District Court reviews and extends Care Order for children due to parental neglect and instability.

[2010] IEDC 6

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

AC & TC

RESPONDENT

CHILD CARE ACT, 1991— SECTION 18(1)

IN THE MATTER OF A CHILD

7 November 2010

1. This is an application for a Care Order under section 18 of the Child Care Act, 1991 in respect of two children: Child 1 aged 12, and

Child 2, who is almost 11 years old.

2. The Children’s mother is the first respondent. She is represented by a solicitor and is in receipt of Civil Legal Aid.

3. The Children’s father is in custody and is present in Court under a Production Order. He is not legally represented. The father has

not heretofore participated in the proceedings but he has participated in the lives of the children.

4. A Guardian Ad Litem (“GAL”) was appointed to represent the children’s separate interest in the proceedings. The GAL is

represented by her solicitor.

5. The Children have had many episodes of reception into voluntary care during their young lives and have had many changes in

accommodation until they ultimately came into care under a Care Order of Court on the application of the HSE. The sequence of care

episodes is set out at pages 17 and 18 of the GAL Report.

6. The HSE brought this application on the basis that the children’s health, development, and welfare is likely to be impaired or

neglected if they are returned at this time to the care of their mother because they have suffered neglect in the care of their mother

due to her chaotic lifestyle and periods of addiction and homelessness. In the case of the father, they assert that periods of

criminality resulting in prison sentences and issues of domestic violence would result in the likelihood of harm if the children were

returned to his care.

7. The father sought to adjourn these proceedings and so applied to the Court in that context. However, he indicated that he was

released in October 2011 while serving a three year sentence in prison and due to failure to his engage with the Probation and

Welfare Service (due to homelessness and diverse hostel accommodations outside of his control) he was again arrested on 19

October 2011. He failed to secure civil legal advice to enable him to be represented in the proceedings, but he had access to his

criminal law advisor. This case was listed for hearing some significant time ago for two days. I was further informed that the father

and mother met with the HSE Social Worker in September and was aware of the proceedings. In the circumstances, the application to

adjourn was refused having regard to section 24 of the Child Care Act, 1991 which prioritises the welfare of the children, while having

regard to the rights and duties of parents under the constitution or otherwise. I am satisfied that the notification by the HSE to the

father in prison allowed sufficient time for him to secure legal representation in the proceedings and it would prejudice the welfare of

the children if this case was delayed further.

8. The mother’s solicitor indicated to the Court that she had no instructions in relation to the 25 documents listed in the Book of

Pleadings supplied to the Court and so none of these documents were admitted into evidence without formal proof of same facilitating

the full cross examination by the solicitor for the mother of the witnesses to be called. The application for Care Orders was fully

opposed on the basis that the HSE had not met the threshold criteria of section 18 of the 1991 Act.

9. The father equally opposed the applications for the Care Orders, though his position was slightly nuanced through an indication

that he opposed the duration of the Care Orders and felt that the children should not be in care until 18 years, and that they were

best placed in the loving care of their mother in accordance with their wishes.

10. The Court heard evidence from the following witnesses:

The Allocated Social worker;

A Focus Ireland worker;

The mother;

The father; and

The GAL.

11. The Allocated Social Worker gave evidence in support of her reports to Court as set out in tabs 8-22 of the Booklet of Pleadings. I

do not propose to rehearse her evidence in support of a Care Order, save to say that her evidence of her personal knowledge of the

case was extensive in that she was appointed to this case since April 2010 and in her estimation had a good working relationship with

the mother, whom she found to be good to work collaboratively with in the periods when she engaged with her. She had a more

opaque relationship with the father who has been a largely absent figure in the period of her work. She also evidenced the instances

when the mother sought her assistance due to episodes of domestic upheavals and allegations of domestic violence. She spoke of the

mother’s periods of very good parenting, and her struggles to overcome addictions which had shown great strength of character. She

also evidenced other times, periods of homelessness, and lack of engagement which all resulted in chronic neglect. In child protection

issues, she gave evidence of the difficulties for the children leading to the sundry periods of voluntary care, instances of unintentional

neglect, lack of regular school attendance, and the impact of same on the children. She also evidenced the love that the mother

bears for the children and the warmth that this is reciprocated by the children who are very concerned and disappointed when access

is missed by their parents. However, her professional opinion was that the mother simply could not cope when her children became

more demanding — she cares very well for infants as she demonstrated with the care of her infant son, Child 3, who was in Court with

her — however, if older and challenging children were returned to her care it would be disastrous for her and for them. Her

professional view is that a long term care order is required and that consistency is required in their lives and insufficient consistency

has been shown by the parents or either of them to date in the care of their children, or household management. The mother has co-

operated for the last six months and has been more consistent with access which has benefited the children. However, she indicated

that this family is defined by episodic periods of good and poor care and that the children’s lives have been damaged in this regard as

evidence in the educational delay and remedial actions needed to rectify same, and the emotional damage as evidenced by the

necessity for play therapy and other therapeutic interventions for the children. It has not been possible to conclude a psychological

parenting capacity assessment to further identify areas requiring support for the mother due to her failure to attend all but two

appointments.

12. The Allocated Social Worker spoke in terms of the current, culturally appropriate placement of the children and was cross-

examined regarding the difficulties and allegations of threats with a hurl to Child 1 within that placement and the investigations

undertaken by the HSE in that context. She affirmed that both children would primarily like to return to the care of their mother whom

they love but accept that they are well-placed right now.

13. The Care Worker with Focus Ireland spoke of the mother’s current supported accommodation provision in a three bed-roomed

house with a low rent, and that the rent was in arrears, however she indicated that the accommodation would be available to the

mother until onward accommodation could be sourced. She was subjected to extensive cross-examination by solicitor for the mother

and issues were put to her on behalf of the father through the court in the light of his lack of formal representation and unfamiliarity

with court procedures.

14. The mother, gave evidence that three of her children are now in care and that she is regretful that she sought help from the HSE

at times of distress in her life. She indicated that she did not anticipate that seeking help would mean that she would not get her

children back. She indicated that she knew that her children wanted to come home and she was particularly distressed that the

Foster Parents get lots of help with her son Child 1 who is very bright and very challenging. She thought he had ADHD when he was 3

years old and brought him to a psychiatrist. She loved her children and wanted them, and she would not even get housing to

facilitate overnight stays if the Care Order was made. She denied that she had ever caused them physical or emotional harm, or that

they presented poorly in school, or missed appreciable periods in school.

15. Child 1 indicated that he conceded that there had been periods of domestic upheaval and criminality in his life with the mother,

but he is now maturing and wants to become a family. He was of the view that while he could not offer them stability right now, he

would in due course and that they should be able to be a family, which was what the children want.

16. The GAL gave evidence in support of her sundry reports to Court and supported the application for a full Care Order. She

explained that the children have consistently wished to return to the care of their mother and have written letters to the Court in this

context which were given into the Court. She indicated that she was departing from the wishes of the children to recommend that

the children remain in Care and she felt that the children’s health, development, and welfare would be damaged by a return to a

chaotic environment. There have been many efforts to support family unity and the history of the matter to date has been that of

sporadic periods of good care, and sporadic periods of unintentional neglect. She spoke of the strengths and vulnerabilities of each

child and of their love for their parents, particularly their mother. Child 1 is a particularly gifted child who could achieve high academic

standards if he can be encouraged to participate consistently in education. He has very challenging behaviour, however, and is very

vulnerable and embarking on teenage years suggestive of further challenges ahead. He benefits hugely by consistent contact with his

mother, though he is supported and affirmed within his current placement. Chid 2 has also begun to exhibit challenging behaviour,

though she is a bright and vivacious child and has settled well in her placement. Both children are secure in the love of their mother

and yet intellectually understand the reasons for their reception to care. Both children have expressed huge disappointment when

access is not attended by their parents. The GAL was concerned about the re-allocation of this case to another social worker with

less experience as the current social worker has been a consistent feature for them; she was also concerned that an experienced

fostering link worker be appointed in the case to support the placement.

Decision

17. Having heard the evidence tendered by the witnesses, their demeanour and presentation in Court, and having considered them

carefully I am satisfied with the following:

(a) I am impressed by the honesty of the mother in acknowledging the circumstances leading to periods of

voluntary care sought by her over the years for the reasons outlined by the Social Worker. I am satisfied, however,

that the children’s health development and welfare has been avoidably impaired though episodic unintentional

neglect and that there health development and welfare would likely to suffer were they to be returned to the care

of their mother or father at this time. I am also satisfied that the mother is the most important person in the

children’s lives and that her ongoing engagement with them is vital to their wellbeing;

(b) I am also impressed by the willingness of the father to turn his life around and commit to his long term

relationship with the mother and children in the light of his maturity. I am, however, conscious of the danger of

“false dawns” as this is a long term issue; and

(c) the GAL has reported to the Court the children’s wishes, which were very supportive of their mother and their

desire to reunite with her. She is supportive of the Court making a long term Care Order to secure their welfare,

notwithstanding their wishes.

18. I am satisfied the threshold criteria are met under section 18(1) and that the health, development, and welfare of both children

has suffered avoidable impairment during 2003 and 2004 and 2010 leading to their placement in voluntary care due to the incapacity

of the mother in those periods. Having considered the evidence, I am satisfied that the HSE has made reasonable efforts to prevent

or eliminate the need for the children coming into the care of the HSE under section 18 by virtue of social work support, housing

advocacy and support afforded, and other supports afforded to her. I am conscious that Child 1 in particular presented significant

challenges, though he is an exceptionally bright and talented child. This is evidenced by the supports needed for the current foster

carers.

19. I am satisfied that a Care Order is required to assure stability and security for the children. I have considered the evidence

carefully to assess the question of the proportionality of the Order to be made to cater for this. Section 18 allows the order to be

made until the children reach eighteen years or for a shorter period with the possibility for the Court to extend that period if the

welfare of the child so requires. I have carefully considered all the evidence and have also had regard to section 24 of the 1991 Act

which mandates the Court to have regard to the rights and duties of parents under the Constitution and otherwise and to regard the

welfare of the child as the first and paramount consideration and, in so far as is practicable, to give due consideration, having regard

to their age and understanding, to the wishes of the children. In order to discharge this obligation, I must make the Care Order in

respect of the children until they have each reached the age of 18 years of age. I am satisfied on the evidence that a shorter order

would not meet the need for their long term security and stability. However, I am also satisfied on the evidence that should the

mother gain traction over her housing and continues to maintain a substance free lifestyle, and continues to consistently engage in

the therapeutic and other supports provided to her, as well as consistency in access to the children, that the HSE must review the

potential for family reunification. This Order will, therefore, accord with the rights and duties of the parents and the wishes and

welfare of their children and accordingly I have made provision for a full review of the Care Order in two years.

Section 37 Access

20. Access shall be at the discretion of the HSE and within the parameters of section 37. Access must meet the needs of the children

and their parents. I hope that the mother will engage consistently in supported access in the short term with a view to normalising

access between mother and son in their own home. I note that the HSE will undertake a risk assessment to facilitate access with the

father.

Section 47 Directions

21. Pursuant to section 47 of the Child Care Act 1991, the Court makes the following directions:

(a) The Court is to review the case on 6 February 2013, as the Long Term Foster placement is to be resolved and

the updated Care Plans with allocated Social Worker and Fostering Link Worker identified is to be filed in Court as

approved by the GAL. The GAL is to remain engaged until this happens and thereafter the GAL to be discharged with

the usual order as to reasonable costs, such costs to be taxed in default of agreement;

(b) The Court is to review the case on 10 December 2014 to assess the progress which the parents have made in

gaining sufficient consistency in their lifestyle and have consistently availed of access to assess the potential for

family reunification. The GAL is to be re-appointed four weeks before the date of re-entry.

(c) That the Case is re-entered before the Court and the Guardian re-appointed 4 weeks before the date of re-

entry in the event that:

(i) the case becomes unallocated to an experienced Social Worker/ Fostering Link worker for a period of

4 weeks;

(ii) A planned or unplanned change of the current foster placement;

(iii) Any apprehended or actual change in the educational arrangements for Child 1 having noted the

commitment by the HSE to engage regularly in supporting his current educational arrangements.

(iv) After Care Review (on the court date proximate to their 17th birthday of each child [dates given] to

assess After Care Services if he remains in the Care of the HSE at that time under this Order; GAL to be

reappointed 6 weeks in advance of the date of Re-entry for the purposes of any such After Care Review

and provided with access to all HSE files in that regard;

(d) The HSE is to provide all appropriate therapeutic interventions and services to both the mother and father to

meet their specific needs in order to ensure the preservation of the parent child relationship.

(e) That the HSE takes all steps necessary to ensure that each of the children receive all identified therapeutic

interventions and services set out in the finalised Care Plans to be filed in Court and as reviewed by the HSE from

time to time.