District Court grants Care Order under Child Care Act 1991 s.18 for child's best interests despite parental efforts.

[2012] IEDC 19

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

YC & HA

RESPONDENTS

CHILD CARE ACT 1991 — SECTION 18

IN THE MATTER OF CHILD 1

30 October 2012

1. This is an application for a Care Order under section 18 of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) in

respect of Child 1, heard on 30 October 2012. Child 1 is currently in the care of the Health Service Executive (HSE). Child 1 was first

admitted to the care of the HSE pursuant to an application for an Emergency Care Order on 31 October 2006; returned to his

mother’s care on 30 May 2007; placed in voluntary care on 10 September 2007; and subject to an Interim Care Order on 17 December

2008, which was extended by the Court on seven occasions until Child 1 was subject to a Care Order with the consent of his parents

on 19 November 2009 for a period of three years. In the period from October 2006 to date, Child 1 has lived at eight different

placements.

2. Child 1 was represented in these proceedings by his Guardian Ad Litem. The Guardian Ad Litem (GAL) indicated to the Court her

support for a Care Order in respect of the child and recommended such Order be for the full duration.

3. Child 1’s mother, the first named respondent, attended Court and was legally represented. She indicated her opposition to the

making of a Care Order and noted her aim to have Child 1 returned to her care.

4. Child 1’s father, the second named respondent, attended Court; however, he was not legally represented and his legal team were

allowed to come off record on 26 October 2012 in circumstances where his lawyers advised the Court the father had advised them he

no longer wishes them to act on his behalf. The Court advised the father that he had sufficient notice of the proceedings and that it

was his responsibility to have arranged representation.

5. I am satisfied that both parents have been properly served with notice of the proceedings and that in the child’s interests the

matter should proceed.

6. I am satisfied that the [District given] has jurisdiction to deal with this case notwithstanding the fact that Child 1 is living in a

placement outside of this District Court’s District on a care order of limited duration on the basis that Child 1’s residence reverts to

that of his parents who continue to reside in this District Court’s District on the expiration of the care order.

7. I have heard the evidence of Social Worker 1 who was involved with the child from July 2007 to May 2009. She confirmed and

adopted her reports at Tabs 26, 28, 30, and 31 of the Booklet of Evidence. She gave evidence of concerns of significant risk which

resulted in Child 1’s coming into voluntary care (which later resulted in an Interim Care Order being sought and granted when the

mother indicated she may withdraw her consent to voluntary care) which included the mother’s alcohol and drug misuse, her

disengagement with her treatment programme and the history of a domestic violent relationship with the father (which is now denied

by the mother). Social Worker 1 gave evidence of the supports offered to the mother to address these difficulties. She gave evidence

that the mother and the father were not living together at that time and that it was difficult to determine the status of their

relationship. She gave evidence that the mother engaged well during access with Child 1 and that efforts to engage the father in

contact with Child 1 were more difficult. She gave evidence that the father was not considered as a viable option for care of Child 1

as there was an allegation of sexual abuse against him by Child 1’s half-sister (which was later confirmed by a treatment unit) and

also because of his reportedly violent relationship with the mother. She gave evidence of how a cultural mediator and a Family

Support Worker were engaged to assist the father. Under cross examination, Social Worker 1 gave evidence that there are concerns

about the number of placements Child 1 has had since his reception into care. There were concerns in November 2008 regarding the

foster families understanding of how to meet the child’s basic needs and how a further placement was considered but only proceeded

for one night.

8. I have heard the evidence of Social Worker 2 who has been allocated to this case since July 2012. She gave evidence of the

difficulties she has had in meeting the parents to discuss supports they might be offered. She accepted the recommendations in the

Attachment Specialist’s report and stated that it is the social work department’s intention to fulfil these recommendations and to

explore with the treatment unit the best method to address the child’s sexualised behaviour.

9. I have heard the evidence of the Team Leader who has been involved in this case since July 2009. She adopted and confirmed the

reports at Tabs 9, 10, 13, 21-26, 28, and 30-33 of the Booklet of Evidence. She summarised her concerns in this case as the

mother’s alcohol and substance misuse, the mother’s and the father’s parenting capacity, the history of domestic violence between

the father and the mother, and their neglect of Child 1. She positively recognised the mother’s engagement with addiction services

but noted her diminished relationship with social workers since March 2012 and expressed her on-going concerns regarding the

mother’s limited capacity to parent given her level of functioning and her resumed relationship with the father. She expressed her

concerns regarding the father’s limited ability to parent, particularly the putting of his own needs ahead of the child’s needs, his

inability to relate to a child, his controlling behaviour, his difficulty in relating to social workers and his levels of aggression and

threatening behaviour which has resulted in reports to Gardaí on occasion. She accepted the recommendations of the Attachment

Specialist (below) and the GAL. She gave evidence that the mother and the father have struggled with access over time and that

this would continue to be reviewed. She gave evidence that the long-term plan for Child 1 is to remain with his current foster-family

who are approved long-term carers and that the final matching process would be completed if a Care Order is made by the Court. She

expressed huge concerns for Child 1 should he be returned to his parents’ care.

Under cross examination, she acknowledged the initial concerns regarding this foster-placement, Child 1 being not the only child in the

family, the foster-families ability to meet Child 1’s needs and small issues regarding Child 1’s presentation at access, which have been

resolved. She gave evidence of substantial supports that have been put in place for the foster-family and that there have been

improvements in Child 1’s attachment to the foster-family over time. She denied that the mother ever revoked her consent to

voluntary care and stated she believes that the parenting capacity report at Tab 20 from 2009 still stands. She stated that there are

no concrete interventions to work with the mother for the return of Child 1 to her care, rather the focus is on supporting her to

engage with Child 1. She described the mother’s access with Child 1 where the mother attends well and does her best but has limited

ability and requires a high level of supervision during access.

She also gave evidence of an incident outside Court where she witnessed the father being aggressive to the mother and overheard

him threatening her.

10. I have heard the evidence of the Attachment Specialist. She adopted her report at Tab 8 of the Booklet of Evidence. She gave

evidence of the parameters of her assessment and a background to attachment theory and related trauma. She described the four

different patterns of attachment and described Child 1’s scores on each, comparing scores from December 2011 and May 2007. She

described Child 1 as a much traumatised boy whose shows signs of early traumatic history which have been influential in his

attachment difficulties and noted that he has not had a stable placement history, only achieving stability in his recent placement. She

opined that legal stability will help him to achieve stability in his current placement and he will really know that he will be staying in

this placement permanently. She identified and recommended work that can be done with Child 1 to consolidate his security and

realise that the trauma is over.

She gave evidence of her observations of Child 1’s access with his mother in August 2012 which she described as reasonably

manageable with some fun and positive elements. She noted a phone call taken by the mother during access, denied by the mother,

which interfered with the quality of access. She noted that access appeared to be stressful for the Child, as recorded by his foster

carers. She gave evidence of her observations of the Child access with his father in August 2012 which was less positive, noting the

father’s physical handling of the Child and his appearing to show Child 1 something on his mobile-phone and have Child 1 talk on the

mobile-phone. She noted that access with his father appeared to evoke a very much increased stress response in Child 1, as

recorded by his foster carers, and that Child 1’s sexualised behaviours appeared just after this access. Under cross examination, she

acknowledged that the number of moves in Child 1 placement has not helped Child 1 to form secure attachment but does not explain

his extreme reaction to access and opined that in some way his attachment difficulties are due to his parents, that early trauma is

significant in Child 1’s case and noted that she had not been asked to assess the quality of Child 1’s attachment to his parents. She

agreed it is of concern that any amelioration of these difficulties has not taken place since 2009.

The Attachment Specialist summarised the recommendations contained in her report as follows: that Child 1 should remain in his

current placement with supports being put in place for his foster carers, that Child 1 needs a very predictable routine, and that a

long-term care order would give Child 1 stability in his placement. As his primary attachment will be with his foster carers, she

suggests that access to his birth parents will be for identity purposes and recommended access to his mother 3-4 times per year and

access to his father less regularly. She also recommended that work needs to be done with Child 1 over a six-month period to

consolidate his placement before access should resume.

11. I heard the evidence of the Psychologist, who was involved with Child 1 for a six to eight month period which ceased in June

2012. She adopted her reports at Tabs 5 and 14 of the Booklet of Evidence. She gave evidence of her assessment of Child 1, taking

into account earlier reports and assessments. She described her primary involvement being a consultative role to support the foster-

family and the school in dealing with Child 1’s emotional difficulties.

12. I have heard evidence of the Forensic Psychologist, who carried out psychological risk assessments on the father in 2010 and

2012. He adopted his reports at Tabs 4 and 17 of the Booklet of Evidence. He noted similar outcomes for both assessments which

determined the father as being at low risk of perpetrating a sexual offence in the future. However, he went on to report that the

father lacks insight into his own functioning, that the father was deliberately deceptive in the assessment process but this did not

appear to be malevolent, that the father demonstrates difficulty in engaging in mutually supportive intimate relationships, has poor

problem solving skills, and that the father demonstrates impulsive behaviour. He recommended that the father would only have

supervised access with children and that the father would benefit from an intensive parenting course and could benefit from

psychotherapy if he cooperated fully in the process.

13. I have heard the evidence of the father opposing the application before the Court. He gave evidence of how he and his wife met

in 2003, Child 1’s birth in January 2006, their separation in 2007 and reconciliation in November 2011, and marriage in January 2012.

He denied the allegations of sexual abuse made against him by the mother’s elder daughter and asserted that the case is closed and

the complainant child was always against him. He denied ever being violent to his wife or reporting to the Forensic Psychologist that

his wife was ever violent to him or that he made a violent gesture and threat to his wife outside Court or was aggressive to the GAL

outside Court. He gave evidence of his wife’s progress dealing with her alcohol and drug problems. He denied being impulsive. He

denied that his access with the Child is stressful in any way for the Child and asserted that the Child is always happy to see him. The

father alleged that any difficulties his son may have are due to his placement in care. He stated that Child 1 feels comforted by him

and that he [the father] does not take advice as he only has one hour with his son and his actions with his son are perfect. He also

denied being threatening or aggressive to social workers and asserted that they are racist towards him. He told the Court how he

wants his son to return home, how it is not in his son’s best interests to remain in care and how he is not responsible for why his son

is in care.

14. I have heard the evidence of the mother opposing the application before the Court. She gave evidence of her background,

education, and her previous relationship history. She gave evidence of meeting the father, Child 1’s birth in 2006, separating from the

father when her elder daughter made allegations against him, and their subsequent reconciliation and marriage earlier this year. She

described her difficulties with alcohol and drugs and admitted drinking while pregnant with Child 1 and leaving him alone on one

occasion. She described how she has dealt with her addiction problems. She gave evidence of placing Child 1 in voluntary care in

2007 when her older daughter made disclosures of sexual abuse by the father. She denied that the father was aggressive with her

outside of Court. She admitted that when she was drinking she may have been argumentative with the father and that this has

improved now that she is sober. She gave evidence that she agreed the Care Order 3 years ago as she was advised it would give her

a chance to ‘get clean’. She stated she has not received any help from social workers with any courses nor has there been any

discussion of reunification. She expressed concern regarding the number of social workers that have been involved in this case. She

gave evidence of being at the top of the housing list and that if Child 1 were to be returned to her it should be on a phased basis.

She gave evidence relating to her access with Child 1; she stated that he loves to see her and that when she gives him back he is,

of course, going to get upset. She stated that 3-4 access visits per year would not be enough or fair for Child 1 and she stated that

she wants Child 1 returned to her care.

Under cross-examination, the mother did not accept that addiction is a ‘chronic relapsing illness’ and accepted that while she may

have stated to various professionals when she was drinking that the father was violent to her, she now denies he was ever physically

violent to her. She also gave evidence that she no longer believes the allegations made by her daughter regarding the father, and

even though her parents do believe her daughter. She accepted she has not met the new social worker but stated she did meet with

the previous social worker a lot. She did not accept that Child 1 is a fearful child but did accept that leaving him on his own and her

drinking and drug use were not good for him. She gave evidence that she would work with the social workers and do anything they

ask of her.

15. I have heard the evidence of the GAL. She gave evidence of her involvement with this family and the infant Child 1 since October

2012 and confirmed and adopted her signed report handed into Court. She gave evidence of previous knowledge of this family as she

had previously acted as a GAL to the mother’s elder daughter.

She gave evidence of her concerns regarding the management of this case, in particular, the number of placement moves experienced

by Child 1, the lack of evidence of a pre-birth case conference regarding Child 1 or initial care planning by the HSE in this case and

the proposed move of placement in 2009. She gave evidence of limited direct contact with Child 1 as he was extremely wary of

another professional therefore much of her work was done indirectly. She gave evidence of the early trauma experienced by Child 1

including abandonment, domestic violence, his mother’s addiction problems, and his home situation.

She described her observations of Child 1’s access with his parents. She described how the father tries to engage well but he has no

insight into Child 1’s needs, does not understand the impact of his actions on Child 1, has a very poor relationship with support

services, and is focused more on his own needs than Child 1’s needs. She described the mother’s access as more relaxed for Child 1,

with the mother displaying more insight into the mother’s difficulties. However, she is concerned with the mother’s denials of domestic

violence, her minimisation of all concerns and her limited insight into the effects of early trauma on Child 1. She also identified the fact

that the mother does not believe her elder daughter’s allegations as being a huge issue of concern regarding the mother’s ability to

protect a child in her care. She recommended a mentoring programme based on the Incredible Years Parenting Programme and with

input from a psychologist for both parents regarding access.

She gave evidence that Child 1’s foster-carers are very committed to Child 1. She advised that Child 1 needs support to help him

move to a secure attachment to his foster-carers. She outlined her recommendations set out in detail in her report for Court including

a revised care plan with a contingency plan in the event of a breakdown of care placement. She gave evidence of her support for a

Care Order for Child 1.

Legal Submissions on behalf of the Mother

16. Counsel on behalf of the respondent mother argued that section 18(1)(c) requires that the child’s health, development, or welfare

will be affected which implies that the HSE will be competent to care for the child’s health, development, and welfare. Counsel

referred to the case of North Western Health Board v HW [2001] 3 IR 662 and the rights of the marital family protected under Article

41 of the Constitution, this family now being a marital family. Counsel argued the test of ‘exceptional dereliction of duty by the

parents’ set out in that case has not been met. Counsel further argued that as a significant amount of Child 1’s current difficulties are

due to the actions of the HSE (multiple placement moves, delay in approving the foster-family as a long-term foster placement, and a

fostering link worker seeking to have Child 1 placed in her care, with disastrous results) the criteria under section 18(1)(c) has not

been met in so far as the HSE has shown itself to not be competent to care for Child 1. Counsel argued that there is a presumption

that the child is best placed with the parents.

Counsel further argued that there is a positive duty on the HSE to take measures to facilitate family reunification and to examine the

family’s situation from time to time under Article 8 of the ECHR citing the case of K and T v Finland App No 25702/94 (ECtHR, 24 April

2000). Counsel argued that in this case reunification was not even considered and that the section was not completed in the Care

Plan of 12 January 2012. Counsel further argued that subsequent to the decision in Pullen v Dublin City Council [2008] IEHC 379 the

doctrine of “margin of appreciation” does not apply in the same manner when a domestic court is considering the doctrine of

proportionality.

Counsel also argued this case relied substantially on historical information with no up to date parenting assessment. Counsel cited the

case of KA v HSE [2012] IEHC 288, arguing that ‘the judge must be given up to date information as of that date’.

Legal Submissions on behalf of the HSE

17. The HSE argued that the Court is allowed to make a decision taking a child into care in respect of a child of a marital family and

that it was recognised in the case of In Re Art. 26 & the Adoption (No 2) Bill [1977] IR 129 and subsequent cases that the Article 41

rights of the family must be balanced with the Article 40 personal rights of the child and the facts of this case should be distinguished

from the lesser facts at issue in North Western Health Board v HW. Counsel noted that intervention must be proportionate and argued

that the ECtHR allows a wide margin of appreciation as set out in the case of K and T v Finland. Counsel for the HSE further argued

that up to date professional evidence had been brought by the HSE and was not contradicted by other professional evidence. Counsel

argued the court could be satisfied to grant a care order in this case.

Legal Submissions on behalf of the GAL

18. Counsel for the GAL noted that the only significant changes in the years since the care order for three years had been made is

that the mother has addressed her addiction difficulties and that the parents have married. Counsel also referred the court to the

case of Neulinger & Shruk v Switzerland App No 41615/07 (ECtHR, 6 July 2010) noting that the court must consider as paramount the

child’s best interests at the time of the making of its order.

Decision

19. I find the facts in this case can be distinguished from the facts in NWHB v HW, as on the evidence before the Court it is

established this is an exceptional case requiring the State’s intervention to vindicate the child’s rights where the parents have failed

for physical and moral reasons in their duty to their child in his early care. The applicant has established, and the mother has admitted

to, alcohol use during her pregnancy with Child 1, her history of drug and alcohol misuse, and her occasional abandonment of Child 1.

The applicant has also established that the relationship between the mother and the father was violent, that he has difficulty having

insight into and prioritising Child 1’s needs, that the mother and the father have neglected Child 1’s care, and that it is in Child 1’s

best interests not to be returned to their care.

I also find that the applicant has established that there is a real possibility Child 1’s health, development, or welfare will be affected if

he is to be returned to the care of his parents. While the mother has engaged positively with addiction services, there continue to be

difficulties in engaging the father and, more recently the mother, with social work services and there are concerns regarding the

father’s aggression in dealing with support services, both parents’ lack of capacity and ability to parent Child 1, and the mother’s lack

of ability to protect Child 1 should he be returned to her care.

The requirement under section 18(1)(c) that the child’s health, development, or welfare be avoidably impaired or neglected clearly

refers to the prospective conduct of the parents and necessarily implies that a similar standard at least is to be applied to the HSE

should a Care Order be made. It is clear from the evidence in this case the HSE did not adequately plan for Child 1’s care before his

birth as no pre-birth child protection case conference was carried out and Child 1 has experienced 10 changes to his placement,

including a return to his mother’s care, and of particular concern a proposed change of placement to a Fostering Link Worker assigned

to his care which failed. There is no doubt that this has added to Child 1’s attachment difficulties. However, Child 1 has had more

stability in his placement since late 2009; he appears well settled and cared for by his foster-family who have made a commitment to

his long-term care and they have been approved as long-term carers. The recent attachment assessment has identified a strategy

and the supports Child 1 needs to consolidate his attachment to his foster-family. For these reasons, I am satisfied that at this time

the HSE is competent to care for Child 1’s health, development, and welfare.

With regard to the Article 8 arguments raised by Counsel for the mother and the alleged failure of the HSE to consider family

reunification, the ECtHR affords a wide margin of appreciation in balancing the importance of protecting the child with the aim to

reunite the family. As set out in Pullen, referred to above, it is not the role of a domestic court to consider the margin of appreciation

to in some way ameliorate the obligations of an organ of the State from compliance with its Convention obligations. I am satisfied that

through the child in care reviews that have been carried out in this case, the HSE has satisfied the minimum requirements in examining

the situation anew from time to time to see whether there has been any improvement in the family situation. The continued

difficulties in engaging the father with support services and the aggression he has shown to social workers have made it impossible for

the HSE to consider Child 1’s reunification with his father further. I am satisfied on the evidence the HSE has considered that the

mother has engaged more positively with social workers and addiction services, and also considered her recent unavailability to social

workers, coinciding with the resumption of her relationship with the father, and her disregard for the disclosures made by her elder

daughter indicate against reunification with Child 1. For these reasons, I am satisfied the HSE’s decision against reunification at this

time is within the doctrine of proportionality as:

(a) The objective of restricting the right to reunification is so pressing and substantial that it is sufficiently

important to justify interfering with a fundamental right;

(b) The restriction is suitable: it is rationally connected to the objective in mind so that the limitation is not

arbitrary, unfair or based on irrational considerations;

(c) The restriction is necessary to accomplish the objective intended. In this instance the best interests of the

child Child 1; and

(d) The restriction is not disproportionate. The restriction, while no doubt difficult for the parents, does not impose

burdens or cause harm which is excessive when compared to the importance of the objective to be achieved in the

child’s best interests.

With regard to the evidence given to the Court, I am satisfied that test set out in the case of KA v HSE in an application for an

interim care order equally applies in this case, that is ‘the test to be applied at the time of the … application must relate to

circumstances as they are at that time and that therefore the Judge must be given up-to-date information as of that date’. While

certain evidence before the Court is historical in nature, this is necessary to establish the parent’s patterns of behaviour. I am

satisfied that sufficient evidence has been adduced to establish that these behaviours have not been addressed at this time.

Orders

20. Having heard the evidence and read the reports in the Booklet of Evidence, I am satisfied the facts as set out at Tab 40 of the

Booklet of Evidence have been proven with the exception of item 13 as set out therein.

21. Having heard the evidence set out above, read the reports in the Booklet of Evidence, and heard the legal submissions made by

the parties, I am satisfied that in respect of the infant Child 1 the threshold criteria under section 18 (1)(c) of the 1991 Act are met

and that the infant Child 1’s health, development and welfare would suffer if a Care Order was not granted. The duration of the Care

Order shall be to 2 January 2024. I am satisfied to make the Care Order for the following reasons:

(i) The history of neglect of care and abandonment of Child 1 by his parents;

(ii) The mother’s history of drugs and alcohol misuse and her use of alcohol during her pregnancy with Child 1;

(iii) The history of domestic violence between the mother and the father;

(iv) The difficulties in engaging the father and, more recently, the mother with support services;

(v) The father’s lack of insight into Child 1’s needs;

(vi) Both parents’ lack of capacity and ability to parent Child 1;

(vii) The father’s aggression in dealing with support services;

(viii) The mother’s lack of ability to protect Child 1.

22. I am satisfied that to make this order is proportionate in this case as despite the multiple supports offered to the father his

engagement with these services has been limited or refused and these problems continue to persist to such extent that the father

has not shown the ability or commitment to sustain consistent care and parenting to the infant Child 1 and there is no indication this

is likely to change in the foreseeable future. I note that the mother has engaged positively and honestly with the social work

department in the past and she has consistently and positively engaged with treatment for her alcohol and drug addiction and

achieved sobriety over a sustained period of time which is a great achievement; however, she has not shown sufficient ability to

sustain consistent care and parenting to the infant Child 1 and there is no indication this is likely to change in the foreseeable future.

While it is clear that both the mother and the father love their child very much, they cannot offer him the stability and predictability

he requires and it is in Child 1’s best interests to remain in the care of his current foster-carers. I note that the HSE has offered to

continue to assist and direct the father and the mother to supports.

23. Under section 47 of the 1991 Act, I direct that the case is to be re-entered before the Court and the GAL reappointed 4 weeks

before the date of re-entry in the event that:

(i) A Social Worker/Fostering Link Worker becomes unallocated to the infant Child 1 for a period of 4 weeks;

(ii) A planned or unplanned change of current foster placement of the infant Child 1;

(iii) The annual care plan review for Child 1 is not carried out for any reason;

(iv) After Care Review for the infant Child 1 on his 17th birthday [date given] to assess his after care service

needs.

24. I further direct this matter to be re-entered before the Court on 7 January 2013 for the Court to:

(i) Review and approve the Care Plan in respect of the infant Child 1;

(ii) Receive and approve an updated report from the Forensic Psychologist with respect to the infant Child 1;

(iii) Review and approve the mentoring programme devised for the parents.

25. With respect to the future care of Child 1:

(i) I approve the foster placement suggested and note the GAL’s agreement in this respect;

(ii) I order access between Child 1 and his parents pursuant to section 37 of the 1991 Act;

(iii) This matter be re-entered before the Court on 6 May 2014 for review of progress in care.

26. I recommend the following:

(i) That the parents enter into the contract set out with regard to access;

(ii) That the father complete the recommended intensive parenting course;

(iii) That the father engage with the recommended psycho-therapeutic treatment; and

(iv) The Care Plan Review for Child 1 be carried out within 1 month and for the Psychologist to attend at this

review.