District Court grants Care Order under Child Care Act 1991 s.18 for child with emotional/behavioral needs.

[2011] IEDC 5

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

RB & AH

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 3

30 SEPTEMBER 2011

1. This case concerns an application for a Care Order in respect of a seven-year-old girl, Child 3. Child 3 has been diagnosed as

having a speech and language delay although her cognitive ability appears to be within the average range. She currently exhibits

emotional and behavioural disturbance. She presented to the psychologist assessing her needs under the Assessment of Needs

Disability Act 2005 as a child who has difficulty regulating and managing her emotions. Her style of interaction was described as

controlling, domineering, and rigid which is symptomatic of a child who feels distressed, insecure, and under threat.

2. Child 3 came to the attention of the HSE at the time of her birth in July 2004. It appeared to the hospital staff that the baby cried

a lot and that her mother, the second named respondent, who was aged 36 at that time and was a single parent who lacked supports

in her local area. Furthermore, she had four other children: Child 1, who is 9 years old; Child 2, who is 8 years old; Child 4, who is 6

years old; and Child 5, who is 4 years old.

3. The first named respondent to these proceedings is Child 3’s biological father. He is a joint custodian of Child 3 but has not been

appointed as her legal Guardian. He was legally represented in the proceedings and supported the HSE’s application for a Care Order

under section 18 of the Child Care Act, 1991 until Child 3 reaches 18 years of age.

4. The second named respondent to these proceedings is Child 3’s mother. Mother is engaged to be married to the father of Child 4

and Child 5 and the couple cohabit together. Mother was represented in these proceedings by solicitor and counsel.

5. The father of both Child 1 and Child 2 did not feature in these proceedings in any capacity.

6. The father of Child 4 and Child 5 was called to give evidence on behalf of mother and was not otherwise represented in these

proceedings.

7. Child 3 was appointed a Guardian Ad Litem (“GAL”) in these proceedings and the GAL was separately represented by her solicitor.

8. Mother, through her legal team, strongly opposed the making of the Care Order. The Court was advised that all key facts were in

issue and no reports would be admitted without formal proof. The Court was presented with a large A4 Folder containing over 43

reports. On day 3 of the hearing, counsel for mother accepted the contents of Psychologists 1’s report.

9. Psychologist 1’s qualification and experience include long clinical practice and many academic qualifications. She gave extensive

evidence of her diagnosis, following comprehensive psychometric testing, that mother’s level of cognitive functioning lays well within

the mild range of intellectual disability. Her opinion was that mother requires considerable support in her own right as well as in her

role of mother. The level of assistance required by mother to maintain a good enough level of parenting was that she would need 24

hour support seven days a week.

10. The diagnosis arrived at by Psychologist 1 was not accepted by mother, Child 4 and 5’s father (her current partner), or the

children’s grandmother and who gave evidence on her behalf. Mother’s sister also gave evidence on her behalf but believed that if the

diagnosis was correct then adequate structured help would assist her sister in caring for Child 3 within her family and she did not

require to be placed in the care of the HSE.

11. No evidence was introduced to challenge the diagnosis or prognosis of Psychologist 1.

12. The evidence centred on:

(a) Alleged neglect of Child 3 while in the care of her mother; and

(b) Emotional abuse of Child 3 arising from repeated allegations of child sexual abuse which mother made from

October 2008 until November 2009.

13. In support of the application, the following reports were submitted:

I. Medical:

a) Psychological Report of Psychologist 2, dated 19 October 2005 (regarding mother);

b) Paediatric Report of the Paediatrician, dated 21 April 2009 (regarding F);

c) Treatment Unit Report of Psychologist 3 (regarding allegations of CSA);

d) Psychological Report of Psychologist 4, dated 24 November 2009 (Behavioural assessment of Child 3);

e) Psychiatric Reports of Psychiatrist 1, dated 20 October 2010 and 12 January 2011 (regarding mother);

f) Psychological Report of Psychologist 5, 28 February 2011 (assessment of needs disability regarding Child 3);

g) Preliminary Psychological Report of Psychologist 1, dated 10 May 2011 and updated Report dated 15 July 2011

(regarding mother).

II. Social Work:

a) Reports of Social Worker 1, dated 19 October 2005, 10 May 2007, 7 June 2007, 21 June 2007, 17 July 2007, 27

March 2009 (listing complaints received by HSE), 7 September 2010, and 11 October 2010.

b) Reports of Social Worker 2, dated 8 November 2010, 6 December 2010, 10, January 201, 21 February 2010, 21

March 2011, 18 April 2011, and 23 May 2011.

c) Reports of Social Worker 3, dated 20 June 2011 and addendum Report also of 20 June 2011, 20 July 2011, 28 July

2011, and 13 September 2011.

d) Access Schedule dated January-March 2011, April-July 2011, 5 July-1 September 2011

III. Guardian ad Litem Reports

Reports dated 8 October 2010, 5 November 2010, 8 January 2011, 17 February 2011, 17 March 2011, 13 April 2011,

23 May 2011, 18 July 2011, and 19 September 2011.

IV. Assessment of Needs under Disability Act 2005

Report of the Assessment Officer, dated 16 June 2011 (regarding Child 3).

V. Speech and Language Therapy Report

Report of the Speech and Language Therapist, dated 6 July 2011 (regarding Child 3).

VI. Family Support Worker Report

Report of Family Support Workers, dated 31 August 2011

VII. Garda Report

Garda Report, dated 14 April 2011 (Section 16(1)(b) Criminal Evidence Act 1993 regarding interview with Child 3

concerning allegations of CSA).

14. The threshold criteria of section 18 required an analysis of all the evidence adduced to determine whether the court is satisfied

that—

• Child 3 has been or is being assaulted, ill-treated, neglected or sexually abused, or

• Child 3’s health, development, or welfare has been or is being avoidably impaired or neglected, or

• Child 3’s health, development, or welfare is likely to be avoidably impaired or neglected,

• That Child 3 requires care or protection which she is unlikely to receive unless the Court makes a Care order under

section 18 of the 1991 Act in respect of Child 3.

• The Court must also have regard to the rights of Child 3 and of her parents under the Constitution and otherwise.

Summary of Salient Facts

15. Mother and father were involved in an intimate relationship for several years before Child 3’s birth. The couple never cohabited.

After Child 3’s birth in 2004, mother, in evidence, expressed unhappiness with the level of father’s commitment to her and to baby.

Mother gave evidence that her principled position was that she wanted father to be involved in Child 3’s life as her father.

16. Father, in evidence, indicated that he shared Child 3’s care after her birth and that he and mother had mutual arrangements in

that context although they never cohabited. Father placed his name as ‘father’ on Child 3’s birth certificate. Father, in evidence,

stated that he was consistently involved in Child 3’s care from birth. He normally had regular overnight access to Child 3 until it was

stopped by mother, pending investigation of allegations of child sexual abuse. Subsequently, his residential access was restored by

Order of the Circuit Court on 15 February 2010.

17. Over time, father became critical of mother’s parental care of Child 3. His consistent criticism centred on mother’s alleged lack of

attention to Child 3’s personal hygiene. He alleged maternal neglect and that Child 3 was left in the care of her older siblings and

other persons whom he considered to be inappropriate carers. It is clear that on-going access disputes became a constant feature in

Child 3’s life from a very early stage although both father and mother continued to meet socially for a drink until their relationship

ended in or about 2005.

18. The theme of mother’s bonding difficulties with Child 3 from the time of her birth to the date of her placement in voluntary care

was a recurring issue in the Social Work evidence.

19. Child 3 had three hospital admissions in the first eleven months of her life:

(a) The first hospital admission was to an A & E department 24 August 2004 when it was reported that the baby

(aged one month) had rolled off the bed while being held by her brother, Child 2. Child 2 suffered no serious injury.

The hospital staff noted that both parties appeared to have consumed alcohol when they presented with Child 3 in

A & E. This was explained in evidence by both parents as they had been out socially and the incident occurred

when mother returned home leaving father in the public house. Mother, in evidence, indicated that her sister and

her husband had been babysitting but had left at this stage. Child 3 was uninjured.

(b) The second hospital admission was in November 2004. Mother had herself been admitted to hospital following an

impulsive overdose although she was discharged from hospital the following day. She corrected her counsel in this

regard by describing this incident as an “apparent overdose”. The altercation between the parents occurred when

mother endeavoured to take Child 3 from father’s care. An Garda Síochána were called to intervene between the

parties and each alleged violence against the other. Because father alleged that Child 3 was assaulted, Child 3

(then aged 3 months) was admitted to hospital and remained there for a period of eleven days. Child 3 was

physically unhurt.

(c) The third hospital admission in July 2005 when Child 3 (then aged 11 months) broke her left femur following a fall

down a stairs. The explanation was that Child 3’s older half-sibling left the stair gate open and mother did not see

her going up the stairs after her brother.

21. Between April 2005 and July 2005, mother gave evidence of being under pressure as a single parent. In July 2005, mother left

Child 1 outside the local health centre “testing” her bonding. Evidence was given that mother left Child 1 to be collected by her eight

year old son Child 2 and that she stated that her relationship with father was quite difficult. Mother’s evidence was that she lacked

sufficient support from the HSE.

22. The relationship between the parents came to an end in 2005. Mother then formed a friendship and subsequently an intimate

relationship with her current partner. He was introduced to mother by Child 3’s father. Both mother and her new partner each gave

evidence that they are now engaged to be married. They have two children together as set out in paragraph 4. He, in evidence,

stated that he cohabited with mother in her home on practically a full time basis since the birth of Child 4 in September 2006.

23. Social Worker 1 gave evidence of being directly involved with the family unit from 2006 until June 2010 as a Social Worker/Team

Leader and he remained involved in the file directly in a different capacity until June 2011. It was his evidence that the HSE files

indicated concerns of neglect going back as far as 1997 in respect of mother’s two older children. Concerns were also expressed

regarding Child 3 from the time of her birth. Social Worker 1’s evidence was that a family support worker was allocated for mother

from May 2005 and a social worker was also allocated to the case. Social Worker 1 gave evidence of several concerning incidents

between April and July 2005 concluding with an accident on 8 July 2005 when Child 3 was admitted to hospital with a broken left

femur.

24. Mother gave evidence of her life “spiralling downhill” at that time. While a report of Psychologist 2, was furnished in the A4 Folder

by the HSE, the report was not admitted and Psychologist 2 was not called to give evidence. It is reasonable to say that the fact

that mother may have being operating under an intellectual disability of some level was apparent from that date to all those involved

in her case.

25. Child 3 was placed in the voluntary care of the HSE on 14 July 2005 (aged 11 months).

26. Between 2005 and 2007, practical supports were put in place by the HSE for mother including attachment work. Mother availed of

the supports and persevered in her desire to have Child 3 returned to her care. Father and Child 3’s foster mother opposed the

planned reunification plans of the HSE through the Court. The HSE received complaints from mother that Child 3 was being physically

abused in foster care by her foster mother. The HSE determined that there was no credible basis to the complaints made. Mother was

at this time in a committed relationship with her partner and the couple’s first child was born in September 2006.

27. Child 3 remained in the voluntary care of the HSE until she was returned to her mother’s care some 22 months later in May 2007.

Child 3 was two months short of three years of age.

28. While Child 3 was in the voluntary care of the HSE, her parents made allegations and cross allegations against one another, all of

which were investigated by the HSE. It became clear that on-going high-level conflict persisted between Child 3’s parents. Mother

now had a family unit consisting of Child 1, 2, and 4 (who was approximately nine months old). Child 3 was returned to her mother’s

care into this household. Conflicting evidence emerged as to whether mother’s partner resided with mother on a full time basis or not.

What is clear is that he was at least a semi-permanent feature of the household. The Supervision Orders granted on 10 May 2007 and

21 June 2007 contained Directions pursuant to section 19(4) of the 1991 Act which, inter alia, constrained mother from having her

partner reside in the house or Child 3 having unsupervised access with her partner until Garda clearance was procured. Garda

clearance was ultimately secured in September 2007. Mother’s partner, in evidence, stated that he resided with mother and

supported her in the care of all children since Child 4 was born. While sundry concerns continued to be expressed by the HSE between

May and July 2007, it is clear mother’s care was considered by them at this time to be “good enough”.

29. The hostility and pattern of allegation and counter allegation between mother and father continued between May and July 2007.

In July, mother formed the view that father was behaving inappropriately toward Child 3 during access. Through her solicitors, she

complained to the HSE that Child 3 was sleeping in her father’s bed and this was not right. Mother’s belief that the situation was

sexually abusive became entrenched in her mind subsequently.

30. In January 2009, the HSE met with mother because she alleged that Child 3 was being abused during weekend access with her

father. Sexually abusive behaviour continued to be alleged by mother between January and April 2008. Complaints were made by

mother to the HSE Social Work team and by her solicitors to HSE solicitors. The HSE investigated each and every allegation made and

formed the view that like the allegations of physical abuse made by mother against Child 3’s foster mother in 2007, these allegations

of sexual abuse were not substantiated. Private law custody/access disputes were on-going at the time. Mother was warned that

Child 3’s welfare was endangered by the situation.

31. The Consultant Paediatrician with a Special Interest in Community Child Health, gave evidence to support her report of the 21

April 2009. She saw Child 3 and her mother on 31 March 2009. She was requested to do so by a colleague (an Emergency Consultant

at the hospital), because mother brought Child 3 to the A & E and she wanted her to be examined. She believed that Child 3 was

being sexually abused by her father. The Consultant Paediatrician took a history from mother of her concerns over the preceding 12

to 18 months. The concerns related to observed behaviour in Child 3 after access with her father, complaints allegedly made to her

by Child 3, and an incident which she stated that she herself observed in October 2008. The Consultant indicated that she did not

perform a full anogenital examination of Child 3 as she became very distressed. The Consultant notified Social Worker 1.

32. On 22 May 2009, mother requested Psychologist 4 to undertake an urgent preliminary assessment of Child 3’s needs. Psychologist

4 was not called to give evidence. Her report was not admitted.

33. Social Worker 1 gave evidence that mother continued to make complaints of sexual abuse against father to her GP and CAMHS

mental Health Team. Neither the GP nor the CAMHS team furnished reports to Court and they were not called to give evidence.

34. Social Worker 1 was aware of the on-going reporting of complaints of sexual abuse by mother to the GP and CAMHS team through

their contact with the HSE social work department. Social Worker 1 gave evidence of his concern that Child 3 (and all of the children

in the household) was at risk of serious emotional abuse because of discussions of the sexual abuse allegations in her presence or in

the presence of her older siblings. Notwithstanding mother being advised that the allegations have been investigated and found to be

without foundation, the flow of allegations continued. Parallel private law custody/access proceedings also continued between both

parents.

35. In May 2009, mother’s solicitors wrote to the HSE’s solicitors with a new specific allegation of child sexual abuse which mother

stated had been reported to her by Child 3. A child abuse notification was made on foot of the latter allegation and the matter

referred to an independent child sexual abuse unit.

36. The sexual abuse unit undertook a prolonged and detailed investigation of all allegations of CSA made by mother. The

investigation was prolonged because the allegations continued to be made even when the Unit had completed the investigation. They

gave evidence supporting her report and concluded that on the balance of probabilities that there was no information to support child

sexual abuse. She had three interviews with Child 3 before forming the opinion that there was no evidence to support the allegation

of sexual abuse. She expressed the view that Child 3’s behaviour may be rooted in her being influenced and exposed to adult

conversations. It might also be due to her acceptance of/exposure to her mother’s belief systems concerning who should/should not

put cream on her/physically care for her. It might also be because of her fear of being in trouble or stereotyped induction. She

expressed the opinion that from her observation of mother and Child 3 during interviews, that Child 3 and her mother had a

disorganised, anxious attachment which was not indicative of healthy attachment. Child 3 was exposed to her mother’s fixed belief

systems which insisted that she was being sexually abused by her father. It would be emotionally abusive if the child continued to be

exposed to such belief systems. When challenged on this by counsel for mother, she stated that it was emotionally abusive for a child

to be persistently exposed to such a belief system. She said that notwithstanding encouragement from mother, Child 3 never went

beyond saying that “daddy looked at her bum”. Child 3 presented as a child who knew she was expected to tell them something, but

nowhere in her narrative or gestures was there a complaint of sexually abusive behaviour by her father. It was her view that exposing

Child 3 to a very high level of persistent transference of mother’s beliefs met the definition of emotional abuse.

37. Mother’s behaviour in the course of the investigation gave serious cause for concern to the Social Work Department. Social

Worker 1, in his evidence, stated that he personally witnessed Child 3 being present when her mother discussed her concerns about

alleged CSA. On 8 July 2009, in the period when father was not having over-night access due to the allegations of CSA, mother went

shopping with her partner and phoned father to advise him that she would be late collecting Child 3 from access. Mother, in evidence,

indicated that she had asked father to drop Child 3 to a neighbour but he would not, in the event he kept Child 3 overnight and

informed the Gardaí of the position. She saw nothing incongruent in the fact that she was prepared to leave Child 3 for an extended

period of time with the person whom she believed was sexually abusing her.

38. Social Worker 1 gave evidence that between 19 February 2008 and August 2010 there was six separate ‘child abuse/neglect’

notifications made to the HSE ranging from “home alone” incidents to inappropriate carers while mother and her partner were

socialising. On two occasions, Child 4 was found wandering (on the first occasion about a mile from the family home and on the

second occasions 1.5 miles from the family home) and brought home by a neighbour the first time and the Gardaí on the second

occasion. Mother did not appear to appreciate the significance of the dangers which the child faced. On 30 June 2010, Social Worker

1 made an unannounced visit to the home and discovered Child 3 there hopping on one leg. She injured her leg the previous day. She

thought she was “home alone”. An older sibling was asleep upstairs but he was unaware that he was supposed to be minding her and

mother had gone to the shop. Child 3 had a broken bone in her foot and was seen by the GP and hospital following the direction of

Social Worker 1. His concern was not the fact that she had an accident and broke a bone in her foot, rather it was that her mother

did not prioritise the need to secure medical treatment for the child and also that the on-going child care arrangements were

unsatisfactory.

39. It is an important feature of the case that in 2005 the HSE was alerted to the fact that mother suffers from a learning disability.

This Report was not admitted in evidence however it was referenced in the evidence of Psychologist 1.

40. Mother presents as a forceful and articulate woman with pleasant demeanour and a warm and engaging personality. She has had

the benefit of mainstream primary schooling in a good primary school and a very supportive mother and siblings. In her evidence, she

rejected the assessment of Psychologist 1 and expressed her unwillingness to take medication as suggested by Psychiatrist 1. She

acknowledged the assessment of Psychologist 5 as to her daughter’s special needs. Her evidence was that Child 3’s emotional

problems stemmed from being in and out of care. She acknowledged the controlling behaviour which Child 3 exhibits but insisted that

is not a feature when Child 3 was in her care. She emphasised that her pursuit of the issue of child sexual abuse was because of

what she as her mother had seen and what Child 3 had reported to her. She indicated that her partner gets on well with Child 3 and

told her that Child 3 gives him a kiss and a hug when she is not in the room. She has no problem with that. It was clear from her

evidence that she sees the solution to this litigation in the return of Child 3 to her care in a household with her partner and the

support of her family.

41. Both mother and her mother are sensitive about, and do not accept, the extent of the intellectual disability diagnosed by

Psychologist 1. It is necessary to refer to this issue again in this decision to explain what has happened in the case as in the absence

of this context a very different inference could be drawn from mother’s conduct. All the expert evidence all concurred that Child 3

was emotionally damaged by constant exposure to mother’s rigid belief systems and insistence that she was sexually abused by her

father. All agree that her relationship with her father and sense of self worth have been damaged; however, they also agreed that

the damage was not intentionally inflicted by her mother who had absolutely no insight into the damage.

42. Child 3’s maternal grandmother, in her evidence, stated that in or about Easter of 2009, when Child 3 was with her, she told her

that her father had put his finger in her vagina. She asked Child 3 who taught her the word “vagina” and Child 3 said that her mother

did but complained that her father hurt her. The grandmother believed that Child 3 was sexually abused and advised her daughter to

contact the HSE and she herself contacted the HSE in County 1. The grandmother did not accept the diagnosis or prognosis of the

level of practical supports recommended by Psychologist 1. She noted that her daughter’s older boys were doing well and progressing

educationally in mainstream schooling and she concluded that this was evidence of her daughter’s capacity as a mother. She

supported her daughter’s desire to have Child 3 returned to her household.

43. A comprehensive psychological assessment carried out by Psychologist 1 on 10 May 2011 concluded that her overall cognitive

ability lies well within the mild range of intellectual disability. Psychologist 1 used several diagnostic tools in arriving at her diagnosis

including:

• Wechsler Adult Intelligence Scales IV;

• Stanford Binet Intelligence Scales (fifth addition);

• Bender Gestalt II test of Visual Perception;

• Wechsler Individual Achievement Test-Second UK Edition;

• Independent living scales;

• Vineland Adaptive Behaviour Scales- second edition; and

• Adaptive Behaviour Assessment Systems-second edition.

44. On the WAIS IV test, mother’s full scale IQ (FSIQ was 67). This places mother’s overall level of cognitive functioning in the upper

end of the extremely low ability, commonly referred to as mild intellectual disability. Psychologist 1 indicated that the results of

subtests in the Verbal Comprehension Index (VCI- 70) are testament to the high quality education that mother received both formally

and informally. Mother’s verbal fluency was clear when she gave evidence, however, Psychologist 1 explained that her superficial

strengths mask her underlying core weaknesses in her ability to think and reason using language. The subtests (similarities,

vocabulary, information, and comprehension) in the VCI showed discrepancies or “scatter” which was significant. Mother’s composite

comprehension profile incorporated significant weaknesses which indicate that her abilities are well within the mild range of intellectual

disability, in the areas of innate reasoning abilities, general common sense, and social judgement.

The results on the Perceptual Reasoning Index (PRI) were 65 with a percentile rank of 1, again placing these abilities well within the

range of mild intellectual disability. The Processing Speed Index (PSI) results were 76 with a percentile rank of 5, placing these

abilities within the borderline range of ability. The Working Memory Index (WMI) score was 80, on the cusp of borderline and low

average ability. Psychologist 1 indicated that the strength of mother’s WMI ability in this test is not uncommon but is statistically

significant. Psychologist 1 noted that it is not uncommon to come across a person with a mild intellectual disability who presents with

a working memory capacity that is significantly higher through rote memory learning but that ability does not extend to other

cognitive functions.

When Psychologist 1 calibrated a General Ability Index (GAI) she concluded that mother’s substantive intellectual ability was well

within the range of mild intellectual disability. Her upbringing, education, and innate personal strengths and perseverance have

contributed to her verbal fluency and rote learned ability, however, her verbal fluency masked her significant underlying difficulties in

her abilities to think, reason, and problem solve. “Her core general ability is characterised by a cognitive inflexibility, a very simple,

concrete understanding of the words and naïve vulnerability in her social relations.”

45. Psychologist 1 undertook the SB5 test with mother also. She again drew a distinction between “working memory” – the ability to

hold information temporarily in memory (rote learning) for the purpose of using that information to perform a specific task, and “fluid

reasoning” – the ability to solve verbal and non-verbal problems using inductive or deductive reasoning. Mother’s greatest difficulties

are with fluid reasoning. Mother’s full scale SB5 IQ came out as 68 on the SB5. Her mental ability equivalent age for her FSIQ was

calculated at 8 years and 3 months.

Her non-verbal reasoning skills were classified as mildly delayed giving a mental age equivalent of 7 years and 3 months.

Her verbal reasoning abilities were classified as borderline delayed giving a mental age equivalent of 9 years 2 months.

Her quantitative reasoning was identified as the highest factor index score in her profile reflecting her acquired abilities with numbers

and numerical problems.

46. Psychologist 1 concluded that the WAIS-IV assessment was valid when the results of that assessment were compared with the

SB5 tests. She concluded that mother’s substantive level of intellectual functioning lies well within the mild range of intellectual

disability. The remaining tests undertaken also reinforced Psychologist 1’s assessment.

47. Independent Living Scales test result indicated a very low level of adaptive functioning and that mother was unsuited to living

independently. Her highest attainments were in the subscales measuring memory/orientation and managing home and transport. These

scores suggest that with support mother is able to attain sufficient functioning to cope. Her scores for health and safety and social

adjustment were the lowest possible on the test, suggesting that she is very vulnerable in these areas and needs a high level of

support. The test allows comparison between a person’s ability to perform tasks and their reasoning ability. Mother’s reasoning ability

score was barely within the range of the test but her ability to perform tasks which can be learned was significantly higher.

48. The Vineland II test results require significant interpretation. Mother’s ‘Daily Living Skills’ score placed her overall ability just within

the borderline range. Her personal care skills and domestic skills were assessed as being within the range expected for an adult. Her

community living skills were lower with an age equivalent of 15 years and 9 months. Her next highest score was in the socialisation

domain and were consistent with a low mild intellectual disability. However, the lowest attainment was in the domain of

‘Communication’ and was indicative of a severe difficulty in this area. This domain assesses communication style rather than content.

She did least well on the ‘receptive communication sub-domain’ attaining an age equivalent of four years. This means that her ability

to listen, understand and retain information given to her orally is roughly equivalent to the same skill of an average four year old. In

summary, mother’s scores in this test provided further evidence of a discrepancy between her higher level tangible adaptive skills and

lower level intangible skills. While broadly similar test results were established in 2005, the “scatter” or apparent discrepancies were

not comprehensively analysed and so the appropriate supports were not put in place for mother in 2005. Psychologist 1 was confident

that her analysis was accurate and she also sought peer-review in respect of her result analysis which affirmed her confidence in her

interpretation. She elaborated in her oral evidence that, if presented with a lot of information, mother would have difficulty

assimilating and processing it. If the message was not reinforced, she might not understand what was required of her. Equally, if she

had several matters to attend to she would find it difficult to prioritise them in order of importance.

49. The 5cABAS-II test is similar to the Vineland II test and looks at Conceptual (communication and academic skills), Social

(interpersonal and social competence skills), and Practical (independent living and daily living skills). Again, these tests required

interpretation and Psychologist 1 formed the view from the results and the “scatter” that mother’s weakness is in the area of

intangible adaptive behaviour skills, which is most probably due to an enduring intellectual disability. This diagnosis raised grave

concerns for mother’s ability to parent any child without significant supports being in place.

50. Psychologist 1’s second Report, dated 15 July 2011, reported feedback with mother and her family and a list of recommendations

of the practical things required by family and the HSE to support mother in her role as mother to her two older and two younger

children and to Child 3, who was at this time in the care of the HSE under an Interim Care Order and who had herself very special

needs. She had hoped that mother’s family would put some support structure in place in light of the feedback she gave them and

which they initially appeared to accept. However, it subsequently became clear to her that they did not accept her diagnosis or

prognosis. She was of the view that mother loved her children including Child 3 deeply and she was attached to her. However, there

was on-going risk to Child 3 of unintentional emotional harm. Adaptive Behavioural Therapy might be undertaken in time to work on

mother’s strengths and manage her implacable hostility to father and fixed firm belief of sexual abuse. Constant reinforcement would

be required and mother should be constantly supervised when in Child 3’s company.

51. Returning to the history, in August 2008, Child 3 was referred for assessment under the Assessment of Needs Disability Act 2005

at the request of her mother, following a recommendation from community based speech and language therapy. This referral was

delayed until November 2010 as Child 3 was undergoing a number of other assessments at the time. The assessment was ultimately

actioned in November 2010 and Psychologist 5, under the supervision of a Senior Clinical Psychologist, prepared a report and gave

evidence elaborating on that assessment on the second day of hearing. Child 3 has a history of speech and language delay. She was

uncooperative with the assessment but Psychologist 5 concluded that she has special needs arising from her emotional and

behavioural presentation which require very clear boundaries and structure. She will also require play therapy and a Special Needs

Assistant in school if she is to achieve her educational potential. She expressed the opinion that projecting the belief of child sexual

abuse would have serious consequences and would be more damaging in the case of a younger child. It would affect her sense of self

worth.

52. The Garda gave evidence of her interview with Child 3. She appeared to elicit greater co-operation from Child 3 that Psychologist

5 had experienced. Her task was to obtain a Clarification Statement from Child 3 in respect of the allegations of CSA made. Child 3’s

statement concluded with the comment that “Dad is really nice. Dad never did anything bad to me”. As no offence was disclosed the

investigation was concluded.

53. Mother was referred to the Psychiatrist who gave evidence that in her opinion mother was suffering from a fixed firm belief of

delusional intensity that Child 3 was sexually abused by her father.

54. The GAL who was appointed by the Court to present the wishes and best interests of Child 3, gave evidence that Child 3 is a

lovely child with a very distressed presentation. She loves her mother and siblings. Her way of coping with life is to “control” and

manipulate and give out an illusion of herself to others by putting up a front. She sometimes behaves quite inappropriately and this is

the outward presentation of her overall damage and distress by virtue of the unpredictability of her life through general neglect and

the on-going stream of allegations of child sexual abuse to which she was exposed. She observed access and noted mother’s inability

to prioritise needs when dealing with all children together, she also noted mother’s lack of insight into Child 3’s needs. She concluded

that her needs could not be met by her mother. She made a number of detailed recommendations and gave evidence that the HSE

was actively addressing all of these recommendations. She recommended a reduction in access between Child 3 and her

mother/father/siblings over a phased period and in a child centred way to give Child 3 the opportunity to undertake the various

therapies recommended. She also gave evidence of the need for carefully monitored access when it happens. She expressed her

contentment with the Care Plan and stressed the importance of review of same so that it continued to meet Child 3’s need.

55. Mother’s current partner, in his evidence, was of the view that his presence in the home was sufficient protection to ensure the

safety of Child 3. He acknowledged the domestic incident in the past but his version of this event was that mother was getting

“boisterous” and he was concerned for himself and the children so he called the Gardaí. There was no physical violence but he was

asked by the Gardaí to leave which he did as he did not own the house. He indicated that in May of 2011 he and mother broke up

under the strain of the current proceedings. He stated that he did not know whether the allegations of child sexual abuse were valid

or not. In his view, his partner pursued genuine complaints made to her by the child. He did not accept the prognosis of Psychologist

1 and felt that mother did not require 24-hour support, he indicated that he was there and supported her and, if he had to, he would

accept additional HSE support — but he felt it unnecessary. His family had a meeting following Psychologist 1’s feedback and could

also be supportive. He indicated that he socialised three to four nights per week and had five or six pints and was rarely joined by

mother.

Legal Submissions

56. Counsel for the HSE argued that the evidence tendered over the preceding four days was sufficient to meet the threshold criteria

in section 18 of the Child Care Act 1991. While mother, through her legal team, disputed all the evidence and admitted none of the

reports (save the report of Psychologist 1), no contradictory evidence was called by her. All the experts called to give an opinion

were of the view that Child 3 needed to be in the care of the HSE until she is 18 years. The evidence adduced was that support

needed to maintain Child 3 in the family unit would be 24 hours seven days per week and the evidence of family members of the

mother established that they were not in a position to provide that level of support. The support provided by mother’s partner was

insufficient. Child 3 herself has special needs and they cannot be met unless she is taken into care.

57. Solicitor for father indicated that he echoed the submissions already made.

58. Counsel for mother argued that her client was a parent and that on the evidence tendered the standard of proof required by

section 18 was not met. She also argued that her client has not intentionally failed her daughter. The court was referred to the

judgment of North Western Health Board v HW and CW [2001] IESC 90 and in particular the judgment of Denham J. The Court was

also referred to Article 42.5 of the Constitution and the ECHR decision of Olsson v Sweden (1988) 10 EHRR 259 and the need for any

State intervention in the family as understood by Article 8 ECHR needs to be “proportionate intervention” and that a Care Order until

Child 3 is eighteen is not proportionate or necessary.

59. Solicitor for the GAL referred to the case of G v An Bord Uchtala [1980] 3 IR 32 which is referenced in the judgment of North

Western Health Board v HW and CW.

60. Both mother and child have personal rights under the Constitution. However, the fundamental issue in this case is the conflict

between those rights. Evidence has been adduced which establishes that Child 3 has suffered both neglect and emotional abuse.

Evidence has also been adduced that the risk of further neglect and abuse is high because mother has a mild intellectual disability and

rigid inflexible beliefs of delusional intensity that Child 3 was sexually abused by her father.

61. Counsel for mother urged careful consideration of the case of The North Western Health Board v HW and CW which concerned

married parents who chose not to have a PKU test performed on their child. That decision may have been unwise but they as parents

had the right to make it and the State could not make it for them. It was not established that the parents had failed in their duty to

their child for physical or moral reasons. This case, however, is a very different set of circumstances from the North Western Health

Board situation. The Court must also have regard to other decisions of the High and Supreme Court such as:

• G and An Bord Uchtala [1980] 3 IR 32 which identified the child’s right to bodily integrity and the right and

opportunity to be reared with due regard to religious, moral, intellectual, and physical welfare;

• In re Article 26 and the Adoption (No.2) Bill 1987 [1989] IR 656 a Supreme Court decision which stated that the

Court was obliged to construe Article 42.5 and in doing so stated that the rights of a child are not limited to those

contained in Article 41 and 42 but include the rights referred to in Articles 40, 43, and 44 and so the child enjoys

the personal rights identified in Article 40.

• In FN (A minor) v Minister for Education [1995] 2 ILRM 297 where the High Court stated that where the a child

with very special needs is in question and where those needs cannot be provided by the parents or guardian there

is a constitutional obligation on the State under Article 42.5 of the Constitution to cater for those needs in order to

vindicate the Constitutional rights of the child.

62. The Child Care Act, 1991 must be presumed to be constitutional. It sets out clear parameters for State intervention when it

becomes necessary to balance the rights of parents and children. Section 18 does not require there to be intention on the part of the

parent

63. The HSE are obliged to establish on the evidence to the required standard of section 18(1)(a), (b), or (c) and that the child

requires care or protection which he is unlikely to receive unless the court makes a Care Order in respect of the child

64. I am satisfied on the evidence that mother suffers from a mild intellectual disability and a fixed and rigid set of beliefs of

unshakable and delusional intensity that her daughter has been sexually abused. She has been reinforced in this belief by her family

who also believe that there has been sexual abuse. She has, through publicly funded private law custody and access proceedings,

endeavoured to stop or constrain Child 3’s access to her father through constant allegations of child sexual abuse. In these

proceedings, she has challenged all the evidence, although on day 3 of the hearing her counsel indicated that she accepted the

professional assessment of Psychologist 1. Psychologist 1 stated in her evidence that she has hoped that after the first feedback

session with her family that they would accept the diagnosis and co-ordinate a framework of family support to assist mother to the

high level and extent required. This did not happen. Furthermore, because of her intellectual disability and level of intellectual

functioning, mother is stuck and cannot prioritise Child 3’s needs. Neither can mother understand the impact of her behaviour on Child

3. However, there is no malice in mother; she loves her child very deeply.

65. The Court was urged to have regard to the case of Olsson v Sweden and that the ultimate aim when a child needs State care

should be family reunification, if possible, with parents. In the case of Olsson, siblings had been taken into care, separated, and then

placed at a considerable distance from one another. The ECtHR found that there has been a violation of the parent’s rights under

Article 8 ECHR. The case focused on the right to contact. The right to contact between a parent and child should not be gratuitously

interfered with but must be tempered where the welfare of the child requires. A legally permitted interference must pursue a

legitimate aim and be proportionate and necessary. The interests as well as the rights and freedoms of all concerned must be taken

into account. But, where contact with a child would harm the interests of a child or interfere with the child’s Article 8 rights, a

proportionate balance must be struck. Counsel for mother, on behalf of her client has accepted the professional assessment of

Psychologist 1 who is very clear in both of her reports and in her oral evidence to the Court that access must be very carefully

monitored because of the on-going risk of unintentional emotional harm/and or neglect of Child 3. An access visit should be stopped if

mother engages in inappropriate conversation about Child 3’s father. The recommendations set out in both her reports clearly chart

what is required to respect the dignity of this family and its delicate web of relationships.

Therefore:

66. Having read the several reports furnished and considered the evidence tendered in this case over five days and considered the

submissions made by all parties to the proceedings, I make the following findings:

• that the threshold criteria of section 18 have been met on the evidence tendered;

• that Child 3 has been neglected;

• that Child 3’s health, development or welfare has been avoidably impaired or neglected;

• that Child 3’s health, development or welfare is likely to be avoidably impaired or neglected; and

• that Child 3 requires care or protection which she is unlikely to receive unless the Court makes an Order under

section 18 in respect of her until she is 18 years old.

Section 47 Directions

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

1. That access between Child 3 and her parents, siblings, and extended family should be at the discretion of the

HSE who should implement the recommendations of Psychologist 1, Psychologist 5, and the GAL when making

access arrangements and providing supports for access between Child 5 and her mother, father, siblings, and

extended family.

2. That access should be supervised by an appropriately qualified and experienced access worker with disability

needs training who is fully conversant with the reports of Psychologist 2 and Psychologist 3.

3. That the HSE appoint an experienced professionally qualified Social Worker to this case and that in the event

that the case is not allocated to an experienced professionally qualified social worker for a continuous period of four

weeks that the case be re-entered before the Court and the GAL be re-appointed.

4. That the Care Plan and Assessment of Needs required by Child 3 are reviewed by the HSE annually and fully

implemented and that any future assessments of Child 3 are undertaken by experienced and professionally qualified

professionals in their field.

5. That the HSE provide mother with whatever assistance may be required by her to enable her to meaningfully

participate in Family Welfare Conferences and Care Plan Review Meetings in the light of her diagnosed level of

intellectual disability.

6. That in the event of a planned or unplanned change of the existing foster placement this case is re-entered

before the Court before the change of foster placement and that the GAL be re-appointed;

7. Should this case be Re-Entered by reason of subsection 3 or 4 the GAL to be provided with all social work reports

and be give access to files at least six weeks before the date of re-entry.