District Court makes long-term Care Order for child due to mother's substance abuse and neglect risks.

[2012] IEDC 27

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

CJ

RESPONDENT

CHILD CARE ACT 1991 — SECTION 18

IN THE MATTER OF CHILD 3

19 December 2012

1. This is an application for a Care Order under section 18 of the Child Care Act, 1991 in respect of the Respondent’s third child

(“Child 3”) who is aged 17 months.

2. Child 3’s mother was not present in Court but was represented by solicitor and was in receipt of Civil Legal Aid.

3. Child 3’s putative father is not married to her mother although the couple have two other children (Child 1 and Child 2). Both of

these children are in the voluntary care of extended family members. The putative father is identified on child 3’s birth certificate as

‘father’; however the mother has stated that he is not Child 3’s biological father and that his brother is in fact the child’s biological

father. Neither the putative father nor his brother were present or represented in the proceedings. The putative father has been duly

served.

4. The mother was in the care of the HSE as a child and had 23 different placements in the thirteen years she was in HSE care. She

experienced a turbulent life in care and was at one time made the subject of a High Court Secure Care Order. She is described as a

particularly vulnerable young woman on the HSE’s file. She is also a member of the travelling community and it was emphasised by her

solicitor that she would prefer extended family care for Child 3 as she did not wish her child to repeat her life pattern in statutory

care.

5. Child 3 was appointed a Guardian Ad Litem (“GAL”) to represent her separate interest in the proceedings. The GAL is represented

by his solicitor.

6. The HSE brought this application on the basis that Child 3’s health, development, and welfare has been and is likely to be avoidably

impaired or neglected if she is returned at this time to the care of her mother because Child 3 has suffered unintentional harm and

neglect in the care of her mother due to her mother’s chaotic lifestyle, mental ill health, homelessness, and poly-substance addiction.

7. The Court heard evidence from:

(i) Social Worker 1 (with The Drug Treatment Centre Board);

(ii) Social Worker 2 (HSE Team Leader);

(iii) Social Worker 3; and

(iv) GAL.

8. It was not contested that the mother had a long-standing history of poly substance misuse. Her illicit drug use continues to be

chaotic despite her increased dosage of prescribed Methadone. She continues to be opiate positive on practically all samples provided

at the clinic (save 2 in the last six months). She also uses head shop products such as ‘snow blow’ (a variant of mephedrone). This

has caused her to have periods of drug-induced psychosis. She is prescribed benzodiazepines. She has consistently attended all

appointments at the methadone clinic. She was recently attacked and stabbed outside the clinic and suffered considerable injuries.

Her lifestyle is chaotic and she has not been able to stabilise her drug use. Social Worker 1 stated in evidence that he found her to be

good to deal with and has endeavoured to help her stabilise her drug use in order to gain some control of her life. It was his opinion

that her daily attendance at the clinic was to secure methadone rather than to avail of the other services, such as counselling etc

which would assist her in gaining traction on her addiction. In his professional opinion, her drug use and lifestyle would have a drastic

effect on parental ability.

9. Social Worker 2’s evidence was that she knew this mother for a long period. A pre-birth case conference was convened to consider

taking the infant into care following her birth; however, in light of the mother’s engagement with her Drug Treatment Centre at that

time, and her willingness to co-operate with the HSE, efforts were made to support her to care for this child. These efforts faltered in

August/September 2011 as signs of chaos returned to the mother’s life. Coupled with this, her choice of partner at that time was

inimical to the welfare of children generally as he had a conviction for aggravated sexual assault. While the mother agreed that this

was the case and that she had informal access to her two older children also, nonetheless, she exposed these children to this risk. An

Garda Síochána was monitoring the situation at the behest of the HSE as the mother was chaotic in her engagement with the HSE

Social Work Department. Social Worker 2 was also concerned that the mother’s self-report of low mood and self-harm raised issues

concerning her mental health and by extension her ability to cope with the child. While the child was physically well cared for, her

mother’s inability to attune to her needs and her chaotic lifestyle were deeply concerning to the Social Work Department. In addition,

the witness was concerned that the mother was enmeshed within a dangerous relationship. The mother posted bail for this man when

he was incarcerated, although she initially denied doing so. The witness was concerned for the mother who was vulnerable and who

presented with physical injuries, which she said had been inflicted by her extended family because of her relationship with this man.

The witness engaged directly with the mother who acknowledged all these concerns. She said that she had several meetings with the

mother and she outlined for her what she needed to do in order to gain traction on her addiction issues and stabilise her lifestyle in

order to allay HSE fears concerning the child’s safety and welfare. In December of 2011, the mother showed the witness that she had

endeavoured to cut her own wrists; she exhibited and stated that she was suffering from low mood and was overwhelmed and unable

to care for her child. She lost her accommodation even though she was being assisted by Focus Ireland. She acknowledged her

inability to care for her child at that time and indicated that she would like her child to go into relative care. She did not want to sign

her child into the voluntary care of the HSE. Following the mother’s arrest for breach of the peace, an Emergency Care Order was

sought by the HSE in respect of Child 3 as prior arrangements had not been made for a voluntary care agreement.

10. Social Worker 3 tendered evidence in support of her framework report in Tab. 5 of the booklet of Reports Furnished to Court. She

indicated that this mother had a poor history of engagement with her. She failed to engage adequately with access to her child and

missed several access visits. She acknowledged that on the occasions that she turned up, she was ‘loving an appropriate’ towards all

her children. The older children who have sibling access with the child are delighted to see their mother when she attends this

access. They are disappointed when their mother does not come to access. The witness persistently encouraged and reminded the

mother to come to access. When the mother did come following persistent reminders she came late or left early. Accordingly, the

witness stopped her pattern of persuading the mother to attend access and instead wrote to remind the mother of access

arrangements and appointments. The witness acknowledged that as the mother was homeless and relying on hostel accommodation,

and acknowledged that she may not have received all the letters sent to her. She noted that sometimes the mother contacted her to

say that she could not come as she was injured. When Social Worker 3 saw the mother, she looked physically injured, and she

explained to the Social Worker 3 that she did not want to alarm the children. The witness stated that she worried about this mother’s

health. She was particularly concerned about the incident in which the mother received 80 stitches in her arm when she was

attacked outside the methadone clinic. She noted, however, that the HSE offices are close to the Methadone Clinic and if the mother

was minded to engage with the HSE and access arrangements it would have been easy for her to do so. Her evidence was that the

mother was unable to motivate herself to secure accommodation and, in her view, the mother’s lifestyle revolves around her addiction

and little else. It was her evidence that the mother is difficult to contact, and has several different mobile phone numbers which may

not always be operational. It was her evidence that the mother did not attend the Child in Care (“CIC”) Review in February 2012 for

the child (though she did attend the CIC for her other children in voluntary care with a relative). She did not attend either the August

or December CIC Reviews. She did not attend an arranged Parental Capacity Assessment which would have better identified the

issues inhibiting her ability to parent. It was acknowledged that the cognitive capacity and any other assessments of this mother from

earlier HSE files had not been collated to the witness’s file concerning the child. The mother’s own identified needs, as a child who

had been in the Care of the HSE, were unknown to the current social work team.

Child 3’s Care History

11. Child 3 was born in July 2011. However, since then, she has been the subject of an Emergency Care Order on the 8 December

2011, and an Interim Care Order on the 15 of December 2011. This Interim Care Order was extended on 14 occasions until the hearing

date. Child 3 is on her third foster placement. It was acknowledged that three placements in such a critical period does not auger well

for a child developing a secure attachment. The current foster carers are the child’s third placement in 10 months although this

couple are extended relations of the foster parents in the second placement. The HSE Care Plan does not adequately address the

medium or long-term placement of this child in care. A Relative Fostering Assessment under section 36 is being undertaken by the HSE

at present.

12. The Fostering Social Work team did not give evidence to the Court on the history of the child’s placements to date, and future

arrangements for the child’s placement in the care of the HSE. There is also the issue of the cultural appropriateness of the current

foster placement of Child 3. Child 3 is from the travelling community and is entitled to the maintenance with all cultural links with this

community. Accordingly, it behoves the HSE to make every effort to ascertain whether there is any opportunity to secure a

placement from foster parents within the travelling community.

Remediation Plan for Mother

13. The HSE’s evidence has demonstrated the interventions adopted to engage and support the mother’s relationship with her child,

as well as plans to assess the mother’s strengths and weaknesses impeding her ability to safeguard her child’s needs so as to better

support the family unit. However, the personal challenges which this mother operates under appear to compromise her ability to

maintain the relevant level of consistent communication with the HSE to further this plan. The mother’s lifestyle and poly-substance

abuse also impeded a consistency in engaging in supported access with her children in care. It is clear on the evidence tendered that

this mother’s personal level of need is overwhelming and she is hard pressed to manage her own needs and achieve some level of self-

preservation. This is a particularly sad case as this mother is 25 years old, was in care herself, and has two other children in the care

of the HSE, albeit placed in extended placements. The mother is kind and caring when she engages with her children and they love

her.

14. The HSE requires the mother to address:

• Her use of drugs and the impact they have on her day to day circumstances;

• Her mental health issues and the emotional challenges she experienced;

• Her interpersonal relationships and vulnerability to exploitation and violence; and

• Her general social circumstances and instability.

15. It is extremely unfortunate that the HSE’s assessment of the mother’s own support needs was not enlightened by information

which may have been contained within her own HSE file as this might have been useful to the social work team to help identify the

supports the mother needed in order to assist her in complying with the list of things that the HSE required her to do.

Section 18 Threshold

16. Based on the evidence, the threshold criteria in section 18 of the Child Care Act 1991 is met. I am satisfied that the health,

development, or welfare of Child 3 has been avoidably impaired or neglected by virtue of the mother’s homelessness, chaotic lifestyle,

and drug addiction. I am also satisfied that the child’s health, development, or welfare is likely to be avoidably impaired or neglected if

the Care Order is not made. Section 18 also requires the court to address the question of proportionality.

17. The HSE request that the Care Order would be made until Child 3 is 18 years of age.

18. The legal representative for the mother opposes the make of a Care Order until the child reaches 18 and would concede that a

Care Order should be made but only for a period of one year. She contends that the mother has seen no indication that her

daughter’s care experience is not going down the exact same path that she experienced when she, herself, was in the care of the

HSE. The mother believes that she can ultimately provide the best care for her child and asks the Court to only make the order for 12

months so that she can put her life in order and resume care of her child.

19. I am concerned in relation to the shortcomings of the HSE’s Care Plan produced to Court as it does not adequately address the

question of how Child 3’s long term needs will be addressed. A full Care Order is needed to ensure Child 3’s stability and security.

20. The GAL supports the making of a Care Order until the child reaches the age of eighteen years but seeks a review period before

the Court.

21. I have considered the evidence carefully in order to determine the proportionality which is required in this case. Section 18 allows

the Court to make the order until Child 3 is 18 years of age or for a shorter period and allows the Court to extend the order if the

welfare of the child requires. In addition to considering section 18, the Court must have regard to section 24 of the 1991 Act. Section

24 mandates the court to have regard to the rights of parents under the Constitution and to have regard to the welfare of the child

as the first and paramount consideration and, as far as practicable, to give due consideration with regard to age and understanding

to the wishes of the child. While this child is too young to express her wishes, her position has been represented separately to that of

her mother or father by the GAL. The GAL has raised issues regarding the child’s indiscriminate attachment, which the GAL believes to

be linked to the reality that the child has experienced three different foster carers in 10 months. It is noted that there is the imminent

possibility of another placement, albeit a relative foster placement.

21. On balance, to discharge the obligations imposed under sections 18 and 24 of the Child Care Act, 1991 and having regard to the

evidence, I must make the Care Order until the child is eighteen years and I am satisfied that a shorter order would not meet the

child’s needs for long term security. However should the mother resolve her homelessness issues, attain a substance free lifestyle,

establish a consistent pattern of access with the child, and engage in the therapeutic and other supports provided for her by the HSE

and other agencies, I am satisfied that the HSE must review the potential for reunification at that time.

22. Accordingly, I make a Care Order in respect of Child 3 until the child is eighteen years old [date provided].

Section 47 Directions

23. I direct a full Care Order review by the Court in one year. This will meet the concerns of the mother that she has a specific period

of time to achieve her goal of family reunification and in the context that the mother was prepared to consent to this Court making a

Care Order for one year certain. This Review will also enable the Court to monitor Child 3’s welfare in care as her ‘Care Plan’ is

incomplete, her foster placement is uncertain and her paternal parentage has not been established.

24. The case to be re-entered in six months’ time (18 June 2012) to update the Court regarding the fostering assessment of the

relative foster carer and any parallel/alternative fostering arrangement proposed for the child. The fostering team leader or fostering

link worker to attend Court to identify a long term placement for Child 3 and explain the rationale for that placement and how it will be

supported (as it will clearly need to be supported in light of the attachment difficulties which Child 3 already presents).

25. The care plan is to be updated by the HSE to address the needs of mother and child to ensure that all deficits in the existing care

plan are addressed and that a supported access plan is structured to addresses the identity and cultural needs of the child.

26. Access between Child 3, her siblings, her mother, and her extended family should be within the discretion of the HSE but within

the parameters of section 37 and should also respect the rights of all concerned to preserve their family relationships and cultural

identity.

27. The HSE is to provide the mother with therapeutic supports to address the disadvantage under which she operates in order to

ensure that she is better able to engage in access in the best interests and welfare of the child. Focus Ireland form only one part of

the identified supports necessary for the mother.

28. The case is to be re-entered before the Court in the event of a change of the existing foster placement whenever such change

occurs or in the event that there is no longer an allocated social worker or there is no longer an allocated fostering link worker and

the GAL must be reappointed in that regard.

29. The case is to be re-entered for purposes of after care review on the child’s 17th birthday.

30. The GAL is to be reappointed for the purposes of the After Care Review and to remain in place until the case is reviewed in six

months’ time.