Care Order granted for children due to parental neglect and substance abuse despite father's consent.

[2013] IEDC 14

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

LC & DW

RESPONDENT

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 5 AND CHILD 6

29 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 two children, Child 5 and Child 6.

2. The respondent mother has six children in all. Her first child was born to her when she was 15 years old and her sixth child was

born last year. The Respondent mother has had a very difficult life and is acknowledged by all professionals dealing with her to be a

polite and personable woman.

3. Child 5 is aged one year and seven months and Child 6 is eight months old.

4. The mother and father, who are the first and second named respondents in the proceedings, have three children together and

although they have had periods living apart from one another, they were residing as a couple when child 5 was born. Shortly

thereafter, however, their relationship deteriorated and arising from serious concerns of child neglect due to parental substance abuse

coupled with a chaotic lifestyle and failure to attend to the child’s health needs, Child 5 was received into the care of the HSE

pursuant to an Interim Care Order on 7 February 2012. The Interim Care Order has been extended on seventeen occasions to the

date of hearing. A reunification plan for Child 5 with her mother was unsuccessful.

5. The respondent mother indicated to the HSE that the second named respondent was not the biological father of the child and

named another man as the biological father. This man enjoyed access with Child 5 but ultimately sought DNA confirmation of his

paternity which established earlier this year that he was not in fact the biological father. The second named respondent was

ultimately found to be Child 5’s biological father. He has expressed the wish to be involved in Child 5’s life as she grows up but

indicated to the Court through his legal representative that he was prepared to consent to the HSE application for a Care Order until

Child 5 attains the age of eighteen years because he believed that this was in her best interests at this time and he was unable to

care for her at this time.

6. The mother entered into a relationship with another man after Child 5 was taken into Care and it has now been established that

this man is the biological father of Child 6 although he has never taken a part in Child 6’s life or expressed the desire to do so. The

mother endeavored to become substance free prior to Child 6’s birth but was unable to do so. Child 6 was born with the symptoms of

neo-natal abstinence syndrome and was received into voluntary care shortly after her birth. She is placed in foster care with Child 5’s

foster parents.

7. I am satisfied that all relevant parties have been properly served with notice of these proceedings. Both the first and second

named respondents were legally represented in the proceedings. The father of Child 6 was not represented and did not participate in

the proceedings; however, I am satisfied on the evidence of the social worker that he was duly served with the proceedings and was

also verbally reminded by the social worker of the hearing dates fixed by the Court for the proceedings.

8. I am satisfied that this District has jurisdiction to hear this application.

9. The children are too young to express their views in relation to these proceedings but their interests are represented in these

proceedings by their Guardian Ad Litem. The Guardian Ad Litem (GAL) indicated to the Court her support for a Care Order in respect of

each child and recommended that such Order be made until they attain the age of 18 years respectively.

10. As there was no appearance by the first named respondent on day one of this two day hearing, she was represented in the

proceedings by her solicitor who contested the making of the Care Order. The second named respondent indicated his consent to the

making of a Care Order subject to access being put in place for him. The third named respondent (Child 6’s father) was not legally

represented and did not participate in the proceedings. The HSE’s application proceeded to be heard on full proof.

11. The HSE brought this application on the basis that Child 5’s health, development, and welfare had been avoidably impaired or

neglected as a matter of fact and are likely to be avoidably impaired or neglected if returned to the care of either of her parents at

this time. In the case of the mother, this was alleged to be due to the risk of unintentional harm and neglect due to her long-standing

substance abuse over a period of 15 years resulting in passive neglect and her failure to engage regularly with urine analysis or

engage in therapeutic services offered to her to overcome her addiction and her inability to maintain stable living arrangements. Child

6 was taken into care shortly following her birth due to the apprehension of such unintentional neglect which would result in avoidable

impairment to her health, development, and welfare if returned to the care of her mother. The apprehended risk arose from the

respondent mother’s inability to gain any traction on her substance addiction, homelessness, and lifestyle which affected her parental

capacity and ability to care for vulnerable newborn child.

12. The HSE’s application was delayed and complicated in respect of Child 5 by virtue of the fact that when she was taken into care,

the respondent mother indicated that the second named respondent was not in fact the Child 5’s biological father but that another

person was her biological father. Following a lengthy process, however, this man was discounted as the biological father and the

second named respondent was affirmed as Child 5’s biological father following the completion of DNA tests on 13 May 2013. The

second named respondent has now informed the HSE and the Court through his legal advisor that he wishes to have regular access

with Child 5 and build a relationship with her. He was present in Court during the hearing and consented to the making of a Care Order

in respect of her.

13. There was also a DNA process in respect of Child 6 as the second named respondent was named by the mother as her putative

biological father. However, it became apparent on her birth that this could not be the case and following a DNA test it was

established that the third named respondent is in fact Child 6’s biological father. He has not participated in any way in these

proceedings or in Child 6’s life and has not exhibited any desire to do so following the service of these proceedings on him.

14. The Court heard evidence from:

(a) the Social Work Practitioner, who is most recent Social Worker allocated to the case;

(b) the doctor with the [named] Addiction Service;

(c) a member of the Family Support Service;

(d) a Family Support Worker;

(e) the Consultant Paediatrician;

(f) the mother; and

(g) the GAL

15. The Court was informed on Day 2 of this case that the respondent mother was now present in Court and would consent to the

making of the Care Order in respect of each child with great regret. She conceded that she was not able to care for the children or

either of them at this time.

16. I am satisfied on the evidence of the addiction worker that the mother has a long standing recurring addiction and a history of

substance misuse. From the urine samples provided by her, I am satisfied that this continues to be the case. I am also satisfied on

the evidence that she has not been able to provide urine samples consistently and as requested by the Clinic and has not been able

to engage in therapeutic interventions offered to her by the Clinic. I am satisfied that her regular attendance at the clinic is primarily

for the purposes of securing methadone rather than accessing services to secure traction on her addiction.

17. I am satisfied on the evidence of the Social Work Practitioner, Family Support Service, and Family Support Worker and the

respondent mother herself that she has not been able to engage in the process of securing stable accommodation.

18. I am satisfied on the evidence that the HSE put in place a workable plan to avoid the potential for Child 5 to come into the care

of the HSE but the personal challenges which the respondent mother must operate under appear to have compromised her ability to

maintain the relevant level of consistent engagement and communication with the HSE and Family Support Services in order to

implement the plan. I am satisfied on the evidence of the Family Support Worker and the Paediatrician that Child 5 suffered from

unintentional harm and neglect by virtue of the absence of sufficient sustenance while in the care of either of her parents resulting in

Child 5 being hospitalised and treated for significantly sub-optimal after birth weight gain and failure to thrive. I am satisfied that the

child’s failure to thrive was not due solely to reflux difficulties, because the child gained weight as soon as she was admitted to

hospital where she received regular nutrition with augmented milk formula. I am satisfied that the first and second named respondent’s

inconsistency in attending at pre-arranged medical appointments and check-ups resulted in the delay of the identification of her

failure to thrive and its remediation. I am further satisfied that the respondent mother, as Child 6’s sole legal guardian, is unable to

provide appropriate care for her due to the same issues which impede her parental capacity in respect of Child 5 and that her health,

development, and welfare would be at risk were she returned to the care of her mother at this time.

19. I am satisfied on the evidence that the mother’s lifestyle and substance abuse also impedes her ability to be consistent in

engaging in supported access with either Child 5 or Child 6. I am, however, satisfied on the evidence that when the mother does

engage in access she is appropriately kind and caring. The respondent mother has many personal strengths and she engages very

positively with all the professionals in her life and with the children’s foster carers. This is a particularly sad case as the respondent

mother has lost all of her children to the care of others. On her evidence, she is now very motivated to gain traction on her addiction.

While she tried to detoxify when pregnant, she was unable to do so and was also unable to work with the HSE to reunify with Child 5

while pregnant with Child 6. However, she now hopes to meaningfully engage in their lives and she hopes to have them both returned

to her care ultimately.

Section 18 Threshold

20. On the evidence adduced in Court over two days, I am satisfied that the threshold criteria of section 18 are met in respect of

each child. I am satisfied that Child 5’s health, development, and welfare has been avoidably impaired or neglected by virtue of the

mother’s unintentional neglect of this child due to her substance addiction and associated homelessness and lifestyle. I am also

satisfied on the evidence that Child 6’s health, development, and welfare is likely to be avoidably impaired or neglected if the Care

Order is not made at this time.

Section 18 also required the court to address the question of proportionality. The HSE request the making of the orders in this case in

respect of each child until they are 18 years respectively. The GAL supports the making of that order on the basis of the welfare of

the children.

The legal representative for the mother concedes that a Care Order should be made but she requires the Order to be reviewed by the

Court in one year to ascertain whether the mother has been able to engage in a program of rehabilitation at that time.

21. The GAL supports the Care Plans for each child and believes that a Full Care Order is needed to ensure the children’s security and

stability during their childhood. The GAL also supports the review of the Order in one year.

22. On balance, to discharge the obligations imposed under section 18 and section 24 of the Child Care Act 1991 and having regard to

the evidence, I must make the Care Order in respect of each child until the age of eighteen years. I am satisfied that Orders for a

shorter period would not meet the children’s need for long term security. However, should the respondent mother resolve her

homelessness issues, attain a substance free lifestyle, establish a consistent patter of access with the children, and avail of and

engage with the therapeutic and other supports provided for her by the HSE and other agencies I am satisfied that the HSE must

review the potential for reunification at that time.

23. Accordingly I make a Care Order in respect of each child until they attain the age of 18 years respectively and I approve the Care

Plan and note the GAL’s approval of same.

24. Having heard the evidence set out above, I also direct that access between the children and their parents, siblings, and extended

family should respect the rights of all concerned to preserve their family relationship and cultural identity. Access arrangements to be

made having regard to the welfare of the children at the discretion of the HSE within the parameters section 37 of the Child Care Act,

1991.

25. The Application for legal costs by the first named respondent is refused. Both the HSE and the Legal Aid Board are publicly funded

bodies. I am mindful that section 33(2) of the Civil Legal Aid Act provides that the fact of a party being legally aided should not

detract from their entitlement to apply for or be granted costs. The HSE is under a statutory obligation to bring these proceedings

and has not acted in an unreasonable manner in the course of the proceedings. I refuse the first named respondent’s application for

costs.

The second named respondent is not legally aided and has not behaved in an unreasonable manner in the course of the proceedings.

The Application for costs of the second named Respondent is adjourned for legal submissions.

Section 47 Directions

According to section 47 of the 1991 Act, I make the following directions:

a) I direct a full care order review by the court on 28 May 2014 and I note that this Direction is made following the

application of the legal representative for the mother and with the consent of the HSE and the children’s GAL.

b) I direct the case to be re-entered by the Court on 27 November 2013 (or on notice to all parties at an earlier

date if the Fostering Committee meet earlier) on the completion of the Long Term Fostering placement of the

children with their current carers following the matching process. The GAL is to remain in place for the children until

the completion of this process and the approval of the amended Care Plans by the GAL. Thereafter, the GAL to be

discharged with her reasonable costs, such costs to be taxed in default of agreement.

c) I direct the HSE to provide the mother with therapeutic supports to address the identified disadvantages under

which she operates in order to ensure that she is better able to engage in access in the best interests and welfare

of the children.

d) I direct that the case is to be re-entered before the Court by the HSE & on prior notice to the GAL in the event

that:

(i) The Social Worker/Fostering Link Worker becomes unallocated to the case of either child for a period

of 4 weeks;

(ii) any planned or unplanned change of current joint foster placement; or

(iii) the Annual Child in Care Review for either child is not carried out for any reason.

e) The GAL is to be re-appointed for the purpose of any re-entry of this case and where possible the GAL to be

provided with 6 weeks’ notice of re-entry. 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 of the 1991 Act.

f) The Case to be re-entered for the purpose of After Care Review in respect of Child 5 Child on 1 November 2028

and in respect of Child 6 on 22 July 2029 to assess the After Care Service needs in respect of each child.