District Court grants Care Order for child due to mother's mental health neglect and lack of parental engagement.

[2013] IEDC 10

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

AM & HI

RESPONDENT

CHILD CARE ACT, 1991— SECTION 18(1)

IN THE MATTER OF A CHILD

23 April 2013

This is an application by the HSE for a Care Order under section 18 of the Child Care Act, 1991 in respect of the Child who is now

aged 10 years.

1. The HSE have sought a Care Order on the basis that the Child’s health, development, or welfare has been or is likely to be

avoidably impaired or neglected due to the mother’s mental health issues, the mother and father’s lack of contact with the Child, their

lack of engagement with the services, their inability to prioritise the Child’s needs and lack of insight into those needs, and the

mother’s failure to follow advice and guidance from relevant professionals. Deriving from those concerns, the HSE asked the Court to

make certain findings of fact as against the mother and as against the father of the Child. The findings on fact deriving from an

alleged failure to adequately address mental issues that negatively impacted on the Child included allegations of physical abuse,

emotional neglect and lack of contact with the Child.

2. The mother and father are divorced and the father’s habitual residence is in another jurisdiction. The mother’s habitual residence is

in this jurisdiction and I am satisfied that the Court has jurisdiction to hear and determine this application. The mother is represented

in the proceedings by her solicitor and counsel. She was also assisted to meaningfully engage in the proceedings with the help of an

advocate.

3. The father resides outside of the jurisdiction. At all stages of these proceedings pursuant to Order 11 Rule 3 of the District Court

Rules, he was properly served with notice of the proceedings outside the jurisdiction. By email of 9 November 2012, he communicated

with the solicitors for the HSE acknowledging receipt of the data sent requesting future correspondence to be sent by email. He did

not participate in the proceedings at any stage. The Court was informed that the father contacted the HSE solicitors again to request

the case be adjourned until June when he hoped to have the opportunity to participate in the proceedings. The adjournment

application was refused by the Court on the basis that the case had been listed for full hearing for some considerable time and delay

would not serve the best interests of the Child.

4. Counsel for the mother helpfully set out a Statement of Opposition and the facts accepted and contested on behalf of his client. In

a nutshell, it was accepted that the mother had a history of mental illness but that she was now taking medication to manage her

depression and prevent psychosis and she was now engaging well with her mental health psychiatrist and team. However, all other

findings of fact in so far as they related to any deficit on the part of the mother were denied and disputed. The mother indicates that

past non-compliance with medication was due partly to her cultural understanding of mental illness as a shameful thing but largely due

to the fact that she experienced an adverse reaction to the dosage and type of medication prescribed, in particular the depot

injection. She also maintains that on at least two occasions she was suffering from post partum depression and not psychosis. She

maintains that she has been the victim of domestic violence and a traumatic break-up with the father of her two younger children.

She was depressed. It is her contention that she is now fully compliant with her medication which appears to be sufficiently calibrated

to avoid adverse side effects. It is her intention to adhere to medical advice. It is her position that the HSE has not met the threshold

criteria of section 18 of the Child Care Act, 1991.

The Background

5. The Child was born in Ireland in January 2003 and both of his parents are named on his birth certificate. His father was not in the

jurisdiction at the date of his birth.

6. The mother came to Ireland when she was four months pregnant. She is of the Islamic faith. The father does not appear to have

ever featured as a real presence in the Child’s life in Ireland but he has spoken to him over the telephone. The father has also

maintained some level of contact with the HSE in relation to the Child.

7. The mother has a diagnosis of schizophrenia and a history of eight admissions to psychiatric hospital (both voluntary and

involuntary) since 2008.

a. On 24 October 2008, she was initially admitted to a psychiatric hospital as a voluntary patient but subsequently

detained under the Mental Health Act, her involuntary detention was then revoked and she stayed as a voluntary

patient until her discharge on 25 November 2008.

b. Voluntary admission 27 May 2009; discharged 3 September 2009.

c. Voluntary admission 14 January 2011; discharged 19 or 20 January 2011.

d. Voluntary admission 22 March 211; discharged 28 March 2011.

e. Voluntary admission 17 May 2011; discharged 25 May 2011.

f. Involuntary Admission 13 March 2011; discharged 29 March 2012.

g. Involuntary Admission 1 November 2012; discharged 20 November 2012.

h. Involuntary Readmission 25 November 2012; revoked 28 November 2012.

8. Also in this period, the mother gave birth to two other children in December 2009 and in March 2011.

9. On the first admission of his mother to hospital, the Child stayed with his maternal aunt and on the second occasion he was placed

with HSE approved foster carers who have continued to act as foster carers on each subsequent occasion he has been received into

care. On three separate occasions (14 May 2009, 14 March 2012, and 2 November 2012), the Child has experienced abrupt removals

into the care with the assistance of An Garda Síochána under section 12 of the Child Care Act, 1991. He also spent a period in

voluntary care of the foster parents between 14 December 2009 and 18 December 2009 when his mother was heavily pregnant with

high blood pressure. Since 1 November 2012, he has remained in the care of the foster parents.

10. The Child’s wishes and feelings and his separate interest in the proceedings are represented by his Guardian ad litem (“GAL”) who

is also represented by solicitor and counsel. His position is that the Child is firm in his wish to remain in his current foster placement

until he is ‘grown up’ and he wishes to have no contact with his mother. The Child’s rationale is that he has lost trust in her ability to

stay well and not hurt or frighten him if he is returned to her care. The GAL believes that the Child is of sufficient age and level of

maturity to have these views seriously considered.

11. Over a period of two days, the Court has had the opportunity to hear the testimony of each of the following witnesses:

(a) the Garda;

(b) the GP;

(c) the School Principal;

(d) the Psychiatrist;

(e) the Social Work Practitioner;

(f) the Social Care Worker;

(g) the Social Work Team Leader;

(h) the mother; and

(i) the Guardian Ad Litem

12. A prior application by the HSE and the GAL was made to Court on 9 April 2012 to admit hearsay evidence, regarding alleged

statements made by the Child to professionals involved in the case, was opposed by solicitor for the mother on the basis that his

client did not believe that the Child made those statements. The reports of the disclosures were made available to solicitor and

counsel for the respective parents. These statements were admitted within the parameters of section 23 of the Children Act, 1997 on

the basis that the Court would carefully assess the weight to be attached to any additional evidence contained in the statements.

The Child was not called to give evidence directly, by television link, or through an intermediary because evidence was adduced that

this would be contrary to his welfare. The evidence was admitted as hearsay evidence but the weight to be attached to the

statements would be carefully assessed having regard also to the parameters of section 24 of the Children Act, 1997. I note that the

statements allegedly conveyed by the Child have a certain consistency of theme; however, at no stage does there appear to have

been a formal investigation in relation to the allegations. No interview with the Child had been video recorded in a professional and

child-appropriate setting even though he appears to speak to professionals involved in his life quite freely. The circumstances and

context in which such statements were made to professionals must also be carefully scrutinised.

13. What the Child said to the GAL as summarised and contained within parenthesis in his Reports to Court are admitted as evidence

that he did make such statements to the GAL. The context of the making of those statements was in December 2012 following the

third Emergency Care Order when he wished to underline his desire to remain in care.

14. Over two days at the hearing, the Court has had the benefit in observing the demeanour of each witness in this case and the

opportunity to assess the credibility and determine the weight to be given to the testimony of each witness.

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

16. 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 Child.

17. The Garda gave an account of his attendance in at the home of the mother on 1 November 2012 in support of his Statement of

Evidence contained in tab 24 of the Book of Evidence. This was the third occasion when and Emergency Care Order was procured in

this case although the Garda was not aware of that context. He arrived to a house full of people and observed an angry agitated

mother who had been reported to him as being unwell and not taking her medication. He observed the mother going up and down

stairs apparently walking past the younger children at times without monitoring their safety. He saw a child crawling on or near a

glass table near a fireplace. It was conceded, however, that there were other responsible adults in the house at the time. He

observed the mother grab one of the younger children by the arm and making her cry. He concluded that there was an immediate and

serious risk to the Child and he removed the Child to care. The two younger children were taken away by their father.

18. The GP gave evidence in support of her Report to Court contained in tab 25 of the Book of evidence. The mother attends her

group practice. She saw her as a patient in 2007 and 2009 for routine matters. However, she was aware of the background and

context of the mother’s mental illness and intermittent adherence to medication and refusal to comply with the conditions of a

Supervision Order. She made a home call at the request of the Social Work Department on 1 November 2012 finding the mother in low

mood, lying on a couch with the TV at high volume refusing to speak to her but smiling. The children were running around. Observing

the mother’s affect, she initially thought that if she administered oral medication there and then, it could have a rapid effect in raising

the mother’s mood. However, the mother refused to take the medication. She was negative to the social workers and angry with her

partner. Having observed the mother’s behaviour over a two-hour period, she felt that she had suffered a relapse of her mental illness

and needed to be admitted to hospital. She conceded that the mother might have given a reason for her failure to take the proffered

medication that day. She may have said that it caused bad side effects for her in the past. She agreed that the mother is now

adhering to the medication regime prescribed by her psychiatrist, which includes both anti-psychotic and anti-depressant medication.

The current dosage consists of both a depot injection and oral medication and thus far is not reported by the mother to have

negative side effects for her. She was not fully satisfied that the mother even now understands and accepts the fact that she

suffers from mental illness and must adhere to a consistent medication regime for life.

19. The Principal of the Child’s School gave evidence in support of the Reports contained at tab 36 by the Home School Liaison

Teacher (HSLT) insofar as it references her specifically. It was her evidence that to her knowledge the mother always brought and

collected the Child to school for the first two years and he was always on time and well turned out for school. He was an exuberant

little boy initially. She noted a change in his demeanour in 2008, which in her evidence became a trend at times when his mother was

unwell. She observed him to be sad and fearful when interacting with his mother. The Principal interacted with the Child regularly. He

confided in her about his experiences and fears when his mother was unwell. On 22 March 2012, he stated that his mother hit him

with a coat hanger and his nose was bleeding. On 20 April 2012, he stated that his mother hit him a lot and threw things at him. The

Principal was involved on a regular basis with both mother and Child. She ensured that a HSLT was assigned to provide support and

help for the family. The Child availed of art therapy, after school clubs and summer camps. The Principal directly observed one

incident on 12 March 2012 when the mother came to collect the Child from school. It was her direct evidence that she observed the

mother drive off with the front passenger seat still open, when the Child was seated in this seat. He was crying. She made a

notification to the HSE of the incident.

20. The Psychiatrist gave evidence in support of her reports contained at tab 26-32 of the Book of evidence. It was her evidence

that the history of the mother’s eight hospital admissions (both voluntary and involuntary), that are set out in paragraph 8, indicate

quite a severe illness. Her conclusion was that the mother had little or no insight into her illness. It was her evidence that with each

acute psychotic episode there was an increased chance of a further one. This risk was exacerbated by a failure to comply with

medication. She had not seen any effect on the mother’s function in this case, although a psychotic episode can have a residual

effect on functioning. The Psychiatrist was firm in her view that the mother’s failure to comply with a medication regime was the

recurring theme in this case. She conceded that it took some time to achieve the most beneficial regime of medication for the mother.

The depot injection content was altered to achieve the correct balance of benefit with minimal side effects. It was her experience

however that the mother failed to keep appointments with the outreach medical team or was not present when they called. When she

became really unwell, she could be resistant to treatment and therefore required involuntary admission. She discharged the mother

from the clinic in January 2012 as she failed to take medication and denied she had a mental health issue. She agreed that the mother

has now recommenced as a patient and is accepting medication and accepting the depot injection since 26 March 2013. Her diagnosis

is that the mother suffers from schizophrenia and requires a consistent adherence to medication to avoid a relapse. The mother has

failed to accept the on-going nature of the diagnosis. However when medicated, she responds quickly to the medication. The

Psychiatrist could not say that the mother has established consistency in adhering to medication yet, the history of her engagement

with her service has been poor in the past. She agreed that a cultural mediator had not been considered in the case.

21. The testimony of the Social Work Practitioner, the Social Care Worker, and the Social Work Team Leader supported the Reports to

Court set out at tabs 8-19 of the Booklet of Evidence. The Social Work Practitioner came into the case in January 2011 when the

mother’s relationship with her partner was unhappy and the mother was about to give birth to her third child. Following the birth of

the child, significant supports were put in place by the HSE to support the family. While the two younger children spent six weeks in

day fostering, the Child remained at home as he was attending school. Due to non-compliance with medication, the mother suffered a

fourth psychotic episode and was admitted to hospital and the children remained at home with her partner. A fifth hospitalisation took

place between 17 May 2011 and 24 May 2011 and the children remained at home with her partner again. From July 2011 until January

2012, the HSE had no concerns.

22. Further concerns arose in February 2012, as the relationship between the mother and her partner deteriorated and he left the

family home by agreement. The sixth hospitalisation took place on 13 March 2012 and an Emergency Care Order was obtained in

respect of Child 1. By consent, an Interim Care Order was made until the end of July 2012 with a plan for reunification under a

Supervision Order as the mother was again compliant with her medication. Although reluctant at first, the Child was persuaded to

engage with his mother and ultimately return to her care. The package of supports and protective measures provided were complied

with until October 2012. The supports included social work support, family centre support, family support services, a child-care

worker, school supports, and liaison and mental health supports. Unfortunately, non-engagement by the mother in some or all of these

supports prevented further HSE intervention to protect the Child and her functioning became compromised by reason of her ill-health.

I will not recount events as evidenced by the Social Work Team Leader between 31 October and 1 November.

23. While circumstantial evidence was given that the Child became ‘thinner’ and made statements about being hungry and being

struck, no concrete evidence has been adduced by a medical doctor/paediatrician/psychologist as to his weight or his physical health.

No evidence has been adduced as to his psychological health. There is a direct conflict regarding the extent to which the Child

prepared meals/snacks for himself. There is also a direct conflict on the extent of the shopping and carrying of bags he was expected

to do.

24. It is conceded that the mother disciplined the Child by slapping him when bold and she has also admitted to threatening him with

a hanger. It is denied, however, that this was to an abusive degree. The HSE was aware of the mother’s use of physical chastisement

as a method of discipline and spoke to her about a complaint made by the Child in January 2011 that his mother hit him and made his

mouth bleed. The Social Worker addressed this concern with the mother and the Child was reunified with his mother under a

Supervision Order. There are discrepancies in the statements, which the Child has made to the GAL (evidenced in the Reports of 4

December 2012 and 9 April 2013) and the statements made to the school Principal and statements made to Social Workers on the

nature and extent of physical chastisement. The mother intervened at several of the Social Worker’s evidence emphasising that a

mother had to discipline a child to make them do as they were told and show ‘tough love’. It was the Social Worker’s professional

opinion that she believed that the Child’s mental health was at risk if a Care Order was not made and that he could not trust the

system to protect him. He is currently refusing contact with his mother seeing it as a precursor to being returned to her care. She

believes that this might abate if he was confident that he did not have to return to her full time care.

25. The Social Care Worker’s evidence was that she supervised access between the Child and his mother in 2012. On the expiry of

the Interim Care Order she accompanied the Child to activities mandated under the Supervision Order. She was available to supervise

access in December 2012 but the Child refused to go but she did supervise access in January 2013. This access was strained for both

parties. The Child was put on the phone to his father who was calling from his home country. He was uncomfortable that his mother

hugged him but also appears to have been tearful and troubled by her abrupt ‘goodbye’ before the end of the access session. She

observed that the mother’s mood was up and down.

26. The Social Work Team Leader also evidenced portions of the Report to Court dated 8 April 2013 when she and a student social

worker called to the mother’s home on 13 May 2009. Her firm professional view was that a Supervision Order at this time would not be

adequate to protect the Child due to the mother’s history of intermittent engagement with medication and failure to avail of support

services. The Child was now 10 years of age and deserved continuity of care.

27. The mother gave evidence that her family opposed her marriage and that she apprehended that she had been tricked by the

Child’s father to come to Ireland. She came to Ireland when she was four months pregnant and her son was born in 2003. Her mental

health difficulties began in 2008, so she believed. She thought a neighbour was coming into her house and moving objects.

Subsequently she found out that it was her landlord who had a key who was coming to the house. She agreed that she blamed her

neighbour in the wrong. She said that her life was stressful. Culturally, mental ill-health is ‘taboo’ and a shameful thing. She had very

bad side effects from the prescribed medication. She was depressed, lonely, and tired. This was the reason she stopped taking the

medication. She then met her partner the father of her two youngest children. She told her parents that she wanted to marry him

that she wanted to have a family and have a home. The Child was six years old when she had her next child. The pregnancy was

difficult, her hormones were problematical during the pregnancy and she suffered post-natal depression when her child was born. Her

partner thought she was psychotic, but it was just that her hormones were upset by the pregnancy. She stopped her medication

before she became pregnant. She also had problems with the second pregnancy. She stated that her partner became involved with

another woman when in a stable relationship with her and he married the other woman. She was devastated. She stated that she did

not punish the Child excessively. When necessary, she punished him to teach him to behave and do as he was told. She did admit

hitting him when he stayed out for four hours playing. She stated that she cooked for the children but would help the Child to do

small things for himself e.g. prepare snacks. She stated that she did not send him to do the main shopping, just to the local

supermarket for small messages. She wanted him to learn to do chores and to learn that life was not a bed of roses and that he had

to do homework and not play excessively. She denied that she drove the car away from the school with the door open. She stated

that she had a Social Welfare appointment to go to and was late; her other children were securely belted in the baby seats in the

back and the Child was belted in the front seat. She closed the car door before moving off. She was asked regarding the access visits

and the evidence of the access worker. She stated that she was upset that the Social Workers were treating her in a patronising

manner, which made her angry. At the last access visit, she was stressed at the prospect of travelling to her home country and she

had a stress headache. She loved her son. She felt entitled to visit him at the school and at his foster placement. She always had

good relations there before and blamed the Social Work Department for the change. At the access before she went home to her

country, she brought a hat and gloves for the Child. She was concerned that he would be warm. She was glad to see him but had to

leave early due to her headache. She needed to go home to her mother. She did not take medication there but was treated spiritually

and culturally. She is taking medication now and it is not causing her problems. She stated that she had a good and respectful

relationship with the Psychiatrist — unlike her relationship with the Social Workers as she felt that they continuously patronised her.

She said that they focussed always on whether she was taking medication rather than asking about her as a person. On cross

examination, she acknowledged that in the past she did not comply with medication but that was for a variety of reasons: she found

it made her lonely and depressed, she put on weight, she had periods of post natal depression after each pregnancy, she had the

stress of her partner leaving to marry another woman, and the stress of the proceedings. She now feels that she can cope and that

she is no longer so depressed with the loss of her relationship. She stated that her mother always told her that ‘a husband cannot

slap a smile’ so she smiled a lot but her partner still hit her. She would like to get a job and not be on social welfare. She was closely

cross-examined regarding past non compliance with medication and the repeated pattern of her son coming into care. She denied that

her relapses, her mental ill-health, or the Child’s removals to care had impacted on him. Her firm view was that none of that was an

excuse for him to reject his mother. She also denied that her period in her home country, when she has no access to the Child, had

any effect on him and she pointed out that she brought beautiful gifts for him. She was clear that she was now adhering to the

medication plan so she wished to resume care of her son whom she loved very much.

28. The GAL gave evidence in support of his sundry Reports to Court. He has brought the wishes and feelings of the Child to the

Court. The Child wishes to say in the care of his current foster parents until he is 18. He does not trust that his mother will adhere to

medication and stay well and he is afraid of her when she is not well. He has also emphasised the negative impact which the Child has

experienced in this case due to his mother’s 8 acute psychotic episodes in which she required hospitalisation. In the stages before

such admissions, the Child was exposed to his mother’s deterioration. His experience of dread and hyper vigilance could not be

overstated. He had persuaded the child to go home under a supervision order in July 2012 with a host of services underpinning the

Supervision Order to ensure oversight — that had not worked. He was firmly of the view that a Care Order until the child reached 18

years was a proportionate response to his life experiences to date.

Findings of Fact on Evidence

29. Having heard the evidence set out above, having considered the proposed findings of fact submitted by the HSE and by the

mother’s legal advisers, and having taken into account the GAL Reports, I make the following findings.

30. I accept that the disclosures made by the Child to the principal, social workers, and the GAL indicate that on the balance of

probabilities, at the very least the Child has been physically chastised by his mother as a regular form of discipline when she is unwell.

I am not able to make any finding regarding the physical health of the Child, whether he lost weight or not, or whether he did the

main shopping or not. I also accept the evidence of the Principal regarding the mother driving the car with the car door open on 12

March 2012 and prefer that evidence over that of the mother who fairly acknowledged that she was in a hurry that day. I accept

that she believed she had closed the door before moving off but I accept the evidence of the principal that she had not. I also note,

however, that knowing all these facts the HSE with the support of the GAL returned the Child to the care of his mother under

supervision and on the basis that the mother would adhere to her medical treatment plan and fully comply with the terms of the

Supervision Order. I accept on the evidence that she did not, resulting in the Child being received into care again.

31. I accept that the mother’s mental ill health has had a negative impact on the Child having regard to the evidence of the Social

Workers, School Principal, and GAL.

32. I accept that the mother’s failure to accept that she suffers from mental illness, which requires her to consistently adhere to a

regime of medication, has resulted in 8 acute psychotic episodes requiring hospitalisation, having regard to the evidence of the GP

and Psychiatrist. I accept the mother’s evidence that her failure in this regard is complex and in some part due to her cultural

background and the initial difficulties she had with the medication.

33. I accept that since 2008, there have been periods both prior to and during her acute periods of psychosis that the mother has

failed to prioritise the needs of the Child and that she does not have insight into the impact of her mental illness on the Child having

regard to the evidence of the GP, the Psychiatrist, the Principal, the Social Workers, the GAL, and the mother herself.

34. I accept that the father has been fully aware of the mother’s ill health and has had very little contact with his son during the first

ten years of his life having regard to the evidence of the mother, the Social Workers, and the GAL.

Section 18 Threshold

35. I am satisfied that in respect of the Child, the threshold criteria under section 18(1) (b) and (c) of the 1991 Act are met and that

the child’s health, development, and welfare has have been avoidably impaired or neglected and are likely to be avoidably impaired or

neglected if returned to the care of his mother and that he requires care and protection which he is unlikely to receive if the Court

does not make an Order.

36. My reason for making this order for this duration is that the Child requires consistency of care during childhood and the evidence

adduced is that the mother suffers from schizophrenia for which she requires consistent medication and treatment. When suffering

periods of psychosis, she has a functional incapacity by reason of this illness which would make it unsafe for her to be the primary

carer for a child, absent another adult to act as a protective factor. Since diagnosis in 2008, she has failed to accept this diagnosis

entirely and has failed to adhere to a medication regime on a consistent basis and has not engaged with mental health services on a

consistent basis and this has led to a pattern of relapse.

37. The mother’s legal advisers have indicated that if the Court found that the threshold for an order under section 18 of the 1991

Act is met, that the evidence tendered before the Court by the HSE does not support the need for a full Care Order until the child is

18 years old. It has been submitted that such an order for such duration is not sustainable as a matter of law as it does not accord

with the requirements of the principles of proportionality and would, if granted, constitute an unnecessary interference with the family

life between the child and the mother contrary to Article 8(2) of the European Convention on Human Rights.

38. The Court must have regard to the legislation and to the constitutional rights of the parents and the children, as well as to the

rights of the parents and children set out in the Charter of Fundamental Rights of the European Union and to the rights to private and

family life set out in Article 8 of the European Convention of Human Rights. Where there is a conflict of rights a balance must be

struck.

39. The line of cases stemming from G v An Bord Uchtala [1980] 3 IR 32, Western Health Board v HW and CW [2001] IR 622, and M v

M (unreported, 2 December 1982, High Court) all recognise that a child’s right to bodily integrity and the right and opportunity to be

reared with due regard to religious, moral, intellectual, and physical welfare are personal rights guaranteed under Article 40 of the

Constitution. The Child Care Act 1991 provides the legislative regime to achieve those rights. I have determined that the HSE has met

the threshold criteria of section 18. I must also have regard to section 24 of the Child Care Act 1991 which states that the welfare of

the child is of first and paramount consideration and in so far as is practicable, the Court must give due consideration, having regard

to his age and understanding, to the wishes of the Child. This position is echoed in Article 24 of the Charter.

40. The GAL has ascertained the wishes of the Child in this case and his wishes are unambiguously that he wishes to remain in the

care of his foster carers until he is 18 due to his experiences of harm when his mother was unwell. He does not trust that she will

remain well, as he is relying on his past experiences. The GAL now supports the making of a Care Order until the child is 18 years.

41. In the High Court case of The State (Bouzagou) v Station Sergeant Fitzgibbon Street [1985] 1 IR 426, Barrington J noted that it

was necessary to reconcile the rights of the individual members of a family, when the family itself is divided. The mother in this case

clearly loves her son and wants to be reunited with him. She has not had an easy life. It was not easy for her to sit through the two

days of this case and listen to the evidence, which has been very distressing for her. Her demeanour and evidence in Court indicated

that she remains hostile to HSE intervention although expressing a willingness to accept on-going medical intervention.

42. The Court must also have regard to the case of Olsson v Sweden App no 13441/87 (ECtHR, 30 October 1992) and Johansen v

Norway App no 17383/90 (ECtHR, 7 August 1996) which affirmed that 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’. The case of K and T v Finland App no 00025702/94 (ECtHR, 27 April 2000) also

established that 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, particularly important

for very young children to maintain the family tie.

43. I have carefully considered the potential for making an order for a lesser period than until the Child reaches 18 years. The Court

must also have regard to the Child’s need for certainty during his formative years and until he reaches 18. It is fortunate that the

Child has been able to achieve security in a consistent placement with foster carers whom he knows and trusts when received into

care. The Child has succinctly expressed the view to the GAL that he is afraid that his mother has just started taking her medication

but like before he thinks she will stop and then the cycle will begin again. The Child is ten years of age and he is mature for his age

given his life experiences. He does not wish to return to the care of his mother. Having regard to the rationale considered by the High

Court in the case of N v N [hearing a child] [2008] IEHC 382, I am satisfied that there are reasonable and coherent grounds upon

which he has come to those views and that those views must be taken into account.

44. The Child has a right to have his welfare regarded as paramount under section 24 of the Act of 1991. I will therefore make a Care

Order in respect the Child until he attains the age of 18 with a full care review in eighteen months time to ascertain whether the

mother has consistently engaged in medical and HSE support services to the extend necessary for her to gain insight into the needs

of the child and her mental health diagnosis and its implications for her.

45. I am satisfied that this decision is proportionate because the evidence adduced is that a Supervision Order and the provision of

supportive services for the mother depend on her engagement with those services and her adherence to a medical regime. This level

of intervention was tried and failed and would not now be a reasonable response to the care requirements of the Child at this time. It

also runs counter to the Child’s firmly expressed views.

46. I approve the Care Plan and note the GAL’s approval also.

Section 37 Access

47. Having heard the evidence set out above, I direct that access between the mother and the Child be in accordance with section

37 of the 1991 Act and that access should be supervised and supported unless determined by the HSE to not be in the best interests

of the Child.

Section 47 Directions

48. Under section 47 of the 1991 Act I make the following directions:

A. That the HSE is to furnish the mother and father with appropriate therapeutic supports if they are willing to take

same up with a view to the restoration of access. The HSE is to ensure that the mother has the services of an

advocate or mental health support worker to assist her in meaningfully engaging during access for the benefit of the

Child.

B. That the HSE is to provide the Child with all appropriate supports tailored to assisting him to make sense of his

experiences and an understanding of the mental health difficulties being experienced by his mother with a view to

enabling the restoration of access.

C. That the case is to be re-entered before the Court by the HSE on the [18 months’ time] for the purposes of a

Case Review.

D. That the matter be re-entered by the HSE before the Court in the event that the process for matching the

Child’s current placement as his long-term placement has not been finalised. The GAL is to remain in place until the

final matching process has been completed and the amended Care Plan has been approved by the GAL and filed in

Court. Liberty to apply to Court to confirm the completion of the matching process and the filing of the amended

GAL approved Care Plan for the Child. Thereafter, the GAL is to be discharged with costs to be paid by the HSE and

taxed in default of agreement.

E. That the case is to be re-entered before the Court by the HSE and is on notice to the GAL in the event that the

case becomes unallocated to a designated Social Worker/Fostering Link Worker for a period of 6 weeks.

F. That the case is to be re-entered before the Court by the HSE is on notice to the GAL in the event any planned

or unplanned change of current foster placement.

G. If the GAL in this case is no longer available then the HSE is to bring an application to the Court to have a GAL

appointed pursuant to section 23.

H. After Care Review for the Child on to assess After Care Service needs;

I. Liberty to apply.