District Court grants Care Order under Section 18 for child due to mother's abuse and neglect.

[2012] IEDC 25

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

YG

RESPONDENT

CARE ACT 1991 — SECTION 18

IN THE MATTER OF CHILD 2

10 December 2012

Decision delivered ex tempore on 10 December 2012 and written decision circulated on 18 December 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 who is 9 years old. The case was heard on 10 December 2012. Child 2 is currently in the care of the Health Service

Executive (HSE). She was admitted to the care of the HSE pursuant to an application for an Emergency Care Order on 3 June 2011

which has been extended by the Court on 19 occasions since that date.

2. I am satisfied that the respondent mother has been properly served with notice of these proceedings.

3. I am satisfied that the [District given] has jurisdiction to hear this application.

4. The HSE was represented in these proceedings by their Solicitor.

5. The mother was represented in these proceedings by her barrister and her solicitor.

6. Child 2 was represented in these proceedings by her Guardian Ad Litem, (“GAL”) who was represented by her solicitor. 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.

7. On 10 December 2012, counsel for the mother advised the Court that she was consenting to the making of a Care Order in respect

of Child 2 for the full duration to age 18 years. All parties indicated to the Court their agreement regarding certain findings of fact.

8. On 26 October 2012, the Court heard evidence of the Social Worker in advance of the scheduled hearing, due to her unavailability

to give evidence at the hearing.

The Social Worker confirmed her qualifications to the Court and swore to the contents of her report with supporting documentation

previously submitted to Court in advance of the hearing. The Social Worker gave evidence of her involvement with this case since

September 2011. She described contact between the mother and Child 2 which she had supervised and noted very little warmth

between mother and daughter. She gave evidence of disclosures on 5 December 2011, 27 February 2012, and 5 March 2012 to her

foster-carers and the GAL by Child 2 of physical abuse by the mother, each of which disclosures the Social Worker had subsequently

confirmed with Child 2. She gave evidence that these disclosures had been raised with the mother who admitted to the Social Worker

she had hit the children in the past. She gave evidence of further disclosure by Child 2 on 11 June 2012, of 3 instances of past

physical abuse by the mother, which the Social Worker again confirmed with Child 2. The Social Worker gave evidence of how when

she raised these further disclosures with the mother, she admitted pulling Child 2’s hair and hitting Child 2 and her older brother. The

Social Worker then gave evidence of a further disclosure by Child 2 on 20 September 2012 of a video the mother had made of Child 2,

aged 3, naked and that the mother had shown to strangers in their home when Child 2 was aged 6. The Social Worker gave evidence

that when she tried to raise this disclosure with the mother she threatened to publish the video on the internet. At this point the

mother interrupted the proceedings, reiterated this threat and left the Court. The Court adjourned.

At this point, the GAL made an ex parte application to have the mother held in contempt of court for breach of section 47 Directions

made by the Court on 26 September 2012. This application was later withdrawn.

The Social Worker continued to give evidence of three different explanations the mother had provided for this video and that she

could not be located and did not want any further contact with the Social Work Department. The Social Worker gave evidence that

this matter had been reported to the Gardaí who are investigating the matter. The Social Worker, under cross-examination, gave

evidence that a further referral to a treatment unit has been made for Child 2.

The Social Worker continued to give evidence of periods when the mother did cooperate and work well with the Social Work

Department and under cross examination gave evidence that in her functional parenting role the mother was good to some extent

with Child 2 reporting some positive experiences with her mother. She described the assistance she provided to the mother to access

GP services, rent allowance and accommodation, and her referral for the mother to psychiatric assessment — the results of which

indicate the mother most likely has a personality disorder which might be improved to some degree with therapeutic intervention;

however, the Social Worker gave her opinion that the mother was not likely to engage with such intervention. The Social Worker has

referred the mother for further psychological assessment. The Social Worker acknowledged under cross examination how the doctor’s

report describes the mother’s language difficulties, how it describes that at times of anxiety and agitation her behaviour can be

wrongly interpreted as aggression, and that threats may not be real as this may be how the mother expresses emotion.

The Social Worker gave evidence of how she has explored family placements for Child 2 with her maternal grandmother in Country 1

and maternal aunt in Country 2 but these have been discounted for a number of reasons including minimal relationships, language, and

separation of siblings. The Social Worker also gave evidence that the maternal grandmother denied the mother’s description of her

experiences growing up given to the social worker and other professionals.

The Social Worker gave evidence of Child 2’s overly sexualised behaviours and reduced diet when admitted into care. She described

how these behaviours have been addressed and improved while in care. The Social Worker also gave evidence of how Child 2 has

been diagnosed with dyslexia and the supports that have been put in place for Child 2 to address this difficulty. The Social Worker

outlined her concerns set out at page 17 of her report (Tab 1) and summarised her main concerns for Child 2 set out at page 21 of

her report (Tab 1). The Social Worker advised that the intention is for Child 2 to remain in her current placement with her brother who

has now reached the age of 18 but who continues to reside with that foster-family. The Social Worker gave evidence that the mother

is not currently requesting access with Child 2 and if access is to resume it will require a safety plan to be put in place for Child 2 as

the mother seems very angry with Child 2 regarding the disclosures she has made. The Social Worker stated that in her opinion the

allegations made by Child 2 are believable as she has gradually made these disclosures as she settles into her foster family and they

have been confirmed by her older brother. The Social Worker also stated that the mother tends to react angrily to the disclosures by

her children rather than demonstrating a level of distress at the information disclosed.

9. The GAL made an application pursuant to section 47 for the mother to immediately produce any images, photos, videos recorded by

visual, audio or electronic means relating to Child 2. The GAL submitted this was necessary to protect Child 2 and in her best

interests. While recognising the mother’s Constitutional and ECHR right to silence, fair procedures, and privilege against self

incrimination, these rights are not absolute and the interference in this instance would be proportionate and that section 47 gives

paramount consideration to the child’s rights. Counsel for the mother informed the Court that the mother has denied such video exists

and submitted that the mother’s privilege against self incrimination applies in civil cases as to criminal cases, that a liberal

interpretation of section 47 be applied except where it would interfere with another right, and that it would not be in the child’s best

interests to interfere with the mother’s constitutional or ECHR rights. Counsel for the HSE advised that the matter is in the hands of

the Gardaí and should remain there. The Court decided that section 47 places the interests of the child above all other rights and it

was proportionate in the circumstances to order the mother to produce the video or recording referred to in the child’s disclosure of

20 September 2012.

10. On 10 December 2012, I heard the evidence of the Allocated Social Worker. She gave evidence of the mother’s current

accommodation at a hostel and of the mother’s intention to marry her fiancé and move in with him. She gave evidence of disclosures

Child 2 has made since 26 October 2012 of being physically abused by her mother, being made to retrieve and eat a sandwich from a

bin, being given a cold shower and being put to bed, not being allowed to walk past her mother’s bedroom door and being made to use

a potty in her bedroom, being locked in the house while her mother was away, and being locked in her room. She gave evidence that

each of these disclosures had been put to the mother who has admitted some and denied others and that child protection

notifications have been sent to the Gardaí. She gave evidence that at a recent meeting the mother was responsive and cooperative.

She gave evidence that Child 2 is happy in her foster placement, has a good rapport at school where she is getting help with her

dyslexia and extra help with math and English, and that she will receive play therapy before a psychological assessment will

commence. She gave evidence that access is scheduled to begin next week and should take place once every three weeks thereafter

and that Child 2 wishes to have this access fully supervised at a HSE access centre. She gave evidence that the mother’s wish is to

have Child 2 attend her forthcoming wedding would have to be discussed with Child 2. She gave evidence that the mother had

handed over nine hours of video recordings to the social work department where nothing of a sexual nature was discovered and which

showed some lovely moments of interaction between the mother and Child 2 but that the HSE investigation into the disclosure

previously made by Child 2 is at an early stage. She described the supports offered to the mother around accommodation and

psychological assessment. She gave evidence that the care plan for Child 2 submitted is to be withdrawn and updated to include a

cultural dimension and confirmed that it would be in Child 2’s best interests to remain in the care of the HSE until she reaches 18

years of age.

11. I have heard the evidence of the GAL. She confirmed and swore the contents of her report for court and gave her opinion that

the threshold criteria have been met in this case. She described Child 2 and the difficulties her dyslexia poses for her in school and

noted the amount of school Child 2 missed while in her mother’s care. The GAL stated that Child 2 believes her mother does not like

her or love her and that her bad memories take up a lot of space in her head. She gave evidence that Child 2 has a positive regard for

her mother but that she struggles with access and finds it very stressful and suggested that access should be task-centred, should

not exceed one hour and should be terminated if the mother behaves in an inappropriate or frightening way. Regarding access to

include the mother’s fiancé, he will need to be interviewed and this will need to be discussed with Child 2. The GAL also recommended

that contact between Child 2 and her maternal extended family will need to be planned and supervised. The GAL also gave her opinion

that there is a strong likelihood that Child 2 will have mental health difficulties in the future as a result of the emotional and physical

abuse suffered which will require structured input.

Decision

12. Having heard the evidence set out above and read the reports in the Booklet of Evidence filed, I am satisfied that in respect of

the infant Child 2 that the threshold criteria under section 18 (1) (a), (b), and (c) of the 1991 Act are met and that Child 2’s health,

development, and welfare would suffer if a Care Order were not granted. The duration of the Care Order shall be to Child 2’s 18th

birthday [date given] for the following reasons:

(i) the mother’s neglect of Child 2 by leaving her home alone, short of food, and allowing her to miss school

attendance;

(ii) the mother’s admitted physical and emotional abuse of Child 2;

(iii) the mother’s mental health and psychological problems and their impact on Child 2.

13. I am satisfied that this decision is proportionate for the following reasons:

(i) the assessments and mental health services provided to the mother;

(ii) the psychological assessment offered to the mother;

(iii) the assistance offered to the mother to source accommodation; and

(iv) the home help provided to the mother in the past.

14. I reserve approval of an amended care plan to 28 January 2013 when this matter shall be re-listed.

15. I direct access pursuant to section 37 of the 1991 Act having heard the evidence set out and considered:

(i) Child 2’s age and her disclosures to her foster carer and the GAL; and

(ii) the stress access places on Child 2 .

16. GAL to be discharged and her costs to be paid by the Applicant and taxed in default of agreement.

17. Under section 47 of the 1991 Act, I direct that the case is to be re-entered before the Court and that the GAL is reappointed 6

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

(i) a Social Worker/Fostering Link Worker becomes unallocated to Child 2 for a period of 6 weeks;

(ii) a planned or unplanned change of current foster placement of Child 2;

(iii) the Annual Child in Care Review is not carried out for any reason.

18. After Care Review for on Child 2’s 16th birthday [date given] to assess her After Care Service needs.