District Court allows parent's access order under Child Care Act 1991 s.37 but dismisses psychologist appointment request.

[2013] IEDC 17

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANTS

- AND –

CM

RESPONDENT

CHILD CARE ACT, 1991 - SECTION 37

IN THE MATTER OF A CHILD

23 October 2013

1. This is an application under S.37 of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) by an incarcerated parent

regarding access to a child in the care of the HSE and an application by the parent under S.47 of the said Act for the appointment of

an independent psychologist to undertake an assessment in respect of a Child (aged 7).

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

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

to the Court the child’s wishes and feelings regarding access.

4. The child is in the care of Health Service Executive (HSE) under S.18 (1) of the 1991 Act, a Care Order was granted on the 4 May

2007 and the child was placed with HSE Approved Foster Carers.

5. The child initially enjoyed twice weekly access with the parent in Prison and this access was consensually reduced to once per

week in 2009 to meet the evolving needs of the child. In July 2013 access between the parent and the child was reduced to once a

fortnight and the parent objects to the manner in which this reduction was implemented and seeks to increase the number of access.

6. The parent gave evidence of a warm and loving relationship with the child, and total satisfaction with the care of the child in the

foster placement. The parent also expressed concern and dispute about the process whereby access was reduced to once per

fortnight, the parent was concerned that the case remained unallocated to a social worker for a period. Prior to the reduction in

access the parent had been told by the previous social worker that telephone contact with the child would be available, this was

confirmed by letter. However, the Social Work team Leader raised objections when the parent tried to contact the child as directed

by the letter and the parent has since not been allowed telephone access with the child.

7. The parent also outlined in evidence that around 50 scheduled access visits were missed in a 20 month period and some visits were

cut short. Prior notice was not provided nor was there a formal explanation as to why a visit was cancelled. Missed visits were not

made up for. It was the parent understands that access visits were to be provided for two hours. The parent also outlined a desire

for additional access for celebrations held for parents and their children in the prison, including graduation for junior and leaving

certificates, summer schools and Christmas and Easter parties. Such additional unscheduled access was refused without reason. The

parent sought access once per week for two hours in addition to telephone and postal access and access on special occasions. The

parent wished to be consulted and informed of decision made concerning the child and to receive the child’s school reports. The

parent objected to the manner in which the child was informed about the parent’s incarceration, shortly before a scheduled access

visit.

8. The Social Work Team Leader outlined in evidence the rationale grounding the HSE decision to reduce access. The issue of access

was discussed in a Child in Care Statutory Meeting held in the Prison in March 2013 to facilitate the parent but the issue did not

present at that time. The child’s foster mother then raised concerns about the child’s presentation after access and stated that the

child was asking questions about why the parent was in prison, and also asking questions relating to the other parental identity. The

persistence of questions on these topics was a cause of professional concern and reduced access was part of the strategy to

address these concerns. A subsequent strategy meeting involving all those with a professional involvement in the case held in July

2013. This meeting was attended by the Family Support Worker, the Psychologist, the Access Worker and the Team Leader and the

Foster Carer’s daughter who plays a role in the child’s life. The meeting determined that parent and child access should be reduced

from once per week to once per fortnight. The decision and the rational for the decision were subsequently explained to the parent.

Preserving the child’s relationship with the current foster carers was a primary concern in the decision making process. It was

conceded that a significant number of access visits had been cancelled.

9. The Clinical Educational Psychologist evidenced that her role was advisory only. She advised the HSE regarding the management of

the case, as she also advised the HSE in the cases of two other unrelated foster children in the household. She did not meet with this

child and did not observe access; she did not meet or advise the parent in prison. She attended Statutory Meetings regarding the

child in an advisory capacity. She advised the HSE to provide play therapy to address the child’s presenting distress, and this has

now had the desired effect. The purpose of access in her opinion was secondary to the child’s security in the foster placement.

10. The GAL stated that the child loves the parent and looks forward to seeing the parent each week. The child’s express wishes

were to see the parent every day. The GAL said that there was no issue with regard to the quality of the relationship between parent

and child or the nature of the visits between parent and child which was one of the nicest relationships observed and the quality of

an observed access visit was excellent. He noted that the parent needs to be supported psychologically in taking parental decisions

which may seem counterintuitive to a parent.

11. The GAL concluded that the decision to reduce access was taken as a delayed reaction to the child’s age appropriate questions.

A Report which was procured from the play therapist was not considered before the decision was made to reduce access. The GAL

noted that there were gaps in the files which did not contain minutes from multi-disciplinary meetings, and there was no documented

evidence of due process engaged in to reduce parent/child access.

12. The GAL expressed the professional opinion that access once per fortnight would now seem appropriate as increasing access at

this time could confuse the child further. The GAL supported telephone access and allowing the parent to send cards etc by post.

The GAL also supported the additional access for special occasions, birthdays and so forth and this access should not be in lieu of

regular access visits but in addition to regular access visits. The GAL was not supportive of a Direction under Section 47 for a

psychiatric assessment of the child as this was not necessary or in the welfare of the child at this time.

DECISION

13. I have heard the evidence of:

• The parent;

• The Social Worker Team Leader and

• The Clinical Educational Psychologist

14. I have also heard the evidence of the GAL that the access regime now is once a fortnight and is working well. I am guided by

Section 24 of the Child Care Act, 1991 in determining this matter.

15. The process by which this was achieved lacked proper process having regard to the due process requirements of the HSE itself.

Minutes of decision making meetings were not kept. The wishes and feelings of the child in an age appropriate manner were not

canvassed in advance. The therapeutic intervention was not assessed before the decision was taken to reduce access.

A. Having heard the evidence set out above, and having taken into account the views, interests and wishes of the

child, indirectly expressed to the Court through the GAL I am satisfied that access should be once per fortnight.

B. However, there should be additional in-direct access on the alternate week when there is no planned access visit

between parent and child.

C. Additional Access should be made available at Christmas, Easter and birthdays (including the parent’s birthday

and the child’s birthday). There should also be additional access for special events such as graduations etc which

support the child’s esteem of the parent.

D. Psychological services must be made available to the parent through an appropriate source to facilitate the

parent’s engagement in all child decision making processes, and supporting the parent and child relationship in the

best interests of the child

E. The HSE social work department to engage with the probation and welfare service to identify appropriate

services for the parent as parent, and outline the nature of the service, the identity of the service provider the

date of commencement.

F. In the event that an appropriate service is not identified within a reasonable period the parent may bring

application to Court under S.47 of the 1991 Act.

G. Indirect Access to be made available by telephone. It is noted that this was assured to the mother in writing but

was not then facilitated. The parent is also to be facilitated in sending cards etc by post to the social work

department for the child. The cards to be transmitted by the social work department to the child forthwith unless

the content is deemed not to be in the best interests of the child.

H. Precise Access times, dates and conditions to be defined within a formal Order under Section 37

I. Access should not be reduced beyond its current state without prior application to the court and in the event

that case is re-entered before the Court the GAL shall be re-appointed.

J. Regarding the S.47 application of the 1991 Act seeking an order that the HSE engage the services of an

independent child psychologist in respect of the child I am adjourning that application generally with liberty to re-

enter as it is not merited in the interests of the child at this time.

K. If the Guardian is no longer in practice the HSE is to bring an application to Court under Section 23 of the 1991

Act to appoint a Guardian and the Guardian ad Litem is to be provided with all social work reports and have access

to files for the purposes of points a re-entry pursuant to these directions at least six weeks before the date of re-

entry.

L. The GAL is to remain appointed in the case until such a time as the access order is drawn and agreed and the

child is given an age appropriate explanation as to what this judge has ordered, in a broad outline, and thereafter

the GAL is to be discharge with the usual order as to costs to follow.