District Court grants long-term care order for child due to proven contact sexual abuse history.

[2012] IEDC 4

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

LW & GW

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 51

5 February 2012

The Issues

1. This case concerns an application for a Care Order in respect of a fourteen month old child (Child 5), who came into the care of

the HSE on 25 October 2010, immediately following her birth.

2. An Emergency Care Order was granted in respect of the infant on 25 October 2010 in circumstances whereby it became clear to

the HSE and An Garda Síochána that the parents had four older children placed in care in Country 1 since 2004.

3. The reason for the making of such orders in Country 1’s Court was a finding of child abuse and neglect — failing to provide a safe

and stimulating home environment, failing to meet the children’s basic needs including emotional warmth, exposing the children to

domestic violence, and the children’s sexualised behaviours. Child 1 was returned home to the care of the parents, much to the

criticism of the Guardian Ad Litem (“GAL”), as detailed in the Book One C 1-32 supplied to the Court. Following the report of the

Psychologist, she was ultimately taken into Local Authority care having spent almost a year with her parents after her siblings came

into care in August 2004.

4. An Interim Injunction was made by Judge C on 4 July 2006 prohibiting contact by either of the parents with Child 1 and appointing

a Guardian for the children in respect of the proceedings. This was extended by Judge N on 27 July 2006. Ultimately, the children

were each ‘freed for adoption’ by the courts in Country 1.

5. Allegations of serious contact sexual abuse were made by three of the children in the course of therapeutic attachment sessions

undertaken with three of the children and their prospective adoptive parents.

6. The Respondent parents, though separately represented in these proceedings, are united in their vehement opposition to their

daughter, Child 5, being taken into the long term care of the HSE. Through their respective legal teams, they express the wish to be

allowed an opportunity to parent their daughter. They deny allegations of physical or sexual abuse in respect of their children in the

context of these proceedings. They indicated that they were never afforded the opportunity to challenge the allegations of contact

child sexual abuse which emerged after their other children (Child 1, Child 2, Child 3, and Child 4) were taken into care and freed for

adoption. The fact that allegations had been made by Child 2, 3, and 4 was only put to them in 2010. Prior to the emergence of such

allegations, a different Local Authority was initially prepared to consider the possibility of allowing them an opportunity to parent this

child with a high level of monitoring pending further consideration of the reports from the previous proceedings and an investigation of

the emerging information regarding sexual abuse. Ultimately, however, the core assessment of the social worker discounted this

potential and recommended the removal of the child at birth. They believe that the decision-making process undertaken by the Local

Authority in Country 1 was unfair to them as they were only provided with the detail concerning the allegations of contact sexual

abuse and the children’s attachment difficulties to their adoptive parents by letter on 13 September 2010.

7. Through their legal representatives, the Respondents indicated that they will co-operate with the HSE in matters relating to the

welfare of Child 5 and wanted an opportunity to establish that they had made sufficient progress in order to parent her if necessary

under supervision of the HSE.

8. Interim Care Orders have been made since October 2010 with the consent and co-operation of the parents and they have been

afforded supervised access to Child 5 three times per week. It is acknowledged that the parents have, at all times, acted co-

operatively with the HSE and participated in a risk assessment undertaken by the HSE Social Work Team and a risk assessment

undertaken by the HSE’s forensic social worker.

9. A comprehensive booklet of access reports also furnished to the Court outlined that each of the parents has acted and behaved in

a warm and caring way in respect of Child 5 during supervised access. Evidence of a secure secondary attachment to them is

conceded by the HSE and the GAL. Some concerning issues, which arose on three separate occasions and which occurred outside of

access time, were resolved following dialogue with the parents and the Access Centre Manager who gave evidence accepted that the

explanation proffered by the parents was not unreasonable.

10. The HSE risk assessment does not favour family reunification, as the forensic social worker who has an expertise in sexual abuse

assessment found there to be a high risk of future sexually harmful behaviour by the parents in this case. The parents dispute this

finding and have sought to secure an independent psychological assessment more favourable to family reunification. The possibility of

securing such a ‘second opinion’ was mooted in May of 2011 but the assessment was only commenced in late November 2011 and has

not been completed at the date of the commencement of these proceedings. A psychotherapist, has partially assessed Child 5’s

mother but has not been in a position to formulate an assessment outcome and conclusion or provide a Final Report to Court in

respect of the mother. He has not been formally requested to undertake an assessment of Child 5’s father. He has given evidence in

relation to his preliminary partial assessment. There is no alternative professional evidence adduced by or on behalf of either parent.

Neither parent has given evidence to the Court but their position has been set out by their respective legal counsel.

History

11. The parents of Child 5 are a married couple since 2007 but have resided together for some fifteen years. It is a matter of fact

that their relationship between the years 1997 and 2004 was marred with episodes of domestic violence. The mother gave birth to

five children in total. Child 5’s father is the father of the four youngest children. The mother was under sixteen when she gave birth to

Child 1, her first child, and Country 1 social services have been involved with the family since this date.

12. It is an important feature of this case that the mother experienced severe abuse and neglect during her own childhood. She also

self-reported exposure to domestic violence and alcohol abuse as well as early sexualisation. She was expelled from play-school due

to her behaviour she attended residential special education thereafter. She had sexual experiences with friends or acquaintances of

her father in her early teens ultimately becoming pregnant with Child 1 her first child at age fourteen. She began a relationship with

Child 5’s father while she was pregnant with Child 1. Both mother and father remain a committed couple having married in 2007.

13. The chronology of events furnished to the Court depicts a chaotic domestic environment marred by interpersonal violence in

which the parents could not manage their own behaviours or help the children to self regulate theirs. The police were no strangers to

the household and both parents were arrested at various times for violent behaviour. The records also indicate a highly conflictual

relationship with neighbours.

14. Child 1 was placed on the Child Protection Register before she was a year old. Child 2 and Child 4 were not taken regularly to the

Orthoptist. Child 2 was not encouraged to wear the prescribed eye patch for sufficiently long period of time each day resulting in her

eyesight deteriorating. The correction of Child 4’s left convergent squint and long-sightedness was also delayed through parental

inaction. Child 1 became parentified, adopting as best she understood that role to be, a mothering role for her younger siblings,

modelling with them the parenting she received. As set out in the Family Centre Case Conference Report (dated 17 August 2004), the

basic needs of the children were not met by either of their parents. The latter Report set out the general neglect and inadequate

parenting which the children received and also cites the sexualised behaviour of Child 3 in the period before the children were taken

into care. The reasons underpinning the Local Authority Application are clearly set out in the Supplement for the application for a Care

or Supervision Order Form C 13 and this also included specific reference to exposure to sexual behaviour. The Interim Care Orders

were made on 1 November 2004.

15. Family co-operation with Social Services as set out in the Chronology indicates a pattern of inconsistent take up by the parents

in term of irregular attendance at the Family Centre and health visitor. Support interventions were put in place for the family in

January 1998 and again in March 2003 in the form of Family Aid; however, this intervention does not appear to have been sufficient

to effect any change in the family dynamic. The Chronology of Significant Events furnished and the Guardian’s report from Country 1

notes a pattern of sporadic uptake of supports furnished.

16. Social work involvement in the first half of 2004 records the family’s inability to cope with basic issues including failure to manage

family finance and misspending limited family resources, poor parenting and boundary setting, and failure to establish a bedtime

routine. In May of 2004, another support service called ‘Homestart’ was involved with the family but further episodes of domestic

violence, in which the mother was arrested for allegedly assaulting the father, precipitated all four children going into voluntary

respite care for two days followed by two days ‘day care’ in June 2004. The impact of the June domestic violence was evident in the

children’s behaviour when in foster care. Child 2 and Child 3 recounted the incidents seen by them in play school. The family unit

appeared to become entirely overwhelmed during 2004 and the parent’s relationship fractured for a time.

17. It is documented and emphasised by counsel for the mother that at this time the mother also experienced mental health

difficulties which contributed to requests by her for a further period of respite care for the children later that month, and again in

August when she suffered a miscarriage.

18. The issue of early sexualisation emerged even before the children went into care. In July 2004, the Chronology of Significant

events records that the mother was taking a bath and the children were being cared for by the family care worker. The Care Worker

reported that Child 2 said that mother and father were going to engage in sexual relations in the bath. Child 1 denied that this was

the case but Child 3 insisted that it was. On this occasion also, Child 3 exhibited sexualised behaviour and language using a cylindrical

rattler to imitate sexual activity and also engaged in graphic sexual activity and language.

19. In August, 2004 Child 1 was returned home to her parents’ care as her foster placement was going to break down, however her

parents continued to struggle with her in their care. All four children were registered under the Child Protection Register in August

2004 under the category of ‘neglect’. The GAL from Country 1 was highly critical in his report to Court that Child 1 was exposed to

further abuse and neglect in the period during which she remained as the sole child in the care of her parents who were receiving

significant parenting supports.

20. In October 2004, Child 2 and Child 3 exhibited inappropriate sexual knowledge and vocabulary while in foster care and disclosed

seeing their parents engaged in sexual activity in the bedroom and kitchen.

21. In November 2004, Interim Care Orders were granted in respect of all 4 children, however, Child 1 remained in the care of her

parents notwithstanding the allegations made by Child 2 and Child 3. Between August 2004 and July 2005, intensive supports were

put in place to support the family unit consisting of the mother, father and Child 1 in the hope that it would be possible to reunify the

family on a phased basis. The parents undertook Relate Sessions (counselling) and ‘the parent and child game’ at a family centre as

well as a ten week Parenting Programme course.

22. In February 2005, Child 2 and Child 3 disclosed that they watched pornographic films with all siblings and parents and again

indicated sexualised knowledge beyond their years. This disclosure was put to both parents and it is reported that they were unable

to put the incidents into context.

23. In April 2005, Child 2 spoke of having to wait for food as her parents were having sex in their bedroom and in the kitchen, Child 2

also mirrored sexualised behaviours with Child 3 while in the bath and she said that she saw her parents engage in similar behaviour

and that they had sexual relations in the kitchen. These incidents also appear to have been disclosed to the parents who ‘could not

make sense of where this has stemmed from’. But they did allege that Child 1 has disclosed that the foster carer’s boyfriend made a

sexualised gesture which she saw during a sibling contact. This allegation was investigated but in any event the foster placement

ended as the foster care could not cope with Child 2’s behaviour and felt intimidated by the children’s mother and father.

24. In June 2005, Child 1 made disclosures of multiple episodes of emotional and physical abuse by her parents, and that she had

been exposed to parental domestic violence and heavy drinking by her father. Social services and the children’s Guardian had

previously understood that the parents were making progress toward the gradual rehabilitation programme of the family unit prior to

this allegation. A number of parenting programs and contact supports were facilitated in order to develop a parenting capacity and

permit the parents to demonstrate ability to meet the identified needs of the children. However, following Child 1’s disclosures, this

was no longer considered to be appropriate.

25. The potential for further child sexual abuse issues emerging was highlighted by the psychologist in his report of July 2005. It

remains the case that Child 1 has never made allegations of child sexual abuse.

26. Full Care Orders were granted by Family Proceedings Court in Country 1 in respect of Child 2, 3 and 4 on 26 September 2005 and

in respect of Child 1 on 28 September 2005. Child 2, 3, and 4 were subsequently adopted by two families (Child 2 with one family and

Child 3 & 4 with another) whereas the eldest child, Child 1, though ‘freed for adoption’ and placed for adoption, was not ultimately

adopted and she remains in the care of social services in residential care. Tragically, Child 3 is also in therapeutic residential care by

virtue of her behaviour.

27. The Court found that the parents had abused and neglected the children and failed to provide a safe and stimulating home

environment for them and failed to meet their basic needs including a lack of emotional warmth and exposure to domestic violence and

sexualised behaviours.

28. Attempts by the parents to discharge the Care Orders in November 2005 were dismissed in December 2005.

29. As anticipated by the psychologist, both Child 3 and 4 subsequently made disclosures of contact sexual abuse by both of their

parents during art therapy sessions which took place between May 2006 and August 2007 and also made such disclosures directly to

their adoptive parents. The parents vehemently deny that they were involved in contact sexual abuse of the children or knowingly

sexualising them by exposure to their own sexual relationship or pornographic materials. They have stated through their respective

legal counsel that neither of them was interviewed by their local authority or the police in respect of the 2006/7 allegations, and

indeed they never knew of the allegations until 2010.

Evidence Adduced at Hearing

30. Evidence was heard in the following sequence:

(1) A Chartered Psychologist;

(2) A Senior Social Work Practitioner;

(3) A Consultant Child and Adolescent Psychiatrist for Child 3 & 4;

(4) The manager of the Access Venue;

(5) Social Worker 1;

(6) A Forensic Social Worker who carried out a risk assessment;

(7) Social Worker 2, who also undertook a framework assessment;

(8) An Arts Therapist;

(9) A Psychotherapist engaged by the mother; and

(10) The Guardian Ad Litem for Child 5;

The evaluation of the evidence is grouped out of this sequence for the sake of convenience.

(a) Country 1’s Psychological Evidence

31. The psychologist undertook a Wechsler Adult Intelligence Sale (“WAIS”) test with the mother in order to assess her global

capacity to deal effectively with her environment. The results showed that the mother obtained a full-scale intelligence quotient of 74

which is at the 4th centile (borderline functioning within the average range of adult intellectual ability). He concluded that at this

level of functioning, the mother would be likely to experience difficulty in keeping up with her peers in a wide variety of situations that

require age-appropriate thinking and reasoning skills. The verbal IQ with subtests of verbal comprehension and working memory index

test produced a score of 73 which is the 3rd centile, while the performance score produced a score of 81 which is the 10th centile.

The Perceptual Organisation Index, which is a measure of non-verbal and in-the-moment reasoning, produced a score of 86 which is

at the 18th centile (lower end of the average scale). The Processing Speed Index test, which provides a measure of ability to process

simple or routine visual information quickly, produced a score of 96 which is within the average range. Accordingly, the psychologist

concluded that the mother’s ability to process visual information and her non-verbal abilities are stronger than her verbal

comprehension skills. He also concluded, however, that a weakness in processing verbal information and thinking with words is more

likely to impact on parenting for the mother than her relative strengths in the non verbal area. In conclusion, he felt that on the basis

of the psychometric testing he undertook, the mother operates within the borderline range of ability (between the lower end of the

average range and the learning impaired range) but is functionally literate and numerate. With assistance, persons with this degree of

ability could be helped to adequately parent a child or children, all else being equal.

32. Both the mother and father fully co-operated with his assessment. In the case of the mother, the psychologist noted that she

was depressed and reported that she self-medicated with cannabis and found it hard to cope with the four children. His conclusion

was that the mother experienced a highly disturbed and dysfunctional relationship with her mother and felt abandoned in her teens by

her father. She witnessed on-going and serious domestic violence, alcohol abuse, and chaos within the household in which she grew

up. She was sexualised as a child and now suffers from low self esteem. He believed that she does not have ‘easy access’ to empathy

with the needs and feelings of others, including her children, although she reported that the father was heavy handed with Child 1

and hurt her from an early age. Most unfortunately, her own life experiences have impacted upon her at the level of her personality

style and organisation and she is not an effective change agent in her own life; she is not naturally nurturing. The psychologist

concluded that the mother did not mean to harm her children but was, through her own life circumstances, powerless to prevent her

role in it.

33. The psychologist did not perform a formal psychometric assessment on the father since the informal indicators were of normal

albeit low average functioning ability. He was unshakable in cross examination in his conclusion that neither parent had a full grasp of

the parenting task and that their own needs tended to eclipse those of their children. He was of the view that risks flow from both

parents including a risk of physical abuse, risk of emotional abuse as each parent has a difficulty with empathy, and exposure to

domestic violence. He concluded that the risks were too considerable to consider a possible change within the children’s timescale.

34. The psychologist also concluded a detailed clinical assessment of each of the children. He had a prescient strong suspicion, given

the children’s sexualised language and reference to ‘shagging’ and the children’s sexualised behaviour, that sexual abuse would emerge

once the children were received into care and felt safe in their placement. He formed the clinical impression that the children had

either seen or been allowed inappropriately to see adult sexual behaviour. He was concerned that the parents used to bath with the

children. In his evidence to this Court, he agreed that Child 1 could tell convincing lies, but he approached his analysis of her from

clinical interview with great caution. He was satisfied that Child 1 had an ambivalent attachment to her parents and that there was

an anxious quality in that attachment. He was apprehensive that she might replicate her mother’s life experience. He noted that when

Child 1 was the only child in the care of her parents they were still unable to parent her to an adequate standard. He spent 10 hours

with each parent in his deliberations and saw the children both in the school environment and at access as a family group.

(b) Country 1’s Social Work Evidence

35. A Senior Social Work Practitioner, gave evidence of her lengthy involvement with Child 1, Child 2, Child 3, and Child 4 as set out in

her two reports contained in Book Three of the booklet of Independent Reports furnished to Court. Her involvement with Child 1 dates

from 2005 and she remains as her designated social worker to date. She knew the family since 2004 due to her work at that time as a

duty social worker who had an involvement with the family. She recounted the troubled experiences of each of the children arising

from their history of neglect and emotional abuse in the care of their birth parents. She also detailed her interactions with the birth

parents who were meeting Child 1 secretly in 2006. Her evidence was that Child 1 experienced a number of losses in her young life,

moving from her birth family to foster care, separation from her siblings save for access, and multiple moves in foster care and then

after three years and seven months in pre-adoptive placement she experienced the loss of that placement and is now in residential

care.

36. The Social Worker Practitioner’s evidence was clear that in her professional opinion, Child 1’s on-going difficult behaviour stems

from her early childhood experiences of neglect and abuse in the care of her parents. She conceded that Child 1 now has telephone

contact with her parents and remains very loyal to them; she still grieves the loss of her siblings but prioritised contact with her

parents over contact with them. The witness indicated that arising from the allegations of Child 3 and 4 in May and June of 2006, she

informed the police and was instrumental in securing criminal injury compensation for the children arising from the sexual abuse

experienced by them. She agreed that she did not put the allegation of contact child sexual abuse to the parents but felt that this

was not her role or function. She regarded it as a matter for the police. There was no legal nexus with the parents and their parental

responsibility in respect of each of the children had been extinguished. Although Child 1 was informed in a general way about the

disclosures made by her siblings, she has never made a disclosure of sexual abuse. However, she did exhibit sexualised behaviour

following sibling access. In recent times, there has been no sibling access as the adoptive parents have effectively severed links with

Child 1 now that she has resumed contact with her parents. The witness conceded that access with her parents was seen by Child 1

as having a value for her; she continues to crave their attention. It was put to the witness by counsel for the mother that the

children may have been exposed to sexualisation in foster care; however, the witness noted that Child 3 had exhibited sexualised

behaviour long before that. Counsel for the father challenged the witness on the Local Authority’s care of Child 1 since she was taken

into care; however, it was her professional opinion that her traumatised behaviour stemmed from her early childhood experiences and

that Child 1 would not benefit from therapy until such time as she felt safe in a secure placement. The witness concluded that she

was very concerned in relation to the risk posed by the parents to any child in their care, in light of their denial that their children

were at the very least sexualised in their care. She found it concerning that it was being asserted that if the children had been

sexually abused then it must have happened since they came into care. It was her professional opinion that it would be dangerous to

place any child in their care in light of the trauma suffered by each of the older children and their unwillingness to take any

responsibility for the global harm which each of the children suffered when in their care.

37. Social Worker 1 gave evidence of her involvement with Child 2, Child 3, and Child 4 as Practice Manager of the Adoption Team. It

was her professional opinion that each child had disclosed being severely neglected within their birth family, left without food, and

physically and sexually abused. They recounted a history of being shut in cupboards, and in one room, and left in their own urine and

faeces. The children’s disclosures and accounts of neglect and abuse including sexual abuse made to their prospective adoptive

parents were credible in her professional opinion. It was also her professional opinion that the level of trauma suffered by the children

was extreme in that they were exposed to multiple abusive experiences. She agreed that she did not put the allegations to the

parents and explained that her role was to support the adoptive parents and she regarded any follow up with the birth parents to be

the responsibility of the Social Work Practitioner who was the social worker for the children. It was her professional opinion that these

were amongst the most traumatised children she has worked with bar one other child who died. It was her unshakable opinion that

the children did not make up the allegations; their palpable fear and the detail provided by them satisfied her of the credibility of their

experiences.

(c) Arts Therapist’s Evidence

38. The Art Therapist gave evidence of her qualifications as an Arts Therapist and her particular training in music therapy. She

supervised other therapists including an art therapist who worked with the children at that time; she sat in on some sessions as the

second therapist, necessary due to the extreme behaviour of the children in therapy at times. She is the Director of an organisation

which focuses on building an attachment bond between ‘cared for children’ and adoptive parents. It was in this context that she saw

the children. She conceded that at this time her organisation was not multidisciplinary and was not a formal ‘validation process’ for

child sexual abuse disclosures. All of the children and families with whom she has worked have experienced trauma and have

attachment disorders or one form or another, some of the children have experienced child sexual abuse. The therapy engaged in with

the children is directive in terms of activities engaged in, but non directive in terms of exploring issues which emerge during therapy.

She herself is not an art therapist. She brought some examples of drawings by Child 2 which she felt exhibited typical styles of

drawings by children who have experienced child sexual abuse. She noted that Child 2 disclosed child sexual abuse to the art

therapist and her prospective adoptive mother during some therapy sessions. The records of disclosure were compiled by the adoptive

parents and shown subsequently to the art therapist as a record of what was said in therapy. Child 4 also disclosed child sexual

abuse in therapy. In her experience, children who suffered early child sexual abuse in the family home are more traumatised than

children who experienced such trauma later in life, or at the hands of a stranger. She was professionally satisfied that what the

children disclosed was truthful and represented their experiences of sexual abuse and chronic neglect and physical abuse in their birth

family. There was consistency in what each child said. However, she agreed that her organisation had no role in validating allegations

of child sexual abuse in a forensic way. She was not a psychiatrist or a psychologist and her primary role was therapeutic. She had

not been asked to validate allegations of child sexual abuse as the purpose of the therapeutic sessions and these allegations emerged

in therapy. The children were never asked by a therapist whether they had been abused. The adoptive parent was with the child as

the focus of the session was on building that attachment bond. Play through art or music was the theme of the session and within

that theme a child could be asked a ‘curious question’: for example, they could be asked ‘why did you draw that?’ In this context, the

disclosure emerged and she believed them to be truthful. She agreed that the children were aged 3, 5, and 7 at adoption but were

approximately 18 months, 3, and 5 when they came into care. This, in her view, did not detract from the validity of what they

disclosed or their assertions that the abuse they suffered was in the birth family.

39. Counsel, on the instruction of each parent, questioned the witness in relation to the methodology employed in the therapy

sessions in which the disclosures emerged. Because the attachment therapy process did not have a ‘gatekeeper’ role in forensically

validating disclosures of child sexual abuse, they did not as such detract from the strength of opinion of the witness as to the

credibility and validity of the disclosures made. It is equally relevant that children in this case were exposed to multiple types of

documented neglect and abuse and an overemphasis on the sexual component of the disclosure and the absence of forensic

validation of the sexual component of the abuse would be a mistake. Nonetheless, it is most unfortunate that the children did not

have the benefit of a forensic validation process and that the parents were not put on formal notice of the detail of the allegations

made. The parents had no parental responsibility at that time, and a therapeutic decision appears to have been made that there was

little or no merit in exposing the children to further examination.

(d) Psychiatric Evidence from Abroad

40. A Consultant in Child and Adolescent Psychiatry, became involved with the children in 2009 following a referral in 2008. She gave

evidence in support of her reports of 25 January 2010 and 14 February 2011. The witness assessed both Child 3 and Child 4. She

noted that Child 4 was 18 months old and preverbal when she came into care. Child 3 was almost 4 years when she first went into

care. The children had eight placements in two years before being placed for adoption with their adoptive parents. Child 3 has an

anxious avoidant attachment with her adoptive parents and her attachment style leads her to present with many features that may

be present on the autism spectrum, she also suffers symptoms of post traumatic stress disorder. She has experienced suicidal

ideation and is currently in therapeutic residential care.

41. Child 4 has a complex presentation and also has an anxious avoidant attachment to her adoptive parents. She has been awarded

a statement of Special Education Needs to assist her educationally. She is on medication to help her sleep and reduce her disinhibition

and hyperactive behaviours. She experienced sexually abusive behaviour from her sister, Child 2, at sibling access. She disclosed

sexually abusive experiences perpetrated by her birth parents and is clear in this recollection. The witness indicated that in her

professional opinion both children have experienced gross and systematic sexual abuse by their birth parents and in her professional

opinion no child would be safe and secure in their care. It was her professional opinion that both children are among the most

psychologically traumatised children that she ever assessed or worked with. She was satisfied that both children had been sexually

abused and while the disclosure occurred in the process of creative attachment therapy in 2006–2007, they are nonetheless credible.

Both children have a continuing need for therapy arising from their early childhood experiences. They are both very vulnerable and

have a difficulty in maintaining relationships. It was her opinion that the trauma they suffered did not happen in foster care and she

was satisfied that the children were not coached in relation to their disclosure. Child 3 volunteered a history of her experiences at her

initial meeting with her. This disclosure was unprompted. Child 4 gave her account later. The witness agreed with counsel for the

mother that the fact that the allegations were not put to the parents was strange, and she also agreed that she did not have sight

of the Medical Adoption Report.

(e) Irish Forensic Risk Assessment

42. The Forensic Social Worker gave evidence in respect of his detailed risk assessment of 8 April 2011. I will not repeat his findings in

detail, save to note that his risk assessment was comprehensive including both a clinical and psychometric/actuarial model to

conclude the level of risk posed by each parent having regard to the history of their other children. He concluded that both parents

present a high risk of future sexually harmful behaviour if facilitatory factors are present. Under the Stable assessment tool, the

father scored a Moderate Risk rating. Under the Static 99 assessment tool, the father scored a Moderate to High Risk assessment of

sexually problematic behaviour in future. Under the VASOR assessment test, the father was assessed as High Risk. Under the Able

Assessment for Sexual Interest-2 (AASI-2) the father was shown to have a preference towards adolescent females, a high interest in

voyeurism and sadomasochism towards adult females. In this test, the father scored a Medium risk of having engaged in past sexually

abusive behaviours.

43. AASI-2 results for the mother indicate moderate concerns on the trauma symptomlogy scale and no concerns on the Trauma

Intrusive Thought Scale. However, he assessed a low to moderate risk concern that the mother’s trauma symptomlogy may be

aggravated by developmental and social stressors although he considered this to be unlikely in view of her reinterpretation and

disassociation from her own abusive childhood. The mother also scored low on the cognitive distortion and social desirability scales.

Psychometric testing indicated that the mother had a sexual preference towards adult males and a sexual interest in sadomasochism

towards adult males. He viewed the couple as a committed and collusive couple and concluded from his overall clinical assessment

that they both represented a high risk of future sexually harmful behaviour if facilitatory factors are present.

44. A psychotherapist, was engaged directly by the mother to undertake a risk assessment in light of the result of the risk

assessment undertaken by the forensic social worker. He was contacted in October 2011 and formally engaged in November 2011.

The forensic social worker’s assessment was available to the parties since May 2011. The psychotherapist was made aware of the

time scale of the Court hearing. Unfortunately, the psychotherapist’s assessment was not completed and, in his estimation, it would

take another five weeks to complete his assessment of the mother. He was not contracted to undertake a risk assessment of the

father at the time of giving evidence. His tentative preliminary assessment of the mother was made available in a four page document

and he also gave evidence under subpoena. While he espoused a similar methodology for assessment as the forensic social worker, he

proposed to use a slightly different battery of psychometric testing. He had three two hour assessment interviews with the mother

and was only at the preliminary history taking part of his interview. He had the same material available to him that the forensic social

worker had. He believed that the mother was able to make some acknowledgements of being a young mother unable to cope with four

small children and the fear that her husband was having an affair. She admitted some episodes of domestic violence and indicated

that any neglect was due to her inability to cope at that time. In seeking help, she felt that it was not given to her. She denied any

child sexually abusive behaviour and indicated that she was not interviewed by the police regarding the sexual allegations in 2006 and

2007 and she never heard about them until 2010. He conceded that he had not proceeded to challenge some of the information

furnished to him by the mother making reference to the material furnished. He conceded that some of the identical psychometric

testing to be conducted by him should produce similar results to those already conducted, if he same information was given. He could

not make any assessment to court at this point. Counsel for both parents applied on more than one occasion in the course of the

hearing to adjourn the hearing pending the outcome of the psychotherapist’s testing of the mother and father. However, having

regard to the Court’s obligations under section 24 and section 3 of the 1991 Act, I find that this would not be a proper exercise of the

balance required of the Court. It has been open to parents to secure an independent assessment since May of 2011 and delay in

court proceedings is inimical to the welfare of the child in the opinion of both the HSE and GAL.

(f) Irish Social Work Framework Assessment

45. Social Worker 2 is the allocated social worker for Child 5 and she conducted a comprehensive assessment of parenting capacity

using well respected assessment tools in that regard as set out in her report. Her assessment was under four categories of child

abuse namely neglect, emotional abuse, and physical and sexual abuse. Reports from Country 1 were relied upon in respect of

assessments undertaken there in respect of the four children in care in that jurisdiction. Equally, the assessment relied upon the risk

assessment undertaken by the forensic social worker. She concluded that while the family had made some improvements and had a

positive secondary attachment with Child 5, there remained a risk of neglect and emotional abuse if she was returned to their care.

She adopted the findings of the forensic social worker in respect of the risk of physical and sexual abuse. Her concern was that in

minimising or denying elements of their behaviour in respect of the children in care in Country 1, neither parent could be considered a

protective factor for the child. Furthermore it was her opinion that their constructed shared system of denial meant that an

appropriate intervention could not be offered at this time. Her professional view was that a long term care order was required and

that access should be adjusted accordingly and should remain flexible at the discretion of the HSE.

(g) Guardian Ad Litem’s View

46. The GAL gave evidence in support of his Reports to Court since his appointment on 1 November 2010. He gave a description of

Child 5 and her development since coming into care. He noted that her primary attachment is now to her foster parents but

acknowledged a secondary attachment with her parents. He gave evidence that her access with her parents would change if the

Court made a long term Care Order in order to allow the child to settle in her long term placement and reinforce that primary

attachment. He indicated that in his professional opinion the disclosures made by the children in Country 1 were credible and the

process of therapy described by the Art Therapist was non directive; the children made spontaneous disclosures in that context. It

would have been up to the joint Social Work/Policy Strategy meeting in Country 1 to determine whether to proceed with prosecution

following the disclosures. His experience of such situations was that careful processes and procedures were undertaken under the

joint protocol system but physical examinations were in his view not a necessary component of an investigation. A value analysis of

benefit would be undertaken prioritising the best interests of the child. The fact that the parents did not hear about the detail of the

allegations until 2010 may be simply because a decision was taken not to proceed with a prosecution of the parents at that time. He

was concerned about the level of minimisation and denial by the parents on issues of domestic violence and general neglect. He was

also concerned about the reliance on ‘conspiracy theories’ and blaming others. He was also concerned that the parents presented to

hospital, prior to Child 5’s birth, indicating that this was their first child. They provided a medical history relating to the pregnancy

from a maternity hospital in Country 1. It was only when staff at the hospital made contact with the other hospital in Country 1 that

they received information to the effect that the Social Work Department in Country 1 had a pre-birth Plan in place in respect of the

unborn child and had intended to apply for a Care Order of this child at birth due to a history of neglect and abuse which lead to the

couple’s other children coming into local authority care in Country and subsequently being ‘freed for adoption’ as part of their long

term care plans. He was clear that even if one discounted the allegations of contact child sexual abuse, the remaining trauma

suffered by the children under the headings emotional abuse and neglect, physical abuse, and non contact sexual abuse while in the

parents care was considerable. In his view, significant therapy would be required by the parents individually to deal with their

respective parental deficits, and the time scale of that intervention is uncertain. His professional view was that long term care was

required because of the risk of abuse posed by her parents. He is satisfied with the HSE Care Plan proposed but was anxious that the

case be remitted to court in the event that the case was unallocated to a social worker or in the event of a change in foster

placement. He acknowledged that different views prevailed on the role of access with birth parents in that context and that an

attachment expert might be engaged to advise the HSE if they considered that helpful.

Legal Submissions

47. Counsel for the HSE argued that the evidence tendered over the preceding nine days was sufficient to meet the threshold criteria

in section 18(1)(c) of the Child Care Act 1991. While both parents, through their respective legal teams, disputed all the non-

contradictory evidence that was called, neither parent chose to give evidence themselves. The parents came to this jurisdiction on

the advice of a politician in Country 1 to avoid their child being taken into care in Country 1 following a professional pre-birth

assessment of risk in that jurisdiction. Four other children in the household were taken into care on the grounds of serious neglect and

abuse. Counsel has referred the Court to the case of G v An Bord Uchtala [1980] IR 32 which identified the child’s right to bodily

integrity and the right and opportunity to be reared with due regard to religious, moral, intellectual, and physical welfare. In particular,

counsel refers to page 30 of the judgment of O’Higgins CJ and the separate Article 40 rights of the child when he pointed out that a

child, having been born, has the right ‘to be fed and to live, to be reared and educated and to have the opportunity of working and

realising his or her full personality and dignity as a human being and that these rights must equally be protected and vindicated by the

State.’

48. It is her submission that the Court has to have regard to the rights of Child 5 and to make an order so that she can fulfil her

potential. She also referred to the case of In re Article 26 and the Adoption (No.2) Bill 1987 [1989] IR 656 where the Supreme Court

stated that the Court was obliged to construe Article 42.5 and in doing so stated that the rights of a child are not limited to those

contained in Article 41 and 42 but include the rights referred to in Articles 40, 43, and 44 and so the child enjoys the personal rights

identified in Article 40. It was her submission that alternation of the family in its constitution may be necessary to protect the

individual rights of the child.

49. She referred the Court to the principles set out in the two ECHR cases of Olsson v Sweden [1992] 17 EHRR 134 and Johansen v

Norway (App No 00017383/90, 7 August 1996) which hold that Article 8 rights are not absolute and that while State parties should be

slow to interfere with such rights, any interference deemed necessary should be proportionate to the risk. Courts are the best parties

to make that decision.

50. She also referred the Court to SHB v CH [1996] 1 ILRM 219 which involved the admissibility of a video-taped interview with the

child and the purpose for which the Court could view the interview. The court determined that the video-tape evidence was a part of

the expert testimony to be given by the social worker. She submitted that the Court had engaged in a nine-day enquiry with Child 5’s

rights to the forefront of that enquiry. The focus was on her welfare and best interests and in addressing the balance the statutory

tilt was to be in favour of promoting the best interests of the child (page 238 of the judgment). She referred to the evidence of five

professional witnesses from Country 1, who were made available for rigorous cross-examinations. Some of them gave evidence of

hearing direct disclosures of abuse by the children in care there and naming their parents as the perpetrators of that abuse. Social

Worker 2 gave a detailed but fair parental assessment of parental capacity. This was a fundamental reassessment of parental ability

at this point in time solely related to Child 5. The forensic social worker gave evidence of his forensic risk assessment. He noted that

there was a high risk of future physical and sexual abuse by the parents. The competent courts in Country 1 had made final orders

and the Irish Court was entitled to take judicial notice of those orders. In her view, there was no evidence adduced to show that the

assessment of risk had changed.

51. Counsel for the father made lengthy submissions on the facts and submitted that her client had not been assessed ‘afresh’ and

that the Irish assessments were heavily influenced by the earlier assessments from Country 1. Her client was denying the allegations

of sexual abuse and challenged the method of validation undertaken by the art therapist. She submitted that, procedurally, her client

should have been informed of the allegations made in 2006/2007 and that his notification of those allegations in 2010 was procedurally

indefensible. She also referred to what her client considered to be procedural deficits in the assessments and evidence of the social

work practitioner, Social Worker 1, and the psychiatrist. While her client had taken on board some of the issues concerning neglect in

the report of the psychologist, he believed that his personal and married relationship had matured and changed to the extend

necessary to allow him an opportunity to parent Child 5 to whom all agreed he had a solid if secondary attachment. He denied

allegations of physical abuse of his other children, save a tap on the hand to correct them. He now understands that secondary

exposure to domestic violence is detrimental to child development but this is no longer a feature of his relationship with his wife. He is

now married since 1997. Counsel submitted that the assessments in Country 1 should not be determinative of his relationship with

Child 5; the psychologist’s assessment was limited in terms of ability to change to the time frame relevant to the process in Country

1. She submitted that the retrospective validation process was essentially flawed and unfairly prejudicial to him. She also submitted

that the children’s current trauma must in some way be attributable to the multiple moves experienced by them in foster care and

insufficient weight was attributed by the witnesses to this fact. She submitted that in relation to the Irish evidence adduced, that

the forensic social worker was not a psychologist and yet was reliant on psychological tools to underpin his professional opinion of a

joint delusional belief. She submitted that Social Worker 2’s assessment was flawed as she overly relied on the assessments from

Country 1 as part of her own assessment of risk and her assessment was, accordingly, flawed.

52. Counsel for the mother had overlapping submissions but also submitted that Article 8 imperatives must be informed by Article 6’s

procedural imperatives. She was concerned that her client had been denied proper procedural processes in terms of notification about

the allegations of contact child sexual abuse made in 2006/2007 and she was not afforded the opportunity to challenge those

allegations or the methodology under which they emerged. She submitted that her client denied allegations of physical and sexual

abuse, and while she made allegations of physical abuse by the father to the psychologist, she did so because she was angry with

him at that time. She submitted that the psychologist had conceded that her client was not guilty of intentional neglect and also

accepted that Child 1 was proficient at dissembling. As his 2005 report was framed to meet the children’s time scale in the

proceedings in Country 1, she contended that it was not determinative in the current proceedings and that her client has made

changes enabling her to be afforded an opportunity to parent Child 5. The risk assessment prepared by the HSE and the forensic

social worker relied heavily on the allegations of child sexual abuse made in 2006/2007 and the weight to be attached to those

allegations must have regard to the procedural frailties of the validation process. Because those allegations were only put to her

client at a later stage, they prejudiced her chance of parenting Child 5. She submitted that the medical information deficit weakened

the psychiatrist’s assessment and in her evidence she herself indicated surprise that the police had not proceeded to prosecute the

parents or investigate the alleged abuse. She submitted that the forensic social worker’s risk assessment was less than forensic in

terms of over reliance on the reports from Country 1. She submitted, moreover, that her client was fully co-operative with the risk

assessment and his view that she was less than forthcoming and the psychometric testing carried out showed that the mother

showed a normal interest in adult males. She submitted that Social Worker 1’s evidence did not countenance that there was any

space for the potential that that children had influenced each other in respect of the 2006/2007 allegations. She indicated that there

was sufficient evidence of efforts by her client to change her parenting capacity even in the bundle of papers submitted to this court

and since that time her client has made further strides.

53. Counsel for the GAL supported the application by the HSE for the making of a full Care Order in respect of Child 5. He referred the

court to sections 3, 24, and 26 of the 1991 Act and the case of MS v W and the dicta of Costello J as to the weight to be applied to

hearsay evidence. He also referred the court to the English cases of In Re G [1987] 1 WLR 161 and In re SB [2002] WLR 238 and

submitted that the court was entitled to take into account the risk of future harm to Child 5 based on past parental behaviour. He

also referred the Court to the case of EHB v McDonnell [1999] 1 IR 174 on the issue of welfare.

Findings

54. Having read the several reports furnished to the Court and having considered the evidence tendered in this case over nine days

and considered the submissions made by all parties to the proceedings, I find that the threshold criteria of section 18(1)(c) have been

met on the evidence tendered. I also find that Child 5’s health, development, or welfare is likely to be avoidably impaired or neglected

unless the Court makes a Care Order in respect of her.

55. I have considered the rights of the married parents and the rights of Child 5 under the Constitution. There is a significant conflict

between those rights having regard to the evidence tendered. The position of the parents as married parents is relevant but not

exclusively determinative of the issue. Child 5’s welfare would ordinarily be assumed to lie in being raised by her married birth parents.

However, cogent evidence has been adduced in these proceedings that by virtue of fundamental frailties in their respective parenting

capacities there is a high risk that her health, development, and welfare would be impaired if she were to be given into their care. The

Child Care Act, 1991 sets out clear parameters for State intervention when it becomes necessary to balance the rights of parents and

children. Section 18 does not require there to be intention on the part of the parent.

56. I am satisfied that I am entitled to have regard to the child care decisions made in Country 1 in respect of Child 1, Child 2, Child

3, and Child 4. The parents were fully represented in those proceedings and the full panoply of their procedural rights was respected.

The children were represented in the proceedings by a GAL and their wishes and feelings were conveyed to the Court. Those orders

would be entitled to recognition and enforcement in this jurisdiction pursuant to Council Regulation EU 2201/2003.

57. Since those orders were made, further allegations of contact sexual abuse have emerged and much of the argument in this case

has centred on the process used to validate those allegations in Country 1. Even if the Court was to ignore such fresh evidence of

contact sexual abuse entirely, there is ample evidence that children were sexualised while in the care of their parents. Moreover, the

evidence of serious and pernicious neglect of the four children is overwhelming. I am fully satisfied from the papers produced in Court

and evidence adduced that sufficient supports were afforded to the parents at that time but that their uptake of those supports was

eclectic and sporadic.

58. I am satisfied that the evidence tendered to the Court in respect of the evidence of contact sexual abuse is admissible as part

and parcel of the professional evidence tendered by the arts therapist, the psychiatrist, the social work practitioner, and Social

Worker 1 as envisioned by the case of Southern Health Board v CH [1996] 1 IR 219 and in Eastern Health Board v Mooney (Carney J,

unreported, High Court, 28 March 1998). There is clear authority to support the proposition that hearsay evidence can be admissible.

I also note that section 23 of the Children Act 1997 allows evidence of any fact relating to the welfare of a child to be admitted but

that when such evidence is admitted the court must then turn its attention to section 24 of the Children Act 1997 and the weight to

be given to such evidence.

59. Having considered the evidence tendered in respect of the allegations of contact abuse in this light and considered the inferences

to be drawn as to its accuracy and in particular:

a) The fact that the original statements made by Child 3 and Child 4 were made in, or following, therapy and the

notes were made by their adoptive parents;

b) The fact that subsequent disclosures were also made by the children to the psychiatrist, the social work

practitioner, Social Worker 1, and the art therapist in subsequent therapeutic encounters;

c) The fact that such professionals have no objective motive to conceal or misrepresent matters; and

d) The fact that while the original statement appears to be an edited account or was made in collaboration with

another for therapeutic purposes but also for the particular purpose as disclosed in the letter from Social Worker 1

dated 3 January 2007.

60. I am satisfied nonetheless that the correct weight has been attributed by the sundry Irish professionals to the children’s

statements notwithstanding that a forensic validation process was not subsequently followed.

61. It is, however, extremely unfortunate that the parents were not apprised of the allegations until 2010 and any breach of their

administrative/procedural rights in that context is a matter for a court process in another jurisdiction. They are not prejudiced by any

such failure in this jurisdiction.

62. I am satisfied that the parents came to this jurisdiction and conveyed false information to the Irish maternity hospital on their

arrival in an effort to avoid their child being taken into care.

63. I am satisfied that ample time has been afforded to them to procure a second opinion as to the Risk Assessment of the forensic

social worker and Social Worker 2.

64. I am satisfied that for all the foregoing reasons, Child 5 requires care or protection which she is unlikely to receive unless an Order

is made in respect of her pursuant to section 18(1)(c) of the Child Care Act 1991 and is made until she is 18 years old.

Directions

66. Pursuant to section 47 of the Child Care Act 1991, the Court makes the following directions:

1. That access between Child 5 and her parents, siblings, and extended family should be at the discretion of the

HSE within the parameters of section 37 of the 1991 Act.

2. That access should be supervised.

3. That the case be re entered in the event that the case is unallocated to a social worker for a continuous period

of four weeks and the Guardian ad Litem be re-appointed.

4. That in the event of a planned or unplanned change of the existing foster placement that this case is re-entered

before the Court before the change of foster placement and that the Guardian be re-appointed.

5. That should this case be Re-Entered by reason of paragraph 3 or 4, the Guardian is to be provided with all social

work reports and be given access to files at least six weeks before the date of re-entry.