Court grants Supervision Order for two children but refuses Care Order, balancing welfare against family unity.

[2013] IEDC 20

AN CHUIRT DUICHE THE DISTRICT COURT

DUBLIN METROPOLITAN DISRICT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SO & PSA

RESPONDENTS

CHILD CARE ACT, 1991- SECTION 18(1) AND SECTION 24 CHILD CARE ACT, 1991 AND 23 CHILDREN ACT, 1997

IN THE MATTER OF Child 1, Child 2, Child 3 and Child 4

CHILDREN

11 December 2013

1. Before the Court is an application for a Supervision Order in respect of Child 1 and Child 2 and an Application for a Care Order in

respect of Child 3 and Child 4.

2. An application for a Care Order in respect of Child 1 and Child 2 was withdrawn on the first day of hearing and counsel for the

mother and the Guardian Ad Litem (GAL) accepted short service of the application for a Supervision Order. The substitution of the

Supervision Order application in lieu of the Care Order application was expressed to be with the reluctant consent of the children’s

GAL at the first day of the hearing. The Report of the GAL to the Court sets out her rationale grounding this position and she urged

the HSE to present to the court their protection plan and the proposed support package for Child 1 and Child 2 as a priority.

3. The Guardian through her counsel withdrew her consent to the withdrawal of the Care Order proceedings and withdrew her

reluctant support for the application for a Supervision Order on the third day of the hearing.

4. The Court was further informed by counsel for the GAL that it was intended to move an Application under Section 23 of the

Children Act, 1997 at this point with a view to the GAL referencing hearsay statements of the children made to her at various times,

so that such statements could be considered evidentially.

5. The only application before this Court, at this time, is an application for a Supervision Order in respect of both children, namely

Child 1 and Child 2. As noted above the Care Order application was withdrawn by the HSE on the first day of this hearing, and a

Supervision Order was substituted on consent of all parties, at that time.

6. The role of the Court and the role of the GAL and the issue of hearsay evidence and Section 23 of the 1997 Act were issues which

the Court was requested to rule on 6 November 2013. The Court did so and provided a reasoned decision to all parties to the

proceedings. That decision has not been appealed or reviewed by a Higher Court. On the first day of this hearing, the Court was

informed that neither the HSE nor the GAL would pursue an application to admit hearsay statements made by the children to the

Guardian as evidence for the purposes of these proceedings. However a renewed application by counsel for the GAL to pursue a

Section 23 Application with a view to admitting sundry hearsay statements made by the children to the Guardian going back to 2012

was made at a very late stage in the proceedings. I did not consider that the renewal of an application of this nature at so late a

stage in the proceedings was consistent with the proper administration of justice or in the best interests of the children and therefore

proceeded to determine that matter on the evidence before the Court. I was also aware that the children were very anxious that the

proceedings would be determined as expeditiously as possible so that they knew what was going to happen for them. They were

aware of the listing of the proceedings and wanted an outcome to the process.

7. The GAL has brought the strong views of both Child 1 and Child 2 to the Court. These views are that they want nothing further to

do with the HSE, that they will not cooperate with services provided by the HSE and that they wish to be returned to the care of

their mother forthwith. The Guardian also expressed the view in her Report and in her oral evidence that the ages and level of

maturity of these children requires serious consideration to their views.

8. The Guardian Ad Litem through her counsel, and in evidence, expressed her intention to withdraw her support for the application

for the Supervision Order by the HSE. She affirmed her strong belief that Child 1 and Child 2’s emotional welfare is not well served by

their return to the care of their mother; where in her view their needs will not be met. She also wishes to disassociate herself with

any decision which would see their return to the care of their mother at this time.

9. There is also before the Court an application for a Care Order in respect of two other children of the family, namely Child 3 and

Child 4. The HSE seek a Care Order in respect of these two children until they reach the age of eighteen years. The GAL has

expressed her support for the making of such an Order and also brought to Court the strong views of both of these children that they

do not wish the Order to be made and wish to return to the care of their mother forthwith and to be reunited with their other siblings.

10. The ages of the children in this case are both important and relevant, Child 1 is aged 17 years (D.O.B. 23/08/1996), Child 2 is

aged 16 years (D.O.B. 28/07/1997), Child 3 is aged 15 years (D.O.B. 22/09/1998), and Child 4 is aged 13 years (D.O.B. 19/02/2000).

11. The Court appointed a Guardian Ad Litem to represent their wishes and views to the Court on 02/02/12 and the GAL has done so

at all stages of these proceedings. Their expressed views have never changed. They wish to return to the care of their mother and

they resent the intrusion of the HSE in their lives which they deem to be both unfair and unwarranted.

12. Three of the children also expressed very firm views directly to the Court having requested an opportunity to speak to the Judge

hearing this case directly. The fourth child expressed her views in writing in largely similar terms. It must be said that these are very

charming children who presented as articulate, well mannered, polite and courteous. They were very interested in expressing their

views. They presented with very different personalities as mirrored in the Social Work and Guardian Ad Litem Reports to Court. It

must be acknowledged also that every effort has been made by the Social Workers and the Guardian to make a real and substantial

connection with these children but the children have resisted it. Despite professional best efforts no connection has been made.

13. The Guardian has expressed a consistent professional opinion that the children have been neglected and subjected to emotional

abuse and their need will not be met by their mother, although it is acknowledged that this mother is intelligent and hardworking.

There is absolutely no substance misuse or other negative issues in this case other than the issue of neglect and emotional abuse and

an allegation of ‘abandonment’.

14. It is also relevant that the family in this case are of non-European origin having come to this country in or about 2000 with a

different culture, values and belief system. In that period these children have moved country and their father has died. They became

a melded family unit when their mother remarried and four younger children were born to her and her new husband, from whom she is

estranged since 2012.

15. The HSE have provided comprehensive Booklets in this complex case. The Court also has received the proposed “Finding of Fact”

document from both the HSE and counsel for the mother. The core matters at issue relate to persistent concerns of neglect in

respect of Child 1, Child 2, Child 3 and Child 4 since August 2004; it was alleged that they were left unsupervised without an

appropriate adult caring for them at times, there was poor hygiene and housing conditions and there are historical concerns that the

children were inappropriately dressed and had unpleasant odours. The older children particularly Child 1 and Child 2 were allowed to

assume parenting responsibilities in respect of the younger siblings. It is also asserted that the children have developed a pattern of

parenting their mother so that they meet her emotional needs rather than she meeting their age appropriate emotional needs.

16. Considerable supports were offered and provided by the HSE to remediate this situation but with little success in achieving

sustained improvement.

17. The four children were nonetheless residing with their mother until she left the jurisdiction with the younger four children last

year. The catalyst for the children coming into the care of the HSE was that the mother left the jurisdiction with the four younger

children. She left the children the subject matter of these proceedings with the “live in” carer, who was a national of the same

country as the family are originally from, to cook and keep house for them in her absence. This carer was undertaking this task for

some time beforehand as the mother had previously returned to work. The carer was therefore known to both the mother and the

children, although not for an extended period, and her presence in the house was also known to the HSE.

18. The HSE were unaware that the mother was leaving the jurisdiction. They were alarmed that she took with her four of the

younger children who were subject to a Supervision Order and in respect of whom Interim Care proceedings were pending before the

Court. For her part the mother has stated that she left with the children to return to her native country because of the deterioration

in the health of her mother; who had cancer and who has since died. In her evidence she explained that her son was hyperactive and

it would be very difficult to care for him had she left him in the house. There is ‘confusion’, to put it mildly, and a conflict of evidence

as to who was told that she was going to Africa. All that is clear is that the HSE did not know that she was going. I think it is fair to

say at this stage that it is conceded that Child 1 certainly knew that she was going although not the other children.

19. The HSE ask the Court to make a finding of “abandonment” by the mother by virtue of the unsuitability of this care arrangement.

On questioning by the HSE the carer refused to take parental responsibility for the children and so the children were received into HSE

care not having a parent or legal guardian in the jurisdiction.

20. Two of the children were placed in a residential unit in a city and two were placed in a culturally appropriate foster placement

some considerable distance away from their older two siblings. It is understandable why the latter placement had been employed

because it was culturally appropriate and had been employed at an earlier stage by the HSE in respect of the younger children of the

family. The family were known to the foster carers in question.

21. The HSE formed the professional opinion in April and May 2013 that it would be in the long term interests of Child 1 and Child 2 to

return to their mother under a Supervision Order, and that all going well with the level of care and the level of cooperation by the

mother that Child 3 and Child 4 would return to her care under a Supervision Order thereafter. Unfortunately the mother refused to

engage with such a plan and demanded that the HSE return all four of her children to her care. No other arrangement was negotiable

from the perspective of the mother.

22. Extensive evidence was heard over three days from:

• A Garda;

• The Youth Advocate Programme Advocate;

• The Social Work Team Leader;

• Social Worker No.1;

• Social Worker No.2;

• The Guardian Ad Litem; and

• The mother.

23. I have also directly heard the views of three of the children and the fourth child has written to me expressing the strong desire to

be returned to the care of her mother and the company of her siblings. The children have expressed great resentment about their

current position. They do not accept the concerns of the HSE regarding the care arrangements for them put in place by their mother

which would have kept them together as a sibling group during her temporary absence from this jurisdiction. Child 1 and Child 2 are

absolutely unwilling to engage in any services offered or suggested to them by the HSE or the GAL. They refuse to co-operate or

trust any body associated with the HSE. Even when the HSE recommended to them that they engage with services that have no

connection with the HSE, such as EPIC (Empowering People in Care), because it was suggested by the HSE it is discounted by them.

They equally mistrust the Residential Unit and the GAL. Child 3 also expressed distrust of the HSE and the GAL, s/he expressed deep

unhappiness with their school where s/he stated s/he has only one friend, not living close by, and s/he was firm that s/he also

wanted to move placement. The correspondence from Child 4 was in broadly similar terms. Though the children presented at the

meeting with me as having very different personalities, which was obvious even on a brief meeting, they were clear and expressed the

view that insufficient regard has been had on the value to them of their sibling bond and the comfort they receive by each other’s

company. The expressed the view that their non-European culture, sense of religion and inherent respect of their mother has not

been given adequate value by either the HSE or the GAL. It is clear that they are deeply rooted in their native culture. They express

the view that they are not open to the possibility of things improving through mutual cooperation.

24. I am satisfied on the evidence adduced that in respect of Child 1 and Child 2, both Child 1 and Child 2 have been neglected in the

care of their mother by being left without suitable adult supervision and ‘left alone’ on sundry occasions since 2005. I am also satisfied

on the evidence that the families housing conditions were both unsuitable and unhygienic at various times. I also accept that

although the mother has expressed that school and education are a priority for her children, that both Child 1 and Child 2 missed

school on an unacceptable number of times while residing with her. I accept that she has given explanations as to the reasons for

such absences but I accept the absences on the basis of the evidence I have heard. I accept also that Child 2 was given

responsibility for delivering and collecting her younger siblings to and from school making her late, or as being marked absent from

school on occasion, when in fact she might have been late rather than absent. It must also be accepted however that Child 1 and

Child 2 have equally missed an unacceptable amount of school since coming into the care of the HSE; in fact Child 1 has dropped out

of school to a large extent, which is very sad. It is noteworthy that Child 1 will not accept the encouragement of her mother to

return to school.

25. I do not accept that the mother has ‘abandoned’ her children in the legal sense, although I accept the validity of many of the

HSE’s concerns regarding the care arrangements put in place for the four children. I do not feel that ‘abandonment’ is the appropriate

description for what happened in this case.

26. Looking at the position of Child 1 and Child 2, first of all before making an Order under Section 19, the Court must be satisfied that

and it is desirable that the child be visited periodically by or on behalf of the health board. The dilemma in this situation is that both

Child 1 and Child 2 are implacably hostile to the HSE Social Workers. No blame can be attributed to individual social workers in this

context. They bitterly resent the interventions of the HSE and have expressed the strong wish to return, with their siblings, to the

care of their mother. They do not wish to engage further with the Court appointed GAL either; whom I equally accept has at all

stages tried to make links with them as Guardian and always articulated their wishes and views to the court, as well as her contrary

view as to their welfare. This was a very difficult role for the Guardian to have to discharge. But the Court must also consider the

effectiveness of any Order made. It must be stated that it has not been possible for the social workers to visit Child 1 and Child 2 in

recent times due to inappropriate threats made to them by Child 1 and Child 2. It must be emphasised that Child 1 is seventeen and

Child 2 is sixteen years of age. The HSE and the GAL remain concerned of the high risk that each child will assume, and be allowed to

assume, an adult role if reunified with their mother and that their needs will not be met. It is equally conceded by the HSE and the

GAL that while the emotional needs of Child 1 and Child 2 are unlikely to be met if they return home; the risks of them remaining in

care, where at this point they are unwilling to engage on any level, must be balanced with their strong desire and voiced need to be

with their mother, and their views (having regard to their chronological age and level of maturity) that they are capable of their own

care and self-care. The making of a Supervision Order is however unlikely to be effective given the firm views they have expressed to

the HSE, the GAL and the Court. One can but wonder whether all of this would have worked out different if all four children could

have been kept together as an adolescent sibling group.

27. In the circumstances I decline to make a Supervision Order, at this time, in respect of Child 1 and Child 2 as it would achieve no

real purpose.

28. I am satisfied on the evidence adduced, in respect of Child 3 and Child 4, that they have also been neglected whilst in the care of

their mother; by being left without suitable adult supervision and ‘left alone’ on sundry occasions since 2005. I am also satisfied on

the evidence that at various times the families housing conditions were both unsuitable and unhygienic. I am also satisfied that they

have at times assumed adult roles.

29. On an educational front, Child 3 is very different. S/he is very interested in his/her education; s/he is doing well in school and has

always done well in school. Child 3 expressed the views to the Court that s/he is less motivated now as no one will listen to her. S/he

finds the current school environment alien and of a lesser standard than his/her previous school. Child 3 very much wants to change

school and if s/he is not allowed home, which s/he very much wants, s/he wants to change her placement to the city and believes

that this was discussed with him/her previously by both the HSE and the Guardian. Child 3 expressed their emotional closeness to

their siblings. Child 3 is a respectful young adult and wishes to attain a good professional career and wants the respect of his/her

native community. S/he appeared to have an acute insight into cultural differences and nuances. Child 3 wishes to return to his/her

mother and siblings and does not believe sufficient regard has been had to his/her expressed views and values. S/he does not wish to

have a GAL. Child 3 is fifteen years old and the Court must have regard to his/her views (in the context of his/her chronological age

and level of maturity) as well his/her welfare. Though the Guardian and the HSE have contrary views as to his/her welfare, the GAL in

particular has discharged a difficult role in articulating his/her strong views and her own professional view which runs contrary to Child

3’s view.

30. Child 4 is thirteen. The GAL noted that she herself is the mother of a fourteen year old and noted that a child of that age needs a

lot of emotional warmth, support and reassurance. She is deeply concerned that this will not be available to either Child 3 or Child 4 if

they return to their mother’s care. If returned she apprehends that the children will be expected to raise themselves and that there

may not be a mother at home to meet and greet them when they come home from schools, or affirm them, or validate them, or

support them. At this time these two children are in a culturally appropriate placement where all their physical needs are met. Their

carer is jolly and affirms them and advocates for their needs.

31. Both Child 3 and Child 4 express the strong desire to return to their mother’s care to live with their siblings. They hope the whole

family will eventually be reunited and they also underline their hope that the HSE will exit their lives.

32. The new housing arrangements outlined by the mother in her evidence seem basic, but the mother also proposes to work part

time and to try and accommodate her work with her parenting role. She is however the sole breadwinner for the family and apart from

child benefit receives no support. She wishes all of her children to be returned to her care. For her, their education and getting on

well in life is a priority and she will prioritise this if they are returned to her care.

33. Having expressed the view that I am satisfied that both Child 3 and Child 4 have been neglected and have suffered emotional

harm; they do not see it that way. They feel that the HSE has disrespected their mother who is the family breadwinner, a mother

who loves them, and that insufficient value has been placed on the family’s native culture and family solidarity. They are aged

thirteen and fifteen and their views must also be taken into account by the Court in this decision which deeply affects their lives.

34. The decision for the court is a profoundly anxious one and, as I now accept, a finely balanced decision. There is no ‘perfect’

family arrangement. The HSE have acknowledged this in their risk assessment and professional decisions undertaken in April and May

of this year. Had the mother co-operated with those proposals all four children would be with her now. Her failure to cooperate may

seem inexplicable, however due regard must also be had to the cultural differences present in this case from the outset. It is very

unfortunate that a cultural mediator was not included in the dialogue around all of this in April and May.

35. The HSE and the GAL may regard a decision to move Child 3 and Child 4 as being too bold and inappropriately risky. The mother

and Child 3 and Child 4 may regard a decision not to move them as failing to grasp a nettle and ignoring their expressed wishes. I

have taken time to reflect on my decision. Having reflected I have come to the conclusion that although the threshold of Section 18

has been triggered in respect of Child 3 and Child 4; it is in the interests of their long term welfare for them both to live with their

mother and two older siblings as a family unit.

36. I do not believe that a Care Order until they are eighteen years would be in their long term welfare and it would not be a

proportionate intervention to remediate the neglect and abuse which they have suffered. Though their basic needs are being met in

their current placement they are now of sufficient age to meet their basic physical needs and are acknowledged to have good self

care skills. They have expressed a profound sadness; they feel the loss of family unity. Child 3 expressed his/her concern that no

value or insufficient value has been placed on this in the balancing process undertaken by the HSE and the Guardian in their decisions.

I refuse the application for a Care Order in respect of either of them.

37. I believe however that it is desirable as envisaged by Section 18(5) of the 1991 Act that Child 3 and Child 4 should be visited

periodically in their home by or on behalf of the HSE, accordingly I make a Supervision Order under Section 19 of the 1991 Act in

respect of both Children for a period of one year. I believe that both Child 3 and Child 4 are not irretrievably implacably hostile to the

HSE as their older siblings are. I believe that their hostility may be overcome with the assistance of a cultural mediator. I also believe

that it is in their interests to be visited so that the HSE can discharge their obligations under Section 16 of the Act in light of the

history of the case and the evidence adduced in the case.

38. I discharge the GAL noting that she has at all times endeavoured to discharge the task allocated to her by the Court in respect of

these four children to the best of her professional ability.

39. I adjourn the Supervision Order having made it to January 2014 to consider what directions if any are sought in respect of the

Supervision Order under Section 19(4).

40. I will consider an application to join Child 3 and Child 4 as parties to the Supervision Order proceedings and appoint a solicitor for

them pursuant to Section 25 of the 1991 Act at that time.

41. I adjourn the costs application to the same date.

District Court Judge.