District Court grants grandmother sole custody and removal of three children to Country 1 for stability.

[2013] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

ME & DQ

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 17(1)

IN THE MATTER OF CHILD 1, CHILD 2, AND CHILD 3

30 January 2013

1. There are three Applications before the Court.

2. The first is an application by the HSE for the extension of an Interim Care Order in respect of the three children.

3. The remaining two are related private law applications by the children’s grandmother, the first named respondent: firstly, for an

Order granting her sole custody of the children; and secondly, permitting her to remove the children to live with her in Country 1

which is the country of her habitual residence since 2003.

4. The children’s mother died on in July 2012. She was not married to the father of the children.

5. The second named respondent is the father of the three children who are the subject matter of these proceedings. His relationship

with their mother was tumultuous.

6. Both father and grandmother have being appointed joint guardianship of all three dependent children by consent by Order dated 31

July 2012. The father and grandmother enjoy a harmonious relationship and he is pleased that his children will enjoy a good life and

opportunities in Country 1 being raised as a sibling group as opposed to their current position whereby each child lives in separate

foster placements under an Interim HSE Order. The father consents to both private law Orders being sought by their Grandmother

provided that he has an enforceable Order for Access.

7. Both private law applications are broadly supported by the HSE, once certain assurances are provided by the grandmother

concerning the welfare of the children. Both applications are also supported by the children’s Guardian Ad Litem (“GAL”), again, once

certain assurances are given by the grandmother.

8. There is a fourth child, hereafter referred to as Child 4, who is not a party to this application. Child 4 is also in HSE care since 28

May 2012. Child 4 is the subject matter of a separate custody application by the Grandmother and a related application to move

away. Child 4’s father opposes both applications. Proceedings in respect of this child have not been consolidated with the current set

of proceedings and are therefore not before the Court at this time.

9. The applicant grandmother and the father of Child 4 are joint guardians of Child 4 by virtue of an Order under section 8 of the

Guardianship of Infants Act 1964 as amended dated 21 November 2012.

10. Child 4 was the subject matter of a Child Protection Plan following birth. The mother (deceased) and Child 4’s father agreed to

reside with Child 4’s father’s parents and avail of intense HSE support and monitoring which facilitated Child 4 remaining in their joint

care. Unfortunately, this Child Protection Plan broke down on 28 May 2012 and Child 4 was received into the Emergency Care of the

HSE under section 13 of the 1991 Act.

11. On 16 July 2012, the children’s mother suffered acute collapse. Both methadone and prescribed medication was found in her

system. She died on 22 July 2012. The circumstances of her demise have caused friction between the grandmother and Child 4’s

father and his extended family. This is relevant to the current applications before the Court insofar as sibling access is concerned.

12. The three children, the subject matter of this application, had come into the care of the HSE on three occasions between

October 2010 and June 2011 due to maternal alcohol misuse and/or inability to cope for a variety of reasons resulting in child neglect.

The HSE’s plan initially was for family reunification with the mother. However despite the mother’s love for her children and her clear

desire for family reunification with them, it was not possible for her to achieve reunification due to on-going concerns around her

lifestyle. The children exhibited behaviours associated with their experience of instability and inconsistencies. Child 1 presents with

behaviours associated with attachment problems.

13. This is a tragic and extremely difficult case notwithstanding the apparent level of harmony referred to between the parties to

these proceedings.

14. I am satisfied that the private law applications are properly before the Court and all parties consent to the admission of Court

Reports from the Psychologist and Marte Meo Therapist without further proof and fully accept the content of same.

15. I have heard the evidence of the following:

(a) the Social Work Team Leader;

(b) the applicant’s son;

(c) the applicant’s brother;

(d) the Assigned Social Worker to the three children;

(e) the applicant grandmother;

(f) the children’s father; and

(g) the GAL for all four children.

16. I have also considered the submissions from counsel for the mother in the proceedings. I note that solicitor for the HSE has noted

that while her client seeks the extension of the Interim Care Order in respect of the children that this is to facilitate the grandmother

leaving the jurisdiction to visit her newest grandchild born to her second son who also resides in Country 2. On her return to this

jurisdiction, it is proposed that she will undertake full care of all three children and move to Country 1 in February 2013.

17. The Court is required in making a decision to regard the children’s best interests as the as the first and paramount consideration

by virtue of the provisions of section 3 of the Guardianship of Infants Act 1964. Welfare is defined in section 2 of the Guardianship of

Infants Act 1964 as amended and comprises the religious and moral, intellectual, physical and social welfare of the child.

18. I have considered the Reports from the Psychologist and the Marte Meo Therapist, which address inter alia the attunement and

quality of the relationship between the children and their grandmother, the behaviours which the children present with and the

supports which the children will require.

19. I have considered the evidence of the HSE Social Workers and I am satisfied that the HSE have undertaken a full assessment

process before supporting these private law applications. They are satisfied that the maternal grandmother has attended all

professional appointments recommended by them and has adhered to all of their recommendations. She has satisfied them that she is

the best party to care for the three children during their minority. She has provided information regarding her physical health, and has

provided Country 1 police checks establishing that she is physically and morally fit to assume their full time care. She has also

provided them with evidence of the supports she propose to engage to assist her in this regard including a full-time child care worker

who is a qualified nurse with extensive experience and a history of support and engagement with her family. She has also proposed to

engage a housekeeper. She also has the support of her sons who are fortunate to enjoy good jobs and can offer her significant

material support. They are satisfied that she will procure psychological supports for Child 1 and for herself in light of the background

of Child 1’s attachment difficulties and challenging behaviours. The HSE are satisfied with the applicant’s assurances that she will fully

support the children’s access with Child 4 if that child remains in Ireland, and that she understands the importance to the children of

access with their father which she also undertakes to support.

20. I have considered the evidence of the applicant grandmother’s son, that he and/or his brother and their families propose to offer

care for the three children in the unlikely event, for whatever reason that his mother is unable to do so.

21. I have taken into consideration the evidence of the applicant’s brother that he is a six hour flight from Country 1 and that he will

assist his sister in any way required and if called upon to do so. He is confident that he can procure compassionate leave to do so

should the need arise.

22. I have considered the applicant grandmother’s evidence that she will organise her business affairs to make herself available as the

primary carer of the three children. She did not underestimate the difficulties involved in this task or the upheaval that it will cause in

her own life. She has actively sourced psychological supports especially for Child 1 and will engage in joint therapeutic work with Child

1 with the identified Psychologist. She has sourced child care help from someone with whom she has enjoyed a good and supportive

relationship with and who assisted her to care for her husband’s mother. Her nursing and other qualifications are impressive. She also

proposes to lessen her practical involvement in her business and bring in a business partner. She will in addition work as a reflexologist

within her home when the children are in school.

23. She has contacted schools and investigated after school activities. Her intention is that they will be raised religiously. She has

undertaken to bring the children to Ireland on at least one three week holiday per year every year to facilitate access with their

sibling, Child 4 (if she remains in Ireland) and the children’s father. She will facilitate access in Country 1 for both Child 4 and father. A

comprehensive Parenting Proposal has been furnished to Court. Mirror Orders will be procured in respect of the Access Plan. The

applicant grandmother is also willing to support indirect Skype access for the children with their father, sibling, and foster carers and

also indirect contact through telephone and post.

24. However, both the GAL’s report and the Social Worker’s report and evidence referred to concerns regarding the attunement

difficulties between the applicant grandmother and the children’s mother (deceased). Both reports include recommendations for the

applicant grandmother to continue to engage didactic therapeutic support with the identified Psychologist in Country 1 which will

follow on from the work undertaken by grandmother with the Psychologist which, with the natural bonds of affection between

grandmother and grandchildren, will help to overcome the inevitable difficulties that present in close family relationships. The applicant

grandmother has undertaken to continue to do this therapeutic work in Country 1 and the Psychologist in this jurisdiction will liaise

with the Psychologist in Country 1.

25. I have considered the evidence of the father who supports both applications and is content with the Access Proposals in all

respects. He also supports the HSE application for an extension of the Interim Care Order until the applicant grandmother is in a

position to assume the full time care of the three children. He is anxious that his children also have the opportunity of a real

relationship with their half sibling.

26. The GAL is also supportive of both private law applications and the extension of the Interim Care Order. She has carefully

canvassed the wishes and feelings of the children. Child 1 was ambivalent for a period and is now wholeheartedly anxious to be cared

for in a sibling group by her grandmother in Country 1. Child 2 is happy to be part of that plan but has developed an attachment with

her foster carers and therefore exhibits some signs of anxiety. Child 3 is too young to verbalise her wishes and feelings and appears to

get on well in the care of her grandmother and siblings. She is assured that the children have a very good relationship with their

grandmother and supports the arrangements proposed. I am satisfied that the GAL has carefully scrutinised the Applicant’s proposals

for custody and access in the context of a move to Country 1 and is fully satisfied in that regard.

27. I have carefully considered the tests for these applications set out in the cases of The State (Bouzagou) v Station Sergeant,

Fitzgibbon St. [1985] 1 IR 426 in which Barrington J made reference to the need to reconcile ‘the rights of individual members of the

family, when the family itself is divided’. Unfortunately, this is a divided family from the siblings’ perspective but the arrangements

proposed seek to minimise this division.

28. I have had regard to the specified and unspecified constitutional rights of the children to have custody decisions made having

regard to their welfare and to their rights under the European Charter and under the European Convention of Human Rights and I am

satisfied that having regard to the religious, moral, intellectual, and social welfare of the children that they should be in the custody

of their grandmother under a formal Order for Custody.

29. I have carefully considered the applicant grandmother’s application to remove them from the jurisdiction and in this regard I have

considered the principles set out in the cases of KB v LO’R [2009] IEHC 247, EM v AM (Unreported, High Court, 16 June 1992) and V v

U [2011] IEHC 519.

30. Each of the children has developed family and community ties in this jurisdiction with their half-sibling, their father, and their

foster carers. Their health and educational arrangements are well established in this jurisdiction also.

31. However, they are in three separate foster placements and only enjoy siblings’ access with each other and their half-sibling. The

HSE has been unable to provide a single secure family placement for all of the children.

32. The care and access proposals of the applicant grandmother have been carefully calibrated and outlined to the Court. The

children’s father supports these proposals provided his access order is enforceable. Child 4’s circumstances are quite different and she

has another group of half-siblings in this jurisdiction. The applicant grandmother’s custody and move away application in respect of

Child 4 is not before the Court at this time.

33. The applicant grandmother’s proposals are reasonable and could provide the best opportunity for the three children to grow up

together as a family group.

34. The applicant is in her early 60s and enjoys good health. It is clear from the evidenced tendered by her that she has made

realistic proposals to ensure that the children will continue to enjoy a close family relationship with their father and that they will also

have links with their maternal uncles. She proposes to shoulder the financial burden of raising the children and financially and morally

supporting their access with their father who is not employed at this time. She will assume these burdens to support their access with

Child 4 as necessary.

35. I am satisfied on the evidence that the three children, the subject matter of this application, will enjoy greater stability of lifestyle

in their grandmother’s custody in Country 1 provided always that she adheres to the access proposals outlined to the Court.

36. The father will remain a joint guardian of the children and this status and access arrangements will be assured through mirror

orders in Country 1 by consent.

37. The children should not be removed from the jurisdiction until the Care Order has expired and the Mirror Order has been ruled in

the appropriate Court in Country 1.