and provided several recommendations on both care placement options. The assessor also attended court to give evidence on the assessment.

49. In her evidence to the Court, the assessor outlined how this was one of the most hopeful and nicer assessments she had completed and that it was very rare to have two safe placement options available to a child in care.

The Guardian ad Litem:

50. The Guardian was appointed by the Court to the child in January 2023. She is the one professional who has had the longest involvement with this child and the wider family since the proceedings came before this Court. There were 24 Guardian ad Litem reports before the Court and, in addition, the Guardian gave evidence at the hearing.

51. In evidence to the Court, the Guardian highlighted that she has met with the child on

28 occasions since her appointment, 19 times with the foster carer and 9 times with the applicant and the extended family relatives. Given the age of the child in the proceedings, she is not able to a give her own view, so the wishes and feelings of the child are based on the Guardian’s own assessment and observations.

52. The Guardian outlined that she had concerns initially around the shared care arrangement in place following the child’s discharge from the hospital in 2022. However, the Guardian indicated that this arrangement was not causing the child any difficulty at the time, as she was very settled in both placements.

53. The Guardian expressed some concerns around delays in the assessment process and in arranging meetings to discuss the placement decision for the child. In her view, there has been some drift in the decision-making for this child, but the applicant and her family have remained committed and steadfast.

54. The Guardian provided the Court with a pen picture of the child, noting that she is beautiful little girl with a bubbly, sunny personality who wakes up with a smile on her face and presents very similarly in both placements.

55. The Guardian was clear in her position and, in making her decision, indicated she has not taken the decision lightly but that she fully supports the applicant and believes it is in the child’s best interests that she be placed with her.

Section 47 - The Child Care Act:

56. The matter came before the Court by way of application brought under section 47 of the Act. Section 47 provides that: - “Where a child is in the care of the Child and Family Agency…the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.”

57. The child has been in the care of the Agency under an Interim Care Order granted in January 2023, with the order extended on 25 occasions since. The case has been in before the Court on 41 occasions in total since January 2023.

58. There have been several cases over the years before the Superior Courts relating to the interpretation of the powers conferred on the District Court under section 47 of the Act. At the outset of this application, Counsel for the Agency indicated that they accepted that the District Court did have jurisdiction to make an order as sought by the applicant relating to where this child should be placed.

59. However, in submissions at the conclusion of the hearing, Counsel referred the Court to a decision by Mr Justice MacGrath in the High Court in the case of The Child and Family Agency v. MD [2019] IEHC 397, wherein this jurisdiction under section 47 was considered in relation to the placement of children.

60. In his decision Mr Justice McGrath outlined that: -

“Given that the s. 47 order made by the District Court in this case, concerns directions relating to the placement of a child, it is my belief that this is an order of the type which must be made rarely and with considerable caution. There is good reason for this. The applicant is an independent statutory body which, in the context of a case such as this, provides a service of a specialist and expert nature.”

61. He went onto say that: -

“As a matter of principle, therefore, I conclude that in the exercise of its jurisdiction under s. 47, in relation to the placement of a child or children, due consideration ought to be given by the court to the recommendations, observations or decisions made by the applicant regarding the placement of that child or those children.”

62. The Court, in exercising its jurisdiction in this application under section 47, has had regard to the fact that the Agency is an independent statutory body with a responsibility to place a child in either general foster care, relative foster care or residential care. That responsibility rests with the children-in-care team in this case.

63. Equally, the Court is keenly aware that the order being sought in this case by the applicant is one which must be made rarely and with considerable caution. The Court has given due consideration to the recommendations, observations or decisions of the social workers regarding the placement of this child.

Section 24 - The Child Care Act:

64. In reaching a decision in this case, the primary consideration for the Court is the best interests of the child. In that regard, the Court is guided by section 24 of the Act which provides:

-

“(1) In any proceedings before a court under the Act in relation to the care and protection of a child…the court shall regard the best interests of the child as the paramount consideration in the resolution of such proceedings.

(2) In determining for the purposes of subsection (1) what is in the best interests of the child, the court shall have regard to all of the factors or circumstances it considers relevant to the child including –

(a) the child’s age, maturity and any special characteristics of the child,

(b) the benefit to the child of having a meaningful relationship with his or her parents and with any other relatives who are involved in the child’s upbringing,

(c) the views of the child where he or she is capable of forming, and has chosen to express, such views,

(d) the physical, psychological and emotional needs of the child,

(e) the social, intellectual and educational needs of the child,

(f) the religious, spiritual, cultural and linguistic upbringing and needs of the child, and

(g) any harm which the child has suffered or is at risk of suffering, including harm as a result of household violence, and the protection of the child’s safety and psychological well-being.”

Decision-Making Concerns:

65. Throughout the hearing and at closing submissions, the legal representatives for the applicant, the Mother and the Guardian highlighted what they felt were deficiencies in the

decision-making process in this case.

66. Those concerns centred around the decisions of the foster care committee, the social work department and the internal review. I will briefly refer to some of the concerns highlighted.

The Fostering Committee:

67. It is unusual for the Court to have gone into such detail and hear such extensive evidence in relation to a decision made by the fostering committee. The Court acknowledges the committee members are experienced professionals with a broad range of expertise.

68. It was highlighted that while the committee considered the s. 36 assessment at meetings in June, July and September, it would appear that it did not have full information available to it before making its final decision. The attachment specialist attended the meeting in September, but only for a very brief period.

69. Given the discussions and concerns raised by the committee around issues of trauma and attachment, at the very least it would seem, on reflection, that more information which was available should have been provided to the committee, either in advance of the meeting in September or considered at a later meeting.

70. The committee heard directly from both the social worker and team leader at two of its meetings but did not request or take an opportunity to hear directly from the court-appointed Guardian ad Litem.

The Social Work Department:

71. It was further highlighted that the Agency decided in 2022 that the child should be placed into a shared care arrangement following her discharge from hospital. This unusual arrangement continued for a period of 10 months with the child living between the foster carer and the relative carer.

72. Following that arrangement, the contact between the child and the applicant stopped for a period and then recommenced again, albeit for short weekly access visits.

73. The applicant then moved to have overnight access on a weekly basis with the child and the Court was told that neither the current social worker nor team leader have observed or visited the child in the care of the applicant since overnight access commenced last year.

74. In October 2024, when the case came before the Court to extend the Interim Care Order, it was noted by the Court, at the time, that a professional planning meeting would take place, with the specialist assessor invited to attend the meeting. That meeting did take place a few weeks later but for some reason the Guardian ad Litem, who had suggested the meeting, was not invited to attend.

Internal Review:

75. In legal submissions, Counsel for the applicant referred to several High Court cases dealing with the issue of expert witnesses and the weight to be attached to same. This was with reference to the Agency’s internal review along with the report and evidence submitted.

76. It was not suggested that the Court should disregard this evidence, but it would need to consider carefully what weight should be attached to the evidence. It was submitted that this was an internal review conducted at the request of the social work department.

77. There was no consultation or input from the other parties involved in this application as regards the terms of reference for the review or which documents were to be provided. Unfortunately, the reviewers did not have an opportunity to speak with the other professionals involved in the case apart from the social work team.

Conclusion:

78. This is an unusual application seeking a court direction on the placement of a two-year old child in care. It is unusual and perhaps unique where there is currently no safety or welfare concerns for the child. This is not an application to remove a child from risk of harm.

79. It is acknowledged the child is receiving excellent care with the foster carer where she has been placed since shortly after discharge from hospital. The foster carer is experienced and has provided care for many children and, as the Court understands, there are other children in the foster care home currently placed with the child.

80. Equally, it is acknowledged that the applicant relative carer is an experienced foster carer, having cared for the Mother and other children in care over many years. She has been involved in caring for and is a consistent presence in this child’s life since birth. Both carers speak very positively about the other and realise the important role they have both played in the child’s young life to-date.

81. The carers and partners have participated fully in all assessments because they clearly love this young child and want to care for her on a long-term basis. The child is in a very fortunate position to have such committed, caring and loving people in her life.

82. It is important to acknowledge both carers are remarkable people who deserve huge credit and to be commended for the positive way in which they have approached this process.

Court Decision:

83. This is a difficult and complex decision for the Court. It is regrettable the case has come before the Court in these circumstances in relation to the placement for the child.

84. The Court appreciates and respects that any decisions by the professionals are taken in what they feel are in the best interest of the child. However, it is noted that this case is marked by a clear difference of opinion between the social work team and the Guardian ad Litem.

85. It is accepted that there is risk in a move of placement and that the child may suffer some upset and perhaps distress. There was a lot of reference in the reports and evidence before the Court regarding various theories based on research, studies and books on the issue of trauma and the impact of trauma.

86. The Agency placed significant emphasis in their evidence and the rationale for their

decision on the issue of trauma and risk and the impact on the child of a move of placement. The Court accepts this is a concern but there was insufficient evidence to suggest that trauma either from early life experiences or a move of placement would definitively manifest itself for the child at some point in the future.

87. Indeed, there are no indications that the child is currently impacted by trauma, and by all accounts, this is a child who is not presenting as distressed or upset following overnight access with the applicant. The child is settled in both placements and, according to her care plans, she is meeting all her developmental milestones and is a healthy, happy child.

88. The Court was told that there could be a risk to the child if the child did not move placement. That risk could materialise later in life if the child were to find out that a family member wanted to care for her, but a decision was made not to move her. The Agency felt this risk could be mitigated with proper supports in place and life story work with the child.

89. The Court was informed that the child was one of only three children who the specialist assessor had assessed in her career who could transfer her attachment from one carer to another.

It is possible, the Court was also told, that the child could settle in and thrive if she were to move to the applicant. There is evidence to suggest that children who live with relative carers have better outcomes in general

90. The underlying issue for the Court in reaching its decision is what is in the child’s best interests and what would be the impact on the child if she were to move placement.

91. In reaching its decision, the Court has considered section 24 of the Act and, in determining for the purposes of section 24(1) what is in the best interests of the child, the Court has had regard to all the factors or circumstances it considers relevant as they relate to this child and outlined in section 24(2)(a-g).

92. In addition, the Court feels that legitimate concerns have been raised during the hearing which highlight gaps in the Agency’s decision-making in the case. This includes the decision to place the child in a shared care arrangement for nearly 10 months following her birth, the fostering committee not having all information available to it before making a final decision, and the Agency not having observed the applicant or her partner with the child or the extended family since overnight access commenced a year ago.

93. A move of placement to the applicant is not a move to a new placement or an unfamiliar placement. The applicant has been involved in the child’s life since birth. She has played a significant role in this child’s life, and, from the evidence, she will have the capacity and ability to manage any potential grieving or loss that might occur.

94. It is the Court’s view, therefore, having taken all of this into consideration, that it is in the child’s best interests that she would move placement to be with her relative/kinship family. This is the family who have been there for the child from the start. The applicant has faced significant obstacles but has demonstrated motivation, commitment and courage.

95. This is also the placement supported by the child’s Mother and in the courts view it is the best opportunity for contact and a relationship to develop between the mother and child from within this placement supported by the wider family.

96. I am therefore granting the application as sought under section 47 of the Act.

97. In making the decision, I am conscious of the foster carer and the wonderful care she has provided for the child and the supports that will be needed to be provided to her and her family.

98. Finally, the Court would ask the professional group to sit down at the earliest opportunity and put aside any differences that existed so that a plan can be put in place to begin the transition for the child. It is recommended that the assistance and input of the specialist social worker should be utilised to ensure the move can be done in a planned and appropriate manner.

Conor Fottrell

District Court Judge.