District Court grants Care Order under Child Care Act 1991 s.18 for child abuse and neglect.

[2012] IEDC 7

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

TD & PM

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF A CHILD

16 March 2012

1. This is an application for a Care Order under section 18 of the Child Care Act, 1991 in respect of a Child who is six years old.

2. The Child’s mother is the first named respondent and is 29 years of age. The Child’s father is the second named respondent and is

26 years of age. The parents are not married to one another and do not reside together as a couple. A psychological evaluation of

the mother indicates that she is emotionally unstable with a borderline level of intellectual functioning with particular deficits in verbal

comprehension and perceptual reasoning. She also presented with signs of harmful alcohol dependence and related mental health

issues. A psychological evaluation of the father indicates that he is emotionally stable but presents with personality traits suggestive

of High Functioning Autism (HFA) and he also operates within a borderline level of intellectual functioning.

3. Both parents are separately represented by solicitor and counsel within these proceedings. The HSE are also represented by

solicitor and counsel and the child was appointed a Guardian Ad Litem (GAL) to represent her separate interest in the proceedings

who has also instructed solicitor and counsel.

4. The Child came into care following an Emergency Care Order on 11 June 2010 and an Interim Care Order was made on 18 June

2010. The Interim Care Order was extended on 16 occasions until 24 February 2012.

5. The catalyst for the Child coming into care was that a member of the public notified An Garda Síochána that a SIM card on a

discarded mobile phone had been found and contained video footage of what appeared to be the Child performing oral sex on her

father; the video recording was made by her mother. This information prompted An Garda Síochána to invoke section 12 of the 1991

Act on 11 June 2010 and removed the Child from the care of her maternal grandparents as they had serious cause for concern that

there was an immediate risk to her health, development, and welfare.

6. The mother came to the attention of An Garda Síochána previously in 2002, 2004, and 2007 for alcohol-related incidents. However,

there was no child protection activation arising from the incident on 28 April 2007. The PHN service did not raise any concerns in

respect of the Child either. No complaints or concerns were raised by the Maternal/Paternal family members prior to the proceedings.

Equally, neither parent raised concerns and allegations or sought support from the HSE before the institution of these proceedings.

7. The HSE allegations include the following:

a) That the Child was neglected by her mother in so far as her overall care of the child was haphazard in terms of

cleanliness, poor nutrition, poor dental care, failure to send her to playschool, failure to set routine and boundaries

for her, and failure to supervise her at all times;

b) That the Child was exposed to her mother’s alcohol abuse and her father’s alcohol abuse;

c) That the Child was physically abused by being slapped and indirectly abused by being exposed to domestic

violence; and

d) That the Child was sexually abused and charges in respect of sexual assault, sexual exploitation, and child

pornography charges pending against the mother and father; the Child is displaying sexualised behaviours at school.

8. A full list of Exhibits and Witnesses was furnished to Courts Service.

9. The Court was informed on Monday that the matter would proceed on consent however counsel for the father consented on the

basis that while neglect was admitted, and furthermore it was admitted that her client was responsible for highly inappropriate sexual

behaviour with the child, he nevertheless, denied that he perpetrated ‘sexual abuse’ as, under the Children First definition of ‘child

sexual abuse’, personal gratification on the part of a perpetrator was a necessary element of child sexual abuse.

10. Social Worker 1 gave evidence as per her reports at Tabs. 10 up to the last report to Court and affirmed that the contents of her

Reports to Court were true and accurate and that her professional opinion was that the threshold criteria were met and continue to

be met pursuant to section 18(1)(a), (b), and (c) of the Childcare Act 1991.

11. She conceded that the current foster carer was not the long term foster carer and that a relative foster carer placement was

being assessed with the mother’s half sibling and her partner had expressed a willingness to be relative foster carers and that the

assessment process required in that regard would be completed in April. She noted, however, that it was ‘as long as a piece of string’

as to when the Fostering Committee would meet and consider whether any of the proposed Foster Care placements ‘matched’ the

child’s level of needs. If, for whatever reason, the long term foster placement of the child with a relative foster carer is not approved

the mother was anxious that some other family member would be assessed as a long term relative foster carer and that a relative

would also to be assessed as suitable for ‘respite placements’.

12. Social Worker 1 also stated that play therapy would be organised for the Child in April this year and that the HSE will put such

therapy in place once per week for four months. The HSE accept the recommendations of the GAL Report to Court in this context.

13. The GAL outlined to Court an anxiety that the Child’s long term placement be resolved in a timely fashion so that if any change

involved a changes of school and home that any such change would happen in the best time frame for the Child. The GAL noted that

all involved had agreed to hold a review meeting on the 10 July 2012 but he requested the Court to make a Direction under section 47

of the 1991 Act requiring the Fostering Matching Committee to meet between April and July to determine the long term Foster

Placement for the child so that it was clear what the position would be.

Section 18 Threshold

14. Having read the reports and booklets furnished, the GAL Reports, and the evidence tendered by the HSE and the GAL, I accept

that the HSE has established the existence of the threshold criteria of section 18(1)(a) and that the child has been neglected and

sexually abused, under section 18(1)(b) that the child’s health development and welfare has been avoidably impaired and under

section 18(1)(c) that the child’s health, development or welfare is likely to be avoidably impaired or neglected therefore the child

requires care or protection which she is unlikely to receive unless the Court makes an order under this section. The Care order should

be made in respect of the Child until she is 18 years on the [date given].

15. The parents are prepared to consent to such an order as expressed through the submissions of their respective lawyers;

however, they did not concede that there had been sexual abuse of the Child. However, I am satisfied on the evidence tendered by

the HSE that the threshold criteria is met under section 18(1)(a), (b), and (c) on the headings of both neglect and sexual abuse. The

subjective definition of child sexual abuse proposed by counsel for the father is not accepted in the context of these proceedings

under the Child Care Act, 1991. Criminal prosecutions are pending in another court in June and are an entirely separate matter. I am

satisfied that in the context of the Child Care Act, 1991 that from the perspective of the Child that the admitted behaviour was both

abusive and highly inappropriate and has had enduring consequences for her.

15. Access is to be at the discretion of the HSE and within the parameters of section 37 of the 1991 Act. Frequency of access is to

be within the parameters agreed between the parents and GAL and HSE. Access must meet the needs of the child and parents

16. The Guardianship Application of the father is to be adjourned to 10 July 2012. The parents are in agreement that he should be

appointed Guardian. I have suggested that the Statutory Declaration procedure be employed in that regard as an Order is not

required if there is consent and is otiose in any event given that child is coming into full term care of HSE.

17. The current Care plan meets needs of child according to GAL but may need to be reviewed in July if foster placement changes

become necessary.

Section 47 Directions.

18. The Court makes the following Directions pursuant to section 47:

1. That the Placement Committee considers the outcome of the fostering assessment process which, according to

Social Worker 1, will be completed in April at the earliest opportunity available thereafter and in any event before

July 2011;

2. That the access is to take place in a child centred venue. This direction addresses the concerns of both parents

that some of the access locations have not been ‘child friendly’ and location impact on their access to their child

and her access to them and her extended family. The child must be given a reasonable opportunity of retaining a

good quality relationship with each of her parents notwithstanding the making of the care order;

3. That the Court review the case on consent on 10 July 2012 and that the Long Term Foster placement be settled

then and the up to date Care Plan filed in Court to reflect any alterations made in the original Care Plan and that

the GAL remains in place until this happens;

4. That the Case is Re-Entered in the event that the case becomes unallocated to a social worker and fostering link

worker for a period of four weeks;

5. That the HSE provide appropriate therapeutic interventions for each of the Child’s parents for the ultimate

benefit of the Child as informed by HSE assessments to date (even though they may have had them in the past and

did not keep them up).

6. That a Re-Entry Date for After Care Review is to be set in place at the hearing on 10 July 2012.