District Court grants one-year Care Orders for two children due to parental negligence and failure to reunify.

[2013] IEDC 16

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

JG & SG

RESPONDENT

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

18 October 2013

This is an application by the Health Service Executive (HSE) for a Care Order under Section 18 Child Care Act 1991 (herein after

referred to as ‘the 1991 Act’) in respect of two children, Child 1 born on 16th February 2012 and Child 2 born on 3rd February 2010.

Evidence for this application was heard at the District Court on: 9th – 12th April 2013; 29th – 31st May 2013; 12th – 14th June 2013;

28th June 2013; 19th July 2013; 26th July 2013.

Following a large number of interim applications, and including an appeal of one order to the Circuit Court, this case came for hearing

on the 9th April 2013, and continued, with a number of breaks due to time and listing constraints, until the 26th July 2013; a total of

17 days at hearing. The parties were then given the opportunity to file written submissions by the 9th August 2013. The Interim Care

Order was then extended to the 20th September and once again to the 18th October.

The following witnesses gave evidence:

(a) the Paediatric Cardiologist;

(b) the Consultant Paediatrician 1;

(c) the Consultant Paediatrician 2;

(d) the Consultant Paediatric Neurologist;

(e) the Consultant Radiologist 1;

(f) the Consultant Radiologist 2;

(g) the Consultant Paediatrician 3;

(h) the Consultant Paediatrician 4 & Forensic Examiner;

(i) the Consultant Psychiatrist;

(j) the Consultant Psychiatrist;

(k) the HSE Principal Social worker;

(l) the Solicitor for SG;

(m) the HSE Social worker;

(n) the hospital Social worker;

(o) the HSE Team Leader;

(p) the Guardian ad Litem;

(q) the Forensic Clinical Psychologist;

(r) the HSE Social worker 2;

(s) the mother; and

(t) the Consultant Clinical Psychologist.

The Background

1. This case came to the attention of the HSE on 30th March 2012, when a referral was received from the hospital Social worker at

hospital 2, advising that Child 1 was undergoing treatment for fractured ribs, a possible fracture to the skull, and a bleed on the brain.

No medical explanation was found, and medical professionals were concerned that Child 1’s injuries were consistent with a non-

accidental injury (N.A.I.). Subsequent medical investigations revealed what was described as a “constellation” of injuries as follows:

bilateral subdural haemorrhage; possible parietal skull fracture; hypoxic brain injury with encephalopathy and seizures; and bilateral rib

fractures, possibly of variable age.

2. On 30th April 2012, following initial investigations by the HSE, Child 1, and his older brother Child 2 were taken into the care of the

HSE, under a voluntary agreement with the parents. Child 2 was placed with his maternal uncle, while Child 1 remained in hospital 2

for treatment.

3. On 4th May, Child 1’s condition deteriorated, and he was moved to hospital 3 (a specialist hospital in another county), where he

had surgery to treat acute obstructive hydrocephalus. An external drain was inserted and subsequently a VP shunt was inserted into

the right side of his head. On 23rd May 2012 Child 1 was discharged to the care of his paternal aunt and her husband.

4. The Social work investigation showed that Child 1 by his GP on 21st March 2012, suffering from what were described as “flu like”

symptoms, and in particular, his breathing was described as different. The child was referred to hospital 1 (local hospital) for

treatment for a possible lower respiratory tract infection, and was admitted for three days, and was discharged on 24th March.

5. On 26th March, Child 1 travelled with his parents to hospital 2 (a specialist hospital in another county) for a privately arranged

appointment with the Paediatric Cardiologist, to investigate a cardiac murmur discovered at hospital 1. The child was examined by the

Paediatric Cardiologist, and travelled back home that evening with his parents. His parents and the medical staff noted that he was

very unsettled during the examination, and was also reported to be unsettled on the journey home.

6. The following day, Tuesday 27th March, Child 1’s mother brought him to the Children’s Ward, in hospital 1 at 2.30pm, having

phoned at 2pm to say that his arm and leg had been twitching that morning. He presented as pale and unwell. Consultant

Paediatrician 1 notes in their report that he started “lip smacking and jerking his right hand” while they were arranging an MRI scan.

He was intubated and ventilated, given anti-convulsants, and transferred to hospital 2.

7. Consultant Paediatrician 1 records taking a history from Child 1’s father that evening. Child 1’s maternal grandmother was also

present, and told Consultant Paediatrician 1 that she had visited the home between 10.30am and 11.30am, and that the child was

sleeping soundly. The father told Consultant Paediatrician 1 that Child 1 had been discharged from hospital 1 at 11.30am on the 24th

March, and was fine on Saturday, slept and fed well, and had no temperature. He was also reported as being well on Sunday, 25th

March. They went to the hospital 2 on Monday morning, and returned home at about 7pm. Apparently Child 1 fed well, and went to

bed at 11pm. He woke around 2.30am on Tuesday 27th, and was awake for about an hour, and was alert and not distressed. He woke

again at 3.30am and took a bottle. He then woke at 6am, and was screaming, and the father wondered whether he had a spasm in

his neck, or a small seizure. Child 1’s mother took over from the father at that stage. He was due a feed at 8.30am, but slept until

9.30am, when he took a full bottle, and the father went to work. At this point, it is useful to point out that the parents said that they

operated an “alternate night” system for looking after Child 1, whereby one would take the “night-shift” and look after the child, sleep

in his room, and attend to him if he woke during the night. On the night of Monday, 26th March/early hours of Tuesday 27th March,

the father was apparently on duty.

8. Child 1 was described as sleepy, but fine. The father came home again at 11.30am, and went back to work. The mother then rang

the father at 1.30pm, as Child 1 had woken, and she had noticed a “shake” in his left hand, and a prominent vein in his head. She

took a photograph of this and sent it to the father. She was worried about him, so the father came home. Child 1 did not take his

feed at 1.50pm, and the mother phoned hospital 1 and was told to bring him to the ward, leading to the events detailed above.

9. Consultant Paediatrician 1 also notes that when Child 1 had been in the hospital the previous week, he had a history of being

unwell, grunting, nasal flaring, and increased respiratory rate. Initial examination showed he had a haemangioma on the right side of

his back, and also two purple marks over the L1 and L2 area, which were initially thought to look like bruises. These were reviewed by

a consultant colleague of Consultant Paediatrician 1, who felt they were Mongolian Blue spots, and were not noticed by his mother.

Child 1 was noted to be irritable whilst in hospital. As stated earlier, he was treated with IV antibiotics, and discharged home after

three days, on the 24th March. The child was later presented on the 27th March; again as outlined above, he was stabilized in

hospital 1 and airlifted to hospital 2.

10. The foregoing detailed history is significant, in that it enables the medical experts to identify the times at which the various

injuries occurred. Extensive medical evidence was heard, which establishes that the first set of rib fractures must have predated Child

1’s presentation to hospital 1 on 21st March, and that the rib fractures may have occurred at different times. Consultant paediatrician

2, at hospital 2, believes that the rib fractures resulted from two separate traumatic events, and cannot be attributed to an

intrauterine kick, or trauma associated with birth. Consultant Paediatrician 2 states that it is possible the second set of rib fractures

(right 7, left 8, 9, and 10) coincided with the brain injury. The Consultant Paediatrician estimated the subdural haemorrhages were

likely to have occurred within 24-48 hours of his presentation with seizures on 27th March. Their report of 25th May 2012 refers.

11. Following Child 1’s discharge from hospital 2 on 23rd May, he was placed in the care of his paternal aunt, and her husband. The

HSE continued with its investigations and assessments of the parents, which included a risk assessment carried out by the Forensic

Clinical Psychologist. This assessed the parents as “low risk” in terms of future harm to the children. The HSE was at that stage

considering rehabilitation of the family, and a Review Child Protection Conference was held on the 9th August, at which this was

discussed in detail, with the parents present. They were advised that the proposal was being reviewed by senior management, and

the Principal Social Worker, gave evidence that he sought advice on it from the Acting Head of Policy & Strategy/Quality Assurance in

Children and Family Services, who in turn sought a review of the records by an Associate Professor, at the School of Social Work and

Social Policy. This resulted in the couple being sent for assessment by Consultant Psychiatrist 1, on 16th August. They believed that

this assessment had gone well, and that Consultant Psychiatrist 1 indicated to them that they did not have any underlying mental

problems, and they sought to move ahead with the rehabilitation plan. The Principal Social Worker’s evidence is that no decision had

been made as of the 9th August, and that in fact he was concerned that as there was no disclosure forthcoming as to the true

environment in the home, and of how the injuries occurred, coupled with the report he received from the Associate Professor, and the

fact that the Garda investigation was continuing, he was “not content to proceed with rehabilitation”. He says it was made clear to

the parents at the meeting, and in all contacts with them that no decision had been reached regarding rehabilitation, and that in fact,

as the report of the meeting contained reference to a possible Care Order application, it should have been clear to the parents that

nothing had been decided. I am summarizing the evidence in relation to this aspect of the case, as it provides the context in which

the breach of access at the end of August took place, i.e., according to the parents, they believed that rehabilitation was going to

take place, and that the breach of the care plan was therefore less significant.

12. Up until the end of the first four days of the Care Order hearing, the parents adopted a position of denial that the injuries were

non-accidental. In the early stages of the investigation, they, and in particular the mother, pursued exhaustive investigations of

every conceivable medical explanation for the injuries. They also questioned whether the injuries could have been attributable to

either a kick by the couple’s other child, Child 2, to the mother’s stomach prior to Child 1’s birth, or later, by Child 2 jumping in on top

of Child 1 in his Moses basket. The mother’s legal team called a witness, Consultant Radiologist 2, in an attempt to show that the

suggested skull fracture sustained by Child 1 may have in fact been a parietal fissure. Consultant Radiologist 2’s evidence did not

conclusively show that it was a parietal fissure, and in fact admitted that the injury was more likely to have been non-accidental in

origin.

13. The weight of the medical evidence was overwhelming in showing that the injuries sustained by Child 1 were non-accidental. The

medical evidence also shows that the injuries were inflicted on at least two, and possibly three occasions, and that they occurred

when Child 1 was in the care of either, or both of his parents. The mother’s position changed from challenging the non-accidental

origin of the injuries at the outset of the case, and until all the medical evidence had been heard; to accepting that they were in fact

non-accidental, and also that they were likely to have been caused by her husband. The father’s position was similar up to the same

point, and then changed to an acceptance that the injuries were non-accidental.

14. It is not possible on the evidence to find which of the parents perpetrated the injuries, or indeed, whether each of them

perpetrated some of the injuries. The Forensic Clinical Psychologist, in their second report, dated 4th April 2013, states, at 2.1.1: “…

the previous injuries were not uncovered until the 2nd hospitalization, which meant it was possible that if one parent were to have

inflicted the injuries, the other parent might not have known.” However, the absence of any evidence whatsoever as to the

circumstances in which, and the method by which, the injuries occurred leaves the court in the position of having to assume that

both parents were aware of such circumstances, and that either, or both parents could have inflicted the injuries.

15. The Forensic Clinical Psychologist concludes their report of 4th April by saying, at 10.1 that if the mother was the perpetrator she

“would share factors with a group of women associated with presenting a moderate risk of violence in the short-term future, i.e. over

the next 9 -12 months”. At 11.1 he states that if the father was the perpetrator, “he would share factors with a group of men

associated with presenting a moderate risk of violence in the short-term future, i.e. over the next 9 -12 months.”

16. Much of the early part of the hearing was taken up with very detailed medical evidence, and consideration of reports from the

medical personnel detailed above. The main thrust of this evidence was to detail the injuries suffered by Child 1, and to prove that

they were non-accidental in origin. The various doctors were cross-examined extensively by counsel, in particular by counsel for the

mother, in an effort to advance the proposition that the injuries resulted from a combination of medical conditions, or trauma

attributable to Child 2, as opposed to being of non-accidental origin. This evidence, and the cross-examinations, confirmed the

approach of the parents all through the investigative phase of this case that there was a medical explanation for the injuries, or

another explanation than that of injuries inflicted by either of the parents. This approach by the parents brought them into conflict

with the social workers, and indeed the medical professionals from a very early stage, and undoubtedly has lead to the very

entrenched positions manifested by both sides throughout all the court appearances. It has to a very significant extent curtailed the

ability, and the willingness, of the social workers to countenance an alternative to full Care Orders. It is deeply regrettable that this

should be the case, as it has greatly prolonged these proceedings, by firstly delaying the holding of the Care Order hearing, and then

by occupying the first full week of the hearing itself. It was only when the case came back to court on the 29th May for the

continuation of the hearing that the parents accepted the medical evidence that the injuries were non-accidental.

17. At that point, the mother, through her counsel, accepted that the injuries were non-accidental, and that her husband could have

inflicted them. The father, through his counsel accepted that the injuries were non-accidental, but did not go any further than that.

However neither offered any further information about the circumstances in which the injuries occurred. Therefore, the HSE argues, it

is impossible to ensure the children’s safety if they are left in the care of their parents, as no steps can be taken to avoid a repeat of

whatever circumstances gave rise to the injuries being inflicted on Child 1.

18. Further complicating factors are the following: firstly, a breach of the voluntary care plan agreed between the parents and the

HSE after Child 1’s discharge from hospital which occurred on 29th August 2012. The evidence is that the Team Leader accidentally

observed Child 2’s carer, alone in his car at 5.30pm, a time when he was supposed to be supervising access between the parents and

their children. An unannounced visit was made on 5th September and social workers found the mother alone in the house with both

children. She did not admit the social workers until Child 2’s carer returned, and then asked the Team Leader to lie to their boss, the

Principal Social worker, and not to tell their boss where he/she had been. This resulted in the HSE applying to the Court for an

Emergency Care Order later that day. Child 2’s career gave evidence under oath at that hearing that he had not received a phone call

from his sister, the mother, while he was out alerting him that the Social Workers were at the house. Child 2’s carer also denied this

to the social workers again on the 7th September when they called to the family home to discuss the matter. However, later that

day, the mother admitted to the social workers that she had in fact phoned Child 2’s carer while the social workers were outside the

house on the 5th. Secondly, in March 2013 a series of text messages was obtained from the Gardai, who were investigating the case.

These texts were considered by the HSE to indicate (a) that the relationship between the couple was under considerable strain prior

to Child 1’s birth; (b) strains in their relationship after Child 1’s birth, and possible manipulation of social workers; (c) additional

incidents of unsupervised access, including indications that the relative carers were complicit in same; (d) concern regarding the

couple’s interactions with each other, and with the children. The texts furnished by the Gardai, harvested during their investigation,

were a selection of text exchanges out of approximately 2,000 texts obtained by them from the phones of both parents. A relatively

small number of them are highlighted by the HSE to show the basis of their concerns above. During the hearing itself, the solicitor for

the mother provided a booklet of all the texts obtained by the Gardai. These run from 7th April 2011 to 10th October 2012. They

show overall, in spite of those highlighted by the HSE and the Forensic Clinical Psychologist, a generally normal relationship exists

between the parents. There are some sharp exchanges, some smart comments, occasional name calling to each other and in respect

of professionals involved after the HSE’s intervention, and the usual mundane, practical messages one would expect to find.

Throughout the whole series, however, there are a significant number of texts displaying affection and love, often book-ending the

exchanges referred to above, which typically ran of very short periods. In my view they do not, on the whole support the sinister

interpretation placed on them by the HSE. They do support the contention of the HSE, and the Forensic Clinical Psychologist and

Consultant Psychiatrist 1 that the parents were at times concealing the stress they were under. They also support the complicity of

the relative carers in some of the breaches of the care plan. The HSE is also concerned about the reliability and trustworthiness of

the relative carers to supervise access in accordance with the care plan and court orders. For all of the foregoing reasons, the HSE

say they cannot ensure the safety of the children if left with the parents, or the relative carers, as the trust necessary to work with

them has been fatally undermined. The parents argue that the HSE has closed its mind to any alternatives to the extreme measure of

taking the children into care, and to the possibility of reunification.

19. For similar reasons, the HSE view the change in the parents’ positions, especially that of the mother, as suspect and tactical.

Decision

20. Having considered all of the evidence, and having reviewed the medical, psychological, psychiatric and Social Work reports, and

those of the Guardian Ad Litem, I am satisfied that the threshold for the making of a Care Order pursuant to Section 18 (1) (a) of the

Child Care Act 1991 has been met in this case in so far as Child 1 is concerned.

21. With regard to Child 2, the position is more complex. Child 2 has not been physically harmed. The HSE suggests, based on the

content of some of the text messages, that he has been exposed to being shouted at by his father, and perhaps being present during

arguments between his parents. In my view, such evidence as there is goes nowhere near establishing that the threshold under

Section 18 (1) (a) of the 1991 Act has been reached. The question then arises as to whether the threshold under Section 18 (1) (c)

has been reached, i.e., whether Child 2’s “health, development or welfare is likely to be avoidably impaired or neglected, and that (the

child) requires care or protection which he is unlikely to receive unless the court makes an order under this section”. The evidence in

relation to Child 2 is that in fact he has received, and is receiving excellent care from his parents and present carer. He has been

diagnosed as autistic, and his behaviour can be very challenging for his parents/carers. However, he has made considerable progress,

and his parents have each shown a high degree of ability to manage his behaviour appropriately. They have ensured that he is

receiving all necessary intervention, including privately sourced speech therapy. They have worked well with the Early Intervention

Team, who have been very proactive in dealing with him. Physically, he is developing well, and has begun to use words and small

phrases. His parents devote considerable time during access to helping him with his speech and play skills. The only other evidence

therefore, is the evidence of the injuries to Child 1, and whether this evidence supports the view that Child 2 is therefore at risk of

harm from his parents, or either of them. The U.K. case of In re J 2013 3 All ER 1, provides some guidance in this regard. Counsel on

behalf of the mother, argues that the judgement of the U.K. Supreme Court in that case is authority for the proposition that the fact

that a finding that the mother could have inflicted the injuries on Child 1 cannot prove, on the balance of probabilities, that Child 2 is

at risk from his mother. That case, however, can be distinguished from the present case. In J., the mother had a child in an earlier

relationship, which died at three weeks old of non-accidental injuries. It was found that each parent was likely to have caused the

fatal injuries. The mother subsequently entered a relationship with a new partner, and lived with him and his two children and then

had a baby with him. The local authority brought care proceedings in respect of the three children. The Supreme Court held that

where another child had been harmed, but the child the subject of the application had not been harmed, then the fact that there was

a real possibility that the parent of the subject child had harmed the other child was not, of itself, proof of likelihood of harm to the

subject child. In the present case, however, either or both parents have been found to have caused the injuries to Child 1 and there

are no other possible perpetrators. The fact that the parents are at the present time still together, and that the children would return

to the same environment in which the injuries occurred means that the test laid down by Lady Hale in the J. case (at paragraph 49 of

her judgement on page 665) cannot but apply. Lady Hale puts it as follows:

“A finding of a real possibility that a child has suffered harm does not establish that he has. A finding of a real

possibility that the harm which a child has suffered is non-accidental does not establish that it was. A finding of a

real possibility that this parent harmed a child does not establish that she did. Only a finding that he has, it was, or

she did, as the case may be, can be sufficient to found a prediction that because it has happened in the past the

same is likely to happen in the future.”

In the present case I have found that Child 1 suffered harm, that it was non-accidental, and that either or both of his parents

harmed him. Furthermore, there are also some of the “other facts” referred to by Lady Hale at paragraphs 52 and 53 of the same

judgement. These include, in this case, the number of injuries; the fact that they were inflicted on more than one occasion; the fact

that there was concealment from and active deception of the authorities.

22. On the basis of the foregoing, I believe the threshold under Section 18 (1) (c) has been reached in the case of Child 2 also.

23. The next thing to be considered is the so called “welfare stage”, i.e., whether in the particular circumstances of this case Care

Orders should in fact be made in respect of either or both children. I now turn to the evidence on this point given by a number of the

witnesses, including in particular that of the Guardian Ad Litem (GAL). The GAL is one of the most experienced GALs practicing on the

island of Ireland and prior to becoming a full time GAL, had many years experience as a social worker, working with children in a

variety of capacities. The Gal’s final report dated 8th April 2013, and their evidence, was very clear in what the GAL felt was in the

best interests of the children. The GAL agrees that the threshold for the making of Care Orders has been reached in respect of both

children, but the GAL’s views about the duration of such orders, and the directions accompanying them are very strong.

24. The GAL points out that the HSE had in mind at an early stage of the case that this was a case where re-unification could be

achieved, and they considered using the “Resolutions Approach” (RA) as part of the process of achieving this. They subsequently

concluded that in the absence of an acceptance by the parents that the injuries to Child 1 had occurred while he was in their care

that they would seek Care Orders. As the GAL put it, the discovery of the access breach overtook matters. As we have also heard,

there were other factors which influenced the HSE in deciding to abandon the RA. The GAL described the breach as “foolhardy”,

pointing out that the parents saw themselves as doing everything required of them to gain re-integration of their family, and this was

reinforced by the Forensic Clinical Psychologist’s assessment of them as low risk. The GAL accepted that the texts were very serious

from a child protection point of view.

25. The GAL was very rigorously cross examined by Counsel for the HSE as to whether the RA was appropriate given the deceptions in

this case, and the lack of trust by the HSE in the parents and the relative carers. The GAL responded by saying that it was

understandable that the social workers would feel let down, and would react negatively on learning something of which they should

have been made aware, but that there has been a shift in this case recently, and accordingly a reduction in the risk factors. This

allows for further work to be done. The GAL said they felt it was unlikely that the mother caused the injuries. The GAL said that at

the time of the breaches the parents were getting particular messages from the HSE and the professionals, and this is no longer the

case as they have heard all the evidence – as he put it, “they have nowhere else to go”. The circumstances are now different, and

the case needs a “fresh pair of eyes”, and the RA should be used.

26. I should mention at this stage a point made by the Principal Social worker in their evidence that the father, at a meeting on the

19th September to discuss access to Child 1 who had again been admitted to hospital with an infection, became very angry. He said

to the Principal Social worker “you’re not the only one with something to lose – you’re a father – you look after your children – I’ll look

after mine.” The Principal Social worker perceived this to be a threat to him and his children, and was very concerned about it. The

father came to him the following day and apologized for his outburst, but denied making a threat against him or his children. I do not

consider what was said to be a threat, but rather a boiling over of frustration and upset in a very difficult situation by the father. The

GAL similarly felt that this incident was not of concern – people in these situations get angry. It is “part and parcel of the job”, and

he pointed out that people abuse him almost on a daily basis, but that in social work one has to become desensitised to what one

sees and hears. The GAL expressed similar views in relation to the deceptions, pointing out the social workers often feel betrayed

when they have done a lot of work with a family, and then discover a breach of trust. This can affect the way a case moves forward,

and can apply equally to parents in such cases. I refer to this because it illustrates the degree to which the parents and the social

workers relationship has deteriorated, almost to the point where the social workers have difficulty acknowledging any positive aspects

of the Respondent’s parenting.

27. The GAL strongly advocates that the RA be used in this case. The RA is an approach that has been used in the UK since 1996,

reportedly with considerable success. It is used in situations where children have suffered abuse or are deemed to be at risk of

significant harm, but where the child’s carers deny responsibility. It requires an initial assessment phase, where a number of factors

are considered: - (a) the parents must acknowledge the professionals have legitimate concerns, even if they do not agree with them;

(b) they must be willing to work in partnership with the professionals in an open and honest manner; (c) they must be willing to make

changes to care routines in order to help ensure their children’s safety; (d) they must be willing to accept a high level of professional

support and monitoring of their children’s welfare; (e) they should have a wider support network of safe extended family and friends

who are willing to be involved in helping to ensure the children’s safety; (f) factors in the parent and wider families past, such as

experience of childhood, ability to form secure attachments, previous abusive behaviour, mental health issues, drug or alcohol misuse,

may need to be examined. The HSE witnesses, and the Forensic Clinical Psychologist strongly disagreed that conditions (b) and (e)

were met in this case, but the GAL, the Consultant Clinical Psychologist (in relation to the mother), and the mother believed that they

were. Significantly, Consultant Psychiatrist 1 says in their report “the only logical conclusion from the reports is that Child 1 suffered

near fatal non accidental injuries while in the care of his parents. Until this is acknowledged by them, regardless of culpability

(emphasis added) Child 1 remains at risk.” This has now been acknowledged by the parents, since Consultant Psychiatrist 1 prepared

their report.

28. The RA is based on a series of phases, each of which must be negotiated successfully before moving on to the next. The GAL

therefore argues that the parents could fail at any of the phases, in which case the matter would have to be reviewed. In this way

he believes the children’s safety can be protected until the completion of the process. The process typically takes about six months,

with the children being returned about two thirds of the way through, under strict conditions, if the preceding phases have been

successful. In the UK, re-abuse rates where children are returned to their families range from 25% - 33%, and in some instances up

to 43%. In an admittedly small sample of cases where the RA was used, re-abuse rates were between 3% - 7%. Several articles

detailing the RA were submitted to the court, and were very helpful. The GAL had spoken to one of the pioneers of the RA, and they

would be willing to meet the family, extended family and social workers in this case. The GAL says the RA should be used in this case,

as a last resort before the children enter into care. As the GAL put it, “if it works, it works; if not, the children would have to go into

care, which would be distressing for them. If it fails, the HSE should look at a relative placement before looking at other placements.

In any event, there would have to be substantial contact between the parents and children.”

29. The GAL stressed that the risks to the children in this case, especially to Child 2, if moved to foster care are substantial. The GAL

details in their report that both children are doing well in their current placements, and that their interaction with their parents is very

positive, and the parents care and response to their needs is very appropriate. They both demonstrate an ability to calm Child 2 when

he exhibits emotional dysregulation. Both children seek comfort and reassurance from both parents. Child 1’s injuries have left him with

some disability in that he has some weakness on his left side, and may have a diagnosis of cerebral palsy, but he is making good

progress. He is meeting all his development milestones in terms of speech, play, and social behaviour.

30. The GAL highlighted the difficulties in placing children with special needs in care, and the frequency of breakdown of placements

for such children, leading to disruption of the child and long term problems associated with attachment behaviour and the child’s

sense of security.

31. The reduction in access associated with moving the children would dilute the relationship, making it more difficult to re-establish

at a later stage, and he believes it would be detrimental to the possibility of re-unification. The GAL could not agree that the children

should be placed in care until they are 18, and he does not see the sort of features in this case that would warrant it. There are more

positives in this case than negatives in terms of the children’s emotional well being. Consultant Psychiatrist 2 gave evidence that

moving the children would be a high risk strategy. A short term care order is not as disruptive for pre-verbal children as it might be for

older children.

32. It is tempting to conclude on the evidence of the mother, the GAL, Consultant Psychiatrist 2, the Consultant Clinical Psychologist

and to an extent the Forensic Clinical Psychologist, that the mother did not cause the injuries to Child 1. However, if this is indeed

the case, then she must have known about them, or the circumstances in which they arose, and has chosen to conceal that

information to this day. If she did not know, then the question is how, as a mother with close contact with Child 1 she could not have

noticed his injuries, a change in his demeanour, or his irritability on being handled over a period during which he suffered painful

fractures to ribs on both sides, and a serious brain injury, and a possible skull fracture. If she did not notice all of this, it calls into

question her competence as a mother to protect her children from harm in the future. It is worth pointing out that during the same

period, Child 1 was in hospital for three days during which he would have been handled by a number of medical staff who did not

notice anything amiss, and was also examined by the Paediatric Cardiologist on the 26th March, again handled and subjected to an

echo-cardiogram and an electro-cardiogram, and his injuries were not notice. His irritability on being handled on those occasions was

noted. In these circumstances I cannot yet be assured that the children will not be at risk if returned to her care.

33. Detailed submissions on the law were also made by all parties, which were helpful. The cases of North Western Health Board v HW

and CW [2001] 3 I.R. 622, and O. & L. v Minister for Justice [2003] 1 I.R. 1, Re J.H. an infant [1985] I.R. 375 and G. v An Bórd

Uchtála [1980] I.R. 32 were submitted to show that the constitutional presumption is that the welfare of the children is to be found

within the family, and that the State may only intervene in the most exceptional circumstances. Decisions of the European Court of

Human Rights including Hokkanen v Finland (1996), Olssen v Sweden and Johansen v Norway (1996) were cited as authority for the

Court having to assess the adequacy of the efforts for reunification, and the ongoing obligation of the State to take proactive steps

to secure reunification. The decisions in Western Health Board v K.M [2001] I.R. 279, and Eastern Health Board v. McDonnell [1999] 1

I.R. 74 show that the court may approach the Child Care Act 1991 in a “purposive manner and (it) should be construed as widely and

as liberally as fairly could be done” and that section 47 of the Act gives “overall control of children in care to the District Court.”

34. The HSE acted properly in bringing these applications, and in their handling and investigation of the case. I find however that they

have not done enough to exhaust all other alternatives to a long term Care Order.

35. I will therefore make Care Orders in respect of both Child 2 and Child 1 for a period of one year. Pursuant to Section 47 I direct

that the parties commence the Resolutions Approach. I understand there are suitable persons in Northern Ireland who can be used for

this purpose. I also direct that there shall be no change in the current placements, without further order of the Court, to allow the RA

to be fully explored. I direct a review after six months to examine the progress under the RA, and I direct that the appointment of the

GAL be continued for that purpose. In view of the foregoing, the Care Plans will have to be revised, and I direct that updated Care

Plans be presented to the Court within one month, and I will list the matter for that purpose.

36. With regard to access, the evidence shows that the very high amount of access the children, in particular Child 2, have with their

parents is extremely beneficial to their development and progress. This should continue, although there may have to be changes in

the routines as the RA proceeds. I will leave this to the parties, who have the option of returning to court if directions are needed.