District Court grants directions for joint sibling foster care and future care order review under Child Care Act 1991.

[2012] IEDC 9

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

AM & GC

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

30 April 2012

Background History Overview

1. This case is about two children in respect of whom the HSE seek full care orders until each has reached their age of majority. The

older child, Child 1, presents with some behavioural disturbance suggestive of an insecure attachment. Arising from this, she requires

consistent care and attention and is very demanding. The younger child, Child 2, was born with mild neo-natal abstinence syndrome

and was removed from her parents at birth. She had one ALTE (apparent life threatening episode) but is meeting all her developmental

milestones.

2. The first named Respondent is the mother in this case, and she has three older children Child 3, Child 4, and Child 5. Both Child 3

and Child 5 reside in the care of relatives and Child 4 returns (with her own child) to the shelter of the mother and the second named

Respondent when she encounters difficulties in life.

3. The second named Respondent is the father of Child 1 and Child 2. He is originally from a foreign country. He arrived in Ireland

when he was 13 years old and has worked since his arrival. He has an older daughter (with a child of her own) and she remains living

in the second named Respondent’s country.

4. The Respondents are unmarried but have been residing together in a committed relationship for some seven years. It is conceded

that there were flashpoints caused by stress or alcohol misuse leading to serious arguments involving the assistance of An Garda

Síochána. They have expressed themselves to the Court to be committed to their relationship and united in their mutual desire to

have their children returned to them.

5. The mother presented to both the social work team and the psychologist as a warm and open person who has an embedded history

of poly-substance abuse from her teenage years. This has contributed to her poor memory. She has, with a heavy heart, consented

to the making of a Care Order in order to give space for her to grapple with her addiction. She hopes for family reunification

thereafter. She has a good relationship with both of her children in care and is acknowledged to be attuned to their needs. The WAIS

IV assessment undertaken with the mother showed no inherent intellectual capacity difficulties but indicated that she had poor insight

into her own history and the difficulties caused for her in life by her parents’ drug use. Practical memory difficulties caused by her

embedded drug use might be assisted by formal memory testing to develop more effective compensatory strategies. Her inability to

gain traction on her drug use in the period under assessment and during these proceedings is regrettable.

6. The father presented to the social work team as a hard working man with volatile tendencies and heavily reliant on the mother for

social organisation. Alcohol has caused many problems for him: he has two drink driving convictions and has lost his licence, and he is

on probation in relation to a public order offence. The context of concern leading up to the reception of Child 1 into care also

indicates a pattern of traumatic events associated with alcohol in one way or another. The father rejects the label of ‘alcoholic’

because he can go without alcohol for long periods. The psychological evaluation suggests that he is a concrete thinker with limited

insight into his children’s development and their needs. Although a full WAIS IV assessment was not possible due to the fact that

English is his second language, clinical interviews prompted the psychologist to conclude that he has relatively poor reasoning skills

and slowness in processing. In her professional opinion, this deficit is contraindicative of his having a primary care role in respect of

either of his children, either alone or supported by the mother at this time. He lacks insight into their developing needs.

7. The father opposed the making of a full care order proposing instead a supervision order for a period of one year with an

acknowledgement of support needs from the HSE. It is his contention through his legal representation that the HSE has not achieved

the threshold criteria to warrant either child being taken into the care of the HSE.

8. The Court had the benefit of Social Work and Guardian ad Litem (GAL) Reports relevant to the earlier stages of this Application by

the HSE as well as the Book of Reports for the Care Hearing. Reports 7-9 were admitted without further proof by counsel for the

father. The Court also heard the following witnesses:

a) Social Worker 1;

b) Social Worker 2;

c) Garda;

d) Doctor;

e) Psychologist;

f) Mother;

g) Father; and

h) GAL.

9. It is fair to say that the family was provided with significant support services as detailed in the Social Work Reports to Court; but

these services were insufficient to put in place a cordon of care to support Child 1 remaining in the care of her parents.

10. The Orders of Court in this case include:

(a) Emergency Care Order made on the 6 November 2008 to the 13 November 2008;

(b) Interim Care Order from 13 November 2008 to 14 November 2008;

(c) Supervision Order made following the Interim Care Order application on 14 November 2008 (to 4 March 2009);

(d) Supervision Order made on consent on 9 December 2010 and varied on consent on 20 January 2011;

(e) Interim Care Order on 16 February 2011, extended 22 March 2011 and 24 March 2011;

(f) Interim Care Order in respect of Child 2 on 24 March 2011 and both Interim Care Orders have been extended

since then intermittently to today’s date.

11. While family reunification was initially considered to be the long term plan for the family, the HSE concluded in February 2011 that,

regrettably, it was an unrealisable goal in this case. They formed a professional view that that a Supervision Order was insufficient as

a protective and supportive intervention to ensure the safety and welfare of Child 1 in light of ongoing concerns around her care

which had escalated rather than abated since the granting of the second Supervision Order in December 2010.

12. It is important to emphasise that the basis of HSE intervention was, at all stages, their assessment of serious incidences of

parental neglect. In essence, the HSE’s case is that neither parent either together nor on their own can provide ‘good enough

parenting’ for their children, even with significant supports in place. The HSE’s concerns were about unintentional neglect and the

historical and future avoidable impairment of Child 1’s health, development, and welfare.

13. Child 2 was born with mild neo natal abstinence syndrome and had one ALTE (apparent life threatening episode) and the HSE’s

concerns for her relate to the risk of future avoidable impairment of her health, development, and welfare should she be removed from

the maternity hospital at birth to the care of her parents. They formed the professional view that this risk could not be addressed

without a Care Order.

Applications and Position

14. The HSE in this case alleges that the threshold criteria for making orders under section 18(1)(a),(b), and (c) of the Child Care Act

1991 are satisfied in respect of Child 1 by reason of:

(a) The mother’s failure to manage her poly-substance abuse (including criminal charges) and her parenting deficits

arising therefrom;

(b) The consequent absence of consistent reliable parenting of Child 1 as detailed in the social work reports and the

fact that Child 2 was born with mild neo natal abstinence syndrome and its physical consequences of one ALTE

episode;

(c) The father’s parenting deficits, his alcohol misuse, and his anger management issues;

(d) The consequent absence of consistent reliable parenting of Child 1 including in periods when he was her primary

carer under the terms of a Supervision Order as detailed in the social work reports;

(e) The Psychological Parenting Capacity Assessment of the psychologist, and findings of same as set out in both

reports to Court in relation to both mother and father;

(f) The context of the accidental injuries suffered by Child 1 including a scald (while in the care of her mother) and

a cigarette burn (while in the care of her father).

(g) The concerns raised by the crèche which was organised by the HSE as part of the family support package

offered to the parents;

(h) The allegations of inadequate parental supervision of Child 1;

(i) The volatile relationship of mother and father and its effect on Child 1 in emotional terms through exposure to

high levels of discord and conflict;

(j) The behaviours exhibited by Child 1 including contextualised use of bad language and gestures at two and a half

years of age, and behavioural issues including attention seeking and negative interactions with carers and other

children.

(k) Child 1’s recounted exposure to inadequate supervision, domestic discord, and alcohol abuse.

(l) The neo natal abstinence syndrome physical symptoms suffered by Child 2 and the parental minimisation of same.

15. HSE Social Workers, Care Workers, Psychologist, and the GAL all acknowledged that each of the parents parent love their children

dearly and are well intentioned towards them. It is also acknowledged that the access which is highly supported and structured is a

good experience for both children.

16. The immediate trigger to the commencement of the care proceedings was the cigarette burn which has been acknowledged to be

accidental. However, the HSE regard this incident as the latest incident in an escalating series of serious incidents and concerns in

relation to the care of Child 1. The mother’s inability to achieve sufficient change in drug use led to Child 2’s neo natal abstinence

syndrome, subsequent hospitalisation, and high care needs including an apnoea monitor.

Threshold Criteria of Section 18 Child Care Act, 1991

17. The threshold criteria set out in the 1991 Act provides a protection for both adults and children, and therefore families, from

interference in their lives by the State through the making of Care Orders. This satisfies both the provisions of the Irish Constitution

and the essential object of Article 8 of the European Convention on Human Rights. In the case of a Care Order, however, the Court

must be satisfied that:

(a) the child has been or is being assaulted, ill-treated, neglected, or sexually abused; or

(b) the child’s health development or welfare has been or is being avoidably impaired or neglected; or

(c) the child’s health development or welfare is likely to be avoidably impaired or neglected; or

(d) the child requires care or protection which he is unlikely to receive unless the Court makes an order.

18. The issue to be determined by the Court is whether the threshold criteria set out in section 18 have been met in respect for each

of the two children in this case. Even if the threshold criteria has been met in any particular case, the Court must consider the

proportionality of the intervention and whether remediation work required according to the expert evidence tendered needs to be

undertaken ‘out of home’ by taking the children into the long term care of the HSE or whether it can be addressed while in the care of

either of their parents with HSE support and supervision.

19. The Court has been asked by the father to make a Supervision Order in respect of the children instead of a Care Order and that

he would be the primary carer for both children and that he would give up his job in this context.

Conceded and Disputed Facts

20. The disputed facts were relevant to both the establishment of jurisdiction to grant a Care Order (threshold criteria) and the

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

21. The mother conceded that a Care Order should be granted in the best interests of the children to allow her space to grapple with

her poly substance addiction. For her part, she denied any intentional neglect, she denied that Child 1 was left unsupervised as

alleged or at all, and she denied that either Child 1, her cot, or her blanket was dirty. She conceded that her relationship with the

father was marred by episodic domestic upheaval exacerbated when he drank. She admitted slashing the tyres of his car to prevent

him drink driving but denied ever attempting to stab him; she admitted that she had failed to achieve the requirements specified for

her by her doctor so far, but hopes to do so in order to be accepted into a rehabilitation programme. She loves her children and her

partner, their father, and her hope is for ultimate family reunification.

22. The father contended that a Supervision Order would address the needs of the children for care and protection provided he

received HSE support. Such support is to include crèche for Child 1 and a Family Support Worker in the evenings or at weekends. He

denied any alcohol addiction but conceded that alcohol had caused a lot of problems in his life and that he would set it aside

permanently. He also denied any neglect or ill treatment of Child 1. He conceded that Child 1 was accidentally burned by a cigarette

when in his care but he did not accept that this was a serious matter. He denied any serious domestic discord that would warrant

State Intervention and the removal of his children to care.

Fact-finding

23. The family has been known to the HSE since Child 1 was a year old and was taken into HSE care under an Emergency Care Order

for a short period. Two Supervision Orders in 2008 and 2011 were also made. The historical chronology of HSE concerns leading to the

Care Applications are clearly outlined in the Report to Court and evidence tendered by Social Worker 2.

24. A number of supports were put in place for the household including:

(a) Intensive social work visits and support by way of announced and unannounced visits;

(b) A Crèche for Child 1 from 9 am to 5 pm five days a week;

(c) Public health nurse support;

(d) Referral of the father to alcohol counselling service; and

(e) Referral of the mother to drug counselling programme.

25. I have listened to all the evidence tendered very carefully and I have 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. I am satisfied that

there is clear evidence of unintentional neglect in this case by both the mother and the father. Evidence from Social Worker 1, Social

Worker 2, and the Garda in this context was fully tested on cross-examination. I do not propose to recount that evidence. I am

satisfied that their evidence in relation to their personal observations in this case is reliable and I accept same in preference to the

evidence of either parent where there is a conflict. I have discounted concerns unsupported by direct evidence in relation to head

lice which many children can get, and general poor presentation at crèche, and I accept parental evidence that Child 1 was, generally

speaking, adequately turned out — though on occasion she might not have had appropriate clothing for the weather as is conceded

by the father. I conclude that the parents were, and in the case of the father remain, in denial and in their evidence minimised

professional concerns around their parenting and its impact on their children.

26. I accept the evidence of the mother’s doctor in support of her report to Court dated 19 April 2012. I am confident that if the

mother can be sufficiently motivated to follow her direction she will achieve traction on the road to recovery from her poly substance

abuse.

27. The psychologist has been of assistance to the Court. The cognitive assessment of each parent and the parenting capacity

assessment in respect of each parent make it quite clear that each of the parents is operating under disadvantage and that the

father does not have sufficient capacity to adequately parent the children. In the case of the mother, while she is attuned to the

needs of the children she must tackle her addiction issues and memory issues. On her own evidence, she would need at least

eighteen months to do so. The psychologist noted that both parents lack extended family support and have so far ineffectively

engaged with professional supports services to overcome their respective disadvantages or develop an insight into professional

concerns. The psychologist was firm in her evidence and professional opinion that to return the children to their parents at this time

would expose them to significant risk of emotional disturbance and intermittent neglect.

28. The GAL gave evidence to the Court in support of the HSE’s application for a Care Order. His evidence addressed the difficult

issues set out in his report to Court. He noted the professional consensus that Child 1 has a close bond with her parents. He noted

that it was not possible to secure her wishes directly; however, she is settled in her placement and will need considerable support to

transition to a new placement. However, she has some behavioural difficulties and insecurities likely relating to her earlier history of

inconsistent parenting. Child 2 is one year old and has met all of her developmental milestones and also has a good bond with her

parents.

Decision in respect of Application for Care Orders

29. Having read the Booklet of Reports Filed and the additional reports furnished to the Court in this case and having heard evidence

over two days which was rigorously tested by counsel for the father who objected to the Care Order, I am satisfied that the

threshold criteria of section 18(1)(a), (b), and (c) have been met in respect of Child 1 and the threshold criteria of section 18(1)(c)

has been met in respect of Child 2.

30. The Care Order in respect of both children should be until they are each 18 years [dates given]. The Court is obliged under

section 24 to regard the welfare of the child to be paramount. The Court is also obliged to have regard to the rights and duties of

parents, whether under the Constitution or otherwise, therefore, the Care Order should be reviewed in three years’ time to assess the

progress of the mother in overcoming her poly substance addiction and memory problems, and the progress of the father in terms of

his alcohol usage and anger management. While the father does not accept the label of alcoholic, nonetheless he has admitted in

evidence the sad consequences for him of his drinking in terms of the loss of his children to care, the loss of his driving licence, his

probation due to a public order offence, and its effect on his relationship with the mother which he clearly values.

31. The ultimate aim when a child needs State care should be family reunification if possible with parents. The parents can apply to

Court to vary or discharge this Order if and when their circumstances change sufficiently. Mindful of the case of Olsson v Sweden

(App No 13441/87, 30 October 1992), it is clear that 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 so 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. On the evidence tendered, it would seem clear that at the present time access to the children

is beneficial to the children in its current form and frequency. Access should continue to respect the dignity of this family and its

delicate web of relationships. Access should continue to be at the discretion of the HSE within the parameter of section 37 and the

parents can apply to Court if dissatisfaction with such arrangements arises. They have thus far shown themselves to be able to place

their children’s need for security within their placements as a priority and their assistance and involvement will be vital when the

children must transition to a new joint sibling foster placement.

Directions

32. The following Directions are made pursuant to section 47 of the Child Care Act, 1991 in respect of matters affecting the welfare

of the two children coming into the care of the HSE:

1) That access between the children and their parents, siblings, and extended family should be at the discretion of

the HSE but should respect the family relationships and private and family life of all concerned.

2) That the children remain in their existing foster placements until a suitable long term placement is sourced for

them together and that the HSE takes all steps necessary to ensure a phased transition from their existing

placements to the new placement to minimise disruption and upset for the children.

3) That the Child Care Worker, is to remain in place until the children transition to their joint sibling foster care

placement.

4) That this case is re-entered for a review in three years time on 4 May 2015 to consider the position of the

parents and each of them at that time.

5) That the case is re-entered for the purposes of an After Care Review in the case of Child 1 and Child 2 on their

seventeenth birthday [dates given] to assess the After Care Plan and ensure the appointment of an After Care

Worker.

6) That the case is re-entered in the event that:

(a) the sibling foster care placement is not achieved within a period of six months;

(b) the current separate placements end precipitously before the move to a new joint sibling by reason

of unforeseen circumstances;

(c) the case becomes unallocated to a Social Worker and Fostering Link Worker for a period of four

weeks; or

(d) a planned or unplanned change of joint sibling foster placement.

7) In the event of a re-entry of this case before the Court, the GAL is to be re-appointed and provided with access

to all HSE files six weeks (if possible) in advance of the date of re-entry. In the event that the current GAL is no

longer available, the matter is to be re-entered by the HSE for the purpose of the Court appointing a new GAL.

8) That the Care Plans of the children are reviewed by the HSE annually and fully implemented.

9) That the HSE provides each parent with whatever social work assistance and referral to appropriate support

services they may require to achieve family reunification and to fully understanding the needs of their children in

light of the assessment and evidence of the psychologist.

10) The GAL is to be discharged and costs to be assessed to today’s date and discharged by the HSE.