District Court grants HSE full care order for three children due to unmet safety needs despite parental consent.

[2012] IEDC 11

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

MM & PD

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

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

12 June 2012

1. This is an application for a Care Order brought by the HSE under section 18 of the Child Care Act, 1991 in respect of a fourteen

year old (Child 1), a seven year old (Child 2), and a five year old (Child 3).

2. The two respondents are the parents of the three children and are not married to one another.

3. The parents are separately represented, the mother is represented by a privately engaged solicitor and the father is represented

by the Legal Aid board.

4. The children have a Guardian Ad Litem (“GAL”) to represent their separate interest in the proceedings and to advise the Court as

to their separate wishes and views. The GAL was represented by his solicitor.

History

5. The children came into the care of the HSE following the making of an Interim Care Order on 20 April 2011.

6. The HSE had significant prior involvement with the family since 1998. On at least two occasions, the Garda Síochána invoked

section 12 of the 1991 Act. The HSE sought some five Supervision Orders in an effort to support the family as a viable functioning

unit (the Supervision Orders are dated 17 July 2007, 20 June 2008, 31 January 2009, and 29 April 2010). Significant family support

services were put in place in the period but unfortunately even extensive levels of family support were insufficient to ensure the

children’s safety and wellbeing in the care of their parents.

7. The Court was informed by the legal representatives for the parents that they each had instructions from their respective clients

to consent to the Full Care Order sought by the HSE and supported by the GAL.

Evidence

8. The Social Worker gave evidence as per her Reports to Court contained at Tab 1 of the Booklet of Reports handed into Court. She

affirmed that the contents of the Reports contained in this Booklet authored by her were accurate and true and that her professional

opinion was that the threshold criteria of section 18(1)(c) of the 1991 Act had been met. This application on the basis that the

children’s physical, psychological, and social health needs and intellectual and emotional development and welfare are likely to be

avoidably impaired or neglect if a full care order is not granted.

9. It was her evidence that the issue in this application is not wilful abuse or neglect, but abuse and neglect due to the absence of

parental capacity of each parent whether parenting separately or together. She acknowledged that the impact of the intellectual

disability suffered by both parents has resulted in neither of them having adequate parenting capacity notwithstanding that each

dearly loves their children. I do not propose to recount her evidence in detail as it is distressing for the parents and the detail is

conceded.

10. Draft Care Plans in respect of each child in Form CC01.13b.00 were set out in Tab 2 of the Booklet and provide that Child 1 will

continue to reside in Residential Care, and that Child 2 and Child 3 will continue to reside in relative foster care (their paternal aunt

who was approved as the long term foster carer in May 2012).

11. The recommendation of the GAL was that the HSE should provide Art Therapy for Child 1 would be adopted by the HSE.

12. The GAL gave evidence as per her Reports to Court. She has met with all three children on a regular basis. Child 1 has been able

to communicate satisfaction with his placement. He reports that he likes the staff, his bedroom, and the house. During the GAL’s visit

on 24 May 2012, Child 1 stated that he was happy.

13. The GAL has not been able to ascertain full clarity with regard to Child 2’s views, wishes, and feelings. She presents as a content

child who is skilled in the art of distraction when engaged with regard to her views. Her presentation in this regard is stark.

14. Child 3 has also been able to express her feelings with regard to her placement. She reports being happy living with her Aunt.

15. The GAL expressed satisfaction with the Draft Care Plans for each of the children noting that:

(a) the long term placement for the girls has now been resolved;

(b) the Social Work Department refers Child 1 to Art Therapy to support him to process his life experiences to date;

(c) she would like the case to be re-entered before the Court if this case is unallocated for a period longer than six

weeks;

(d) she would like the case to be re-entered if there is any change of placement proposed for Child 1, Child 2, or

Child 3; and

(e) she would like the case to be re-entered before the Court and a Guardian for the children to be appointed, or

re-appointed at the date of Child 1’s sixteenth birthday to plan and identify appropriate services and provision for

Child 1 on his After Care Plan having regard to his needs.

16. The legal teams representing the parents indicated that their clients did not wish to give evidence or oppose the evidence

tendered and would consent to the Court making the Order under section 18(1)(c) of the 1991 Act. They were satisfied that their

clients had sufficient capacity to make this decision and fully understood what such an Order entailed.

Section 18 Threshold Criteria

17. Having read the reports and booklets furnished and the GAL Report and the evidence of the Social Worker and the GAL, I am

satisfied that the threshold criteria are met under section 18(1)(c) under the headings of unintentional emotional abuse and neglect. I

am also satisfied on the evidence tendered that the HSE made substantial efforts to prevent or eliminate the need for the children to

come into the care of the HSE. Unfortunately, these efforts have been inadequate in light of the impaired parenting capacity of each

parent inhibiting them in providing appropriate care for their children or meet their individual needs as identified.

18. I am satisfied that the threshold criteria of section 18 of the Act do not require proof of intentional abuse harm or neglect and

accordingly I am satisfied on the evidence tendered that there should be a Care Order made for each child until each child reaches 18

years [dates given].

Section 37 Access

19. Access shall be at the discretion of the HSE and within the parameters of section 37. Frequency of access is to be within the

parameters agreed between the parents and GAL and HSE. Access must meet the needs of the child and parents.

20. Access should be such as to allow each of the children and their parent(s) maintain a good quality parent/child relationship

notwithstanding the making of the care order.

21. The section 37 issue is adjourned on consent of all the parties and at the request of the HSE and the parties to 6 November

2012; the parties will continue dialogue to negotiate an agreed access schedule so that access will not be required to be litigated in

Court. The GAL should be reappointed 6 weeks in advance of the 6 November 2012 for the purposes of the access application so that

the Court has the ascertained wishes of the children in that regard

Section 47 Directions

22. According to section 47, the Court makes the following directions:

1. That the Case is Re-Entered before the Court and the Guardian re-appointed six weeks before the date of re-

entry in the event that:

(a) The case becomes unallocated to a Social Worker/Fostering Link worker for a period of 6 weeks;

(b) A planned or unplanned change of foster placement/ residential placement of any of the children; in

the case of a planned change the re-entry and re-appointment to take place in advance of the date of

re-entry before the Court. In the case of an unplanned change, the re-entry is to be as soon as

practicable and the Guardian re-appointed as soon as practicable;

(c) Also for the purposes of the After Care Reviews (on 16th birthday of each child) to assess After

Care Services in respect of each child in light of their special circumstances [dates given].

2. That the HSE provides all appropriate therapeutic interventions and services to each of the children’s parents

tailored to meet their specific needs for advocates to enable them to meaningfully engage in Child in Care Reviews.

3. That the HSE takes all steps necessary to ensure that the children receive the therapeutic interventions and

services set out in the Care Plan filed in Court and the Art therapy for Child 1.

4. Should the existing Guardian not remain a Guardian at the date of the After Care Review, the matter is to be re-

entered to enable the Court to nominate an alternative Guardian Ad Litem for the Children or any one of them as

the case may be. The GAL/nominated GAL is to be reappointed/appointed six weeks in advance of the date of re-

entry and provided with access to all HSE files in that regard.

5. Discharge GAL as of today with usual order for costs.

6. Adjourn the costs application of the First Respondent’s solicitor to the 6 November 2012 and the access Review

Date.