District Court grants directions for care review and access supervision under Child Care Act 1991 s.47.

[2011] IEDC 6

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

LL, MK & GW

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18(1)

IN THE MATTER OF CHILD 1, CHILD 2, CHILD 3

11 October 2011

1. This matter came before the Court as two separate sets of proceedings. The first set of proceedings related to Mother and Father

1 (the second named respondent) and was in respect of their child, Child 1. There was no appearance by or on behalf of Father 1 at

the start of the case although he had participated in the proceedings at an earlier stage of the proceedings. However, Father 1 was

present in Court when hearing dates were allocated for the case but chose not to participate in the full care hearing having furnished

his wishes for Child 1 to the social workers. Pursuant to the HSE’s uncontested application, these proceedings were consolidated in

the interests of efficiency and judicial economy.

2. The HSE applied for Care Orders in respect of Child 1, Child 2, and Child 3 under section 18 of the Child Care Act, 1991.

3. The first named respondent is the mother and sole legal guardian of the three children. She was represented in these proceedings

by solicitor and counsel. Father 2 (the third named respondent) is the father of Child 2 (born January 2009) and Child 3 (born

December 2009). He is not a legal guardian of the children but plays an active part in their lives. He was represented in these

proceedings by solicitor and counsel. The individual interests of the three children were represented by the Guardian ad Litem (“GAL”)

who was also represented by solicitor and counsel.

Reason for Coming into Care

4. All medical experts agree, and Mother and Father 2 now accept, that Child 3 (aged four months) suffered:

1. a fractured skull (a right parietal fracture);

2. a right frontal subdural haemorrhage (bleeding of blood vessels in the subdural space between the surface of the

brain and the dura which separates the brain from the skull); and

3. bilateral new and old retinal haemorrhages (bleeding in the blood vessels on the inside surface of the back of the

eye).

5. Child 3 and his siblings Child 1 and Child 2 were all taken into care following an Emergency Care Order on 9 April 2010 and have

remained in the care of the HSE pursuant to Interim Care Orders granted on the 16 April 2010 and extended on 15 occasions until the

conclusion of this hearing. Child 1 and Child 2 were originally placed in short term care with an approved single foster carer. They had

two other short time placements. Child 3 was separately placed. All three boys were then placed together in the supervised care of

their mother for the purposes of a parenting assessment in a centre in County 1. This assessment extended to nine months. The

Court heard two applications pursuant to section 47 of the 1991 Act in July 2010 arising from the HSE’s decision to remove the

children from their location in the institution and the supervised care of their mother following the conclusion of her parenting

assessment in that institution. Those applications were unsuccessful and the children were moved from the centre to the care of an

approved foster carer in County 2. Mother, Father 1, and Father 2 all reside in County 1.

Background

6. On her own account, Mother (aged 22 at the time) was always the primary carer of her three sons. Father 2 (then aged 25) has

conceded that he was less involved in their day-to-day care and might have been a more supportive father/partner. He lived with

Mother from time to time and was a permanent feature in the lives of the boys. It is suggested that this was largely because Mother

was claiming a single parent social welfare payment which would have been unavailable to her if she was cohabiting with Father 2.

Mother and Father 2 are no longer residing together as a couple although they travel together for the purposes of one of the access

visits to the children in County 2.

7. Contradictory accounts were given by Mother of events leading up to Child 3’s admission to hospital on 6 April 2010. Mother

originally gave a detailed account of events to the hospital which she subsequently admitted was completely fabricated. The original

account was that she was present when an accident occurred and her five-year-old niece dropped Child 3. She stated to the social

workers that Father 2 was not present and she denied that he was living with her most of the time.

8. She then provided a different sequence of events which conceded that she was not in the apartment at all at the time when Child

3 allegedly sustained the head injury. This second account conceded that all three children were being cared for by an elderly family

friend who helped her out occasionally in caring for her young family. Mother’s niece (who was 5 years old at the time) was also in the

apartment and under the care and supervision of the family friend.

9. Both versions of Mother’s account implicated her niece, suggesting that she had dropped Child 3. The hospital discounted the

possibility that the injuries could be caused by a five-year-old child dropping a four-month-old baby at an early stage.

10. I will not dwell on each and every inconsistency which emerged in the course of the evidence of Mother, the family friend, the

children’s grandmother, and the children’s grandfather in relation the second version of events on 6 April, but it is fair to say that the

detail of Mother’s second account of events has not been entirely supported by the evidence of either grandparent or indeed by the

family friend.

11. At the end of the evidence heard over seven days, it is fair to say that the HSE were aware of details hitherto undisclosed to

them as to who was in the apartment in the course of the day.

12. It also emerged from the evidence of Grandmother that she received a second and very distressed phone call from Mother that

afternoon. The call was made by Mother to a neighbour seeking to reach her.

13. Contradictory accounts were given by Mother and Grandmother as to the niece’s alleged admissions of involvement in Child 3’s

injuries. Grandmother was clear that she did not hear the niece say to her that she had dropped Child 3. Mother’s evidence was that

she heard her niece say this over the phone to her mother.

14. Grandfather appears to have removed the niece from the apartment before the ambulance took Child 3 to hospital with Mother.

No indication was given to the niece’s grandmother that anything eventful had occurred while her granddaughter was in the care of

her other grandparents.

15. The family friend (a septuagenarian) was the babysitter for the four children and it was his evidence that he was unconcerned to

see a five-year-old child get into a travel cot with a four-month-old baby. His recollection in other respects was extremely poor

although he gave additional detail that when alerted by a ‘squeak’ or cry he entered the bedroom and saw the niece holding Child 3

outside the cot by one arm and one leg. His recollection was, on his own admission, very poor as to the detail but he was clear on

that point.

16. The potential source of the older injuries to Child 3 was attributed by Mother to an accidental injury Child 3 suffered when he was

three weeks’ old. In evidence, she stated that she put Child 3 down too quickly after feeding him to attend to Child 2 and he

fell/rolled off the bed.

17. The medical evidence indicated that the fractured skull was a recent injury and consistent with having happened on 6 April 2009.

However, the MRI images of the right frontal subdural haematoma are consistent with this trauma being between 1–3 weeks’ old. The

new retinal haemorrhages have been said to be up to one month old and old retinal haemorrhages may be up to 3 months’ old. The

bilateral haemorrhages, according to the evidence of the doctor, were acute and chronic. It is, therefore, clear that Child 3 suffered

at least two and possibly three separate episodes of trauma. The medical evidence was that considerable force would have been

required to inflict these injuries and that a five year old child could not have caused the injuries in the manner suggested. The retinal

haemorrhages required an acceleration/deceleration motion of very considerable force.

18. A review of the medical records of the other children established that they also suffered head trauma in the past.

19. Child 1 had five hospital admissions, although all these events were accepted as minor accidents at the time.

20. The doctor was concerned about the accumulation of three head injuries in this cluster of Child 1’s hospital admissions; Child 2

also had one hospital admission in March 2009 and this was for a head injury caused when a friend bumped his head off the corner of

a wall. Child 2 was kept in hospital overnight for observation and then discharged. Mother was nearby but not present when this

happened.

21. Mother had no explanation for Child 3’s injuries. She stated that she was the primary carer of her children and loved them all

dearly and never harmed them. The family friend denied injuring Child 3. The grandparents denied ever injuring Child 3. Father 2 chose

not to give evidence in the case but was meaningfully engaged in the proceedings and was present in court on each day. He was

actively represented in the proceedings by his solicitor and counsel who tested the evidence adduced by the HSE in this case.

Through counsel, he denied injuring Child 3, Child 2, or Child 1 and denied responsibility for domestic violence towards Mother, save on

one occasion after the children were taken into care.

Issues

22. The primary issues to be considered are:

1) The Non Accidental Injury (‘NAI’) — shaking baby syndrome — regarding Child 3 at age 4 months;

2) Injuries/neglect to Child 1 and Child 2;

3) The Parental Capacity of the parents; and

4) The identification of the perpetrator, or pool of potential perpetrators.

Medical Evidence regarding Child 3

23. The Paediatrician, assessed Child 3 on the 7 April following his admission by ambulance to the A & E department on the 6 April. On

admission, he had a small red mark on his right forehead, which was noted by the admitting doctor. X ray results established the

presence of a skull fracture of recent date. When Child 3 was examined by the Paediatrician, she noted the presence of soft boggy

swelling over the right parietal area which suggested to her that this was an acute event.

24. Further tests were undertaken including a CT examination of Child 3’s skull and brain which established the presence of a right

frontal subdural haemorrhage. To further assess the age of the subdural injury and to exclude organic explanations, an MRI of brain

under general anaesthetic was undertaken as well as an ophthalmology examination, a full skeletal survey, and a bone scan. The MRI

indicated that the subdural injury (blood within the subdural space) was between 1–3 weeks’ old. The trauma required to result in an

injury of this nature requires an acceleration/deceleration motion of significant force, such as a serious car accident. The ophthalmic

examination established that Child 3 had severe haemorrhaging at the back of his left eye and milder haemorrhaging at the back of his

right eye. The haemorrhages were both fresh (1–3 weeks) and old (up to three months).

25. By consent of all parties, the Paediatrician referred to the reports of the Consultant Paediatric Ophthalmologist, the Consultant

Paediatrician, the Consultant Paediatric Radiologist, the Consultant Paediatrician with a Special Interest in Metabolic Disorders, the

Registrar to the Consultant Haematologist, and to the report of a doctor from RSI Department of Paediatrics, who was engaged to

provide a second opinion by the parents.

26. There was a medical consensus that it was difficult to be certain about the exact timing of injuries; however, the Consultant

Paediatric Radiologist noted that the presence of an acute or chronic subdural haematoma together with a recent skull fracture

suggests more than one episode of trauma. The reports of the Consultant Paediatrician who has a special interest in metabolic

disorders) ruled out the possibility of Glutaric Aciduria which might have contributed to an organic explanation for the trauma. The

Registrar to the Consultant Haematologist) established that Child 3 did not suffer from any bleeding disorder which could have

provided an organic answer.

27. The Consultant Paediatrician concurred with the diagnosis of the Paediatrician and concluded that Child 3’s injuries are explained

by a diagnosis of abusive head trauma and not by being dropped by a five year old. The medical evidence for this diagnosis is the

multiple retinal haemorrhages and the significant right frontal subdural haemorrhage in association with the skull fracture.

28. The Paediatrician was pressed on cross-examination to agree that the general pattern of the type of injury which Child 3 suffered

tends to abate as a child gets older. Bilateral retinal haemorrhages and subdural haematoma are suggestive of what is called “shaken

baby syndrome”. She conceded that a child’s susceptibility to that particular form of NAI dissipates over time, however, the risk of

other NAI type injuries does not dissipate and a child may be subject to other injuries or emotional abuse which a child may not

always report.

29. The Paediatrician stated on cross-examination that in her experience parents tend to be quite confessional when a child is

brought to hospital having suffered a trauma. Normally, their primary concern is the injury to the child. However, her experience in NAI

cases was that the fear motivating a change of story has a different basis.

Medical evidence regarding Child 1 and Child 2

30. Child 1 had a history of five hospital admissions in all. The first was for an uncontroversial ear infection and was acknowledged to

be an appropriate hospitalisation. There were three hospital admissions during 2008 for head trauma resulting from accidents in the

home. Each one was treated in isolation and the admitting A & E doctors did not find any of the accidents to be concerning. The fifth

hospital admission was in 2009 and on this occasion Child 1 had glued his eyelashes having played with hair extension glue.

31. Child 2 had one head injury and hospital admission in 2009. These hospital admissions came to light on investigation of family

medical history when Child 3’s injuries were discovered. None of the hospitalisations relating to Child 1 or Child 2 had triggered a child

protection concerns in 2008 or 2009.

32. The Paediatrician examined Child 1 herself when he was taken into care and he made allegations to her and a Social Worker of

being hit by Father 2. A bruise on his leg was identified by him as having been caused by Mother. Subsequently, however, Child 1

made allegations of being hit or struck or sat upon in circumstances where it was clear that the party identified by him as the culprit

was not responsible for the actions complained about. The Paediatrician was of the view that in her experience children of his age did

not tell lies about matters completely outside of their experience.

33. In respect of Child 1’s and Child 2’s admissions, she agreed that the admitting A & E doctors did not judge any of the admissions

on their own to be of sufficient concern to contact the hospital social workers or the HSE. However, the Paediatrician was concerned

that while each isolated incident could not be criticised individually, the accumulation of head injuries was relevant in her opinion.

34. Arising from the reception into Care of the three children, both Mother and Father 2 were asked to complete a psychological

assessment of parenting capacity.

Psychological Assessments

35. The Psychologist (who authored reports dated 3 September 2010 and 22 January 2011 and letters dated 27 January 2011 and 18

April 2011) gave evidence as to the nature and extent of her assessment of each parent which included a family history. What is

clear is that Mother had a truncated education in main-stream schooling and left school at 14, having experienced difficulties in

reading, writing and mathematics. Both Mother and her brother were victims of CSA. This trauma was appropriately handled by her

parents but created huge emotional upheaval in their family life. Mother’s brother later exhibited behaviours which caused him to be

taken into secure care. Another brother was also later received into voluntary care. The HSE were accordingly involved with the

family in that context and it is clear from the evidence of Mother that this was not a harmonious relationship at all times.

36. Mother recounted a history of three serious relationships. She had a miscarriage in the first relationship. She became pregnant at

19 with Child 1 in her second relationship with Father 1. She and Father 1 were involved in a fatal so called ‘joy riding’ accident when

she was pregnant with Child 1. Father 1 received a custodial sentence and Mother was put on probation. Mother reported to the

Psychologist that Father 1 was also a heroine addict. When Child 1 was a few months’ old, Mother became involved with Father 2.

This was, according to Mother, a stormy relationship in which she was the victim of domestic violence on three occasions. She

reported that Father 2 was controlling and refused to allow her to get some help. Mother indicated to the Psychologist that she found

the care of the children very demanding and that Child 1, in particular, was quite a handful. She was left on her own minding the

children with help from the family friend and family members as best they could. Father 2, she alleged, made her duck down in the car

so that his family (who are members of the settled travelling community) would not see her and the children with him. He was

reluctant to admit his fatherhood of Child 2 and Child 3. She, herself, had no explanation for Child 3’s injuries; she was not there when

it happened and the Psychologist felt that her motivation to find an explanation for the injuries was because the HSE needed one from

her.

37. The Psychologist’s evidence was that Mother presented as a young woman who was very anxious, with low self-esteem, a

tendency towards impulsivity, and a narrow range of coping strategies. Her intellectual assessment following psychometric testing

(WAIS-IV UK) was found to be at the upper end of Mild Intellectual Disability (Extremely Low) range of functioning. Her lower scores

were in the verbal comprehension area (including vocabulary and conceptual thinking) and in working memory. The Psychologist

accepted that the low scores attained by Mother could reflect her stress levels when she undertook the test and that the scores

might in fact be closer to the borderline range of functioning if the test was undertaken in years to come.

38. The IQ results of themselves do not suggest that Mother cannot parent children. They do, however, indicate that her ability is

diminished; but with a stable relationship and sufficient support and guidance she could successfully parent. The Psychologist was of

the view that her low IQ, poor functional academic skills, and insufficient family/external support are reasons why Mother experienced

instability in her relationships with the fathers of her children. The Psychologist suggested the exploration of a shared parenting of

responsibility given that Mother clearly loves her children. Assessment at the centre was suggested to be followed by a goal-oriented,

competency-based, parent education programme.

39. The Psychologist also carried out an assessment of Father 2. The WAIS-IV (IQ) test in respect of Father 2 indicated that he has

an overall level of intellectual functioning within the borderline range of ability. However, WMI results established that he has

strengths in this area and his WMI tests were within the normal range. Father 2’s lowest scores were in the area of verbal

comprehension (including vocabulary and conceptual thinking) and speed of visual processing. At the time of assessment, the

Psychologist felt that Father 2 was presenting with signs of clinical depression. He was self-medicating for the depression. She also

noted that he exhibited poor emotional regulation. His behaviour in hiding his fatherhood of Child 2 and Child 3 suggested to her a

failure to adapt to his role of parent. However, he had tears in his eyes and was genuine when talking about his love for his children.

40. The Psychologist’s IQ assessment indicated that Father 2 has limited parental capacity on his own but she further noted that his

poor emotional regulation would constitute a risk in any situation where he is involved in the care of children.

Risk Assessment of Father 2

41. Psychologist 2 gave evidence in support of his report of 16 February 2011. His task was to undertake a psychological assessment

of risk posed by Father 2. At the interview, Father 2 presented as guarded but co-operative. He denied injuring any of the children

and admitted to only one witnessed incident of violence to Mother which he rationalised as being minor and provoked. Psychologist 2

gave evidence that Father 2 failed to take any responsibility for the violence and his unrestrained behaviour and lack of insight did not

suggest a capacity of providing nurturing parenting to his children. He would need support in parenting a child and his low IQ meant

that the odds were stacked against him in Psychologist 2’s opinion. Father 2 acknowledged to Psychologist 2 that he was probably

the father of a child called Child 1, aged 8 months, though he was not certain. This is something he had previously denied to Mother

and the social workers.

42. Father 2 believed the explanation given to him about Child 3 sustaining his injuries by being accidentally harmed by the niece

(aged 5). He acknowledged that he did not tell his parents about Child 2’s existence as he was concerned about their reaction. The

assessment of risk test undertaken was the HRC-20 Version 2 which looked at historical issues to predict future behaviour.

Psychologist 2’s conclusion, based on this test, was that Father 2 evidenced a low-moderate risk of committing a violent offence in

the future. He agreed on cross examination that this was the second lowest level of risk in the test and that Father 2 was on the low

end of that spectrum in the second lowest risk rating.

Parenting Assessment at the Centre

43. The centre in question undertakes parenting assessments following very close observation in a parent and child residential support

setting.

44. The Senior Family Assessment Worker in the centre gave evidence in relation to the parenting assessment of Mother. On consent,

she referred to the reports of another Family Assessment key-worker in the centre.

45. The Director of Services at the centre also gave evidence in respect of the parenting assessment.

46. The parenting assessment at the centre was originally envisaged as a 16-week assessment. Mother spent 37 weeks there. There

was no suggestion that Mother was ever violent or aggressive to her children. The Senior Family Assessment Worker gave evidence of

the areas of concern which included Mother meeting with others outside of centre, Mother spending too much time on her mobile

phone, and Mother giving insufficient vigilance in the context of what was required for her three very active children. Another

complaint related to her exuberance in doing hand-stands close to the children; while she did warn them to stand back, Child 2 did

not comply and suffered a bump on his head. Exuberant play with Child 3 was also noted. Complaints about the children on the

balcony and dangling their legs between the bars was rejected by Mother who stated that she was watching them out of the view of

staff. That said, it was also noted that there were improvements and a better engagement by Mother in all programmes presented by

the centre. Mother for a time was allowed 3-4 hour blocks of time for day trips each week as part of the “parenting assessment”.

However, her unsupervised outside trips/blocks of time ended on 18 October 2010. She continued to enjoy unsupervised time with her

children for 30 minutes each day from November 2010 to February 2011. No harm came to the children in that period.

47. Mother and the staff in the centre had a positive relationship by and large and the placement there provided Mother with the

opportunity to parent her sons, to engage in personal counselling, and to engage in parenting courses. The children’s behaviour

improved in the period and Mother’s management of them became more effective. The assessment concluded that she did relatively

well in her parenting of the children with a very high level of support. The decision was made in January, however, that Mother could

not be the primary carer for the three boys without such an on-going high level of support.

48. The centre proposed various alternative possibilities such as “assisted parenting”, a variation on “assisted parenting”, and even a

more residential model. The goal was to ensure an on-going relationship/form of family life in an environment with assured the

children’s safety. Each proposal was fully considered, debated, and reality-tested at multidisciplinary meetings with the HSE, the

centre’s Staff, the Psychologist, and the Guardian Ad Litem.

49. Each of these proposals had plusses and minuses but ultimately were rejected in favour of a foster care placement of the three

boys with an approved long term foster carer. Such a placement for the three boys was identified in County 3 but ultimately rejected.

Another long-term placement was found in County 2, and the children moved there in June 2011.

50. On 25 February 2011, Mother was advised that the three children would be returned to foster care and transition would begin on

7 March 2011. Both of the above-mentioned witnesses who worked at the centre describe the strength of character shown by

Mother in insulating the children from her personal distress in the transition period from her supported care to foster care.

HSE Social Work Involvement

51. The family’s household was known to the Child Protection Department of the HSE since October 2009 arising from an allegation of

NAI to Child 1 by Father 2 which was made by a neighbour. The neighbour had alleged that Child 1 suffered a black eye and bruising

as a result of an assault by Father 2 in this period. The Gardaí investigated the allegation and formed the view that Child 1 and his

brothers were in good health when they called to investigate the complaint. Evidence was given by Social Worker 2 that in January

2009, Mother conceded that Child 1 had suffered some bruising but said it was from an accidental injury caused by being struck by

the door handle. The allegation that the injury was non-accidental was rejected by Mother who stated that the complaint was made

maliciously and later retracted by the neighbour.

52. Social Worker 1 (author of 5 social work reports between 14 April 2010 and 2 September 2010) and Social Worker 2 (author of 11

social work reports between 18 October 2010 and 3 October 2011) gave evidence in support of the HSE’s application for a care order.

Each gave evidence of their periods of involvement in this case. Concerns as to the non-identification of the perpetrator of Child 3’s

injuries permeated the HSE’s management of this case.

53. Both social workers emphasised their overriding concerns for the safety of the children given that they had failed from their

investigations to identify the perpetrator of Child 1’s serious and repetitive non-accidental injuries. They also stressed their broader

concerns arising from statements made by Child 1 (aged 2 years and 9 months) about the injuries he suffered and for which he

blamed both Mother and Father 2. They both acknowledged that Child 1 had subsequently shown a capacity to unfairly attribute

violent behaviour to others without any basis in fact. That said, they were not prepared to entirely discount his allegations of abuse

made. They were also retrospectively concerned about the injuries suffered by Child 1 and Child 2 which were originally considered to

be accidental childhood injuries. In the light of the parental capacity assessments of both psychologists and the assessment centre,

it was their view that neither parent had the capacity to parent all three children without very considerable support of a high level.

54. Neither social worker was prepared to concede that the evolving and conflicting accounts, given by Mother and Father 2 and

other family members, were understandable. The quality of evidence of episodic domestic violence to Mother was also challenged by

counsel for Father 2, but both social workers indicated that they believed Mother’s account and stated that as well as three specific

incidents Mother told them that domestic violence was a feature of the relationship “now and again”. Social Worker 2 referred to text

messages which Father 2 showed to her which were indicative of significant conflict in their relationship and in which Mother stated

that Child 1 was right and that she was terrified of Father 2. Social Worker 2 conceded on cross-examination that this text was sent

in the period when the relationship was breaking down and there was a high level of conflict. Both social workers were concerned also

that neither parent seemed to them to be overly exercised about finding the perpetrator of Child 3’s injuries and slow to accept that

his injuries were non-accidental and perpetrated by an adult who must have been know to them.

55. Counsel for both Mother and Father 2 challenged each social worker in relation to their exploration of relative foster carers within

the Mother’s and Father 2’s families. Both Social Workers were also pressed as to the HSE’s reasons for rejecting the supported

parenting models and step down models proposed by the assessment centre. They were also invited to comment on the merits of the

open proposals put by each parent to the Court as to an alternative and to full care orders; neither social worker consider the open

proposals to be suitable to addressing their concerns.

56. Both social workers agreed that with a very high level of maintained support Mother parented the children in the assessment

centre. It was acknowledged that she was very attached to her children who in turn were very attached to her. Both acknowledged

that Mother behaved in a very child-focussed way in easing the children from the centre to their current foster placement. However,

unsupervised access was not recommended by either social worker until they knew who had injured Child 3.

57. They were also challenged as to the suitability and adequacy of the foster placement provided to Child 1 and Child 2 since their

initial reception into care. Evidence was given of the level of complaints made by the parents in respect of the care received by the

children in foster care. They were also challenged on the suitability of the current placement in County 2 both in terms of its distance

from County 1 and the ability of the foster carers to meet the needs of the children. Both social workers were clear that it was in

their professional opinion a suitable placement for the three children and met their needs keeping them together as a unit.

58. Both social workers recommended that all three children be taken into the care of the HSE and placed in their current foster

placement until they are respectively eighteen years of age, with access to be at the discretion of the HSE. It was their firm view

that all other options had been fully explored by the HSE before arriving at this decision. They were also firm in their view that relative

foster care was not an option in this case.

Public Health Nurse Involvement

59. The Public Health Nurse was called to give evidence on behalf of Mother. She is an experienced Public Health Nurse attending all

of the residents in the assessment centre as well as the public. She provided three letters and, on reflection, acknowledged that one

of her letters was expressed in very strong terms. However, as a mother of children herself she was particularly sensitive to Mother’s

love for her children and her ability to put their best interests ahead of her own especially when they were being transitioned to

foster care in June 2011. She could not understand why Mother was not being given a chance and allowed the opportunity of a step

down facility, but she conceded that she did not have all the facts.

Guardian Ad Litem Involvement

60. The GAL supports the application of the HSE for a full care order in respect of each of the children for the duration of their

minority. She was concerned that Mother did not have sufficient insight to recognise that parenting three active children outside of a

very supported environment would pose problems for her. Mother gave the impression in her evidence that she parented her children

independently although under supervision in the centre. In reality however, the assessment house provided an artificial but supported

environment within which Mother was allowed to perform the day to day routine care and management of her three children under a

very high level of supervision. The set routine which she was required to follow was pre-ordained for her. Babysitting to allow her to

partake in parenting classes and counselling was provided, as was her housing and services. Parenting ability was assessed within this

controlled environment. Mother did well within that routine and high level of support but it was essentially artificial and concerns

regarding supervision and oversight of the children’s safety were a recurring theme while Mother remained in the assessment centre.

Every possible alternative to seeking care orders in respect of the children was canvassed, discussed, and reality-tested in a positive

way within several multidisciplinary meetings.

61. She noted that Child 1’s wishes and feelings indicate a desire to be with his mother, but he does not have a relationship with his

father at present. Child 2 and Child 3 also have a warm and close relationship with their mother and a close relationship with their

father. Child 1’s relationship with Father 2 is not a strong one in her view. The GAL recommends that if a Care Order is made in

respect of the children, it should be until they are eighteen years old in order to facilitate permanency planning for their care. She

recommended, however, that the case should be reviewed within the next three years. This would facilitate the aging out of the risk

of NAI of the type experienced by Child 3 and provide a space for Mother to demonstrate the ability to live independently and

separately while continuing to make strides in her personal development and insight into Child 3’s injuries. She noted Mother’s youth

and her potential for self-development. She also noted that the boys, as they get older, will have a view as to their future placement

which will be more capable of expression. She recommended that access be at the discretion of the HSE to facilitate flexibility but

recommended access once per week for each parent. This would be a diminution of access for Mother who currently enjoys access

twice per week. She also recommended that the matter be reviewed by the courts in the event of the foster placement breaking

down and that the GAL’s report be released to a psychologist to inform any psychological assessment of Child 1’s circumstances.

Identification of the Perpetrator, or Pool of Potential Perpetrators

62. Both parents, Mother’s parents, and the family friend all denied ever hitting or intentionally harming Child 3, Child 2, or Child 1.

63. Neither parent accuses the other of perpetrating the injuries to Child 3 although Mother has accused Father 2 of domestic

violence against her on three occasions; Father 2 did not give evidence but his counsel asked Mother to concede that that there was

only ever one episode of violence which arose due stress and friction during access at the time their relationship was ending. Mother

did not concede this and insisted that there were three separate incidents of domestic violence. I accept her evidence in this regard.

It has been stated by Mother, Grandmother, the family friend, and the professional witnesses that Child 3 is a placid child who does

not fuss or cry a lot.

64. The pool of carers for Child 3 included Mother, the primary carer of her three children; Father 2, the father of two of her children;

the grandparents; Mother’s sister; the family friend; and the children’s maternal uncle. Mother also had two other babysitters for Child

3. Other members of the Mother’s family were also visitors to the apartment on that day though it is not clear if they ever cared for

Child 3.

65. Given the repetitive nature of the injuries to Child 3, it does not appear to be realistically possible that either neighbour is within

the pool of potential perpetrators as they were not on the evidence routinely babysitting.

66. Child 2 and Child 3’s paternal grandmother, is not in this pool of care-givers as Father 2 did not involve his family in these

domestic arrangements before the children were taken into care.

67. It has been submitted by counsel for the HSE that the Court is not obliged to determine who caused the NAIs to Child 3. The fact

that his injuries are now accepted to be non-accidental in nature is sufficient proof of assault on the balance of probabilities so as to

trigger the statutory and constitutional obligation of the State to intervene in order to protect them. The HSE submit that the

threshold criteria of section 18(1)(a),(b), and (c) of the 1991 Act are met in respect of Child 3. Furthermore, it is submitted that on

the balance of probabilities the threshold criteria of section 18 (1)(b) and (c) are met in respect of Child 1 and Child 2.

68. Counsel for the GAL supports the proposition that the Court does not have to determine the perpetrator of the injuries to Child 3.

In addition, he submits that the Child Care Act is a child protection measure and this defines the role of the Court. He submitted that

it is beyond question that Child 3 has suffered very significant and serious harm which has been medically determined as non-

accidental in nature. Neither parent offered a credible explanation as to how the injuries occurred and each parent appeared to show

a marked lack of any detectable concern as to who the perpetrator of Child 3’s injuries might be. In the light of the psychological

assessment of parental capacity of Psychologist 2, neither parent has the capacity required to parent the children and so the

threshold criteria of section 18 (1)(a),(b), and (c) have been met in the case of Child 3 and the criteria of section 18 (1)(b) and (c)

have been met in the case of Child 1 and Child 2.

69. Counsel for the HSE relied on the English cases of Re H and R (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 AC 563; In Re

O and another (Minors) (Care: Preliminary Hearing) [2003] UKHL 18; Re B. (Children) (Care proceedings: Standard of Proof) [2008]

UKHL 35; and Re S-B Children [2009] UKSC 17 in that regard.

70. This line of cases established that when a local authority brings care proceedings arising from physical harm to a child by a

parent, they must establish that such harm occurred. The court must be satisfied on the balance of probabilities that the child was

actually harmed. It is not sufficient to suspect that a child may have suffered significant harm or that there is a real possibility that a

parent inflicted the harm.

71. If a case is brought on the basis of apprehended future harm, however, then the court must be satisfied on the balance of

probabilities that the facts upon which that prediction was based did actually happen. It is not necessary, however, for the court to

be satisfied that it is more likely than not to happen. It is enough that there is a real possibility, a possibility that cannot sensibly be

ignored having regard to the nature and gravity of the feared harm in the particular cases. English law draws a clear distinction

between probability as it applies to past facts and probability as it applies to future predictions.

72. The cases of both Re O and another (Minors) (Care: Preliminary Hearing) and Re B, (Children) (Care proceedings: Standard of

Proof) related to situations where the perpetrator of NAI to a child remained uncertain. In the former case, it had been established

that the child had been harmed at the hands of one of his parents but the court could not decide which parent was responsible. The

Court held that where it could be established that one parent was a perpetrator of abuse but that the other parent could not be

exonerated of participation in the abuse, then in considering the future welfare of the child and whether to make a care order, the

court could not exclude from consideration the possibility that the other parent or carer contributed to the abuse of the child. In the

latter case, Lady Hale commented that it is much easier to decide a case where the perpetrator of abuse has been established.

However, she noted at page 19 that: “the court cannot shut its eyes to the undoubted harm which has been suffered simply because

it does not know who was responsible.”

73. In Re S-B Children, the United Kingdom Supreme Court considered the matter of the identification of a perpetrator further. Lady

Hale found (at page 12) that the test to be applied to the identification of perpetrators is the balance of probabilities. She noted that

it may be difficult for a judge to decide, even on the balance of probabilities, who has caused harm to the child and that there was no

obligation to do so. She noted that: “unlike a finding of harm, it is not a necessary ingredient of the threshold criteria.”

74. She also expressed approval of the finding of Wall LJ in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472,

[2009] 2 FLR 668, that judges should not strain to identify the perpetrator. Although she recognised that there may be particular

benefits to making a finding of who is responsible for the harm suffered, if it is possible to so. Such a finding would promote clarity in

identifying future risks to the child and the strategies necessary to protect him from them. She also recognised to benefit of the child

of knowing the truth in the future about who injured them.

75. Lady Hale noted further that if the judge cannot identify a perpetrator it is still important to identify a “pool of perpetrators”. She

stated at pg. 14 that:

“if the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible

perpetrators. Sometimes this will be necessary to fulfill the ‘attributability’ criterion. If the harm has been caused by

someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable

to the parental care unless it would have been reasonable to expect a parent to have prevented it…It will help to

identify the real risks to the child and the steps needed to protect him. It will help the professionals working with

the family. And it will be of value to the child in the long run.”

76. Lady Hale suggested that there may be merit also in adopting the approach of considering whether there was a “real possibility”

that a particular person was involved and she noted that when looking at how best to protect a child and provide for his future, the

judge will have to consider the strength of that possibility as part of the overall circumstances of the case.

77. The UK Supreme Court decision was also considered in the context of Article 6 and 8 of the ECHR which affect both the test and

the process for State intervention in the family lives of children and their parents. As to the test, the threshold criteria of the Children

Act 1989 require very specific threshold criteria to be met in advance of State intervention. She noted that the jurisprudence of the

ECHR require there to be a “pressing social need” for intervention and that the intervention must be proportionate to that need.

Counsel for the HSE and GAL argued that the threshold criteria of the 1991 Act has been met in this case and that a Care Order is a

proportionate intervention necessary to address the facts in this case.

78. Counsel for Mother argued that the constitutional rights of his client and her children require the HSE to establish and the Court

to be satisfied that it has been established that a parent has totally failed in her parental duties to her children to such an extent

that the State is obliged to intervene to protect and vindicate the rights of her children. He argued that the ordinary civil standard of

proof on the balance of probabilities is insufficient. A higher standard is required as expressed in Article 42.5 of the Irish Constitution

and relevant jurisprudence of the High Court and Supreme Court. He referred to the Supreme Court cases of KC and AC v ABU [1985]

5 ILRM 303 and sub nom Re JH (An Infant) [1985] IR 373. However, this case related to married parents and the constitutional

standard to be applied in such situations where the best interests of a child are presumed to be found by remaining in his

constitutional family unit.

79. He also refers to the case of Southern Health Board v CH [1996] 1 IR 219 which concerned a “fit persons order” under the 1908

Act and whether a video tape interview could be introduced into evidence since it was “hearsay evidence”. Both Costello J in the High

Court and the Supreme Court noted that while the rights of the father were, as far as practicable, to be respected, the determination

of the court process was “in essence an enquiry as to what is best to be done for the child in the particular circumstances

pertaining”. The best interests of the child were the overriding objective and a video tape interview was admitted into evidence as

part of the expert testimony. The Court indicated that this approach was mandated by the Constitution.

80. It was also argued that the case of North Western Health Board v HW and CW [2001] IESC 90 establishes that it is not open to

the State to substitute its own views of welfare over the views of a child’s parents even in circumstances where those views might

not be sensible. In that case, married parents refused to have their child tested by the heel prick test for PKU. The Supreme Court

determined that it must be assumed that a child’s welfare is to be found within the care of its constitutional family and that State

could only intervene where the threshold criteria of Article 42.5 of the Constitution have been clearly met.

81. He also referred to the case of Re Article 26 and the Adoption (No. 2) Bill 1987 (1989) IR 657 (SC) in which the Supreme Court

considered the constitutional status of the legislation in question. In that case, Finlay CJ held that the rights of the family guaranteed

in Article 41 could not operate to deny the personal rights to a member of that family. It was, therefore, permissible for legislation to

make provision for the restoration of personal rights to a member of a family event where in the process of such restoration, the

constitution of the family unit had to be disturbed or altered. The mechanism for doing so in the Adoption Act 1988 closely followed

the criteria set out in Article 42.5 in that regard.

82. In essence, counsel for the mother’s argument is that the threshold criteria of section 18 of the 1991 Act and the balance of

probability civil standard is insufficient and standard of proof required in the context of a child care case is of a higher constitutional

order.

83. Such an argument was originally though to have some validity in Nullity cases arsing from the constitutional obligation to guard

and protect the institution of marriage. However, the Courts ultimately concluded that the ordinary civil standard of proof on the

balance of probabilities applied in Nullity cases. In SC v PD (Ors. C) (Unreported, High Court 14 March 1996). McCracken J, observed

that while older authority “appears to impose an onus of proof approaching that necessary in a criminal prosecution, the attitude of

the court seems to have altered in recent years.” He also cited with approval the dictum of McCarthy J in the case of UF v JC [1991]

ILRM 65 at page 74 where he stated that the standard of proof was the ordinary civil standard.

84. In the case of Banco Ambrosiano v Ansbacher & Co [1987] ILRM 669, the Supreme Court was called upon to consider whether the

standard of proof of civil fraud was higher than that normally applying in other civil actions and it rejected that proposition.

McCracken J in the case of UF v JC considered that the ordinary civil standard also applied in nullity cases as it did in civil fraud

cases.

85. The Court was also urged to consider the case of The State (D&D) v Groarke [1988] IR 187 where Carroll J at page 92 indicated

that the Court must have compelling reasons before taking a child into care. It is noted that the decision was overturned in the

Supreme Court but the Supreme Court did not disagree with the High Court’s observation on the standard of proof. However, this was

a decision under the 1908 Act where the threshold criteria were not as clearly defined as in the 1991 Act.

86. Accordingly, it appears to be quite appropriate to apply the ordinary civil standard of proof on the balance of probabilities to Child

Care Cases under the 1991 Act. 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 proof of the

identity of the perpetrator.

87. It is concerning that no credible explanation has emerged from the evidence as how Child 3 sustained a fractured skull, a right

frontal subdural haematoma, and bilateral new and old retinal haemorrhages.

88. I am satisfied that neither explanation proffered by Mother for those injuries is credible. Persistent claims that the child must have

sustained his injuries through mishandling by the niece or being dropped by her has been discounted by the medical evidence that the

trauma would have taken very considerable force and his injuries could not be explained by being dropped by a five year old child. On

the basis of the evidence tendered and arising from the absence of evidence from Father 2, I am not in position to determine whether

either parent caused the injuries but nor am I able to exonerate either parent for causing the injuries.

89. Both parents and the family friend are within likely pool of potential perpetrators. I do not find on the basis of the evidence

tendered however that it is reasonably likely that either of Mother’s parents caused Child 3’s injuries although they are within the pool

of his carers and within the wider pool of possible perpetrators, as are Mother’s siblings and uncle From the evidence tendered, it

would appear that their assistance in anything but short term care of Child 3 was of a limited nature although they appeared to have

cared for Child 1 and Child 2 to a greater extent.

Basis of HSE Application in respect of Child 1, Child 2, Child 3

90. The HSE appliction is based on the following:

(a) Child 3 suffered non-accidental injuries of a grave and serious nature between the time of his birth and the age

of four months. The perpetrator of the injuries remaining unknown both parents are both possible perpetrators.

(b) Neither Mother nor Father 2 currently have the capacity to parent the three children to an appropriate standard

and neither parent presents as a sufficiently protective factor for the children having regard to the injuries at (a).

91. The HSE seek full Care Orders in respect of each of the children until they reach 18 and the Care Plan proposes a single long-term

placement in foster care for the three children in County 2 with their current foster carers. It is proposed by the Care Plan that there

will be supervised access in favour of the parents. The provision for supervised access is that it should occur twice per week and the

HSE indicate that they will be flexible in this context and there are no current plans to reduce access or allow unsupervised access if

Care Orders are made in respect of the children. This application is supported by the GAL.

Alternative Suggestions of Mother and Father 2

92. Mother and Father 2 vehemently oppose the making of a Care Order in respect of any of the three children. Mother has, with

difficulty, accepted the diagnosis of NAI in the case of Child 3 and has no explanation for it but is adamant that she did not cause

that injury or any harm to any of her children.

93. Mother, through her counsel, has proposed that she would consent to the Court granting a Supervision Order for the statutory

period of one year in respect of her three children. It was indicated that she would accept the support of a family support worker and

the HSE during the period of the Order.

94. Alternatively, and strictly without prejudice, an open offer was made that Mother would consent to a four year Care Order in

respect of each of her children conditional upon Mother’s parents being assessed as relative foster carers for the children and the

children being placed in their care for this period. This proposal was also conditional upon Mother residing in her parent’s household

with her children during the currency of the Care Orders.

95. Mother’s parents were only recently assessed as relative foster placements and rejected as suitable by the HSE, however, their

application is under appeal.

96. Father 2, through his counsel, also accepted the diagnosis of NAI in the case of Child 1 and has no explanation for it but is

adamant that he did not cause that injury or any harm to any of his children. He indicated, through his counsel, that he supported

the proposals put forward by the mother’s family, but that if they were not acceptable to the HSE as relative foster carers, he

proposed that his mother be considered as a relative foster carer to all three children and that he would seek full custody of the three

children in conjunction with his mother. He offered a Supervision Order in this context.

97. Alternative requests were made to the Court by counsel for Mother and Father 2 in respect of the three children. In the case of

Mother, her counsel proposed a residential supervised setting (such as the centre) where the children would be placed in care and

she could reside with the children there as their co-parent under a Care Order.

98. She sought twice weekly unsupervised access with her three children if the Court made a full Care Order in the context of the

HSE Care Plan. Father 2 is also anxious to enjoy unsupervised access to his children and Child 1.

99. Counsel for the HSE, the GAL, and each parent have helpfully provided written legal submissions at the conclusion of this seven-

day hearing. These submissions concerned the correct standard of proof to be established in cases where the perpetrator of the

abuse remains unknown, which I have already dealt with.

100. The HSE have sought Care Orders in respect of all three children on the basis that both parents are within the pool of potential

perpetrators of the abuse suffered by Child 3. The second basis of application is that neither parent has the capacity to parent the

children to an appropriate standard nor does either parent present as a sufficiently protective factor for any of the children having

regard to the NAIs which Child 3 suffered.

Decision

101. I am satisfied on the basis of the medical evidence adduced that the injuries which Child 3 suffered were non-accidental injuries

which occurred on at least two and possibly three occasions. While Mother was the primary carer of her children, others were

involved in his care also. His father also lived in the household and was involved in his care. The family friend appears to have been a

regular visitor to the household and Mother continues to have a family type relationship with him notwithstanding.

102. At the very least, both Mother and Father 2 failed to protect Child 3 from a series of serious assaults.

Therefore:

102. I find that the threshold criteria of section 18(1)(a)(b) and (c) have been met on the evidence tendered in respect of Child 3.

I find that Child 3 has been assaulted, ill treated, or neglected;

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

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

I find that Child 3 requires care or protection which he is unlikely to receive unless the Court makes an Order under section 18 in

respect of him until he is 18 years old.

103. Relying on the English jurisprudence, the HSE suggest that because of the proven harm suffered by Child 3, it is open to the

Court to make a finding of apprehended future harm in respect of Child 1 and Child 2 under section 18(1)(c). However, I find it

unnecessary to consider that or to do so in this case.

104. I am not satisfied on the basis of the medical evidence adduced that the injuries which Child 1 and Child 2 suffered and for which

they were hospitalised were not non accidental injuries as such. While these injuries may be, with the benefit of hindsight, considered

to be suspicious, evidence of sufficient probative value has not been adduced to prove that on the balance of probabilities they were

non-accidental.

105. However, I am satisfied on the basis of the evidence tendered that Child 1 and Child 2’s health, development, or welfare has

been avoidably impaired or neglected by reason of lack of adequate supervision and “good enough” parenting by either of their

parents. It is quite clear that Mother was aware that leaving the family friend as babysitter was totally unsatisfactory and this is why

she originally stated that she present with the family friend in the apartment on 6 April. His unsuitability as a carer was not due to

age — many grandparents of that age and older competently care for their young grandchildren. On the basis of his own evidence,

the family friend was clearly incapable of managing the risks involved in caring for the children left in his care. I am satisfied on the

evidence tendered that each parent lacks sufficient parental capacity to parent children on their own without a very high level of

support.

106. I find that the threshold criteria of section 18(1)(b) and (c) have been met on the evidence tendered in respect of Child 2 and

Child 3;

I find that Child 1 and Child 2’s health, development, or welfare has been avoidably impaired or neglected; and

I find that both children require care or protection which they are unlikely to receive unless the Court makes an Order under section

18 in respect of them until they are both 18 years of age.

107. While I have indicated that both of Mother’s parents are within likely pool of potential perpetrators of Child 3’s injuries. I do not

find on the basis of the evidence tendered that it is reasonably likely that either of Mother’s parents in fact caused Child 3’s injuries

although they are within the pool of his carers and within the wider pool of possible perpetrators. It was clear from her evidence that

Grandmother was not open to the possibility that Mother might have injured Child 3 in any way and she spoke of her parenting ability

in very positive terms and noted how well she had done during her parenting assessment in the centre. It is highly unlikely, therefore,

that she could be a sufficiently protective factor for Child 3 in the proposed alternative care formula suggested by Grandmother as a

viable alternative to a full Care Order. It is equally clear that Father 2’s proposal is not a viable alternative for all three children.

Proportionality

108. I am satisfied that a Supervision Order would not sufficiently address the children’s right to care and protection. Having regard to

the requirements of section 24 of the 1991 Act, to regard the welfare of the child as the first and paramount consideration and in so

far as practicable to give due consideration to their wishes, I have noted the views and evidence of the GAL. I have also carefully

considered the rights and duties of Mother and Father 2, whether under the Constitution or otherwise.

109. The Court was urged to have regard to the case of Olsson v Sweden (1992) 17 EHRR 134 and K and T v Finland App No

00025702/94 (ECtHR, 27 April 2000) and Johansen v Norway App No 00017383/90 (ECtHR, 7 August 1996) and counsel for Father 2

has urged consideration in particular of the cases of Venema v Netherland Application No 35731/97 (ECtHR, 17 December 2002) and

P, C and S v the United Kingdom (App No 00056547/00, 11 December 2001).

110. 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 ECHR found that

there had 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.

111. Johansen v Norway supported the principle that to take a child into State care must be done in accordance with law and that

law must pursue a legitimate aim of protecting the health and “rights and freedoms” of the child which is necessary in a democratic

society. However, the termination of the mother’s rights of access completely (as in the case of Johansen) in this instance offended

Article 8 ECHR as the State did establish that such a draconian measure was a necessary intervention in that case. The ECHR was

clear that termination of all access could only be taken in exceptional circumstances. In balancing the competing interests of the child

and the parent, the court should “attach particular importance to the best interests of the child, which, depending on their nature

and seriousness, may override those of the parent” (paragraph 78, emphasis added). In effect, this means that the welfare of a child

is not an automatic justification for interference with parental rights.

112. The case of K and T v Finland concerned a situation where a baby was taken from a mother in the delivery room. The mother

suffered from mental health difficulties however her condition was stable and her condition was not such as to permanently render her

incapable of caring for her child. An arbitrary firm stand was taken by the authorities against reunification presumably based on their

perception of what was best in the context of permanency planning for the child. However, this was not considered to be fair

balancing of rights and a breach of Article 8. The authorities’ decision to severely restrict access was deemed not to have been made

in a democratic way as the applicants had no opportunity to take part in the decision-making. However, it was also acknowledged

that national authorities may, within their margin of appreciation, consider some restrictions on access to be necessary in light of the

interests of the child.

113. The case of Venema v The Netherlands (at paragraph 93) acknowledged that actions may be necessary in an emergency and it

may not always be possible to associate in the decision making process those who have custody of the child particularly if those

having custody of the child are seen as the source of an immediate threat to the child. The Court must however be satisfied that the

national authorities were entitled to consider that there existed circumstances justifying the abrupt removal of a child from the care

of its parents with out any prior contact or consultation. In particular, it is for the respondent State to establish that careful

assessment of the impact of the proposed care measure on the parents and the child, as well as the possible alternatives to removal

of the child from its family, was carried out prior to the implementation of the care measure.

114. The case of P, C and S v the United Kingdom also centred on the requirement for State authorities to be fully satisfied in the

circumstances of the case the protective measure taken was really “necessary in a democratic society” and this bar is very high in

situations where a child is removed from its mother at birth. The case of Hasse v Germany App No 00011057/02 (ECtHR, 8 April 2004)

was in a similar vein.

115. The steps taken by the HSE in the present case establish that every step has been taken to consider alternatives before

applying for a Care Order in respect to the children and the parents have been actively engaged in a parenting assessment/ risk

assessment. I am satisfied that making Care Orders is a proportionate response in the circumstances. In addition, as pointed out by

the GAL, the potential for reunification or rehabilitation of Mother with her children can be reviewed in three years’ time.

116. The issue remains as to whether the decision of the HSE to restrict Mother’s access to that of supervised access only is a

proportionate intervention in light of the fact that she enjoyed limited but unsupervised access to all three children in the course of

the parenting assessment in the centre and no harm came to the children in that context. This is in itself a form of risk assessment

reality test which she passed with the benefit of intensive support and monitoring. In addition, her actions at the time of the

children’s transition to foster care suggest that she is capable of prioritising their needs with support.

117. It is clear that in light of the reasons for the children coming into care and also in the context of the parenting capacity

assessment some restrictions of access are necessary to protect the welfare of the three children. However, the question remains as

to whether close supervision is required as necessary and a proportionate response to the risk posed. I note that the Care Plans for

the children do not address the issue of quality of access with their parents in any detail, save that the HSE aims to support the

children to maintain close links to his family through access and phone calls.

118. Clearly access requires some flexibility to facilitate the phased development of a framework which links actual risk to the children

from unsupervised access (having regard to Mother’s time in the centre) with development of a framework of further intensive support

and monitoring so as to minimise any such risk. It seems to be clear that in the absence of such fluidity and engagement there is little

doubt that a further application will be brought by Mother or the HSE under section 37 of the 1991 Act.

119. Access to Father 2 is also relevant but in this instance the risk appears to be of a different order in light of the assessment of

both psychologists.

Directions Under Section 47

120. Pursuant to section 47 of the 1991 Act, the Court makes the following directions:

1. That this case is reviewed in three years’ time by the Court to assess the potential for reunification of the

children with Mother in the context of developments which have been set out in the report of the GAL. The GAL to

be reappointed eight weeks in advance of the date of re-entry in that context.

2. That access between the children and Mother should be at the discretion of the HSE; however, the HSE should

re-evaluate the question of unsupervised access by Mother and her children within a protective framework which

addresses the level of evaluated risk in the context of her unsupervised access in the assessment centre.

3. That in the event that the case is not allocated to a 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 Plans of the three children are reviewed by the HSE to address the issue of proportionality in the

context of access and that they are reviewed annually thereafter.

5. That the HSE provide Mother and Father 3 with whatever assistance may be required by each of them to enable

each of them to meaningfully participate in Family Welfare Conferences and Care Plan Review Meetings in the light

of their respective diagnosed level of intellectual disability.

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

before the Court (and unless the change of placement in precipitated by an unforeseen event unknown to the HSE)

the re-entry should be filed before the change of foster placement and that the GAL be re-appointed.

7. That the GAL is discharged with usual order for costs.