Care Order granted under Child Care Act 1991 s.18 for child in special care due to impaired welfare.

[2013] IEDC 12

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

JM & WL

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1

22 May 2013

1. This is an application for a Care Order under section 18 of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) in

respect of Child 1, born in August 1997 and this case heard over 3 days from 20 to 22 May 2013. Child 1 was currently in the care of

the Health Service Executive (HSE) and in a special care placement. Child 1 was admitted to the care of the HSE pursuant to an

Emergency Care Order made on the 11 May 2010 and Interim Care Orders which were extended until Child 1 was returned to her

mothers care in September 2010 which reunification broke down in November 2010 when Child 1 returned to care. Child 1 was

returned to her father’s care in February 2011 until she returned to her mother’s care in April 2012 which arrangement broke down and

Child 1 returned to the care of the HSE in May 2012 and has remained in the care of the HSE since that time and at this time is in

special care and detained in a Special Care Unit.

2. Counsel for the mother, who is the first named respondent, made preliminary arguments that as Child 1 is in special care, the

application under section 18 could not proceed as section 18 states that ‘the child requires care or protection which he is unlikely to

receive unless the court makes an order under this section’ and that while Child 1 is in special care she is receiving care and

protection. I have determined that the care and protection offered by section 18 is greater than the protection afforded by special

care detention and proceeded to hear this matter.

3. I am satisfied that both the mother, and father (who is the second named respondent) have been properly served with notice of

these proceedings. The mother was represented in these proceedings by her barrister and solicitor. There was no appearance by or

an behalf of the father in these proceedings.

4. I am satisfied that the [District given] has jurisdiction to hear this application,

5. The views and interests of Child 1 were represented in these proceedings by her Guardian Ad Litem. The Guardian Ad Litem (GAL)

indicated to the Court her support for a Care Order in respect of the child and recommended such Order for the full duration. Child 1’s

wishes were directly expressed to me on 16 May 2013 when I met with Child 1 in the presence of her GAL and when Child 1 clearly

expressed her wish to return to her mother’s care.

6. On the day of hearing, the mother indicated to the Court through her legal representatives her opposition to the making of a Care

Order in respect of Child 1 to age 18 and stated she wished to have Child 1 returned to her care.

7. I have heard the evidence of the Social Worker allocated to this case. She gave evidence of the reasons why a care order was

being sought for Child 1: because the mother’s long history of mental health difficulties has diminished her capacity to care for Child 1

and has negatively impacted on Child 1, because the pattern of physical violence Child 1 has experienced and witnessed in the care

of her parents, and because there are concerns for Child 1’s physical and emotional well being if she is returned to her mothers care.

She outlined to the Court the history of Social Work involvement with this family since 2009 and the social work assessment of this

case using the Framework for Assessment of Children in Need. She noted that the mother did not engage with the Parenting Capacity

Assessment. The social work assessment concluded that while the mother obviously loves Child 1 she has struggled to care for Child 1

and this has negatively impacted on Child 1, and has resulted in Child 1 developing an anticipatory anxiety disorder, has adversely

affected her emotional wellbeing, and has resulted in Child 1 self medicating. She concluded that the mother will not be able to cope

with or manage Child 1’s behaviours and will struggle to parent Child 1 effectively. She stated that Child 1 needs the consistent care

of the HSE to age 18. She recognises the importance of Child 1’s relationship with her mother and that Child 1 will need to have

contact with the mother on a regular basis.

8. I have also heard the evidence of two workers in the care facility where Child 1 stayed from 6 May 2012 to 15 July 2012. They

gave evidence of Child 1’s high levels of difficult behaviours and the challenges in caring for Child 1, her high levels of absconding from

the care facility and her consequent risk-taking behaviour and the positive and negative interactions between Child 1 and the mother.

They gave evidence that the mother was instrumental as a point of contact when Child 1 absconded and the mother often located

Child 1 and encourage her to return to the care facility. They gave evidence of CCTV footage of a physical altercation where the

mother restrained Child 1, and while acknowledging that the mother believed she was preventing Child 1 from attending an organised

fight with other youths that this was not appropriate parenting by the mother to take and placed Child 1 in danger.

9. I have also heard the evidence of the mother who described a history of domestic violence by the father and the measures she

took to address this problem, her own history of mental illness and depression which she attributed largely to the loss of her

relationship with the father and the deaths of her father and brother by suicide and the death of her mother. She acknowledged her

addiction to alcohol and her subsequent recovery and management of her drinking. She also described the assistance she sought in

coping with the mother, and in particular the negative impact Child 1’s placement with her father had on Child 1 in 2011/12. She

attributed Child 1 aggression, violent behaviours, and anger as resulting from this time in her fathers care. The mother admitted

physically restraining Child 1 outside the care facility and also on between five and seven other occasions at home. The mother also

gave extensive evidence of the risk-taking behaviours of Child 1 during her time in care and particularly during her time at the care

facility, including an allegation that Child 1 was raped on an occasion where she was missing from the care facility for 2 days, and

concerns that Child 1 was taking and dealing drugs while in care. She gave evidence that she does not believe the HSE can provide

adequate care for Child 1. She also described how their relationship has improved in recent times.

10. I have also heard the evidence of the uncle (the mother’s brother), who lived with the mother and Child 1 as a teenager for two

years, that the mother is a great mother to Child 1, of the difficulties in the mother’s relationship with the father and also of how Child

1 would argue and get really angry with the mother.

11. I have also had regard to the brief reports of the two doctors’ reports submitted by the mother and to the short report of the

Consultant Child & Adolescent Psychiatrist.

12. I have heard the evidence of the GAL who presented a picture of Child 1 to the Court as a sociable and empathetic girl with many

strengths which can be attributed to the care she received from her mother. The GAL also described the challenges that Child 1 can

present in accepting boundaries, her aggressive behaviour and her poor impulse control. The GAL clearly expressed Child 1 wish to

return to her mothers care and complete her education. The GAL reviewed Child 1’s pathway through life which involved moves from

place to place and carer to carer which she noted has not improved since Child 1 came into care. The GAL gave evidence that the

mother’s ability to cope does not match with Child 1 developing and complex needs and that in her opinion the mother cannot keep

Child 1 safe. She referred to the CCTV evidence of the mother’s altercation with Child 1 as an example of the mother’s desperation to

protect Child 1 and the challenge she would have coping with Child 1’s needs. The GAL has also expressed concern about how the

State has failed to meet Child 1’s needs over the years of her childhood. The GAL made various recommendations including the

importance of Child 1 relationship with the mother and regular contact between them, the allocation of an experienced social worker

to this case at all times, the necessity for after care planning to commence once her care situation settles in the coming months, the

support that the mother might require should a care order be granted and the need to update Child 1’s care plan.

Decision

13. Having heard the evidence set out above and taken into account the views and wishes of Child 1 directly expressed to the Court

and the interests of Child 1 expressed to the Court through the GAL, I am satisfied that in respect of Child 1 to make the following

findings;

(i) that Child 1 has witnessed and experienced domestic violence, a threat to her own life and numerous physical

restraints in her home from infancy, during her childhood, and into her teenage years;

(ii) that Child 1 has experienced multiple moves of carer during her childhood as a result of her mothers mental

health problems, and while these may have been necessary for her care they have negatively impacted on her

emotional development and challenging behaviour;

(iii) that child 1 has been exposed to her parents’ alcohol and drug misuse which has contributed to her own

substance misuse;

(iv) that Child 1 has as a result of her childhood experiences has likely developed a mixed emotional and conduct

disorder;

(v) that Child 1 has complex and significant care needs which arise from Child 1’s experiences in the care of her

mother, her father and the Health Service Executive;

(vi) that while there can be no doubt that the mother loves her daughter and has gone to extreme lengths to

protect Child 1, the mother does not have the capacity to provide adequate care or protection for Child 1 at this

time;

(vii) that the father has caused significant risk and harm to Child 1 during her placement with him in 2011/2012 and

that he has since refused to play any significant role in her life all of which have negatively impacted Child 1;

(viii) that there are significant concerns about whether the State and the Health Service Executive has met Child

1’s needs and accept the GAL’s concerns regarding the practice issues she raises as to how the Health Service

Executive has responded in this case over the years. I note that the Health Information and Quality Authority

(HIQA) have agreed to conduct an investigation of this case; and

(ix) that the relationship between Child 1 and the mother is extremely important to both and while it has led to

difficulties, it needs to be nurtured.

14. Therefore I find the threshold criteria under section 18 (1), (b) and (c) of the 1991 Act are met as Child 1’s health development

and welfare has been and is likely to be avoidably impaired or neglected and that the mother requires care and protection which she is

unlikely to receive unless a Care Order is granted. The duration of the Care Order shall be until Child 1’s 18th birthday [date given].

15. I am satisfied this decision is proportionate for the following reasons:

(i) Child 1’s complex emotional and psychological needs will best be met in the care of the Health Service Executive

while having taken Child 1’s wish to be returned to her mothers care into consideration;

(ii) the supports that have been offered to the mother and the difficulties in engaging the mother with social work

and support services; and

(iii) Child 1’s need for consistent care for the remainder of her minority.

Directions

16. Having heard the evidence set out above I direct access between Child 1 and the mother continue pursuant to section 37 of the

1991 Act having considered the importance of regular contact and maintenance of the relationship between Child 1 and the mother.

17. Under section 47 of the 1991 Act, I direct that the case is to be re-entered before the Court by the HSE and on notice to the

GAL in the event that;

(i) a Social Worker/Fostering Link Worker becomes unallocated to Child 1 for a period of 3 weeks;

(ii) any planned or unplanned change of placement of Child 1;

(iii) the statutory Child in Care Review for Child 1 is not carried out for any reason;

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 26 of the 1991 Act.

18. I direct a review of this matter on the 14 June 2013 to consider the revised Care Plan and transition plan for Child 1 from secure

care and onward placement and for this court to be updated on the HIQA investigation of the management of this case.

19. After Care Review for Child 1 her 16th birthday [date given] to assess her After Care Service needs and if discharged the GAL to

be reappointed 6 weeks in advance.