District Court grants Care Order for two children due to parental capacity issues despite father's consent.

[2012] IEDC 5

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

CB & NF

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 2 AND CHILD 3

20-24 February 2012

1) This is an application for a Care Order under section 18 of the Child Care Act 1991 in respect of two children, Child 2 and Child 3,

aged 9 and 12 years respectively.

2) Both respondents are separately represented in the proceedings. The Court was informed at the opening of the case by solicitor

for the father that his client was consenting to the application of the HSE for a Care Order in respect of both children until they reach

18 years on the basis that there could be a court review of the Care Order in 12 months’ time.

3) The father accepts that the children are well cared for in their current relative foster placement and it is his intention to enter into

an alcohol treatment programme in the intervening period to overcome his alcoholism.

4) The mother’s counsel indicated that his client opposed the application of the HSE for a Care Order. While she accepted that there

had been some problems leading to the children being taken into care, her position was that HSE intervention necessary to address

those problems did not require the rupture of the parental relationship she had with her sons and the matter could be satisfactorily

addressed by less-draconian State intervention.

Family Composition

5) The mother, who is the first named respondent in these proceedings, has four children in total. Her firstborn, Child 1, is now 18

years old. The mother and the second named respondent have two children who are the subject matter of these proceedings: Child 2

and Child 3 and they were aged 9 and 7 years when they came into the care of the HSE nineteen months ago.

6) The mother’s relationship with the second named respondent was marred by episodic domestic violence — although they continued

to cohabit until they separated in 2006. They reached an informal agreement on separation that the children would reside with their

mother during the week and have residential access with their father from Friday to Monday. Parental relations appeared to become

more conflictual post separation and after the mother began her relationship with her partner. The father also had a relationship post

separation with his partner.

7) The mother began her relationship with her partner during 2010. The mother also has a child with her partner, Child 4, who was

born in November 2011.

Trigger for State Intervention

8) The immediate trigger to the commencement of the proceeding was the arrest of the mother and her partner following an

altercation between the mother and a neighbour over a dispute between their children in relation to the making of a ‘go cart’. The

Garda Síochána became involved when a neighbour complained that she and her children were threatened by the mother’s partner

with a gun. A Garda search of the premises produced an air-gun and a bag containing a shotgun and replica gun within the environs

of the family home. A small quantity of cannabis resin was found in the house.

9) When the proceedings were launched, the HSE also alleged historical concerns around neglect and emotional abuse of Child 1 as

well as Child 2 and Child 3 as recorded in the evidence during the period from 1998-2010. There is no prior history of an application for

a Supervision Order or Care Order and these ‘concerns’ did not appear to pass the threshold from professional ‘concerns’ into ‘abuse’

or ‘neglect’ heretofore. The National Education Welfare Board engaged with the parents and HSE around significant absenteeism in

respect of Child 1 and 2 in the school years 2008–2009 and 2009–2010.

10) An Interim Care Order granted on the 28 September 2010 was extended on 14 occasions until the conclusion of this hearing.

Family Reunification Proposals

11) The HSE was open to the possibility of family reunification once their concerns for the safety and welfare of the children were

addressed. A major concern for the HSE was the risk posed by a return of the children to the mother’s home and contact with the

mother’s partner. They were also anxious to address historical concerns previously mentioned. Reunification was a heading in each

report to Court until November 2010.

12) The HSE intended to commence a process of family reunification of the children with their mother in her father’s home in

November of 2010 and applied for a Supervision Order. The mother was not legally represented at that time. It is common case that

terms of mutual agreement as to the parameters of supervision were almost agreed. The mother left the precincts of the Court before

the Supervision Order application came before the Court. It is also common case that her Social Worker, advised her that she should

postpone her hospital appointment until the matter was ruled on consent; however she failed to do so. The Court was not in a

position to make a Supervision Order in such circumstances and the HSE applied for an Interim Care Order and same was granted for a

period of 28 days. The Court appointed a Guardian Ad Litem (“GAL”) for the children. The mother was of the view that the Supervision

Order arrangement should have been put into place either on that day or at least on the expiration of the Interim Care Order.

However, the children remained in relative foster care in County 1.

13) The potential for family reunification remained current until the parenting capacity assessment of the Psychologist. A contract

was drawn up between parents and the HSE on 7 April 2011, set out at Tab 43A. A Family Welfare Conference Co-ordinator was

appointed on 8 February 2011 and positive Family Welfare Conferences took place on 1 June 2011, 8 September 2011, and 30

September 2011. These conferences mapped out expectations for both parents in order to achieve reunification. The mother could

not maintain access schedules or commitments given to phone the children daily because she was preoccupied with other matters.

She did not appear to appreciate the importance of access both for the children and for family reunion. That said, each of the

parents made some efforts to change. In the case of the mother, she sought out anger management therapy. In the case of the

father, he tried to overcome his alcohol addiction. Unfortunately, the HSE concluded that for different reasons, the parents could not

or would not make the changes necessary to provide the children with the consistent nurturing and responsible care that they

needed.

Conceded and disputed facts

14) The disputed facts were relevant to both the establishment of jurisdiction (threshold criteria) and the orders that the Court

should make to assure the welfare of the children (disposal).

15) Counsel for the mother conceded that evidence adduced by the HSE established that the children had suffered neglect to the

extent that they had not been sent to school regularly by their mother or by their father during the academic years 2008/2009 and

2009/2010 and that their educational development had been avoidably impaired in consequence of that non-attendance.

16) It was also conceded that the children were exposed to domestic violence and high conflict in the course of the parental

relationship. In the course of the proceedings, a short delay was sought to facilitate the mother securing a Protection Order under

the Domestic Violence Act 1996 allegedly due to the father’s very recent abuse of her.

17) It was contested that the children had been otherwise ill-treated or neglected in any way by the mother. In particular, counsel

for the mother contested all allegations regarding incidents over a range of years from 1998 to 2010 relating to the following:

(a) allegations of parental indifference and lack of capacity in relation to Child 1, Child 2, and Child 3;

(b) failing to provide nourishing school lunches or regular meals for Child 2 and 3;

(c) failing to treat Child 3’s eczema;

(d) disposal of Child 3’s bed in consequence of his nocturnal enuresis and failure to provide suitable alternative

sleeping arrangements for ten months;

(e) failing to dress Child 1, Child 2, or Child 3 appropriately to the weather;

(f) failing to ensure that Child 2 and Child 3 wore school uniform and appropriate footwear;

(g) failing to keep Child 2 and Child 3 clean and help them to socialise with peers;

(h) exposing Child 1, Child 2, and Child 3 to episodes of maternal physical/verbal aggression;

(i) exposing Child 2 and Child 3 to the presence of firearms and drugs in the home and having a pellet gun

under the children’s bunk beds;

(J) exposing the children to the presence of the mother’s partner whom they were afraid of since they were

informed that he shot their father with a pellet gun.

18) It was also denied that there was an intergenerational pattern of laissez faire or unpredictable parenting which manifested itself in

the mother’s rearing of Child 1 (her first born child) and which continued after the birth of Child 2 and Child 3.

19) The chronology of access became clearer following the preparation of a Historical Access Schedule by the HSE in the course of

the proceedings. Counsel for the mother challenged the assertion that since Child 2 and Child 3 came into care that his client failed to

visit her sons sufficiently in County 1 noting the practical and logistical hurdles preventing greater uptake of access in County 1 by his

client. It was also suggested that if the children had been allowed to remain in the non-relative approved foster arrangement by the

mother in July of 2010, it would have been more beneficial for all concerned. It was conceded that the mother failed to honour

agreements reached at Family Welfare Conferences to contact the boys daily by telephone but that this was due to practical barriers.

20) Counsel for the mother objected to a proposal by counsel for the GAL that the relative foster carer should be called to give

evidence in relation to additional matters referenced in an addendum report prepared by her in the course of the proceedings. He

submitted that the GAL was not a party to the proceedings though her involvement has a statutory foundation pursuant to section 26

of the 1991 Act. He submitted that a GAL was not in a position to call a witness not called by the HSE or any other party to the

proceedings. This point was not perused.

21) Counsel for the mother also objected to the admission of the Addendum GAL Report dated 21 February 2012. He objected that

this Addendum Report included hearsay statements allegedly made by the children to the relative foster carer and then re-conveyed

to the GAL. It was submitted that the information thus conveyed could not possess adequate indicia of trustworthiness. The relative

foster carer was not a professional witness and there was also an element of objective bias given their status as relative foster

carers. The report was admitted within the parameters of section 23 of the Children Act 1997 and having regard to the case of

Eastern Health Board v Mooney (Carney J, High Court, unreported 1998) on the basis that the Court would carefully assess the

weight to be attached to any additional evidence contained in it. The GAL clarified and amended the content of some information

contained in that addendum report during her evidence to Court. She noted that disclosure made by children in informal care

situations is not an unusual occurrence. This is an easier environment for children to be more open in, with a trusted caregiver rather

than a professional stranger. The objection of Counsel for the mother in relation to quality of the information being third hand is also

noted. I bear all these points in mind and treat the Addendum Report with an appropriate degree of caution.

22) The allegations regarding exposing the children to firearms was rejected on the basis that the mother had only permitted her

partner to bring pellet guns to her house and that no firearms were found in her house. Her evidence was that there was never a gun

under the children’s bunk beds, nor had the cache of weapons found in the curtilege of her neighbour’s garden anything to do with her

or her partner. It was also asserted that their father had coached the children, or that the Gardaí had influenced them by placing the

weapons found in the house on the stairs where they could see them and integrate them into their imperfect recollection of events. It

was also suggested that the children got on well with her mother’s partner until told by their father that he had shot him in the face

with a pellet gun.

23) Counsel for the mother highlighted that the HSE did not feel compelled to interfere with the parenting arrangements of either

parent prior to July 2010 even though the family was known to the HSE since 1998. In addition, it was emphasised that the HSE had

been open to the possibility of family reunification until the parental capacity assessment of the Psychologist came to hand this year.

Counsel disputed the validity of the parental capacity assessment of the Psychologist noting that the PAI was undertaken in 45

minutes and was being accorded an overblown value. Conceding that the mother had a short temper and was quick to anger, he

noted that his client has of her own volition secured anger management CBT. This ran counter to the Psychologist’s prediction that

the mother could not see the value in and was unlikely to engage in therapeutic interventions leading to change necessary for family

reunification.

Threshold Criteria

24) The Supreme Court has highlighted that any State intervention in the delicate filigree of relationships within the family has

profound effects and must therefore be justified by compelling reasons. Express constitutional permission for State intervention is

limited in Article 42.5 to exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children. In

re JH (an infant) [1985] IR 375 (SC), the Supreme Court held that section 3 of the Guardianship of Infants Act 1964 must

‘be construed as involving a constitutional presumption that the welfare of such a child is to be found within

the family unless the Court is satisfied that there are compelling reasons why this cannot be achieved or the

evidence establishes an exceptional case where the parents have, for moral or physical reasons, failed, and

continue to fail to provide education for the child.’

The child’s Constitutional rights go beyond the right to education however.

25) Children born outside of the constitutionally defined family unit have personal rights to family relationships which are protected by

Article 40.3 of the Constitution as elucidated in the case of The State (Nicolaou) v An Bord Uchtála [1966] IR 567 (SC) and G v An

Bord Uchtála [1980] IR 32 (SC) where O’Higgins CJ stated:

‘[t]he child also has natural rights. Normally, these will be safe under the care and protection of its mother.

Having been born, the child has the right to be fed and to live, to be reared and educated, to have the

opportunity of working and of realising his or her full personality and dignity as a human being. These rights of

the child (and others which I have not enumerated) must equally be protected and vindicated by the State.

In exceptional cases the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty,

as guardian of the common good, to provide for a child born into a family where the parents fail in their duty

towards that child for physical or moral reasons.’

26) Under Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the European

Union, everyone has the right to respect for his or her private and family life, home, and communications. However, those guaranteed

rights are not absolute in either instrument. Interference with family rights must have a basis in law, and any interference must be

proportionate to the risk faced by an individual family member. Article 24 of the Charter sets out that children also have a right to

protection and care as is necessary for their wellbeing and that state intervention to protect a child’s rights must have the child’s

best interests as a primary consideration. If such intervention is deemed necessary, the child has the right to maintain, on a regular

basis, a personal relationship and direct contact with both his/her parents, unless that is contrary to his or her interests.

27) The Supreme Court has vigilantly patrolled the limits or threshold criteria for State interference with parental rights in decisions

concerning children as evidenced in the PKU case of North Western Health Board v W(H) [2001] IESC 90. The State may only

interfere in exceptional cases to protect a child from decisions taken by a parent in relation to them. As Denham J noted:

‘[i]f the responsibility for making this decision is transferred from the parents to the State then it would herald

in a new era where there would be considerably more State intervention and decision making for children than

has occurred to date. Every day, all over the State, parents make decisions relating to the welfare, including

physical welfare of their children. Having received information and advice they make a decision. It may not be

the decision advised by the doctor (or teacher, or social worker, or psychologist, or priest or other expert)

but it is the decision made, usually responsibly, by parents and is abided by as being in the child's best

interest. Having been given the information and advice, responsibility remains with parents to make a decision

for their child. The parents are responsible and liability rests with them as to the child's welfare.’

28) Ascertaining the tipping point for State intervention involves a court weighing up all the circumstances, including parental

responsibility, parental decisions, the child’s personal rights, and the rights of all persons involved with and in the family, to determine

in these circumstances what is in the best interests of the child.

29) Section 18 of the 1991 Act sets out the statutory threshold that must be established to justify State interference in a family.

Unless the threshold criteria in that Section have been met on the balance of probabilities, the HSE has no right to interfere. The

exigencies of ensuring that that threshold criteria is met requires the same exercise by this Court as that set out in the PKU case.

30) Even when the tipping point has been reached, justifying State intervention to protect the rights of the child must go only so far

as being proportionate to the risk. Section 24 of the 1991 Act is clear that while the welfare of the child must be the first and

paramount consideration, the wishes of the mature child and the rights and duties of parents, whether under the Constitution or

otherwise, must form part of the balancing exercise to be undertaken by the Court. A proportionate intervention is a requirement of

section 18 if the threshold criteria of that section have been met. Section 18 is not a licence for social engineering.

Findings of Fact

31) Over a period of five days the Court has had the opportunity to hear the testimony of each of the following witnesses:

Garda 1 (Crime Task Force);

Garda 2 (Child Protection Unit);

a member of the National Education Welfare Board;

the Principal of the children’s school;

the Intake Social Worker;

the Student Social Worker;

the Psychologist;

Social Worker 1;

the Community Child Care Worker;

Social Worker 2;

the mother; and

the GAL.

32) The Court has also been able to observe the demeanour of each witness to assess the credibility of each witness and to

determine the weight to be given to the testimony of each witness.

33) The HSE assert that the threshold criteria of section 18(1)(a), (b), and (c) has been met in this case through that evidence and

that Child 1 and 2 have been neglected and that their health, development, and welfare has been avoidably impaired or neglected and

that their health, development, or welfare is likely to be avoidably impaired or neglected unless the Court makes a Care Order in

respect of them until they each reach the age of eighteen years. The HSE must also establish that the intervention proposed by them

and supported by the GAL is proportionate and not an excessive intervention in the family and private life of the parents and the

children.

34) Evidence adduced by the HSE through the testimony of a member of the National Education Welfare Board has established that

Child 2 missed 58 days of school and Child 3 missed 45 days of school in the school year 2008/2009. The mother’s explanation was

that during the period she broke up with a partner she had at that time and she was depressed and found it hard to get out of bed

early. The witnesses stated that for a five-month period in the former academic year, Child 3 was under six and so his school

attendance was not yet compulsory for that five month period. In the school period 2009/2010, Child 2 had 46 missed school days

and Child 3 had 47 missed school days out of a total of 180 days. Nine of these missed days were explained through illness (chicken

pox) and five arsing from treatment and follow up for a broken collar bone; however, the vast majority of absences were unexplained

and the absences from school affected the children’s educational development and integration into school life.

35) Evidence was also adduced from the testimony of the Principal of the children’s school that he was personally familiar with both

children, that they were falling behind, and that the school applied extra resources and resource hours to help the boys to recover

educationally for the time lost through missed days. His testimony also adduced that he had received complaints from class teachers

and that he himself observed that both children were poorly turned out for school, that they both stood out as scruffy and, on

occasion, that they sometimes had inadequate lunches. His knowledge of the presence of the rash experienced for a number of days

by Child 3 was through reports from the school secretary and class teacher. The Principal and member of the National Education

Welfare Board gave evidence that efforts were made to engage the parents in addressing all these concerns. These interventions

resulted in short term improvements and then relapse to poor attendance and presentation.

36) The testimony of the Intake Social Worker and the Student Social Worker was that Child 3 did not appear to have a proper bed

for about a ten-month period. This testimony is not necessarily inconsistent with the mother’s evidence that she had to dispose of

the bed because she stood on and it broke. The GAL, in her evidence and report to Court, emphasised the significance of the

bedwetting and absence of bed for a protracted period as part of Child 3’s experience of harm. This was denied by the mother and

has not been evidentially established. The mother’s evidence was that Child 3 had a camp bed for a period, and sometimes shared a

bed with his brother and that her income was inadequate so the failure was in essence due to externally originating circumstances

and relative poverty.

37) Historic evidence from Social Worker 1 related his interactions with the family in 2007 regarding Child 1’s poor school attendance,

parental disengagement around issues presenting for Child 1, such as allowing her to maintain a peripatetic lifestyle moving between

three homes, failure to safeguard her emotional health following a suicide gesture, and failure to follow up with the HSE/hospital

regarding Child 1’s STD diagnosis in the period 2007/2008. Social Worker 1’s evidence was heavily reliant on his file notes. It was

unclear from his evidence whether notification/protective protocols were activated or put in place to mitigate risks to Child 1 arising

from these issues. But as counsel for the mother rightly pointed out, the HSE closed their file.

38) The Psychologist’s testimony in relation to her assessment of the mother’s intellectual functioning, her personality profile, and her

consequent parental capacity has not been challenged by contradictory expert testimony adduced by or on behalf of the mother. It

was the Psychologist’s evidence that inconsistent parenting during a child’s development had a particularly deleterious effect and

resulted in the child developing maladaptive methods of self-regulation, such as rocking and spinning to self sooth. Her evidence is

that the mother herself displays poor emotional regulation and that her personality development is characterised by tendencies

towards aggression, impulsivity, and self-reliance. It was her professional opinion that the mother lacks the capacity to understand

the emotional needs of others, that she cannot conceptualise her children’s emotional needs, and that she lacks the capacity to build

a supportive and attuned emotional relationship with Child 2 and 3. The Psychologist’s was of the view that the children have

considerable resilience as evidenced by their improved educational trajectory since they have attended school regularly and received

a caring and consistent home life with their relative foster carers. No evidence was adduced to challenge the Psychologist’s

interpretation of the psychometric test results and her professional opinion was that the mother has poor potential for change.

39) The testimony of Garda 2 (Child Protection Unit), the Intake Social Worker, and the Community Child Care Worker in relation to

both children’s accounts relating to (a) witnessing the assault by the mother on her partner, (b) the presence of an air pistol believed

by the children to be a gun under Child 3’s bed, and (c) the removal by the mother’s partner of a bag containing what the children

believed to be guns from the house and placing it outside the curtilege of the house in a neighbouring garden has been given

probative weight and is preferred over the testimony of the mother which I have not found to be credible on this point. I accept her

evidence that the father has sought to negatively influence the children in relation to the mother’s partner by letting them know that

he had been shot by a pellet gun by him. Extracts of text messages set out in the Garda Case Conference memorandum at tab 58 of

the book supplied to Court were acknowledged by the mother in her evidence. I find that the mother either knew or must have known

that her partner had guns in the house and had shot the father in the face. I found the mother’s evidence on both these issues

lacked credibility.

40) The testimony of Social Worker 2 is accepted in relation to the mother’s tendency to anger and aggressive behaviours as detailed

in the Case Conference Memorandum of An Garda Síochána at tab 58 of the booklet of evidence. His evidence, that she made threats

to both him personally and to him but directed to the relative foster carers, is also accepted as is his testimony that she was

inconsistent with telephone access to her sons and did not did not perceive the effect that this had on her sons’ emotional welfare.

His testimony is also accepted that on two occasions she proposed to have her partner bring her to access in County 1 and observe

access arranged in County 1 even though she was aware of the children’s antipathy and fear of her partner. His testimony is also

accepted that the mother did not engage in a process for family reunion insofar as she failed to meaningfully engage with direct

access until May 2011.

41) What a witness has said and written in evidence has to be assessed in the context of all the written and oral evidence and any

overall favourable or unfavourable impression reached when a witness has completed his or her oral evidence can only be a preliminary

one. The mother is an intelligent woman as evidenced by her presentation to Court and having regard also the psychometric tests and

clinical assessment of the Psychologist. The task of caring for her two children was shared by her with their father whom she

described in negative terms to the court; nonetheless, she allowed this situation to prevail. While accepting that domestic violence is

a complex dynamic, her evidence is that she separated in 2006 recognising the toxicity of that dynamic which was damaging for her

and her children. However, she continued to facilitate residential access for the children with their father accepting his partner to be

a protective person.

42) The mother’s evidence is accepted on this issue of the bed disposal although it is clear from Child 3’s statements to professionals

that he perceived his bedwetting to be associated with the absence of a bed.

43) Although conceding the significant periods of missed school attendance and the significant effect on the children’s education, she

endeavoured to minimise her responsibility for this situation. I do not accept the mother’s reasons for failing to ensure school

attendance.

44) While evidence was adduced in respect of children having poor quality lunches, appearing to be hungry, having poor hygiene, and

being inappropriately dressed for the weather, it is equally the case that the HSE chose not to intervene to the extent of placing the

two children or Child 1 when still a minor on the child notification system. There was HSE involvement, but it was at a low level. The

National Education Welfare Board were also involved and concerned with school non-attendance and related issues all coming within

the definition of ‘neglect’. While some family support was offered, take up was not insisted upon. The mother was never warned that

she was in the ‘last chance saloon’ with regard to her care of the children and may therefore have concluded that her parenting was

‘good enough’.

45) I was driven to the conclusion that her testimony to the Court in relation to her altercation with her neighbour was not the full

story and that her evidence in relation to the guns and text messages was less than frank. I have also concluded on the basis of the

evidence tendered including the evidence of the mother herself that her relationship with her partner is on-going and that this is

unlikely to change. Her partner is Child 4’s father and is actively involved in her life.

46) I accept that she may have been in turmoil following her arrest and subsequent release from custody on the firearms incident and

that her lack of contact with the children was because she thought them to be on a pre-arranged long weekend with their paternal

aunt.

47) I also accept that she was entitled to be upset at the delay on the part of the HSE in arranging access for her sons with her

after she placed them in the voluntary care of the HSE; however, her anger was disproportionate and coloured her interactions with

the HSE and relative foster carers to the occlusion of the children’s need for regular contact.

48) I accept that the mother was not legally advised or represented when the HSE brought proceedings for a Supervision Order. I

accept her evidence that she thought agreement in principle had been reached with the HSE and that her apprehension in respect of

a crisis pregnancy prompted her to find out rather than return to Court as advised by Social Worker 2.

49) I also accept that she has begun anger management/cognitive behaviour therapy which has greatly assisted her in moderating

her affect when dealing with the HSE.

50) I accept the Psychologist’s professional opinion as to the inadequacy of the mother’s current parental capacity and lack of

insight; however, I am reluctant to accept her pessimistic prognosis of the mother’s potential for change. I am conscious that the

mother’s behaviour has been influenced by many factors including her past and current environment, the skills she has learned, and

the social supports that she has available to her and that can be made available to her. Everyone has the potential to change and

the mother is an intelligent woman who loves and is loved by her sons.

51) The GAL gave evidence supporting the professional views expressed in her report to Court of 18 February 2012. She supported

the HSE application for a full Care Order in respect of each child until they reached 18 years. She supports the proposal for the

children to remain in their current relative foster placement. In evidence, she emphasised the deleterious effect of inconsistent

parenting on children which causes them great confusion and insecurity in their sense of self. It was her firm view that neither parent

in this case had a ‘good enough’ parenting capacity and that the children’s current presentation in their foster placement was

reflective of this.

52) She conceded that the boys had developed a better relationship with the Community Child Care Worker than they had with her

and she found them to be the most guarded children that she ever worked with. She relied on the parenting capacity assessment of

the Psychologist and the historical concerns on the HSE files in reaching her view on the parent’s parental capacity for change or for

family reunion during their respective childhoods. She was concerned that access for the mother should be choreographed in such a

way that they were screened from the mother’s partner and the house in which the events of the 26 July 2010 took place. She noted

that insofar as the boys were prepared to express their wishes to her, Child 2 felt safest in County 1 but loved both of his parents

and did not want to hurt them. He wanted to complete his primary schooling in his current school which is consistent with his

previously expressed wish to spend last Christmas in County 1 which desire neither parent could accede to. He was conscious that

expressing a view would have consequences. Child 3 refused to express his views to her and was avoidant; his views to the

Community Child Care Worker were that ideally he wanted to return home his parents to get back together again. Neither child

wanted contact with the mother’s partner. Child 2 wrote a letter to be handed to the Judge. He did not want to be placed in the

invidious position of having to choose which care giver he wanted to live with and was content to have the Court decide his future.

53) I accept the evidence of the GAL, that Child 2 and 3 are very loyal to both their parents and are well cared for in their relative

foster placement where all of their needs have been met for the past 19 months. The children do not want to be put in a position of

having to choose between either of their parents and their foster carers. The children’s needs are not complex but they need

consistent and predictable parenting in an environment in which they feel to be safe by a care giver attuned to their needs. I also

accept her evidence that the children’s welfare needs have prompted her recommendation to Court that a full long term care order is

made in respect of them.

54) Legal submissions by counsel for the mother emphasised that the threshold for intervention is just one hurdle to be established by

the HSE and that any intervention to overcome parental deficits by his client need not involve the children being placed in care or

being placed in care until they reached eighteen years. In his view, sufficient supports can be put in place by the HSE for his client

and the children to allow a less draconian intervention.

Section 18 Threshold

55) The HSE has established that the threshold criteria of section 18(1) has been met on the evidence tendered in that Child 2’s and

3’s health, development, and welfare has been avoidably impaired or neglected and that their health, development, or welfare is likely

to be avoidably impaired or neglected.

56) The father is consenting to a Care Order.

57) The mother opposes the making of a Care Order.

58) Both the mother and children have personal rights under the Constitution; however, the fundamental issue in this case is the

conflict between those rights. Evidence has been adduced which establishes that the children suffered neglect and emotional abuse

by being exposed to parental conflict and violence, and inadequate parenting from each of their parents. The children were also

exposed to the presence of what they believed to be firearms and the presence of their mother’s partner whom they feared because

of being told that he had shot their father. They have been exposed to their father’s alcoholism. Evidence has also been adduced that

the risk of further neglect and abuse is high because the mother lacks any insight into her parenting style and is not attuned to the

needs of her children and has evidenced little motivation for change necessary to achieve reunification.

59) However, the mother is an intelligent woman who has recently begun to engage with the HSE and has sourced anger management

support to remove the barriers of engagement by her with the HSE and relative foster carers.

60) Counsel for the mother urged careful consideration of the constitutional rights of his client and the rights of his client to respect

for her private and family life under Article 8 of the ECHR. He urged the Court to pay heed to the double requirement of section 18.

While the threshold criteria at section 18(1)(a) and (b) refer to the past, section 18(1)(c) is future focussed and the section also

requires a proportionality test as to whether the circumstances require the making of a Care Order in order to remedy the needs of

the children. He referred the Court to the case of Heaney and McGuinness v Ireland [2000] ECHR 684, noting that the Court ought to

do no more than is absolutely necessary and suggesting that the making of a Care Order would be a disproportionate interference

with his client’s Article 8 rights. He also referred the court to Meadow v Minister for Justice Equality and Law Reform [2010] IESC 3,

where the Supreme Court, in an asylum case, affirmed that the court must have regard to the proportionality of a decision when

assessing its reasonableness.

61) He submitted that the Psychologist had conceded that the children’s physical care could be met by his client provided there was

on-going supervision and that in such circumstances a Supervision Order would address the risk apprehended by the HSE. He also

noted that his client now recognised deficits in her historical care of the children and had herself instigated the therapy necessary to

effect change. He also emphasised that the HSE had continued to consider reunification up to a month ago. He noted that that his

client also recognised the need for emotional security for the children and that she co-operated fully with the parental capacity

assessment and that any suggestion that she was not motivated to change was gainsaid by the reality that she has sourced anger

management CBT for herself which is evidence of both acknowledgment of something which caused a problem and motivation to

change. He also noted that the HSE were not proposing any psychotherapy for his client arising from the report of the Psychologist

and that the assessment of her willingness to change was based on a 45 minute psychometric test. He noted that while the HSE

stated concerns about the mother’s partner having contact with Child 2 and 3, they have never addressed that with his client in

practical terms or put a plan in place to address the HSE’s concerns. He submitted that this was not a contest between what the

foster carers could offer the children over and above what his client could offer them. He noted that his client now has a seven-

month baby and her firstborn and both daughters are living with her and both are siblings to Child 2 and 3 and so their Article 8 rights

to their siblings are also at issue. The current foster placement in County 1 is a substantial barrier to that constellation of rights.

62) Solicitor for the HSE and counsel for the GAL made submissions that the threshold criteria were met though the evidence heard

over five days and established that this was a case of emotional and educational neglect through passive and inconsistent parenting.

The impact of that on Child 2 and 3 was significant and they now require all of their needs being met into the future; meeting their

basic needs would not address the totality of their needs. It was submitted that the mother’s response to the proceedings was to

mitigate the concerns of all the professionals and to deny, minimise, and obfuscate her own part in the neglect. It was submitted that

the needs of the children required them to have certainty during their formative years and until they reached 18 years and that

significant remediation had been achieved for their period in care which would be put to nought if returned to the care of either of

their parents.

63) It is accepted that the Court must apply a proportionate test in determining the Order to be made to assure the welfare of the

children. This case presents a very different set of circumstances to that set out in the cases of Heaney and Meadows where there

was no conflict between the competing rights of family members. The Court must also have regard to other decisions of the High and

Supreme Court such as:

G and An Bord Uchtala [1980] 3 IR 32 (SC) which identifies 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; and

In re Article 26 and the Adoption (No.2) Bill 1987 [1989] IR 656 (SC) 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.

The Court must also have regard to the cases of:

Olsson v Sweden [1992] 17 EHRR 134 — that the ultimate aim when a child needs State care should be family

reunification if possible with parents. The right to contact between a parent and child should not be

gratuitously interfered with but must be tempered where the welfare of the child requires. A legally permitted

interference must pursue a legitimate aim and be proportionate and necessary. The interests as well as the

rights and freedoms of all concerned must be taken into account but, where contact with a child would harm

the interests of a child or interfere with the child’s Article 8 rights, a proportionate balance must be struck.

Johansen v Norway [1996] 23 EHRR 33 — there is an obligation to work towards reunification as swiftly as is

possible while at the same time protecting the best interests of the child. However, it was emphasised that

‘[i]n carrying out this balancing exercise, the Court will attach particular importance to the best interests of

the child, which, depending on their nature and seriousness, may override those of the parent’.

K and T v Finland [2001] 2FLR 707 — the removal of the child from the parents must not be done in such a

way as to destroy the natural bond – the State must consider the long term prospects; there should not be a

presumption in favour of permanent separation.

64) I have concluded that for all the foregoing reasons, Child 2 and 3 require care or protection which they are at this time unlikely to

receive unless the Order under section 18 of the Child Care Act 1991 is made.

65) I have carefully considered the potential for making an order for a lesser period than until they reach 18 years. However, I have

not received any evidence of concrete change which would effect the necessary change in the mother’s previous parenting style. Her

demeanour and evidence in Court indicates that she remains resentful of HSE intervention and is hostile to the relative foster carers.

66) Her life has become more complicated, rather than less complicated, by reason of the birth of her daughter and her relationship

with her partner whom Child 2 and 3 fear and resent, as they believe that he shot their father. The evidence received and accepted

by the Court is that their educational and emotional remediation and ordinary socialisation requires a significant period of stability

which they are now receiving in their relative foster care placement. I am satisfied that on-going proceedings are stressful for the

children who want the court to make a decision in their best interests.

67) I do not accept the pessimistic prognosis that the mother is not motivated to change or does not recognise the need for change.

I believe that the HSE has a responsibility to provide her with the means to change her parenting style through the provision of

targeted therapeutic supports. It is up to the mother to avail of such supports. I believe that evidence of change must be established

and maintained so that the HSE may consider reunification.

68) I will, therefore, make a Care Order in respect of Child 2 and Child 3 until they each attain the age of 18 with a full care review

when Child 2 has finished his junior certificate and Child 3 has completed his primary school education. This will afford the opportunity

of re-appraisal at that time. The children’s welfare and best interests will remain the primary consideration but will afford the mother

the opportunity of adducing evidence of growth of understanding, change of parental capacity, and consistency of her access with

her sons.

Section 47 Directions

69) Section 47 Directions are as follows:

1. That access between Child 2 and 3 and their parents, siblings, and extended family should be at the discretion of

the HSE within the parameters of section 37 and should respect the rights of all concerned to preserve their family

relationships.

2. That the Care Plan for each child is reviewed by the HSE annually and fully implemented.

3. That the HSE provides the mother with appropriate therapeutic supports to enable her to address all concerns

set out in the Psychologist’s parenting capacity assessment so that she gain full insight into the needs of her sons

and they can benefit from her greater emotional availability to them.

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

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

5. That this case be re-entered before the Court for a full care review on [date given] and that the GAL be re-

appointed at that time; setting a date for After Care Review by the Court to be considered at that time also. The

GAL to be re-appointed for the purposes of the full care review [date given].

6. That this case be re-entered before the Court in the event that there is a non allocation of care worker by the

HSE for a period of four weeks. The GAL to be re-appointed in that event.

7. The GAL to be provided with all social work reports and have access to files for the purposes of points 4, 5, and

6 of these directions at least six weeks before the date of re-entry.