District Court grants extended Care Order for two children until age 18 due to failed reunification and lack of guardians.

[2013] IEDC 15

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANTS

- AND -

ML

RESPONDENT

CHILD CARE ACT, 1991 - SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

1 October 2013

1. This is an application for a Care Order under S.18 (1) (b) and (c) of the Child Care Act, 1991 (herein after referred to as ‘the 1991

Act’) in respect of two children, Child 1 born on the 13/12/1996 and Child 2 born on the 23/08/1998.

2. Both children are currently in the care of the Health Service Executive (HSE) and are placed in a residential unit. Both children were

admitted to care under Section 4(4) (Child 2) and Section 5 (Child 1) of the 1991 Act, in the hope of reunification with a parent

outside the jurisdiction. This has not proved to be possible despite efforts by the HSE through the embassy of the country of origin of

the children or International Social Services. The children were originally placed in the care of their putative step mother in Ireland by

their father (who remained abroad) and this arrangement continued between 2008 and 2011. The children had intermittent contact

with their father in the period.

3. When the kinship care arrangements with their putative step mother broke down, the children were then placed by their father with

two other persons, the second of whom was originally thought to be the father’s sister but who was ultimately ascertained to be the

father’s cousin. The third caretaker’s familial connection with the mother and father (if any) are unknown to the HSE. Ultimately all of

these care arrangements broke down.

4. The children left their last caretaker in March 2013 alleging mistreatment. The HSE has not substantiated any such mistreatment

and this caretaker has refused to accommodate the children following the breakdown of their relationship. The children were formally

received into the care of the HSE as they had no parent or legal guardian in this jurisdiction. Efforts made to contact their birth

parents proven to be unsuccessful and it also transpired that the children’s passports and travel documentation were not made

available by their father and so they were undocumented in this jurisdiction.

5. The children’s legal status in this jurisdiction is as “failed asylum seekers” following a failed application on their behalf (by their

putative step mother) to the Office of Refugee Applications Commission (ORAC) in 2010. This decision is currently under appeal to the

Refugee Appeals Tribunal (RAT) and legal representatives for the children have also lodged an application for judicial review of the

ORAC determination. The Court was informed that there is a possibility that the children might be allowed “leave to remain” in this

jurisdiction on humanitarian grounds as it has not been possible to identify a parent or parents with whom they can be reunified in

their country of origin. Their father has failed to contact the HSE for almost one year and their mother has not initiated contact with

the children for several years and she has not made contact with the HSE. The children are now both residing together in a residential

unit where they have settled well and their needs are being met.

6. I am satisfied that every effort has been made by the HSE to serve the parents with notice of these proceedings. The father has

been served with notice of the proceedings outside the jurisdiction at the last known address which the HSE has for him in his

country of origin outside of the EU. He has also been notified by email at the email address that he used to contact with the HSE in

earlier years. The mother has not been served and her whereabouts are unknown to the HSE. The father has not responded to the

proceedings served by registered post outside the jurisdiction and has not acknowledged receipt of the email communication.

7. The father appears to have had no direct or indirect contact with the children since December 2012; I am satisfied on the

evidence that the children have been “abandoned” within the meaning of Section 4(4) of the 1991 Act. Although the children’s

putative stepmother was their original kinship carer and has acted as “next friend” in the children’s’ High Court proceedings, she is not

their legal guardian and her relationship with the children has broken down.

8. I am satisfied that the HSE has made contact with the father during 2011 and 2012 and has explored the option of family

reunification pursuant to Section 4(4) of the 1991 Act. The father expressed his unwilling to countenance family reunification in his

country of origin and has not contacted the HSE in respect of the proceedings.

9. I am satisfied that the Dublin Metropolitan District has jurisdiction to hear this application.

10. The views and interests of each of the children were represented in these proceedings by their Guardian Ad Litem (GAL) who

indicated to the Court their support for a Care Order in respect of each child and recommended such Order for the full duration.

DECISION

11. I have heard the evidence of the Allocated Social Worker and the Social Work Team Leader.

12. I have also heard the evidence of the GAL who supports the HSE application and has approved the Care Plans for each child.

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

having taken into account the views, interests and wishes of the children, indirectly expressed to the Court through

the GAL I am satisfied that, in respect of each of the children, the threshold criteria under S.18 (1) (c) of the 1991

Act are met and that each of the children’s health, development and welfare would suffer if a Care Order were not

granted.

B. The duration of the Care Order should be until each child reaches the age of 18 years with liberty to apply to

discharge such Order at the request of either parent before that date.

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

(i) the children’s father appears not to be in a position to care for either of the children at this time and

does not wish them to return to reside with him in their country of origin where he fears for their

wellbeing;

(ii) the children’s mother has had no contact with them for several years and her whereabouts are

unknown; and

(iii) neither child has a relative or caretaker in this jurisdiction who is prepared to care for them and

they have no legal guardian in this jurisdiction and the HSE are unaware of the current whereabouts of

either parent either in this or any other jurisdiction.

D. Each of the children requires stability and continuity of care during their minority.

E. The Court approves the Care Plans for each child in their current form and the GAL has expressed their

satisfaction with the Care Plans.

F. Having heard the evidence set out above I direct that access between each child and their father and mother (if

located) be pursuant to S.37 of the 1991 Act.

G. Under S.47 of the 1991 Act I direct that the case is to be re-entered before the Court by the HSE & on notice to

the GAL in the event that:

(i) a Social Worker becomes unallocated to the case of either child for a period of 6 weeks; or

(ii) any planned or unplanned change of current residential placement of either child.

H. The HSE is to continue its endeavours to make contact with the children’s father and mother.

I. The HSE is to continue to seek to clarify the legal status of the children and assist them in pursuing “leave to

remain” if their current High Court proceedings are unsuccessful.

J. Child 1 is to be allocated an after care worker forthwith and the case is to be re-entered before the Court on 2nd

April 2014 to review the after care arrangements made for child 1’s under the Childcare Regulations 1995 and 1996.

It is noted that the HSE consents to the proposal made by the GAL that she should remain appointed for the

children given their uncertain status in the jurisdiction. The GAL’s costs are to be assessed to date as the GAL has

indicated a less involved role between this date and the 2nd April 2014.

K. If the GAL in this case is no longer available to act in that capacity then the HSE is to bring an application to the

Court to have a GAL appointed pursuant to S.23 of the 1991 Act.

L. The After Care Review of child 2 also be listed on 2nd April 2014 for mention with a view to appointing a further

date for the After Care Review arrangements in respect of Child 2 in the event that an After Care Plan and identified

After Care worker has not been provided to the Court on this date.

M. I decline to make a recommendation or direction to the HSE regarding provision of a laptop and wi-fi service for

either child as requested by GAL as such provision is outside the ambit of Section 47 and is a matter for the HSE to

determine.