IEDC 8 · District Court

[2011] IEDC 8

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

ON AND OE

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

1 November 2011

1. This matter came before the Court as two separate sets of proceedings heard over three days.

2. The first set of proceedings related to the Parents and their first-born son, Child 1, and the second set of proceedings relate to

their first-born daughter, Child 2. Child 1 is now seventeen years old since July and Child 2 is now fourteen years old since April.

3. Both parents are from Country 1 and arrived separately to Ireland in 2001. In February 2004, Child 2, then aged 7 years, came to

Ireland travelling with a family friend and Child 1, then aged 10 years, followed in July 2004 again accompanied by a family friend.

They were met at the airport by their parents. Both Child 1 and Child 2 resided with parents and their two Irish born siblings, Child 3

and Child 4 (who were babies).

4. The family came to the attention of the HSE as a result of a complaint to the HSE by the principal of the school where Child 1

(then 12 years old) was attending. Child 1 was presenting with difficult behaviour at school which was brought to the attention of is

parents on the 19 April 2007. Naturally, both of his parents were upset and offended by the reports of his misbehaviour. The school’s

and HSE’s concerns arose because of the way Child 1 was disciplined for that misbehaviour.

5. The HSE Social Work Team Leader 1’s report of September 2008 referred to a home visit conducted by Social Worker 1 and Social

Worker 2. However, neither Social Work Team Leader 1, Social Worker 1, nor Social Worker 2 were called to give evidence in support

of the report.

6. Child 1 was brought to hospital on 23 April 2007 and he was examined by the Consultant in Paediatrics Emergency Medicine. The

Consultant in Paediatrics gave evidence in support of her Report dated 25 April 2007. It was her evidence that when she examined

Child 1, he presented with bruises as set out in the body map which was consistent with the explanation given to her both by Child 1

and by his mother. Neither father nor mother conceded that the body map reflects injuries which Child 1 suffered and they claim that

the absence of photographs (which were taken but subsequently lost) indicates a lack a proof and establish a conspiracy on the part

of the hospital and HSE. Furthermore, the mother denies giving a history to the Consultant in Paediatrics as set out in her Report.

Arising from this incident, social workers became involved with the family to help them establish a more effective and less physical

form of discipline for Child 1, although what that involved is not clear from the Reports provided to the Court. In any event, the file

was closed in July 2008.

Reason for Child 1 Coming into Care

7. On Friday 26 September 2008, Child 1, then aged 14 years, presented himself at an Out of Hours Service of a Residential Care Unit.

He indicated that he was afraid to go home as he was in trouble at school and feared punishment at home. He made serious

allegations of being repeatedly physically chastised and ridiculed by his father. Child 1 said that the last punishment he received was

on Wednesday 24 September and refused to return home.

8. Child 1 was again examined by the Consultant in Paediatrics and her report of the 7 October 2008 and body map set out her

findings of injury which, in her professional opinion, were consistent with the history given.

9. The rest of the family’s children were examined by the Consultant Paediatrician in Paediatric Care, however nothing medically

untoward was found.

10. It is common case that Child 1 was presenting, at home and in school, with difficult behaviour. The Social Work Report Social

Worker 3 and Social Work Team Leader 1 dated 9 February 2009 notes that Child 1 was also presenting with difficulties for his foster

mother, notwithstanding his apparent emotional reliance upon her when hospitalised. It also notes the co-operation of his parents in

reinforcing behavioural boundaries for him at that time. His parents have also engaged in the ‘incredible years’ parenting course and

embarked on the forensic assessment with the Clinical Psychologist.

11. Long Term Social Workers, Social Worker 4 and Social Work Team Leader 2, became involved in the case in April 2009. The power

struggle between father and son became a feature at that time. Unfortunately, positions became entrenched. The decision to move

Child 1 to a residential unit rather than encouragement towards family reunification appears to have entrenched divisions. Child 1

moved school in October 2009. His parents never visited him in the residential unit, and Child 1’s visits home were problematical at

times. He also had to come to terms with the birth of his youngest sibling, Child 5, in 2009. The following year started with the stated

desire by the parents for reunification with Child 1. The HSE set out a road map, which would need to be followed in this regard

(Report of 25-27 January 2010 signed by Social Worker 4 and Social Work Team Leader 2). This was translated to ensure that there

would be no misunderstanding of what was required by the HSE. Child 1 was also experiencing difficulties in his placement and he

moved to another residential unit in February 2010. Unfortunately, this entailed another school move for Child 1.

12. Child 1’s behaviour became more unmanageable and defiant to the consternation of his parents who attributed his defiance to

being in the care of the HSE where he is given more freedom that he can handle. A clear clash of cultures was apparent between

what the parents felt was appropriate and what the HSE felt was acceptable. The meeting in the family home on 17 of February

proved particularly destructive to repairing the relationship between father/son and father/HSE. Social Worker 4 formed the view that

the behaviour of both father and son was quite similar when roused to anger or frustration.

13. Social Worker 5 gave evidence of his involvement in the case with Team Leader 2 and noted that no progress was made. Child 1

is unhappy in his residential unit and has not attended school for some considerable time. There is no realistic prospect of him sitting

for his state exams in June 2012.

14. The main concern regarding Child 1 at this time is what is the ‘least worst option’. He is not doing well in the care of the HSE. He

lived with his parents for four years following the reunification of his family in Ireland in 2004. He has experienced one temporary

foster care placement and two residential ‘long-term’ placements since coming into care in 2008. He is unhappy in care and would like

to go home only if his relationship with his parents improved, he was allowed to continue to go to his dancing classes, finish his

education and is afforded a reasonable amount of personal freedom to meet friends, have pocket money etc. He wishes for his

passport/residency to be settled and is unhappy that his parents have not resolved this. His parents say that they will do what is

necessary as they want their son home, however, they deny ever hitting him — although his father accepts that he has called him

names out of frustration at his bad behaviour. However, no progress has been made in the meantime on any of the practical steps

necessary to achieve their desire and things appear to have become impacted because of the parent’s resolute denial that they have

ever hit their children.

15. The parents do not visit Child 1 in his residential unit, and there are on-going flare ups and recriminations and both parents blame

him for encouraging Child 2 to leave home. They blame the professionals involved in the case for setting up a conspiracy against

them. They blame the HSE for not setting up teen parenting courses for them and for failing to re-engage the cultural mediator.

However, they have failed to implement any of the other steps recommended to achieve reunification with Child 1.

Reason for Child 2 Coming into Care

16. On 9 December 2010, Emergency Care Orders were granted in respect of Child 2, Child 3, Child 4, and Child 5. Child 2 has

remained in care as she alleged that she was beaten with a belt by her father on 6 December 2010. She delayed two days before

leaving home and sought the help of her brother in doing so. She has given very clear and consistent statements to Out of Hours

Staff, social workers, doctors, and the GAL about what happened. The GP gave evidence of seeing her and giving a clear account of

what happened to cause her to leave. She had what might be described as a slight defence mark on her hand but no marks on her

back consistent with being struck seven times with a belt. She says that she had a tracksuit on. She was angry with her father about

the fact that she was blamed for allowing her sister to get hold of a knife from her father’s room. She was angry that her laptop was

confiscated. She indicated that being beaten with a belt was a regular feature of her life in the home at the hand of both parents.

Child 2 has remained in care in a temporary foster care placement and would prefer a culturally appropriate long-term placement if she

cannot go home. She would be open to the possibility of going home and welcomes it, provided things changed at home. Child 2 is a

high academic achiever who has continued to do well at school. Her parents are concerned that she will go the same way as her

brother in Care.

17. Having read the following:

• the social work reports duty case notes, child protection case conference minutes, and Care Plans furnished;

• the out of hours service intake sheets;

• the two reports of the Consultant in Paediatric Emergency Medicine;

• the Report of the GP;

• the report from the Consultant Paediatrician;

• the Psychologist Report of the Clinical Psychologist;

• the Educational Clinical Psychological Report of Psychologist 1; and

• the GAL reports.

and having heard evidence from the following:

• the Consultant in Paediatric Emergency Medicine;

• the Garda;

• Social Worker 4;

• Social Worker 5;

• the out of Hours social care worker;

• Social Worker 6;

• the Clinical Psychologist;

• the parents;

• the family friend; and

• the children’s GAL.

I am satisfied that both Child 1 and Child 2 were subjected to corporal punishment by their parents on a regular basis and this is

supported by the medical/psychological and social work evidence adduced. Both children have remained consistent in their assertion

of physical chastisement by their parents by been beaten with a belt/cable cord. The Garda Síochána Statement made by Child 2 was

read by the Garda in the Court Record and the parents declined to call Child 2 to be cross examined and acceded to the application

by the HSE to admit same as hearsay evidence though they denied the truth of same.

Section 18 Threshold

18. I am satisfied that the threshold criteria of section 18(1)(a) of the Child Care Act 1991 have been met in respect of each child.

19. I am also satisfied that the parents have on occasion presented as hostile and aggressive to social workers, to out of hours

workers, to An Garda Síochána, and to their children. It is quite clear that neither parent accepts any responsibility for their children

being in the care of the HSE and that they place the responsibility for that on the children themselves. While acculturation and

generational conflict are important features in this case, the parents fail to acknowledge that in any way. Both children and their

parents have experienced the stress of moving to a new country, culture, and language in search of a better life. The children have

had to cope with family reunification into an altered family unit and being psychologically overwhelmed by the different expectations

and standards. This is most unfortunate as it is quite clear that these parents have a lot to offer their children if they were open to

acknowledge the challenges that both they and the children face. There is a lot of common ground between the parents and the HSE

in terms of how they want their children to behave and acquire education. It is unfortunate for Child 1 and Child 2 that positions

remain polarised and that a phased access/overnight regime has not developed because of fixed positions.

20. It is also a requirement of the section that the Court is satisfied that a child requires care or protection which he is unlikely to

receive unless the Court makes a Care Order in respect of that child in question.

21. In the case of Child 1, he is deeply upset that his parents believe that he is behaving immorally or has prostituted himself for

money. He is angry with his mother for speaking to friends and family about this as it has caused him to lose friends. If this has

happened, it is a breach of the in camera rule which has serious consequences. He is angry with the HSE for reporting their concerns

in Care Reports and to his parents. He is clear that he denies that he is doing these things and is affronted that it has been said and

is resentful of the consequences of all this for him.

22. Child 1 would like to go home. He dislikes his current placement. He wants things to change at home so that he can go home. He

is concerned that his parents have not resolved his legal status in Ireland. He is concerned that he be allowed some freedom if he

goes home to activities such as meet his friends, buy fashionable clothes, continue to attend his dancing classes and worries that his

parents could not afford to fund that, or fund his attending his dance school. He is apprehensive that his father will not change his

rigid attitude towards him. But he loves his parents and his family. While he recognises that all of his choices have not been good

ones in the last four years, he has not retracted his allegations of physical abuse. He now feels that he can handle any threat of

abuse.

23. Child 1 would also like to move towards independent living, but not yet. Clearly he is not capable of independent living at this

time. He has unrealistic expectations of his carers and possibly his parents also. He is currently living in a bubble of unrealistic

expectations within the care of the HSE. His expectations and demands for transport, clothes, and pocket money cannot be achieved

in a family environment or even when he leaves care. Unless he returns to school, he will leave care without having completed his

formal educational. He has no independent living skills or money management skills and a lot of work must be completed with him

before he leaves the care of the HSE if he is to avoid homelessness and alienation from family and his community. He has educational

needs (being within the range of borderline intellectual disability) which must be specifically addressed in his care plan and aftercare

plan.

24. Child 2 would also like to go home, she is achieving academically where she is placed while Child 1 is floundering.

25. Both Child 1 and Child 2 are bright, articulate children with completely different skill sets and vulnerabilities. The roadmap for

reunification was set out in 2009 and it is unfortunate that it was not progressed.

Proportionality

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

satisfied with the Care Plan proposed by the HSE. I require to see an After Care Plan and time-table for Child 1.

27. 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

Guardian ad Litem and I have also had an opportunity to speak to the children separately. I have also carefully considered the rights

and duties of the parents and the children both under the Constitution or otherwise.

28. The ultimate aim when a child needs State care should be family reunification if possible with parents. 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. A firm stand has been taken by the HSE against

reunification until the parents address the issues that precipitated the children coming into care in the first place. This decision is not

arbitrary and has been supported by the report of the Clinical Psychologist. The parents have been an opportunity to take part in the

decision-making child care review meetings but unfortunately their participation has not been consistent.

29. I am satisfied that making Care Orders is an inevitable and proportionate response in the circumstances at this time and, to

ensure permanency planning takes place for the children, such Orders should be until each child reaches 18 years. However,

reunification is not ruled out. I will review this in six months’ time to see what progress has been made by the HSE and Parents

through cultural mediation and teen parenting course. It is clear that both parents and children need to separately receive

therapeutic supports which should be provided without further delay.

30. The parents require assistance to realistically assess the practicalities of reunification with Child 1 and Child 2 and how same

would impact on their other children. In turn, they should be provided with:

(a) Personal counselling to assist them to ‘reality test’ their desire to have Child 1 and Child 2 home and how that

would be managed both physically, financially, and emotionally;

(b) Teen parenting course; and

(c) Anger Management course.

31. Child 1 also needs to engage in counselling and anger management. He needs to reengage with school urgently. His current

placement concerns need to be addressed if he is to avoid having to be placed in secure care. Therapeutic supports are required to

facilitate Child 1 and Child 2 ‘reality testing’ their desire to go home and safety plan in the event that the reunification fails for

whatever reason.

32. We should be careful to distinguish between a single episode of physical abuse by caring parents that stems from what they

consider to be culturally acceptable discipline gone awry and intentional, repeated abuse in which physical and psychological damage

is evident. Both need to be taken seriously. But in the first case, education and stress reduction are probably the most proportionate

State interventions. In the second case, the parents may be evidencing severe psychological disturbance or trauma and this must be

resolved through more extensive interventions before skills training will prove beneficial. The children in this case presented as well

nourished, and cared for and still do. While in care they should ideally be placed in culturally appropriated placements, maintain their

cultural heritage and language and links to family and friends. When they leave the care of the HSE, they need to have the necessary

skills and realistic expectations to navigate their way in life as independent adults. Child 1 clearly will not achieve this in twelve

months. His after care plan must be prepared within three months.

Section 47 Directions

33. The Court makes the following directions pursuant to section 47 of the 1991 Act:

• That access between Child 1 and Child 2 and their parents and siblings, while at the discretion of the HSE, should

weigh in the balance the views and wishes of the children and should be sufficiently flexible, phased, and supported

to incorporate overnight access.

• That work should commence on incorporating the recommendations of the Clinical Psychologist, and the Guardian

ad Litem into existing Care Plans. However, that progress should not be held up until the parents acknowledge

culpability in respect of past.

• That Child 1 should be provided with counselling and anger management therapy as a matter of urgency.

• That Child 1 is provided with all supports necessary to ensure his reengagement with formal schooling and that

such supports should incorporate the recommendations in the report of Psychologist 1.

• That both Child 1 and Child 2 are provided with the therapeutic supports necessary for ‘reality testing’ their desire

to go home and safety plan in the event that the reunification fails for whatever reason.

• That the HSE ensure that each child’s case has an experienced professionally qualified Social Worker allocated to

it 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 Guardian ad Litem be re-

appointed.

• That the After Care Plan and Assessment of Needs required by Child 1 are produced by the HSE together with an

allocated After Care Worker within three months. The GAL is to be reappointed for the purposes of the Review of

After Care Plan.

• That the HSE provide both parents with whatever assistance may be required by them to enable them to

meaningfully participate in Family Welfare Conferences and Care Plan Review Meetings in the light of cultural and

linguistic needs.

• 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.

• That should this case be re-entered by reason of non-allocation of a social worker or after care worker, the GAL is

to be provided with all social work reports and be give access to files at least six weeks before the date of re-

entry. Otherwise, discharge GAL after final meeting with children and HSE to discharge GAL costs to be taxed in

default of agreement.

• That the case is listed for review in six months’ time to assess progress in access and to measure the steps taken

by all parties towards family reunification.

Adjourn for Mention to 9 November 2011 and the first review to be on [date give] and the second review to be fixed

at that point for Review of progress on Reunification Plans.