Care Order dismissed; Supervision Order made for 17-year-old child due to parents' refusal of support and child's wish to return home.

[2012] IEDC 21

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

YB & GB

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18 AND 19

IN THE MATTER OF CHILD 1

14 November 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, aged 17, heard on 7–9 November 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 23 February 2012 and

subject to an Interim Care Order on 1 March 2012 which was extended on 13 occasions.

2. Child 1 was represented in these proceedings by her Guardian Ad Litem (“GAL”) who was legally represented in these proceedings.

The GAL indicated to the Court her support for a Care Order in respect of the child and recommended such Order for the full duration.

3. The HSE was also legally represented in these proceedings by their solicitor.

4. The mother, who is 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.

5. The father, who is the second named respondent, attended Court and was legally represented by his solicitor and barrister. He

indicated his opposition to the making of a Care Order and noted his aim to have Child 1 returned to his care.

6. I am satisfied that the parents have been properly served with notice of the proceedings and that in Child 1’s interests the matter

should proceed.

7. I am satisfied that the [District given] has jurisdiction to deal with the case.

8. Counsel for both respondents objected to all reports in the Booklet of Evidence being submitted to the Court, with the exception of

the psychological reports.

9. In support of this application, I have heard evidence of the Social Worker 1; Social Worker 2; Consultant Neurologist 1; Consultant

Neurologist 2; and the Medical Social Worker.

10. Opposing this application, I have heard the evidence of the parents.

11. This case involves a young person, Child 1, aged 17 years, who first came to the attention of the HSE on 7 November 2011 (when

she was then aged 16 years of age) in circumstances where she presented to the Hospital with a wrist injury for which she was

unable to give a satisfactory explanation. She further came to attention in December 2011 due to her inconsistent explanations for

her wrist injury and her father’s verbal aggression to hospital staff. She was further admitted to Hospital in January 2012 suffering

from an epileptic episode. She was later admitted to Hospital in February 2012 with limited mobility in her left hand and difficulty

walking. She was attended by Consultant Neurologist 1 who ruled out any structural or organic cause for these difficulties and in

whose opinion underlying stressors may have precipitated the condition, perhaps related to a fear of injury from her father as Child 1

had disclosed to Consultant Neurologist 1 that her father hit her and that she was fearful of returning home. This diagnosis was

confirmed and supported by Consultant Neurologist 2. These disclosures were also made by Child 1 to social workers who have given

evidence that Child 1 described being hit by her father since age 15 on her face, neck, and back, reiterated her fear of going home

and her concern for her mother and brother due to her father’s anger. These disclosures were raised with Child 1’s parents at

meetings in February 2012 where at times her parents engaged calmly and constructively and where at times her father showed

aggression to medical staff and child protection workers. Subsequent to a meeting with her parents in the hospital on 23 February

2012, an Emergency Care Order was applied for and granted; subsequently, an Interim Care Order was applied for on 1 March 2012

and extended by the Court on 13 occasions since that date.

12. Child 1 is the eldest of the parents’ two children and is a vulnerable young person, with a general and specific learning difficulty.

She is in mainstream school where she is studying for her Leaving Certificate. Since her reception into care, Child 1 has been placed

with a foster family some distance from her home. Child 1 settled into her foster placement well with her functional disorder symptoms

resolving completely on review by her consultant in June 2012. Child 1 has consistently stated to social workers and her GAL that it is

her desire to return to her family as she believes her father has changed and will not hit her again. Child 1 was recently admitted to

Hospital with a re-occurrence of her functional disorder. The reason for this re-occurrence is not clear, and may be subsequent to an

incident on a train on which she was travelling. Child 1 has declined all offers of aftercare including support from Focus Ireland

Aftercare Service and a YAP worker.

13. The parents and their two children are from Country 1 and moved to Ireland four years ago. The father is unemployed as is the

mother who has also recently undergone surgery to remove a brain tumour. The family’s support base is comprised of their friends and

church. The father has admitted to hitting Child 1 on 3 occasions between September 2011 and February 2012. The mother has

admitted to being aware of only one of these incidents which she states she did not witness. Both parents suggest these incidents

were due to stress the family was experiencing subsequent to moving country, being unemployed, experiencing a number of deaths in

their family in Country 1, and coping with the mother’s serious illness and Child 1’s epilepsy and functional disorder and various

admissions into hospital.

14. The parents’ engagement with social work professionals has been difficult since Child 1’s reception into care. The father has

refused to engage with a Signs of Safety Assessment or safety plan and has refused to make himself available for meetings with

social workers. All professionals who have given evidence state that the father has been at times aggressive in his engagement. The

mother has reportedly declined to cooperate fully with Child 1’s psychological assessment.

15. Supports offered to the parents include a referral to Family First therapy which had a 4-5 month waiting list and which has now

begun, a parenting course on 18 August 2012 (however, the day did not suit the father and he was advised the course could be

flexible or that the mother could attend on her own) and a Family Resource Centre Project Worker has met with the parents in

October to discuss a 1-1 course; however, the Project Worker reports the parents’ resistance but remains open. The parents advise

that they have independently sourced support from a Parent Coaching group, which they intend to access.

16. The HSE has applied for a Care Order for Child 1, even though Child 1 will attain the age of 18 in some 6 weeks, and make the

case that Child 1’s health, development, or welfare has been avoidably impaired or neglected and is likely to be avoidably impaired or

neglected should she return to her parents care. The reasons cited are the physical and emotional abuse of Child 1, the father’s

aggressive behaviour, the parents’ lack of insight into what constitutes physical or emotional abuse, the parents’ failure to follow

advice and guidance from child protection professionals, and the lack of a protective parent in the home.

17. The application is supported by the GAL who suggests that the threshold has been met as the family struggles to deal with stress

and anger management. The GAL also noted her difficulty in gaining insight into how the family functions, and the stress impacts on

Child 1 who also has learning difficulties and a functional disorder. The GAL reports that Child 1 has said she can manage this stress

but the GAL does not see how she could or that it should be her role. The GAL makes this recommendation despite Child 1’s

consistent stated desire to return home and her refusal of aftercare services and suggests that a care order for approximately 6

weeks would give the parents a further opportunity to engage and take up support services in a meaningful way.

18. In determining this application I must consider the following questions:

(a) has Child 1 been assaulted?

(b) has Child 1’s health, development or welfare been avoidably impaired or neglected?

(c) is Child 1’s health, development or welfare likely to be avoidably impaired or neglected?

(d) does Child 1 require care or protection which she is unlikely to receive unless the court makes an order? and,

(e) if such an order is to be made is it proportionate?

19. Having heard the evidence and read the reports admitted in evidence, I am satisfied to find that Child 1 has been assaulted by

her own admissions and the admissions of her mother and father. I am also satisfied from the evidence adduced by the HSE that Child

1’s health, development, or welfare has been avoidably impaired or neglected because of the assaults on her by her father and how

these assaults appear to have caused or at least have contributed to her functional disorder. I am also satisfied on the evidence

before me that Child 1 requires care or protection which she is unlikely to receive unless the Court makes an order as her parents,

particularly her father, struggle to cope and deal properly with stress and anger management and it is difficult to see how this family

will cooperate to a sufficient degree to protect Child 1.

20. In considering making an order, I must consider if it is proportionate to make such an order and consider the supports offered to

the parents and the child and the principle of family reunification. From the evidence before me, it is clear a range of supports have

been offered to the parents including family therapy, a parenting course and a family resource worker. These supports must be

considered in the context of this case: when Child 1 first came into care she was past her 17th birthday and her needs and her

parents’ needs have a window of less than 10 months to be addressed before she reaches her 18th birthday. The question arises if

appropriate supports identified as soon as they might have been and if appropriate agencies identified to provide these services? It

would appear that given the relatively brief time during which Child 1 might remain in care to her 18th birthday, supports that might

have been immediately available to the family could have been identified and were not. It is also clear from the evidence before me

that the parents have refused to meaningfully engage with social work services for a period between March 2012 and August 2012,

and since then have resisted engaging with supports; thus, to a significant extent frustrating efforts to identify and engage with

appropriate supports. The parenting course was offered at a time the father could not attend, however he does not appear to have

made efforts to engage with this course at a more suitable time and the mother has not engaged on her own. A range of in-care and

aftercare supports have been identified for Child 1, including a cognitive psychological assessment, aftercare service, and YAP

support. Child 1 has agreed only to engage with the psychological assessment. In considering the supports offered to the family and

their lack of acceptance of these, I am satisfied on balance that the HSE has acted proportionately in this case. However, when

considering the question of proportionality, I must also consider the views of Child 1 herself. She has consistently told all professionals

it is her desire to return home, notwithstanding the good relationship she has with her foster mother. She has also expressed this

view directly to Court when meeting me in chambers. It of particular importance in this case to consider Child 1’s express wishes,

given her age and the fact that she will return home in any event in a few short weeks.

21. Therefore, while I am satisfied the threshold criteria of section 18 have been met, it would be disproportionate to make a Care

Order in this case when the wishes of Child 1 are taken into consideration and the real likelihood that she will return home in a few

short weeks in any event. It is clear that Child 1 is a very vulnerable young person and that she and her family requires support during

her return home and into the future. It is for this reason that I will make a supervision order pursuant to section 19 of the 1991 Act

until [date given] with the following directions:

Section 47 of the Child Care Act 1991: Directions

1. Father and mother engage with the Parenting Coaching and allow the HSE to contact to the coach to enquire as

to their engagement and progress.

2. Father and mother to engage with the Family Resource Worker.

3. Family therapy be immediately identified and the family to engage with this at the earliest possible date.

4. Child 1 to continue to engage with her psychological assessment and any therapies recommended.

5. I further direct pursuant to section 45 of the 1991 Act that Child 1, as a child who has been in care, be provided

with aftercare pursuant to that section of the Act.

6. I direct that the GAL be discharged with her costs to be paid by the applicant.